The Third Circuit has ruled that the Clean Air Act (“CAA”) does not preempt state law tort actions against regulated sources of air pollution located in the same state. See Bell v. Cheswick Generating Station, GenOn Power Midwest, L.P., No. 12-4216 (3rd Cir. Aug. 20, 2013). The ruling allows a potential class action for claims of property damage, odors and dust-related nuisance to proceed against a GenOn-owned coal-fired power plant in Pennsylvania.
The district court below had dismissed the case on grounds that the extensive regulatory system created by the CAA is so pervasive as to preempt the application of state law to GenOn’s emissions pursuant to the Supremacy Clause of the U.S. Constitution. The Third Circuit disagreed, finding that so-called “savings clauses” in the CAA were effectively identical to similar clauses in the Clean Water Act (“CWA”) and that the Supreme Court has already ruled that the CWA does not preempt state law tort actions against intrastate sources of pollution. The Court suggested that the fears a single source of emissions could be subjected to the inconsistent or differing laws of multiple states was not at issue and, therefore, the grounds for preemption by federal law were absent. See North Carolina ex rel Cooper v. Tennessee Valley Authority, 615 F.3d 291 (4th Cir. 2010) (CAA preempted attempt by North Carolina to apply its public nuisance law to emissions originating in neighboring state).
This article was authored by Robert McLusky, Jackson Kelly PLLC. For more information on the author, see here.