ELR Citation: ELR 20888
No(s). 79-6202 (2d Cir. Aug 24, 1981)

The Second Circuit Court of Appeals affirms the district court's dismissal, 8 ELR 20438, of appellants' claim that the burning of high-sulfur oil at a New York generating station constitutes a nuisance under federal common law. In light of Supreme Court precedent holding that the federal common law of nuisance has been preempted by federal legislation in the area of water pollution, the court concludes similarly that federal common law cannot be applied to facilities which are regulated under the Clean Air Act. Since the emissions complained of are specifically authorized under a variance for the facility approved by the Environmental Protection Agency, it would be violative of congressional intent and beyond the scope of the judicial function for the courts to declare such emissions illegal. In addition, the court affirms the dismissal of appellants' claim on the alternate ground that appellants improperly failed to seek timely review of the variance pursuant to §307 of the Act.

Counsel for Appellants
Wayne S. Henderson
Connecticut Business and Industry Ass'n
60 Washington St., Hartford CT 06106
(203) 547-1661

Robert F. Brooks, W. Taylor Revely, Robert M. Rolfe
Hunton & Williams
P.O. Box 1535, Richmond VA 23212
(804) 788-8400

Counsel for Appellee
Mary L. Lyndon, Marcia J. Cleveland; Shirley A. Siegel, Solicitor General; Robert A. Abrams, Attorney General
Two World Trade Center, New York, NY 10047
(212) 488-3320

Before Timbers, Kearse, and Werker,^* JJ.