In a decision that sets precedent, a federal court last week ruled that residents neighboring a Pennsylvania coal-fired power plant may sue for property damage even though the plant fully complies with state and federal emissions rules.
The U.S. Court of Appeals for the Third Circuit sided with two named plaintiffs in a class action complaint made up of at least 1,500 individuals who live or own property within one mile of GenOn’s 570-MW Cheswick Generating Station in Springdale, Pa. The class members had sought to recover damages under state and common law tort theories of nuisance, negligence and recklessness, and trespass.
Specifically, the complaint alleged that the plant releases “malodorous substances and particulates” into the surrounding neighborhood, causing fly ash and unburned coal combustion byproducts to settle onto the neighboring residents’ property as a “black dust/film…or white powder” that requires constant cleaning. The class members also alleged the odors and particulates are harmful, noxious, and damaging, making them “prisoners in their [own] homes.” Significantly, the petitioners said that GenOn knew of the “improper construction and operation” of the plant but continued to operate the plant without “best available technology” or proper air pollution control equipment.
GenOn argued that the plant—which is already subject to stringent federal, state, and local rules under the Clean Air Act—owed no extra duty to the members of the class action suit. It contended that allowing such claims to go forward “would undermine the [Clean Air Act]’s comprehensive scheme, and make it impossible for regulators to strike their desired balance in implementing emissions standards.” Agreeing with GenOn, the U.S. District Court for the Western District of Pennsylvania dismissed the case in October 2012.
But after reviewing 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 3rd Circuit last week found that based on “plain language” of the law, “such source state common law actions are not preempted.” The appeals court reversed the district court’s decision and remanded the case for further proceedings.
“We see nothing in the Clean Air Act to indicate that Congress intended to preempt source state common law tort claims. If Congress intended to eliminate such private causes of action, ‘its failure even to hint at’ this result would be “’spectacularly odd,’” wrote Circuit Judge Julio Fuentes for the court.
The decision is of paramount importance and affects all permit holders, say attorneys Michael L. Krancer, Margaret Anne Hill, and Louis Abrams at Blank Rome LLP. “The importance of this breathtaking decision to permitted entities cannot be overstated. A clear message has been delivered: the federal Clean Air Act and state Clean Air Acts are no longer in complete control of determining compliance with air emissions,” they said.
In reversing the district court’s decision, the 3rd Circuit acknowledged that states are primarily responsible for ensuring compliance with the Clean Air Act and meeting the air quality standards set forth in their federally approved state implementation plans. “But the Court flatly disagreed with the district court’s view that the Clean Air Act prevents the filing of common law tort claims, noting that the Act explicitly preserves a citizen’s right to file suit regardless of the fact that states have the regulatory authority to determine what sources can emit in permits to operate,” the attorneys explained.
“The Court was also not swayed by arguments advanced by the regulated community that allowing such tort claims—even where sources are in compliance with emission standards in their permits—would open a floodgate of nuisance claims that would create havoc with the principles of the Clean Air Act.”
The case is Kristie Bell et al. v. Cheswick Generating Station et al., No.12-4216 (3d Cir. Aug. 20, 2013)
Sources: POWER, U.S. Court of Appeals for the Third Circuit, Blank Rome LLP.
—Sonal Patel, Senior Writer (@POWERmagazine, @sonalcpatel)