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EDPA Dismisses Putative Class Action Nuisance and Negligence

Last week, Judge Chad F. Kenney, former Delaware County Court of Common Pleas Judge and recent appointee to the United States District Court for the Eastern District of Pennsylvania, granted Defendant Bethlehem Landfill Company’s motion to dismiss a putative class action alleging that landfill odors created a public and private nuisance for all households within a 2.5-mile radius of the facility. Baptiste v. Bethlehem Landfill Co. et al., No. 18-2691, 2019 WL 1219709 (E.D. Pa. Mar. 13, 2019). The lead plaintiffs, Robin and Dexter Baptiste, reside 1.6 miles from the facility and allege that odors from the facility impacted their property value and ability to enjoy their property. Id. at *5. They alleged that the conditions affected 8,400 households within a 2.5-mile radius. Id.  They styled their claims as claims for public nuisance, private nuisance, and negligence. Id. at *1.

Judge Kenney’s opinion is premised upon an apparent lack of sufficiency in pleading that the plaintiffs had suffered any harm above-and-beyond that suffered by the general public. First, in addressing plaintiffs’ public nuisance claim, Judge Kenney acknowledged that the plaintiffs established a prima facie case that a public nuisance exists. Id. at *7. He reasoned, however, that the Pennsylvania Department of Environmental Protection (“PADEP”) is charged with regulating public nuisances created by landfills under Pennsylvania’s Solid Waste Management Act (“SWMA”). He concluded that the plaintiffs lacked a private right of action to address the public nuisance because they had not alleged suffering a unique harm, other than their general proximity to the facility. Id. at *9-10.

Second, Judge Kenney found that plaintiffs, who live 1.6 miles from the facility, could not suffer a “unique” harm as required for a private nuisance because plaintiffs are not direct neighbors to the facility and hundreds of others are similarly situated. Judge Kenney relied on a 1920 Pennsylvania Supreme Court case for the principle that landfill odors generally affect the public at large, not an individual neighbor, and therefore give rise to a public – not private – nuisance cause of action. Id. at *11 (citing Philips v. Donaldson, 112 A. 236, 238 (Pa. 1920)).

Third and finally, Judge Kenney dismissed plaintiffs’ negligence claim on the basis that plaintiffs failed to establish that defendant had a duty to plaintiffs to avoid causing odors at plaintiffs’ property. Plaintiffs based their negligence claim on the general duty under the Solid Waste Management Act to avoid the creation of public nuisances. Id. at *13. Noting the lack of a private cause of action under the Solid Waste Management Act, Judge Kenney reasoned that plaintiffs’ claim was akin to a negligence per se claim and concluded that such a claim is not available where the statute on which the plaintiff relies is not intended to create a new cause of action in favor of individual, private plaintiffs. Id. at *14.

The case marks a rare complete victory for the defendant at the motion to dismiss stage. Plaintiffs have 30 days from the March 13, 2019 decision to appeal.