Lаurie FREEMAN, Sharon Mockmore, Beccy Boysel, Gary D. Boysel, Linda L. Goreham, Gary R. Goreham, Kelcey Brackett, and Bobbie Lynn Weatherman, Appellants, v. GRAIN PROCESSING CORPORATION, Appellee.
No. 13-0723
Supreme Court of Iowa
June 13, 2014
APPEL, Justice.
Michael R. Reck, Mark McCormick, Charles F. Becker, Kelsey J. Knowles of Belin McCormick, P.C., Des Moines, Steven J. Havercamp and Eric M. Knoernschild of Stanley, Lande & Hunter, P.C., Muscatine, Joshua B. Frank and Charles A. Loughlin of Baker Botts L.L.P., Washington, D.C., for appellee.
Joshua T. Mandelbaum, Des Moines, and Howard A. Learner, Chicago, Illinois, for amici curiae Environmental Law & Policy Center and Iowa Environmental Council.
Ronald A. May of Gomez, May LLP, Davenport, James L. Huffman, Portland, Oregon, Scott A. Shepard, Chicago, Illinois, Roger E. Meiners, Arlington, Texas, and Andrew Morriss, Tuscaloosa, Alabama, for amicus curiae Property and Environment Research Center.
Sarah E. Crane of Davis Brown Law Firm, Des Moines, and Richard O. Faulk of Hollingsworth LLP, Washington, D.C., for amici curiae National Association of Manufacturers, Council of Industrial Boiler Owners, National Shooting Sports Foundation, Inc., National Mining Association, Nuclear Energy Institutе, Inc., and Textile Rental Services Association of America.
I. Factual and Procedural Background.
The eight individually named plaintiffs all reside within one and one-half miles of GPC‘s facility in Muscatine. They seek to represent a class described as follows: “All Muscatine residents (other than Defendant and its affiliates, parents, or subsidiaries) who have resided during the damages period within 1.5 [miles] of the perimeter of Defendant‘s facility located at 1600 Oregon St., Muscatine, Muscatine County, Iowa.”
The residents claim wet milling operations at GPC‘s facility cause harmful pollutants and noxious odors to invade their land, thereby diminishing the full use and enjoyment of their properties. They base their claims on common law and statutory nuisance as well as the common law torts of trespass and negligence. The residents seek certification of the lawsuit as a class action, damages for the lost use and enjoyment of their properties, punitive damages, and injunctive relief.
According to the petition, GPC conducts corn wet milling operations at its Muscatine facility. The plaintiffs assert wet milling is a production method and process action, damages that transforms corn kernels into products for commercial and industrial use. The plaintiffs allege the сorn wet milling operation at GPC‘s facility creates hazardous by-products and harmful chemicals, many of which are released directly into the atmosphere. The plaintiffs allege these by-products include: particulate matter, volatile organic compounds including acetaldehyde and other aldehydes, sulfur dioxide, starch, and hydrochloric acid. They assert the polluting chemicals and particles are blown from the facility onto nearby properties. They note particulate matter is visible on properties, yards, and grounds and various chemical pollutants are also present. Compounding these adverse effects, according to the plaintiffs, GPC has used, continues to use, and has failed to replace its worn and outdated technology with available technology that would eliminate or drastically reduce the pollution. The plaintiffs assert these emissions have caused them to suffer persistent irritations, discomforts, annoyances, inconveniences, and put them at risk for serious health effects.
Prior to class certification, GPC moved for summary judgment. First, GPC claimed the CAA‘s comprehensive regulatory framework preempted the plaintiffs’ causes of action. Second, GPC claimed Iowa Code chapter 455B, which regulates emissions, preempted the plaintiffs’ claims. Finally, GPC asserted the case presented a nonjusticiable political question because a lawsuit involving facility emissions lacks judicially discoverable and manageable standards for resolving the issues.
The district court granted summary judgment in favor of GPC on all three theories and dismissed the lawsuit. The residents appeal. For the reasons expressed below, we reverse the judgment of the district court and remand the case for further proceedings.
Resisting the motion for summary judgment, the plaintiffs emphasized that under the CAA, states are allowed to impose stricter standards than those imposed by federal law. The plaintiffs noted nothing in the language of Iowa Code chapter 455B repealed chapter 657 related to nuisance claims and, in any event, their common law claims were not inconsistent or irreconcilable with chapter 455B. Finally, the plaintiffs asserted courts routinely hear complex nuisance, negligence, and trespass cases and, as a result, there was no basis in the federal political question doctrine to decline to hear the case.
The district court first considered whether the CAA preempted the plaintiffs’ claims and concluded the CAA established a comprehensive regulatory scheme that preempted state law. In reaching this result, the district court noted that in American Electric Power Co. v. Connecticut, 564 U.S. -- (2011), the United States Supreme Court held the CAA displaced “any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” While the district court recognized the AEP Court did not consider the question of whether the CAA preempted state law claims, the district court cited lower federal court authority concluding the CAA also preempted state law claims. See Bell v. Cheswick Generating Station (Bell I), 903 F.Supp.2d 314 (W.D. Pa. 2012) (concluding the CAA preempted state common law nuisance, negligence, trespass, and strict liability claims), rev‘d 734 F.3d 188, 190 (3d Cir. 2013); Comer v. Murphy Oil USA, Inc. (Comer I), 839 F.Supp.2d 849 (S.D. Miss. 2012) (extending the reasoning of AEP to state law claims after characterizing them as turning on the reasonableness of emissions, a determination entrusted to Congress); United States v. EME Homer City Generation L.P., 823 F.Supp.2d 274 (W.D. Pa. 2011) (holding the CAA is a comprehensive regulatory scheme that preempted a common law public nuisance claim).
For largely the same reasons, the district court concluded state environmental statutes and regulations under Iowa Code chapter 455B preempted the plaintiffs’ common law claims. The district court reasoned that controversies related to air emissions were to be determined by state regulators, not by judges and juries in common law actions.
Finally, the district court also agreed with GPC‘s position that the questions raised in the litigation amounted to political questions not amenable to resolution by the judiciary in a lawsuit. Citing Comer v. Murphy Oil USA, Inc., 839 F.Supp.2d 849 (S.D. Miss. 2012), the district court noted a court or jury lacks judicially discoverable and manageable standards for resolving the complex environmental issues and would be forced to make policy determinations weighing the costs and benefits of GPC‘s facility to the surrounding community. See 839 F.Supp.2d at 864 (“It is unclear how this Court or any jury, regardless of its level of sophistication, could determine whether the defendants’ emissions unreasonably endanger the environment or the public without making policy determinations that weigh the harm caused by the defendants’ actions against the benefits of the products they produce.”).
This court retained the plaintiffs’ appeal.
1Id. at 315 n. 8, 332, 101 S.Ct. at 1792 n. 8, 1800, 68 L.Ed.2d at 125 n. 8, 136. The Milwaukee II Court concluded that:
Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance con- cepts and maxims of equity jurispru- dence, but rather has occupied the field through the establishment of a compre- hensive regulatory program supervised by an expert administrative agency.
Id. at 317, 101 S.Ct. at 1792, 68 L.Ed.2d at 126. The Court noted:
Not only are the technical problems dif- ficult—doubtless the reason Congress vested authority to administer the Act in administrative agencies possessing the necessary expertise—but the general area is particularly unsuited to the ap- proach inevitable under a regime of fed- eral common law [that would generate] ‘sporadic’ [and] ‘ad hoc’ [approaches to pollution control].
Id. at 325, 101 S.Ct. at 1796-97, 68 L.Ed.2d at 131 (quoting S.Rep. No. 92- 414, at 95).
The Milwaukee II Court, however, was careful to distinguish between federal com- mon law and state common law. See id. at 310 n. 4, 329, 101 S.Ct. at 1789 n. 4, 1798, 68 L.Ed.2d at 122 n. 4, 134. While the Supreme Court declared that federal com- mon law was displaced by the CWA, it expressly declined to consider whether plaintiffs could bring a claim under state common law. Id. at 310 n. 4, 101 S.Ct. at 1196, 68 L.Ed.2d at 122 n. 4. In this regard, the Court noted:
It is one thing ... to say that States may adopt more stringent limitations through state administrative processes, or even that States may establish such limitations through state nuisance law, and apply them to in-state discharges. It is quite another to say that the States may call upon federal courts to employ federal common law to establish more stringent standards applicable to out-of- state dischargers.
Id. at 327-28, 101 S.Ct. at 1798, 68 L.Ed.2d at 133.
Upon remand, the Court of Appeals for the Seventh Circuit in Illinois v. City of Milwaukee (Milwaukee III), considered whether the CWA precluded application of one state’s common law against a pollution source located in a different state. 731 F.2d 403, 406 (7th Cir.1984). The Seventh Circuit in Milwaukee III concluded that such state common law was preempted. Id. at 410-11. The Seventh Circuit was careful, however, to distinguish an effort to apply a state’s common law against a pol- luter located outside the state and a com- mon law claim against an in-state polluter. See id. at 414. The Seventh Circuit noted that an approach that allowed the applica- tion of state common law against an out-of- state polluter could lead to confusion, as a single source might be subject to different and conflicting state common law in a number of surrounding states, thereby leading to a “chaotic confrontation between sovereign states.” Id. Yet, the Seventh Circuit recognized that the citizen suit sav- ings clause preserved a right under state common law to obtain enforcement or pre- scribed standards or limitations against an in-state polluter. Id. at 413-14. The Su- preme Court denied certiorari. 469 U.S. 1196, 105 S.Ct. 980, 83 L.Ed.2d 981 (1985).
In Ouellette, the Supreme Court re- versed the district court. See id. at 487, 107 S.Ct. at 809, 93 L.Ed.2d at 893. The Supreme Court held that the CWA serves preempted state nuisance actions to the extent that state law applied to an alleged out-of-state polluter. Id. at 493-94, 107 S.Ct. at 812-13, 93 L.Ed.2d at 897-98. The Ouellette Court recognized that states play a significant role in the protection of their own natural resources, that the CWA permits the EPA to delegate to a state the authority to administer permit programs with respect to certain sources of pollution within the state, and that a state may require discharge limitations more strin- gent than those required by the EPA. Id. at 489-90, 107 S.Ct. at 810, 93 L.Ed.2d at 895.
Nonetheless, the Ouellette Court noted that with respect to out-of-state sources, the affected state‘s role is limited to the opportunity to object to the proposed stan- dards of a federal permit in a public hear- ing. Id. at 490, 107 S.Ct. at 810-11, 93 L.Ed.2d at 895. A state, however, does not have the authority to block the issu- ance of a permit with which it may be dissatisfied. Id. at 490, 107 S.Ct. at 811, 93 L.Ed.2d at 896. In short, the state “may not establish a separate permit sys- tem to regulate an out-of-state source.” Id. at 491, 107 S.Ct. at 811, 93 L.Ed.2d at 896. The Ouellette Court noted that allow- ing affected states to impose separate dis- charge standards on a single “point source” would interfere with the carefully devised regulatory system established by the CWA. Id. at 493, 107 S.Ct. at 812, 93 L.Ed.2d at 898.
While the Ouellette Court held that the plaintiffs could not impose Vermont law on the out-of-state polluter, it emphasized that the Vermont residents were not with- out a remedy. Id. at 497, 107 S.Ct. at 814, 93 L.Ed.2d at 900. According to the Ouel- lette Court, the citizen suit and states’ rights savings clauses, jointly referred to by the Court as the “saving clause,” pre- serve actions not incompatible with the CWA and “nothing in the Act bars ag- grieved individuals from bringing a nui- sance claim pursuant to the law of the source State.” Id.
Thus, under the CWA cases, a clear pattern emerges. Federal common law over pollution of interstate waterways is now preempted in light of the compre- hensive nature of the CWA and the exper- tise vested in the EPA and state agencies to solve complex problems involved in en- vironmental issues. State law claims against out-of-state sources are preempted because they would be inconsistent with the regulatory framework created by the CWA and would create chaos by imposing multiple regulatory schemes on a single source. State law claims against in-state sources of pollution, however, are saved by the citizen suit savings clause, the states’ rights savings clause, and other provisions of the CWA and are consistent with the principle that states may impose limita- tions on pollution more stringent than re- quired by federal law. As a result, state common law claims against an in-state source are not preempted by the CWA.
After Massachusetts, the EPA began to incrementally regulate aspects of GHG emissions. See Gallisdorfer, 99 Va. L.Rev. at 131. Environmental groups were unsat- isfied with the pace of EPA regulation, however, and began to file actions seeking injunctive caps on GHG emissions under a public nuisance theory. See id. Often, plaintiffs seeking to increase environmen- tal protection from GHG emissions pro- ceeded on a federal common law theory. In 2011, however, the Supreme Court decided AEP, in which eight states, New York City, and three nonprofit land trusts, brought an action seeking to enjoin GHG emissions from four private companies and the Tennessee Valley Authority. See 564 U.S. at -, 131 S.Ct. at 2532, 180 L.Ed.2d at 442. Because the EPA began regulating GHG emissions as a result of the Massachusetts case during the pen- dency of the lawsuit, the question arose as to whether the action of the EPA “dis- placed” the federal common law that was traditionally regarded as a source of law for interstate nuisance actions. See id. at -, 131 S.Ct. at 2533-35, 180 L.Ed.2d at 442-45.
In language similar to that used in Milwaukee II, the Supreme Court held that the CAA displaced federal common law with respect to GHG emissions. AEP, 564 U.S. at -, 131 S.Ct. at 2537, 180 L.Ed.2d at 447. The Supreme Court con- cluded that the CAA directly addressed the question because “air pollutants” were subject to regulation under the CAA and “air pollutants” clearly included GHG emissions. Id. at -, 131 S.Ct. at 2532-33, 180 L.Ed.2d at 442-43.
The Supreme Court in AEP, however, only held that federal common law re- garding “air pollutants” was displaced by the CAA. Id. at -, 131 S.Ct. at 2537, 180 L.Ed.2d at 447. The Court declined to reach the state law nuisance claims be- cause they had not addressed the issue on appeal. Id. at -, 131 S.Ct. at 2540, 180 L.Ed.2d at 450-51. The AEP Court noted, however, that “[l]egislative dis- placement of federal common law does not require the same sort of evidence ... demanded for preemption of state law.” Id. at -, 131 S.Ct. at 2537, 180 L.Ed.2d at 447 (quoting Milwaukee II, 451 U.S. at 317, 101 S.Ct. at 1792, 68 L.Ed.2d at 126) (internal quotation marks omitted).
As previously noted, after AEP, two fed- eral appellate courts considered whether the CAA preempted the state law in the source state. See Bell II, 734 F.3d at 190, cert. denied, 82 U.S.L.W. 3531 (U.S. June 2, 2014) (No. 13-1013) (concluding that state law claims are not preempted); MTBE Prods. Liab. Litig., 725 F.3d at 96-103 (finding that source-state common law claims are not preempted under the CAA).
One federal district court, however, came to a different conclusion. In Comer I, a federal district court found that state common law claims brought by property owners against several oil companies, coal companies, electric companies, and chemi- cal companies, whose emissions allegedly contributed to global warming were preempted by the CAA. 839 F.Supp.2d at 865.6
However, in TVA, the Fourth Circuit reviewed a district court order granting an injunction at the behest of the State of North Carolina requiring the immediate installation of emissions controls at four Tennessee Valley Authority generating plants located in Alabama and Tennessee. 615 F.3d at 296. The injunction was based upon the district court’s determination that the plants were a public nuisance under the law of the affected state, North Car- olina. Id. The estimated cost of compli- ance with the order was uncertain, but North Carolina admitted that the cost would be in excess of one billion dollars. Id. at 298.
The Fourth Circuit reversed. Id. at 312. The Fourth Circuit found that the litigation amounted to a collateral attack on the process chosen by Congress to es- tablish appropriate standards and grant permits for the operation of power plants. See id. at 302. The Fourth Circuit stressed that an “injunction-driven demand” for ar- tificial changes was likely to be inferior to a system-based analysis of what changes would do the most good. Id. Yet, the Fourth Circuit did not hold that Congress had еntirely preempted the field of emis- sions regulation. Id. Instead, each case had to be considered on a case-by-case “‘if when the statute was drafted. To suggest basis to determine it interferes with the the methods by which the federal statute was designed to reach [its] goal.‘” Id. at was direction. 303 (alteration in original) (quoting Ou- lette, 479 U.S. at 494, 107 S.Ct. at 813, 93 L.Ed.2d at 898).
GPC suggests that allowing state law actions based on source-state law will undercut the structure of the CAA. We think not. The CAA statute was structured to promоte cooperative federal- ism. Under the cooperative federalism ap- proach, the states were given the authority to impose stricter standards on air pollu- tion than might be imposed by the CAA. See Bell II, 734 F.3d at 197-98. In short, Congress expressly wanted the CAA to be a floor, but not a ceiling, on air pollution control. A similar conclusion has been reached by the Second, Third, and Sixth Circuits. Id. at 194-98; MTBE Prods. Liab. Litig., 725 F.3d at 96-103; Her Majesty the Queen, 874 F.2d at 342-44.
GPC further suggests that because air pollution matters complex ques- tions requiring the balancing of economic and social benefits and harms, controver- sies over source-state pollution are best left to administrative agencies and the rulemaking process. Further, GPC makes an appeal that there should be a uniform approach to these questions. This argu- ment may have some policy appeal, but it runs against the grain of bilateral coopera- tive federalism manifest in the any meas- ures clause, the retention of state authori- ty savings clause, and the citizens’ rights savings clause of the CAA. See 42 U.S.C. §§ 7401(a)(3), 7416, 7604(e). It is critical, however, to remember the distinction in Ouellette and Milwaukee II between preemp- tion of the law of a source state from the preemption of the law of thе pollution- affected state. Ouellette, 479 U.S. at 491-94, 107 S.Ct. at 811-13, 93 L.Ed.2d at 896- 98; Milwaukee II, 451 U.S. at 327-28, 101 S.Ct. at 1798, 68 L.Ed.2d at 132-33. Allow- ing claims to go forward based on the law of the state merely affected by pollution could cause real structural problems as a multistate polluter could be subject to the laws of many states, which could impose contradictory and confusing legal require- ments. The thrust of the Ouellette and Milwaukee II decisions is that allowing common law claims from all affected states would create chaos and cannot be allowed.
The conclusion that source-state com- mon law claims are not preempted by the CAA is endorsed by treatise writers. See Grad § 18.02, at 18-4 to 18-5 (“Despite the overriding emphasis on federal and state statutes in the field of environmental law, common law remedies, even those old fash- ioned causes of trespass and nuisance, re- main viable causes of action.”); Malone § 10:2, at 10-7 n.1 (“[S]tate common law theories of liability were not preempted by the [CAA].”); 1 William H. Rodgers, Envi- ronmental Law § 3:1(A)(1) (2013), avail- able at www.westlaw.com (“[T]here is no question that nuisance law that was pre- served has remained vibrant and servicea- ble.”).
GPC seeks to avoid the teaching of Mil- waukee II and Ouellette by suggesting that while state common law actions might not have been originally preempted by the CAA when Milwaukee II and Ouellette were decided, the Clean Air Act Amend- ments of 1990 and the dramatic growth in the complexity of clean air regulation now give rise to conflict preemption. According to GPC, this increasingly complex web of regulation was recognized in AEP, where the Supreme Court emphasized the complexity of envirоnmental regulation and the difficulties of balancing competing interests in the formulation of environmen- tal policy. See 564 U.S. at -, 131 S.Ct. at 2539, 180 L.Ed.2d at 449-50.
Further, state common law and nuisance actions have a different purpose than the regulatory regime established by the CAA. The purpose of state nuisance and common law actions is to protect the use and enjoyment of specific property, not to achieve a general regulatory pur- pose. It has long been understood that an activity may be entirely lawful and yet constitute a nuisance because of its impair- ment of the use and enjoyment of specific property. See Galaxy Carpet Mills, 338 S.E.2d at 429-30; Urie, 218 A.2d at 362; Tiegs, 954 P.2d at 883-84. We therefore decline to conclude that the increased com- plexity of the CAA has categorically el- bowed out a role for the state nuisance and common law claims presented here.
GPC seeks to avoid the teaching of Mil- waukee II and Ouellette by suggesting that while state common law actions might not have been originally preempted by the CAA when Milwaukee II and Ouellette were decided, the Clean Air Act Amend- ments of 1990 and the dramatic growth in the complexity of clean air regulation now give rise to conflict preemption. According to GPC, this increasingly complex web of regulation was recognized in AEP, where the Supreme Court emphasized the complexity of environmental regulation and the difficulties of balancing competing interests in the formulation of environmen- tal policy. See 564 U.S. at -, 131 S.Ct. at 2539, 180 L.Ed.2d at 449-50.
With respect to the question of whether injunctive relief would conflict with the CAA, we do not find this issue ripe at this time. Even TVA indicates that conflict preemption analysis is not subject to sweeping generalities and must be done on a case-by-case basis. See 615 F.3d at 302- 03. We simply cannot evaluate the lawful- ness of injunctive relief that has not yet been entered. Such an evaluation must await the development of a full record and the shaping of any injunctive relief by the district court.
A. Positions of the Parties.
1. Plaintiffs. The plaintiffs attack the district court‘s ruling on preemption under Iowa Code chapter 455B in several ways. The plaintiffs note that Iowa Code chapter 455B, like the CAA, has a citizens’ rights savings clause, which provides: “[t]his section does not restrict any right under stat- utory or common law of a person or class of person to ... seek other relief permit- ted under the law.” Iowa Code § 455B.111(5). The plaintiffs contend the language simply means what it says and allows the statutory and common law claims they have brought in this case, which should be considered “other relief permitted under the law.”
With respect to common law claims, the plaintiffs assert because there is no express preemption in Iowa Code chapter 455B, the defendants must rely on implied preemption. Implied preemption, however, is found only where “‘impera- tively required,’ Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 1322, 121 N.W.2d 361, 362 (1963) (quoting Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 388, 101 N.W.2d 167, 174 (1960)). The plaintiffs maintain that preemption here is not “imperatively required,” as the common law claims specifically address harms to property, while the regulatory framework in Iowa Code chapter 455B ad- dresses more general harms caused by pollution. The plaintiffs assert that Iowa caselaw supports this proposition. See Simpson v. Kollasch, 749 N.W.2d 671, 674 (Iowa 2008) (indicating compliance with environmental regulation is not a defense to a nuisance claim, though it may be evi- dence of whether defendant‘s conduсt is a nuisance); Gerst v. Marshall, 549 N.W.2d 810, 813-15 (Iowa 1996) (involving com- mon law claims brought along with claims under chapter 455B).
The plaintiffs further note that their nui- sance claim is based in part on Iowa Code chapter 657, which provides a general framework for bringing statutory nuisance claims in Iowa. In order to find that Iowa Code chapter 455B preempts the statutory provisions of Iowa Code chapter 657, the plaintiffs maintain that the two statutes must be “irreconcilably repugnant.” State v. Rauhauser, 272 N.W.2d 432, 434 (Iowa 1978). The plaintiffs argue that far from being irreconcilable, the statutes may be harmonized by interpreting Iowa Code chapter 455B‘s citizens’ rights savings clause as allowing statutory nuisance ac- tions that may result in stricter control of pollution. Further, plaintiffs emphasize that claims under the nuisance statute pro- tect against harms to specific property, while chapter 455B more generally pro- tects the public from air pollution. Be- cause the statutes address different types of harms and interests, the plaintiffs con- tend there can be no preemption of nui- sance claims arising from Iowa Code chap- ter 455B.
Further, the plaintiffs note that the leg- islature has expressly provided that cer- tain types of statutes do preempt statutory nuisance actions. Specifically, Iowa Code sections 657.1(2) and 657.11(1) provide that nuisance actions related to electrical utili- ties and animal feeding operations are preempted from further regulation through statutory nuisance claims. The plaintiffs press the point that the legisla- ture knew how to preempt certain types of environmental claims from nuisance ac- tions but did not extend preemption to the plaintiffs’ claims in this case.
Finally, the plaintiffs claim that if Iowa Code chapter 455B preempted state common law claims, a serious constitution- al issue would be present. They note, for instance, we have held that giving farms immunity from nuisance suits may deprive one of the use and enjoyment of property and amount to an unconstitutional “taking” of property without due compensation. Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 172-74 (Iowa 2004); Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 320-21 (Iowa 1998). To the extent there is any doubt regarding the proper interpretation of Iowa Code chapter 455B, it should be interpreted in a fashion to avoid the consti- tutional problem. Dolarna Farms v. Access Energy Coop., 792 N.W.2d 656, 663-64 (Iowa 2010).
Because state law preemption is substantively identical to federal conflict and field preemption, GPC incorporates its arguments regarding federal preemption on the question of whether Iowa Code chapter 455B preempted the common law claims in this case. GPC, however, pres- ents some refinements based upon its anal- ysis of the Iowa caselaw.
First, GPC points out that in order for state law to preempt common law claims based on field preemption, it is not neces- sary that it be impossible to reconcile the statute with the common law claims. GPC argues that in Northrop v. Farmland Industries, Inc., we found that the Iowa Civil Rights Act was the exclusive remedy for wrongful discharge based on disability without a finding of impossibility. See 372 N.W.2d 193, 197 (Iowa 1985). Further, GPC argues that an action becomes irreconcilable with state law by imposing re- quirements beyond what the state law pro- scribes. For instance, in Baker v. City of Iowa City, we held that an ordinance al- lowing claims against employers with few- er than four employees was irreconcilable with the Iowa Civil Rights Act, which pro- vided claims could only be brought against employers with four or more employees. 750 N.W.2d 93, 101-02 (Iowa 2008).
Second, building on Northrop and Baker, GPC asserts that the common law claims in this case go beyond the state law framework in chapter 455 by circumvent- ing the state‘s emissions regulation and permitting process and by potentially im- posing new standards without the scientific expertise and extensive rulemaking pro- cess employed by the state environmental regulators. GPC argues that the court could order GPC to use certain processes or install new pollution control equipment, which could conflict with environmental regulatory requirements imposed on it by the Iowa Department of Natural Re- sources (DNR) or the EPA and further upset the delicate balance achieved through the regulatory process.
Therefore, GPC argues that if the plain- tiffs prevail in their common law claims, GPC could end up in an intolerable catch- 22 situation. For instance, GPC suggests that the state court in the common law actions might order a remedy that the DNR refuses to approve. In this setting, GPC would be forced to either comply with the district court order and defy the DNR, or vice versa. Or, the DNR could, after careful study, ultimately approve court-or- dered changes to its operations as a result of the common law claims, but the neces- sary approvals might not be obtained quickly enough for timely compliance with the court‘s mandate. GPC argues this kind of trouble was addressed in Goodell, where the court noted that imposition of local requirements in excess of state law requirements could lead to preemption. 575 N.W.2d at 501 (“Any attempt by a local government to add to those require- ments would conflict with the state law, because the local law would in effect pro- hibit what the state law permits.”).
The precise question here is whether Iowa Code chapter 455B impliedly conflicts with and thus preempts a statutory claim for nuisance under Iowa Code chapter 657 and common law claims of nuisance, trespass, and negli- gence.
With respect to one statute impliedly preempting another, we have understand- ingly been quite demanding. The legisla- ture is presumed to know the existing state law when the new statute is enacted. Jahnke v. Incorporated City of Des Moines, 191 N.W.2d 780, 787 (Iowa 1971). In the absence of any express re- peal, the new provision is presumed to accord with the legislative policy embodied in prior statutes. See Ruth Fisher Elementary Sch. Dist. v. Buckeye Union High Sch. Dist., 202 Ariz. 107, 41 P.3d 645, 648 (Ariz.Ct.App.2002). When prior and later statutes deal with the same subject matter, although in apparent conflict, they should as far as reasonably possible be construed in harmony with each other to allow both to stand and be given force and effect. See Polk Cnty. Drainage Dist. Four v. Iowa Natural Res. Council, 377 N.W.2d 236, 241 (Iowa 1985). While we recognize the possibility of an implied re- peal, such action is permitted only where the statutes “cover the same subject mat- ter,” are “irreconcilably repugnant,” and implied repeal is “absolutely necessary.” Rauhauser, 272 N.W.2d at 434. While the issue in this case does not require a com- plete repeal of Iowa Code chapter 657, we think the Rauhauser test remains applica- ble where a party seeks to nullify applica- tion of a preexisting statute to a specific circumstance.
With respect to whether a statute abro- gates common law, the test is somewhat similar. We have declared that absent express statutory language, a party seek- ing to demonstrate that a statute impliedly overrides common law must show that this result is “imperatively required.” See, e.g., Rieff v. Evans, 630 N.W.2d 278, 286 (Iowa 2001); Collins v. King, 545 N.W.2d 310, 312 (Iowa 1996). While the question of whether the CAA preempts state com- mon law is a question of federal law, whether chapter 455B impliedly repeals or overrides common law is a question of state law.
There is no definitive Iowa case dealing with the question of whether nuisance or common law claims may go forward in light of the provisions of Iowa Code chap- ter 455B. In Gerst, a plaintiff raised paral- lel common law claims along with a citizen- action claim under Iowa Code chapter 455B. 549 N.W.2d at 813. We were not asked, howevеr, to decide whether the nui- sance and common law claims were extin- guished by Iowa Code chapter 455B. Nonetheless, we do have instructive caselaw. We have made clear that a lawful business, properly conducted, may still be a nuisance. For instance, in Simpson, we noted in the context of the proposed construction of a hog-confinement facility that compliance with DNR regulations was not a defense to a nuisance action. 749 N.W.2d at 672, 674. We noted that “‘a lawful business, properly conducted, may still constitute a nuisance if the business interferes with another‘s use of his own property.’” Id. at 674 (quoting Weinhold v. Wolff, 555 N.W.2d 454, 461 (Iowa 1996)). Our approach is consistent with the law in other jurisdictions. See, e.g., Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1036 (Fla. 2001) (holding “something may legally con- stitute a public nuisance ... although it may technically comply with existing pollu- tion laws”); Biddix v. Henredon Furniture Indus., Inc., 76 N.C.App. 30, 331 S.E.2d 717, 724 (1985) (noting that the North Carolina Clean Water Act does not preempt common law claims); Gonzalez v. Whitaker, 97 N.M. 710, 643 P.2d 274, 278 (N.M.Ct.App.1982) (holding state environ- mental statutes do not preempt common law claims). See generally, Selmi § 10:26, 10-56, 57.
In short, we think Iowa Code chapter 455B did not impliedly repeal application of Iowa Code chapter 657 to air pollution claims or preempt Iowa common law. Indeed, Congress has expressly authorized statutory and common law actions under state law. A state court deciding directly authorized litigation would not be expressing a lack of respect for Congress or any other coordinate branch of government. A state court sitting in equity could fashion equitable relief that is consistent with Iowa Code chapter 455B. Specifically, to the extent the district court orders equita- ble relief, any such relief may be condi- tioned upon obtaining regulatory approvals required under Iowa Code chapter 455B. Or, equitable relief may require develop- ment of a common fund to promote clean up that does not impact the requirements of Iowa Code chapter 455B at all. In any event, we decline to speculate at this stage about the possible legal issues that may be raised by the granting of any injunctive relief in this case.
Therefore, GPC argues that if the plain- tiffs prevail in their common law claims, GPC could end up in an intolerable catch- 22 situation. For instance, GPC suggеsts that the state court in the common law actions might order a remedy that the DNR refuses to approve. In this setting, GPC would be forced to either comply with the district court order and defy the DNR, or vice versa. Or, the DNR could, after careful study, ultimately approve court-or- dered changes to its operations as a result of the common law claims, but the neces- sary approvals might not be obtained quickly enough for timely compliance with the court‘s mandate. GPC argues this kind of trouble was addressed in Goodell, where the court noted that imposition of local requirements in excess of state law requirements could lead to preemption. 575 N.W.2d at 501 (“Any attempt by a local government to add to those require- ments would conflict with the state law, because the local law would in effect pro- hibit what the state law permits.”).
With respect to one statute impliedly preempting another, we have understand- ingly been quite demanding. The legisla- ture is presumed to know the existing state law when the new statute is enacted. Jahnke, 191 N.W.2d at 787. In the absence of any express repeal, the new provision is presumed to accord with the legislative policy embodied in prior statutes. See Ruth Fisher Elementary. When prior and later stаtutes deal with the same subject matter, although in apparent conflict, they should as far as reasonably possible be construed in harmony with each other to allow both to stand and be given force and effect. See Polk Cnty. Drainage Dist. Four, 377 N.W.2d at 241. While we recognize the possibility of an implied repeal, such action is permitted only where the statutes “cover the same subject matter,” are “irreconcilably repugnant,” and implied repeal is “absolutely necessary.” Rauhauser, 272 N.W.2d at 434.
There is no definitive Iowa case dealing with the question of whether nuisance or common law claims may go forward in light of the provisions of Iowa Code chapter 455B. In Gerst, a plaintiff raised parallel common law claims along with a citizen- action claim under Iowa Code chapter 455B. 549 N.W.2d at 813. We were not asked, however, to decide whether the nuisance and common law claims were extin- guished by Iowa Code chapter 455B.
Nonetheless, we do have instructive caselaw. We have made clear that a lawful business, properly conducted, may still be a nuisance. For instance, in Simpson, we noted in the context of the proposed construction of a hog-confinement facility that compliance with DNR regulations was not a defense to a nuisance action. 749 N.W.2d at 672, 674. We noted that “‘a lawful business, properly conducted, may still constitute a nuisance if the business interferes with another‘s use of his own property.’” Id. at 674 (quoting Weinhold, 555 N.W.2d at 461). Our approach is consistent with the law in other jurisdictions. See, e.g., Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1036; Biddix, 331 S.E.2d at 724; Gonzalez, 643 P.2d at 278. We do not see enforcement of nuisance and other common law torts in this case as inconsistent with the regulatory framework established by chapter 455B.
A state court sitting in equity could fashion equitable relief that is consistent with Iowa Code chapter 455B. Specifically, to the extent the district court orders equitable relief, any such relief may be conditioned upon obtaining regulatory approvals required under Iowa Code chapter 455B. Or, equitable relief may require development of a common fund to promote clean up that does not impact the requirements of Iowa Code chapter 455B at all. In any event, we decline to speculate at this stage about the possible legal issues that may be raised by the granting of any injunctive relief in this case.
A. Positions of the Parties.
1. Plaintiffs. The plaintiffs argue that the political question doctrine does not serve as an impediment to their statutory and common law claims. The plaintiffs note that political questions ordinarily in- volve questions for which there is a de- monstrable constitutional commitment to other branches of government. The plain- tiffs note that in Des Moines Register & Tribune Co. v. Dwyer, this court held the Iowa Constitution had “a textually demon- strable constitutional commitment” to the Iowa Senate of the power to establish its rules of proceedings. 542 N.W.2d 491, 496 (Iowa 1996). Unlike Dwyer, the plaintiffs argue, there is no demonstrable constitu- tional commitment involved in this case.
With respect to remedies, GPC specu- lates that the district court could enter a remedy that conflicts with Iowa Code chapter 455B. As a result, GPC argues that the nuisance and common law claims should not be allowed to go forward. Any consideration of this possibility at this stage of the litigation, however, is prema- ture. GPC has not demonstrated that the district court sitting in equity cannot fash- ion equitable relief that is consistent with Iowa Code chapter 455B. Specifically, to the extent the district court orders equita- ble relief, any such relief may be condi- tioned upon obtaining regulatory approvals required under Iowa Code chapter 455B. Or, equitable relief may require develop- ment of a common fund to promote clean up that does not impact the requirements of Iowa Code chapter 455B at all. In any event, we decline to speculate at this stage about the possible legal issues that may be raised by the granting of any injunctive relief in this case.
2. GPC. GPC claims that this case presents textbook political questions. No judge or jury could decide the claims, ac- cording to GPC, without balancing eco- nomic benefits against the harms caused by air pollution. It notes, for instance, that the balance between environmental goals and economic growth involves a con- flict between pollution control and new jobs. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 852 n.25, 104 S.Ct. 2778, 2786 n.25, 81 L.Ed.2d 694, 708 n.25 (1984). GPC as- serts that this balancing of interests is best left to the political branches of gov- ernment. Allowing the statutory and com- mon law claims to go forward, according to GPC, would amount to a collateral attack on the elaborate system created by Con- gress that will risk results that undermine the system‘s clarity and legitimacy. TVA, 615 F.3d at 301, 304.
B. Analysis of Political Question Doctrine.
1. Overview of political question doctrine. The federal political question doctrine arises largely from the United States Supreme Court case of Baker v. Carr. In that case, the United States Supreme Court laid out six considerations for deter- mining whether a political question was present:
[ (1)] a textually demonstrable consti- tutional commitment of the issue to a coordinate political department; or
[ (2)] a lack of judicially discoverable and manageable standards for resolving it; or [ (3)] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [ (4)] the impossibility of a court‘s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [ (5)] an unusual need for unquestion- ing adherence to a political decision al- ready made; or [ (6)] the potentiality of embarrassment from multifarious pro- nouncements by various departments on one question.
369 U.S. at 217, 82 S.Ct. at 710, 7 L.Ed.2d at 686.
The federal political question doctrine has been the subject of extensive commen- tary. Some question whether there is any legitimate basis for it. See Louis Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597, 600 (1976) (“[T]here may be no doctrine requiring abstention from judicial review of ‘political questions.’ ”); Martin H. Redish, Judicial Review and the “Political Question,” 79 Nw. U.L.Rev. 1031, 1031 (1984) (noting commentators have “disagreed about [the federal political question doctrine‘s] wisdom and validity”). Other commentators have defended the federal political question doctrine. See J. Peter Mulhern, In Defense of the Political Question Doctrine, 137 U. Pa. L.Rev. 97 (1988).
It has also been observed that since Baker, the doctrine has fallen into disuse in the United States Supreme Court. See Rachel E. Barkow, More Supreme than Court?: The Fall of the Political Ques- tion Doctrine and the Rise of Judicial Supremacy, 102 Colum. L.Rev. 237, 263 (2007). Since Baker, the federal political question doctrine has been invoked successfully in only three cases. See Vieth v. Jubelirer, 541 U.S. 267, 281, 124 S.Ct. 1769, 1778, 158 L.Ed.2d 546, 560 (2004) (holding gerrymandering claim nonjusticia- ble); Nixon v. United States, 506 U.S. 224, 226, 236-38, 113 S.Ct. 732, 734, 739-40, 122 L.Ed.2d 1, 7 (1993) (concluding question whether the Senate rule regarding impeachment is constitutional is nonjusticiable); Gilligan v. Morgan, 413 U.S. 1, 5-6, 10, 93 S.Ct. 2440, 2443, 2446, 37 L.Ed.2d 407, 413, 415 (1973)(holding determination of adequacy of national guardsmen train- ing exclusively vested in Congress). Even if one is inclined to adopt a political ques- tion doctrine of some kind, there is a ques- tion of scope. The six considerations list- ed by Justice Brennan in Baker are both opaque and elastic. Some commentators advocate consideration of all of them, usually in descending order of importance as recognized by the plurality opinion in Vieth. Others urge a narrower approach through what has been termed the “classical” model, which emphasizes, if not requires, a constitu- tionally based commitment of power to another branch of government. See Amelia Thorpe, Tort-Based Climate Change Litigation and the Political Question Doc- trine, 24 J. Land Use & Envtl. L. 79, 80 (2008).
It is important to note, however, that the United States Supreme Court has made clear that the federal political ques- tion doctrine does not apply to state courts. See Goldwater v. Carter, 444 U.S. 996, 1005 n.2, 100 S.Ct. 533, 538 n.2, 62 L.Ed.2d 428, 430-32 (1979) (Rehnquist, J., concurring in judgment). The Court, of course, may not prohibit state courts from deciding political questions, any more than it may prohibit them from deciding questions that are moot, so long as they do not trench upon exclusively federal questions of foreign policy. (Citation omitted.)
Whether and to what extent state courts should adopt the federal political question doctrine is a question of some controversy. Several decades ago, Oregon Supreme Court Justice Hans Linde remarked that “there are hardly any state analogues to the self-imposed constraints on justiciabili- ty, ‘political questions,’ and the like.” Hans A. Linde, Judges, Critics, and the Realist Tradition, 82 Yale L.J. 227, 248 (1972). While Linde‘s observation may be overstated, Helen Hershkoff has noted that state courts do tend to hear an array of questions that would be considered non- justiciable in federаl court. See Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L.Rev. 1838, 1863 (2001).
If so, the federal political question doc- trine might have limited value for state courts. In some state courts, the doctrine seems to be met with some skepticism. See Backman v. Secretary, 387 Mass. 549, 441 N.E.2d 523, 527 (1982) (“[W]e have never explicitly incorporated the [political ques- tion] doctrine into our State jurispru- dence .... [T]his court has an obligation to adjudicate claims that particular actions conflict with constitutional requirements.”). Other state courts, however, have cited federal precedent solely as if the doctrine were binding on state courts, mixed federal and state cases without any clear delinea- tion, and even simply used the label “political question” without meaningful case citation or analysis. See Christine M. O‘Neill, Closing the Door on Positive Rights: State Court Use of the Political Question Doctrine to Deny Access to Edu- cational Adequacy Claims, 42 Colum. J.L. & Soc. Probs. 545, 560-76 (2009) (catego- rizing cases according to citation methodol- ogy).
Two former state supreme court justices have observed the significant differences between separation of powers under state constitutions as compared tо under the Federal Constitution. See Christine Durham, The Judicial Branch in State Government: Parables of Law, Politics, and Power, 76 N.Y.U. L.Rev. 1601, 1603 (2001) (“State constitutions have a tradi- tion independent of federal law in the allo- cation of power among the branches of state government and in their development and understanding of republican princi- ples.”); Ellen A. Peters, Getting Away from the Federal Paradigm: Separation of Powers in State Courts, 81 Minn. L.Rev. 1543, 1558 (1997) (“State courts are regu- larly called upon to enforce state constitu- tional obligations that, for sound reasons of federalism, federal courts have declined to enforce.” (Footnote omitted.)). If so, the federal political question doctrine might have limited value for state courts.
If a party does not suggest a different standard under Iowa law, we adopt for the purposes of the case the federal standard, reserving the right to apply the standard presented by the party in a fashion different than the federal approach. See, e.g., State v. Beck, 818 N.W.2d 185, 150 (Iowa 2012) (“Even where a party has not provided a substantive standard independent of federal law, we reserve the right to apply the standard presented by the party in a fash- ion different than the fеderal cases.”); NextEra Energy Res. LLC v. Iowa Utils. Bd., 815 N.W.2d 30, 45 (Iowa 2012) (“Even in cases where a party has not suggested that our approach under the Iowa Constitution should be different from that under the Federal Constitution, we reserve the right to apply the standard in a fashion at variance with federal cases under the Iowa Constitution.”); State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012); State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); In re Det. of Hennings, 744 N.W.2d 333, 338-39 (Iowa 2008).
2. Discussion. From any perspective, it is clear that there is no textual constitu- tional commitment of the issues raised in this case to another branch of government. The first and most important factor of the Baker formula is thus plainly not present and cuts markedly against any application of the political question doctrine here. See Klinghoffer v. S.N.C. Achille Lauro Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 937 F.2d 44, 49 (2d Cir.1991) (“Although no one factor is dispositive, Justice Brennan, the author of Baker, has suggested that the first [factor] ... is of particular impor- tance ... [and the absence of this factor] strongly suggests that the political ques- tion doctrine does not apply.” (Citation omitted.)).
We now move to the second factor, namely, a lack of judicially discoverable and manageable standards to resolve the issues. Tort law, however, including the law of nuisance, has evolved over the centuries. Thе law has devised a number of doctrinal approaches to accommodate diffi- culties in proof associated with complex environmental and toxic tort cases. See Benjamin Ewing & Douglas A. Kysar, Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale L.J. 350, 370 (2011). As a result, the United States Supreme Court has never found a lack of judicially manageable standards in a tort suit involving private parties. Id. at 412. The caselaw generally stands for the proposition that actions for damages are relatively immune to efforts to dismiss based upon the political question doctrine. See, e.g., Gordon v. Texas, 153 F.3d 190, 195 (5th Cir.1998) (“Monetary damages might but typically do not require courts to dictate policy ... nor do they constitute a form of relief that is not judicially manageable.”); Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir.1992) (“Damage actions are particularly judicially manageable.”); Barasich v. Columbia Gulf Transmission Co., 467 F.Supp.2d 676, 679-80, 683 (E.D.La.2006) (holding demand for damages justiciable); Mallinckrodt, Inc., 706 S.W.2d at 221 (“[I]ndividual tort recov- eries ... are not precluded by the political question doctrine. Appellants are not try- ing to establish standards that conflict with legislative determinations; they are seeking compensation for injuries.” (Cita- tion omitted.)).
To the extent the science is obscure and complex, the burden of proof of all еle- ments of causation remains on the plain- tiffs. The mere fact that a case is complex does not satisfy this factor. As noted by the Second Circuit in AEP, courts have successfully adjudicated complex common law public nuisance claims for more than a century. Am. Elec. Power Co., 582 F.3d at 326; Alperin v. Vatican Bank, 410 F.3d 532, 552 (9th Cir.2005) (noting the political question doctrine does not arise because the case “is unmanageable in the sense of being large, complicated, or otherwise dif- ficult to tackle from a logistical stand- point”).
Turning to the third factor, there is no need for an initial policy determination by another branch of government. Indeed, the tort law itself represents an initial policy determination, namely, that certain plaintiffs who demonstrate necessary harm to the use and enjoyment of their real property may be entitled to damages and injunctive relief. See Am. Elec. Power Co., 582 F.3d at 331; McMahon, 502 F.3d at 1364-65; Klinghoffer, 937 F.2d at 49 (“The fact that the issues before us arise in a politically charged context does not con- vert what is essentially an ordinary tort suit into a non-justiciable political ques- tion.”).
With these major factors removed, the remaining factors generally fall out of the equation. None of the remaining Baker factors are very strong in any approach tо the political question doctrine and they certainly do not provide a basis for nonjus- ticiability in this case.
As is apparent from the above analysis, none of the Baker factors apply in this case with much force. We therefore con- clude that this case is not subject to dis- missal under the political question doc- trine.
VI. Conclusion.
For all of the above reasons, we conclude that the plaintiffs’ claims in this case are not preempted by the CAA, are not preempted by Iowa Code chapter 455B, and are not subject to dismissal by operation of the political question doctrine. Our rulings on these issues, of course, express no view on the appropriateness of class certification or on the underlying merits of the plaintiffs’ claims. We do conclude, however, that GPC was not enti- tled to summary judgment. As a result, the judgment of the district court is re- versed and the case is remanded for fur- ther proceedings.
DISTRICT COURT JUDGMENT RE- VERSED AND CASE REMANDED.
All justices concur, except MANSFIELD, J., who takes no part.