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Third Circuit Rules State Law Tort Claims Not Preempted by Federal Clean Air Act

Yesterday, a three-judge panel of the Third Circuit issued a unanimous precedential opinion in Bell v. Cheswick Generating Station, No. 12-4216 (3d Cir. Aug. 20, 2013), holding that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims.  In doing so, the Court reversed the Western District’s dismissal of the Complaint, and remanded the case for further proceedings.

In April 2012, a group of more than 1,500 residents living near GenOn Power Midwest, L.P.’s coal-fired electric generation plant in Springdale, Pennsylvania, known as the Cheswick Generating Station, initiated a class action in the Court of Common Pleas of Allegheny County, alleging that plant operations resulted in the emission of odors, fly ash, and coal combustion by-products, which created dust and powder that continuously landed on plaintiffs’ properties.  Plaintiffs claim that they have lost the ability to fully use and enjoy their properties, and seek to recover compensatory and punitive damages, as well as injunctive relief, under four state common law theories – nuisance, negligence and recklessness, trespass, and strict liability.  Plaintiffs conceded that their claim for strict liability failed as a matter of law, because power generation is not an abnormally dangerous or ultra-hazardous activity under Pennsylvania law. 

GenOn, whose corporate headquarters are located in Houston, Texas, quickly removed the case on the basis of diversity of citizenship to the U.S. District Court for the Western District of Pennsylvania, and immediately moved to dismiss the case under Rule12(b)(6) for failure to state a claim, on the basis that plaintiffs’ tort claims were preempted by the CAA. 

In a published opinion issued October 12, 2012, the Western District agreed and dismissed the case, holding that all of plaintiffs’ state common law claims were preempted by the CAA.  See 903 F.Supp.2d 314 (W.D. Pa. 2012).  The Western District held that the “savings clause” of the CAA’s citizen suit provision – which states that “[n]othing 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 other relief. . .” – did not open the door for private plaintiffs to assert common law claims for alleged violations of the CAA.  Rather, after reviewing the regulatory framework of the CAA, the District Court held that “to permit [] common law claims would be inconsistent with the dictates of the Clean Air Act,” and that the existence of the “savings clause” does not alter this analysis.   

On appeal, the Third Circuit pointed to a 1987 U.S. Supreme Court case decided under the Clean Water Act – which has a similar citizen suit “savings clause” provision – that held common law nuisance claims filed under the laws of the state where the source of pollution was located were not preempted by the Clean Water Act.  See Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987).  The Third Circuit compared the two statutes and their respective savings clauses, and determined that “there is no meaningful difference between the Clean Water Act and the Clean Air Act for the purposes of our preemption analysis.”  The Third Circuit therefore reversed the Western District’s dismissal of the class action, because the case asserted Pennsylvania common law tort claims based on a source of pollution located in Pennsylvania – claims that the Third Circuit determined are not preempted by the CAA.     

The case was remanded to the Western District, where it will now proceed through the class certification process under Federal Rule of Civil Procedure 23, which requires that the class meet four requisite criteria: (1) that the class is so numerous that joinder is impractical, (2) that questions of law and fact are common to the class, (3) that the representative plaintiffs’ claims or defenses are typical of the class, and (4) that the representative plaintiffs will fairly and adequately protect class interests.