805 F.3d 695
6th Cir.2015Background
- Plaintiffs living near Louisville Gas & Electric’s (LGE) Cane Run power plant alleged recurring dust/coal-ash deposition beginning in 2008, containing hazardous elements, and asserted nuisance, trespass, negligence (state-law) and federal CAA/RCRA claims.
- Louisville’s Air Pollution Control District investigated and issued multiple Notices of Violation; an Agreed Board Order (ABO) required a Plant‑Wide Odor, Fugitive Dust, and Maintenance Emissions Control Plan, which the Board found reasonable.
- Plaintiffs served a Notice of Intent to Sue and filed suit >90 days later alleging RCRA and Clean Air Act violations plus state-law tort claims; the complaint contained nine counts.
- The district court dismissed most federal claims but allowed the Clean Air Act permit claim to proceed and denied defendants’ motion to dismiss the state-law nuisance/trespass/negligence claims as preempted by the CAA.
- Defendants sought interlocutory review under 28 U.S.C. § 1292(b) of the denial of preemption; the panel granted leave to appeal that certified issue.
- Plaintiffs attempted (in briefs) to challenge the district court’s dismissal of other federal claims, but did not cross-petition for interlocutory review of those orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CAA preempts plaintiffs’ state-law nuisance, trespass, and negligence claims | State common-law claims may proceed despite federal regulation; local remedies not preempted | CAA occupies the field and preempts parallel state tort claims against regulated sources | CAA does not preempt these state common-law claims (affirmed under companion Merrick decision) |
| Whether this court may review additional district-court orders in the same written opinion that dismissed plaintiffs’ federal claims without separate certification under § 1292(b) | Plaintiffs sought review of dismissal of federal claims in the interlocutory appeal | Defendants argued § 1292(b) jurisdiction is limited to the certified order only | Court lacks jurisdiction to review unrelated, uncertified orders; appellate review confined to the certified order |
| Scope of “order” under § 1292(b) | (implicit) A district court opinion containing multiple rulings can be appealed in full if labeled an Order | § 1292(b) permits interlocutory appeal only of the specific district-court direction/command certified | “Order” means the specific direction/command certified; separate rulings require separate certification (or cross‑petition) |
| Proper procedure for appealing multiple interlocutory rulings | Plaintiffs argued the motions panel’s language permitting briefing on issues in the district court opinion allowed broader review | Defendants emphasized need for cross-petition and orderly sequencing of briefing under appellate rules | Appellate review requires district-court certification of each distinct order (or a cross-petition); permitting broader reading would undermine procedural order and party rights |
Key Cases Cited
- Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996) (appellate review under § 1292(b) may include additional legal questions that are "pivotal" to the certified order)
- Homeland Stores, Inc. v. Resolution Trust Corp., 17 F.3d 1269 (10th Cir. 1994) (declining to review uncertified issues discussed in same order)
- FDIC v. Dye, 642 F.2d 833 (5th Cir. 1981) (refusing to accept uncertified rulings bundled in a single order for § 1292(b) appeal)
- Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681 (9th Cir. 2011) (discussing procedural sequencing and briefing rights in cross-appeals)