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Third Circuit Revives Class Action Odor Lawsuit Against Pennsylvania Landfill

Last week the Third Circuit Court of Appeals issued a precedential opinion reversing the Eastern District of Pennsylvania’s decision granting a Motion to Dismiss a complaint filed by homeowners concerning alleged odors and air contaminants emanating from the Bethlehem landfill, thus reviving the case. Baptiste v. Bethlehem Landfill Co., No. 19-1692, slip op. (3d. Cir. July 13, 2020). In doing so, the Court found that a class of Pennsylvania homeowners allegedly affected by landfill odors may bring suit under theories of negligence, public nuisance and private nuisance.

Robin and Dexter Baptiste, the named plaintiffs, live near Bethlehem Landfill Company’s 224-acre solid waste disposal facility and landfill. In 2018, the Baptistes sued Bethlehem alleging that Bethlehem is not operating its landfill in accordance with the Solid Waste Management Act and industry standards, resulting in odors and other air contaminants that negatively impact the class’s use and enjoyment of their homes and cause a loss in property value. The complaint asserted claims under Pennsylvania common-law for public nuisance, private nuisance, and negligence on behalf of a punitive class of homeowner-occupants and renters in 8,400 households within a 2.5-mile radius of the landfill, claiming property damages in excess of $5 million and seeking both injunctive and punitive relief.

Bethlehem moved to dismiss the complaint for failure to state a claim and the Eastern District of Pennsylvania granted the motion, finding that too many residents were similarly affected to bring a private claim for public nuisance, the alleged odors impacted too many people and the landfill was too far away to constitute a private nuisance, and the plaintiffs failed to identify a duty of care to sustain a negligence claim. The court also dismissed the Baptistes’ request for punitive and injunctive relief. The Baptistes appealed.

On appeal, the Third Circuit reversed the District Court’s decision and remanded the case. First, the Third Circuit addressed the Baptistes’ nuisance claims, noting that “[c]ommon-law nuisance is a notoriously perplexing and unruly doctrine, seeming to defy all efforts to draw bright lines around it.” Id. at 10. The Baptistes argued that the District Court misapplied Pennsylvania law and erroneously imposed restrictions on their nuisance claims. Bethlehem contended, however, that dismissal was proper because the Baptistes alleged a “mass nuisance” for which there is no private right of action but, rather, is addressed through the Commonwealth’s regulatory power.

Turning first to the Baptistes’ private claim for public nuisance, the Third Circuit noted that there was no dispute that the Baptistes alleged the existence of public nuisance, however, the question at issue was whether the Baptistes properly pleaded a private claim for public nuisance. To do this, they had to allege that they suffered a harm of greater magnitude and of a different kind than that suffered by the general public. The Third Circuit found that they did. The Baptistes, the court explained, are seeking to “vindicate their right to use and enjoy their home and obtain the full value of their property—personal rights that are qualitatively different . . . than the general, non-possessory right to clean air held in common with the community at large.” Id. at 14. Further, the Third Circuit emphasized that the harms that the Baptistes identified—such as inability to use their swimming pools, porches, and yards—are unique to them and the other members of the class and the injuries they alleged exceed any injury suffered by the public “because they involve private property damages that the public at large has not endured.” Id. Accordingly, the court held that the Baptistes properly alleged a private claim for public nuisance and found that the District Court’s dismissal of the claim on the basis that the odors impacted too many people for the Baptistes to claim a special harm was unsupported by Pennsylvania law.

Addressing the private nuisance claim, the Third Circuit found that the District Court likewise erred in dismissing the claim because of the number of people impacted. The court emphasized that private and public nuisance claims are not mutually exclusive and explained that the main difference between them is not the number of people harmed but the nature of the impacted right: “a public nuisance requires interference with common or pubic rights, while a private nuisance requires only interference with personal or private rights.” Id. at 18 (emphasis in original). Moreover, the Third Circuit found that the District Court also erred in dismissing the private nuisance claim on the basis that the Baptistes’ home was too far from the landfill to qualify as a neighboring property for purposes of bringing a private nuisance claim. Not only did the Third Circuit find that there was there no support under Pennsylvania law for this, but the Supreme Court case that the District Court relied on did not hold that a property could not bring a nuisance claim based on its proximity to the nuisance nor had any other Pennsylvania cases. Thus, the court held that the Baptistes properly alleged a private nuisance claim.

The Third Circuit also addressed and rejected Bethlehem’s “mass nuisance” theory that when too many people complain about the same specific harm they lose their right to bring a private action to remedy that injury and must instead rely on the government to do so. Finding no Pennsylvania Supreme Court decision addressing whether there is a limit on the number of plaintiffs that can recover private property damages on a nuisance theory, the court applied Pennsylvania law to determine how the highest court would decide the case. The Third Circuit found “no reason to depart from longstanding principles that allow individuals to recover private property damages caused by widespread nuisances, especially where, as here, the number of plaintiffs is not so large as to be ‘indeterminate,’. . . but rather is defined and limited to homeowner-occupants and renters within a 2.5-mile radius from the landfill.” Id. at 27. The Third Circuit cautioned that “[t]o adopt Bethlehem’s novel position would produce the anomalous result of penalizing small polluters while exempting larger polluters from the same liability. We decline to take that step without a clear directive from the Pennsylvania Supreme Court.” Id.

Finally, the court addressed the negligence claim. The Baptistes argued that Bethlehem owes it a common-law duty of care. While Bethlehem conceded that it owes such a duty, it took the position that the duty was to protect others against unreasonable risk of physical harm, not nuisances like odors. Because it was undisputed that Bethlehem owes a common-law duty to the plaintiffs, the Third Circuit reversed the District Court’s dismissal of the negligence claim. The question remained, however, as to whether the Baptistes sufficiently pled a cognizable injury to assert an independent negligence claim. The Third Circuit declined to address this question for the first time on appeal and decided to defer to the District Court to determine whether to consider the question of physical injury on remand.

While the Third Circuit’s decision does not indicate whether the Baptistes will ultimately prevail on their common law nuisance and negligence claims, the court’s reversal and remand has provided the plaintiffs with an opportunity to make their case. Industry members should keep a close eye as the litigation against Bethlehem proceeds and shapes private parties’ rights to recover for harms allegedly suffered because of noxious odors.