More than eighty percent of Americans now live in urban areas, and even more of them work there; as a consequence, Local Government Amici’s members are responsible for understanding the risks to and planning for the wellbeing of the great majority of Americans. [...] Moreover, Congress has affirmatively eliminated the former federal common-law aspects of the environmental issues raised here, displacing them with the Clean Air 8 Act, which does not completely preempt the field but leaves ample room for the state-law claims advanced by the City and County of Honolulu and the County of Maui. [...] As the New York Court of Appeals noted some 80 years ago, in a statement emblematic of conditions nationwide: [W]here the public health is involved, the right of the town to bring such an action to restrain a public nuisance may be tantamount to its right of survival… [I]t is clear that a public nuisance which injures the health of the citizens of a municipality imperils the very existence of that. [...] Based on the city’s invocation of federal subject-matter jurisdiction from the outset, the Second Circuit deemed itself “free to consider the Producers’ preemption defense on its own terms, not under the heightened standard unique to the removability inquiry.” Id. [...] (202) 944-2874 robert.peck@cclfirm.com 23 CERTIFICATE OF SERVICE I hereby certify that on September 24, 2021, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system.
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