1. Diesel Exhaust Claims: Stalled Or Just
Getting Started?
Law360, New York (August 02, 2012, 1:39 PM ET) -- On June 12, 2012, the International Agency for
Research on Cancer (IARC), an agency of the World Health Organization, designated diesel engine
exhaust as “carcinogenic to humans” (Group 1) — a classification shared with asbestos and radon —
based on lung cancer risk. Notably, IARC’s analysis focused on engine exhaust from “traditional” rather
than “new technology” diesel currently used in the United States.
Given the vast number of people historically exposed to traditional diesel exhaust, particularly in the
transportation, mining, manufacturing and construction industries, and the high prevalence of cancers
of the lung and bronchus — approximately 225,000 new diagnoses in the United States annually —
IARC’s action has the potential to generate a new wave of personal injury litigation.
Plaintiffs’ lawyers promptly added announcements to their websites describing IARC’s action and
advising that those exposed to diesel engine exhaust who have contracted lung cancer or experienced
other adverse health effects may be entitled to compensation.
Within a month of IARC’s decision, however, a panel of the U.S. Court of Appeals for the Second Circuit
adopted a sweeping preemption decision demonstrating the complexity of litigating diesel exhaust
claims.
In Jackson v. General Motors Corp., 770 F. Supp. 2d 570 (S.D.N.Y. 2011), aff’d sub nom. Butnick v.
General Motors Corp., No. 11-1068 (2d Cir. July 11, 2012), public transit workers sued bus and engine
manufacturers for injuries allegedly arising from their inhalation of diesel exhaust fumes. Plaintiffs
alleged that the buses did not meet U.S. Environmental Protection Agency emissions standards
promulgated under the Clean Air Act and that the manufacturers had failed to warn them about
potentially dangerous health effects from exposure to diesel fumes.
The court held that the Clean Air Act’s preemption provision relating to motor vehicles emission
standards preempted all of these claims. The Second Circuit based its analysis on the principle that
private tort litigation is effectively a form of enforcement that can lead to varying state standards at
odds with a federal statutory scheme intended to establish national uniformity, see Cipollone v. Liggett
Group Inc. 505 U.S. 504 (1992), and on Section 209(a) of the Clean Air Act, which provides that no state
“shall adopt or attempt to enforce any standard relating to the control of emissions from new motor
vehicles or new motor vehicle engines.” 42 U.S.C. § 7543(a).

2. The Second Circuit held that plaintiffs’ claims all “related to” the control of emissions and were thus
preempted. It rejected plaintiffs’ argument that warnings were a permitted “use” restriction, not
preempted by the Clean Air Act, similar to idling restrictions that can be imposed by states to address air
quality.
And the Second Circuit rejected the argument that “new motor vehicles” were not at issue because the
manufacturers had installed “defeat devices” that would increase emissions only after the vehicles had
passed inspection and gone into service.
The Second Circuit thus held that Section 209(a)’s prohibition against state enforcement of any
standards related to new motor vehicle emissions was broad enough to preempt all claims against the
manufacturers, including claims for failure to warn.
The breadth of the Butnick/Jackson preemption ruling is particularly noteworthy because it is the first
reported federal case addressing the merits of a preemption defense based on the Clean Air Act’s
provisions related to new motor vehicles. As such, it substantially broadens the potential for preemption
of personal injury claims based on exposure to diesel exhaust.
By its terms, however, the decision may not foreclose all diesel exhaust claims. The district court and the
Second Circuit both suggested that suits for inadequate ventilation, for example, would not be barred by
Section 209(a).
Such claims likely implicate different potential defendants — the owners or operators of work sites. In
many cases, those defendants will be a plaintiffs’ employer from whom recovery can only be sought
through workers’ compensation laws.
But third-party claims by customers, independent contractors, tenants or others may be allowed to
proceed despite Section 209(a).
In addition, the failure-to-warn portion of the Butnick/Jackson decision may be subject to attack as the
law continues to develop and other courts are encouraged to disagree with its conclusion that failure-to-
warn claims, in particular, are “related to” new vehicle emissions and thus preempted.
Plaintiffs may argue that failure-to-warn claims constitute “in-use” regulations permitted under Section
209(d), rather than emission standards for new vehicles preempted by Section 209(a). A duty to warn,
the argument goes, does not threaten to impose an emission standard at the point of sale but rather a
requirement for the safe operation of motor vehicles, similar to idling and other restrictions permissibly
imposed by states.

3. The Clean Air Act is also an extremely complex statutory scheme that strikes a different balance
between federal and state enforcement in different, discretely defined areas. As a result, whether diesel
exhaust personal injury claims are preempted will likely vary based upon the alleged source of the
emissions, type of defendant and theory of liability.
Different preemption provisions apply to different sources of diesel emissions depending on their
purpose, e.g., agricultural or railroad, size and whether they are mobile or stationary. The Clean Air Act’s
preemption provision that applies to trains and train engines, for example, contains similar language to
that found in Section 209(a), at issue in Butnick/Jackson.
Fuel manufacturers, by contrast, are regulated under a different section of the Clean Air Act, Section
211(c)(4)(A), which preempts state prescription or enforcement of controls governing fuels and fuel
additives only if the EPA publishes a ruling that no such control is necessary or has published its own
regulations in the area. 42 U.S.C. § 7545(c)(4)(A).
And even where the EPA does publish its own fuel regulations, states remain free to enforce the EPA
requirement. Thus, plaintiffs might argue that tort suits may piggyback on the EPA fuel standards by
relying on them to establish the appropriate standard under state law.
Finally, in another wrinkle in the preemption analysis, California retains more extensive regulatory and
enforcement authority under the Clean Air Act than other states. Thus, plaintiffs may assert that claims
preempted elsewhere be permitted to proceed based on California’s standards. See e.g., Rocky
Mountain Farmers Union v. Goldstene, 843 F. Supp. 1042 (E.D. Cal. 2011) (holding that California low
carbon fuel standards were not preempted based upon exceptions specifically applicable to California).
In sum, the Second Circuit’s holding in Butnick/Jackson is an opening bout in an extended fight over the
scope of Clean Air Act preemption of different types of diesel exhaust exposure claims. Given the
complexity of the issues and the stakes for both sides, this issue is likely to be litigated for some time to
come.
--By Jennifer Quinn-Barabanov, Jeffrey M. Theodore and Lawrence P. Riff, Steptoe & Johnson LLP
Jennifer Quinn-Barabanov is a partner and Jeffrey Theodore is an associate in Steptoe's Washington,
D.C., office. Lawrence Riff is a partner in the firm's Los Angeles office.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its
clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general
information purposes and is not intended to be and should not be taken as legal advice.