A federal court in Pennsylvania has dismissed a lawsuit seeking property damages allegedly resulting from operation of a coal-fired electric plant. Bell v. Cheswick Generating Station, No. 2:12-cv-929 (W.D. Pa. 10/12/2012).

The putative class-action plaintiffs, property owners located within one mile of the generating station, asserted that their property had been damaged by the settling of particulates from the generator. They did not allege violation of any air emission regulation or permit. Defendant moved to dismiss on multiple grounds: (i) the plaintiffs’ complaint did not satisfy the plausibility pleading standard of Twombly and Iqbal, (ii) the Clean Air Act (CAA) preempts the plaintiffs’ claims, and (iii) the political question doctrine rendered the case non-justiciable. Defendants also contended that “[p]laintiffs’ strict liability count must fail because power generation is not an ultra-hazardous activity.”

The court focused on whether the CAA preempted the lawsuit. Key to the defendant’s argument was its assertion that the complaint constituted “a request to have this Court regulate emission standards.” Plaintiffs asserted that they had no argument with the emission standards or with defendant’s compliance. But they argued that the applicable regulations and permits did not protect defendant from property damage that might occur as a result of its legal emissions.

The court observed that the complaint contained multiple allegations asserting attacks on emissions that were inconsistent with the regulations, including allegations of “improper construction, operation, and maintenance” of the plant and operation without the “best available technology or any proper air pollution control equipment.” Finding that these allegations were central to plaintiffs’ claims, the complaint necessarily spoke to and attacked CAA emissions standards, and the CAA occupies the air emissions field, the court held that plaintiffs’ claims were preempted.

Plaintiffs asserted that their common law claims were preserved by the CAA savings clause, which provides that “[n]othing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).” Because it would effectively undermine the CAA’s regulatory scheme, the court found that this language could not be stretched far enough to allow plaintiffs’ claims and agreed with prior decisions that the CAA does not authorize actions for damages resulting from air emissions. Accordingly, the court held that the CAA preempted plaintiffs’ case.