ELR Citation: ELR 20459
No(s). 79-514 (D.N.J. Feb 11, 1982)

The court rules that the Clean Air Act preempts the federal common law of nuisance as it applies to air pollution emanating from a hazardous waste disposal site. The court first notes that the federal common law of nuisance is supplanted where Congress speaks directly to a question. Although the Clean Air Act is similar to the Federal Water Pollution Control Act, which the Supreme Court has held to preempt the federal common law of nuisance for water pollution, the two statutes are sufficiently different that the similarity is not dispositive. However, the court notes that the preemptive effect of a federal statute is not limited to issues where application of common law might produce a result in conflict with the statutory scheme, as where it would require effluent limitations stricter than those prescribed by statute. Applicable case law indicates that where the scope of the statute is such that it addresses a problem otherwise governed by federal common law, the common law is preempted as to the entire problem. Because the Clean Air Act establishes a comprehensive clean air regulatory program, there is no need for federal common law. The court grants defendants' motion for summary judgment and dismisses plaintiff's claim for damages for air pollution.

Counsel for Plaintiff
W. Hunt Dumont, U.S. Attorney; A. Patrick Nucciarone
970 Broad St., Newark NJ 07102
(201) 645-2155

Counsel for Defendants
Benjamin Weiner, Harriet Derman
Weiner & Hendler
303 George St., New Brunswick NJ 08903
(201) 846-3100

Dennis M. Reznick
Budd, Larner, Kent, Gross, Picillo & Rosenbaum
33 Washington St., Newark NJ 07102
(201) 622-7400

Edward J. Egan
1703 E. 2d St., Scotch Plains NJ 07076