On August, 20, 2013, the U.S. Court of Appeals for the Third Circuit issued a ruling reversing dismissal of common law claims brought by a group of residents who live near a coal-fired power plant in Springdale, Pennsylvania. Bell v. Cheswick Generating Station, No. 12-4216 (Aug. 20, 2013). The residents are complaining that ash and other contaminants from the power plant owned by GenOn Power Midwest, L.P. ("GenOn") have settled onto their properties, covering them with black dust and causing harmful and noxious odors. The residents allege claims under the state common law theories of nuisance, negligence and trespass. GenOn argued that the federal Clean Air Act preempted state common law with regard to its power plant because the power plant is subject to a comprehensive regulatory scheme, including air pollution permits.
The trial court agreed with GenOn's arguments and granted dismissal of the residents' claims. On appeal, the Third Circuit evaluated the language of the Clean Air Act and prior precedent of the U.S. Supreme Court (International Paper Co. v. Ouellette, 479 U.S. 481 (1987)), which held that the Clean Water Act did not preempt certain state common law claims related to water pollution. The statutory language at issue are the two "savings clauses" in the Clean Air Act:
Nothing 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…
42 U.S.C. § 7604(e).
Except as otherwise provided…nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution…
42 U.S.C. § 7416.
The Third Circuit held that the savings clauses in the Clean Air Act were substantially similar to the savings clauses in the Clean Water Act, which the Supreme Court had held preserved certain state law tort actions. Thus, "[g]iven that we find no meaningful difference between the Clean Water Act and the Clean Air Act for the purposes of our preemption analysis, we conclude that the Supreme Court's decision in Ouellettecontrols this case, and thus, the Clean Air Act does not preempt state common law claims based on the law of the state where the source of the pollution is located." Bell, slip op. at 20.
The Third Circuit also rejected GenOn's public policy argument – that allowing state common law claims in this case would undermine the regulatory framework established between the federal government and the states under the Clean Air Act. The Third Circuit rejected this argument by again citing the Supreme Court's reasoning inOuellette. The court stated that the requirements placed on pollution sources under the Clean Water Act (and by analogy the Clean Air Act) ware a "regulatory floor", and thus states are free to impose higher standards, including through common law tort actions. The Third Circuit also distinguished the present case from the Supreme Court's recent decision in American Electric Power Co. ("AEP") v. Connecticut, 131 S. Ct. 2527 (2011), in which the Supreme Court held that the Clean Air Act displaced federal common law rights to seek abatement of carbon-dioxide emissions from power plants. However, the Supreme Court left open the question of whether the Clean Air Act preempted state common law. A question answered in the negative by the Third Circuit.
This decision will likely be seen as a boon to plaintiffs seeking common law claims against regulated industry. Indeed, under this ruling, a power plant or other emission source could be in full compliance with all requirements imposed under the Clean Air Act, but still face litigation due to nuisance or other common law claims allegedly caused by its emissions. In particular, because the court specifically referenced and distinguished AEP v. Connecticut, environmentalists will likely point to this new decision to bolster common law lawsuits related to greenhouse gas emissions and climate change.
A copy of the Third Circuit's opinion is available here.