Why the Third Circuit Pro-Cooperative Federalism Preemption Holding in Bell Should Ultimately Be Adopted by the Supreme Court

Abstract

In Bell v. Cheswick Generating Station, the U.S. Court of Appeals for the Third Circuit reversed a decision by the U.S. District Court for the Western District of Pennsylvania, holding that state common law tort actions were not preempted by the federal Clean Air Act (“CAA”). The Third Circuit found that the savings clause of the CAA was nearly identical to that of the Clean Water Act (“CWA”), which had already been found to not preempt state common law tort actions by the U.S. Supreme Court. This Comment argues that the Third Circuit correctly compared the savings clauses of the CAA and the CWA. Further, it argues that the Supreme Court, with its history of allowing states to add to baseline federal safety legislation, would permit this action to stand. It then suggests that the Supreme Court should address the circuit split between the U.S. Courts of Appeals for the Third and Fourth Circuits on this issue, and predicts that the Court would come down on the side of the Third Circuit’s permissive analysis.