The Third Circuit Court of Appeals yesterday resuscitated a proposed class action alleging the release of toxic emissions from a coal-fired power plant, finding that the Clean Air Act does not preempt certain state law claims brought by property owners. Bell, et al., v. Cheswick Generating Station, No. 12-4216 (3rd Cir. August 20, 2013).

The putative class was made up of individuals who owned or inhabited residential property within one mile of a coal-fired electrical generation facility in Springdale, Pennsylvania. The plaintiff had alleged that the coal-fired power plant operation, maintenance, control and use of the generating station had caused property damage, the inhalation of odors, and the deposit of coal dust. Procedurally, the case was removed to the federal District Court, which then found that the CAA preempted the property owners state law claims.

The Third Circuit ruled on this as a matter of first impression: “whether the Clean Air Act preempts state law tort claims brought by private property owners against a source of pollution located within the state.” The Court concluded that based on the plain language of the CAA and controlling Supreme Court precedent, such source state common law actions are not preempted.

The Court in its decision reviewed the preemption question under the CAA in reference to the Supreme Court’s 1987 decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987). International Paper had dealt with the Clean Water Act. In that case, the Supreme Court found that “nothing in the [Clean Water Act] bars aggrieved individuals from bringing a nuisance claim pursuant to the laws of the source State.”

The Court concluded that “[w]e see nothing in the Clean Air Act to indicate that Congress intended to preempt source state common law tort claims.”