This summer, we reported on the Third Circuit’s decision in the Bell v. Cheswick Generating Station case, which held that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims in a putative class action filed by over 1,500 residents complaining that the operations of GenOn Power Midwest, L.P.’s (“GenOn’s) coal-fired electric generation station constituted a nuisance under Pennsylvania common law. 

In a Petition for Certiorari filed by GenOn on February 20^th and made public last week (Docket No. 13-1013), GenOn urges the United States Supreme Court to overturn the Third Circuit’s decision and hold that the CAA preempts all state common law claims.  GenOn argues that such a reversal is necessary in accordance with the Court’s prior decision in American Electric Power Co. v. Connecticut, which held that the CAA preempts federal common law nuisance suits aimed at curbing air pollution.  In seeking Certiorari, GenOn argues that the Third Circuit erred in holding that the “savings clause” in the CAA preserved common law claims for air pollution, and that allowing such claims would result in an ad-hoc regulation of air pollution across the country, “that would allow a state court or jury to impose different standards than those adopted by EPA.”  GenOn argues that the CAA’s “savings clause” does nothing more than preserve the ability of state or local political subdivisions to adopt additional emission standards and regulatory requirements through proper statutory and administrative processes, and that the “savings clause” does not create an avenue to regulate a source of air pollution through the common law.  GenOn also argues that the Court’s decision in American Electric Power clearly held that when dealing with the regulation of air pollution, the “expert agency is surely better equipped to do the job than district judges issuing ad hoc, case-by-case injunctions,” and that therefore courts should “have only a secondary role, to review the expert agencies’ decisions and ensure compliance with statutory requirements.”

Plaintiffs’ opposition to GenOn’s Petition for Certiorari, should they choose to file one, is due later this month.

Share | Email| Print| Comments|  Topics: Air, Case Update, Cases to Watch, Class Actions, Clean Air Act, Emissions, Nuisance, Pennsylvania, Preemption, Supreme Court, Third Circuit