On August 20, 2013, the United States Court of Appeals for the Third Circuit (Third Circuit) held that a class of nearly 1500 residents could sue a coal-fired power plant under state tort law for damage caused to their property although the plant was in full compliance with the Clean Air Act (CAA, The Act). Bell v. GenOn Power Midwest LP, 3rd. Cir., No. 12-4216, (2013) The class of residents (residents) claimed that the plaint emitted deposits of fly-ash and unburned coal combustion products that would settle on their property. Constant cleaning was required to remove these deposits and the substantial damage to the residents’ property made them feel as if they were prisoners in their own homes. The residents proceeded to bring suit against the plant based on three state common law tort theories:
(1) nuisance;
(2) negligence and recklessness; and
(3) trespass.
Attorneys for the plant argued that state law tort claims were preempted by the CAA and the suit was an attempt to undermine the overarching purpose of the Act.
At first, the residents’ claims were unsuccessful because the District Court held that the provisions of the CAA were so comprehensive as to preempt actions based on state tort law. The residents then appealed the District Court’s decision to the Third Circuit.
In determining whether the plant should be subject to liability, the Third Circuit paid special attention to the CAA’s savings clause that is located within the Act’s citizen suit provision. The savings clause states in pertinent part that:
[e]xcept as otherwise provided . . . nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution . . .42 U.S.C. § 7416.
After extensively analyzing the language of this clause and comparing its language to a similar section in the Clean Water Act, the Third Circuit held that there was “nothing in the [CAA] to indicate that Congress intended to preempt state common law tort claims. If Congress intended to eliminate such private causes of action, ‘its failure to even hint at’ this result would be ‘spectacularly odd.’” Bell v. GenOn, 3rd. Cir., No. 12-4216 at 23. The Third Circuit then reversed the District Court’s holding and remanded the case for further proceedings.
At first glance, this decision appears to have far-reaching implications regarding a citizen’s ability to sue operators via state tort law claims despite the operator’s full compliance with all federal regulations. However, the Third Circuit’s holding is consistent with the text of the CAA.
As the Third Circuit noted in their decision, the text of the CAA’s savings clause has always preserved the right of state and local governments to create laws regarding air quality that are more stringent than the standards set forth by the CAA. Therefore, just because an operator demonstrates compliance with the provisions of the CAA does not mean the operator is immune from suit under potentially more stringent state tort laws.
Additionally, it is significant that the residents attempted to recover based on state law nuisance claims. The Third Circuit found nothing to indicate that federal preemption applied after analyzing several precedential cases that examined whether state law nuisance claims were preempted by federal environmental regulations. Moreover, tort law distinguishes between private nuisance (where an occurrence harms a specific individual or part in a manner that is distinguishable from the harm caused to the public), and public nuisance (where an occurrence harms the public in general).
Here, the class of residents claimed that their proximity to the plant harmed them in a manner that was distinguishable from the harm the general public may have suffered as a result of the plant’s activities. This tort concept, taken in conjunction with the savings clause located in the citizens suit provision of the CAA, was enough for the Third Circuit to determine that the CAA did not preempt state tort law causes of action.
Yet this case leaves open the question of whether a public nuisance claim would have met with the same success. In other words, could the residents have successfully asserted nuisance claims against the power plant based on their suffering harm as members of their general public? Based on the Third Circuit’s holding in Bell v. GenOn, it is reasonable to assume that the CAA does not preempt any state law nuisance claims, whether public or private. However, compliance with the provisions of the CAA may constitute a hardier defense against public nuisance claims because the CAA was designed to offer widespread protection against air pollution. But because this issue has yet to be addressed, it remains to be seen whether public nuisance claims would meet with the same success as the residents’ private nuisance claims in Bell v. GenOn.
Overall, Bell v. GenOn constitutes a victory for residents whose property is negatively impacted by the activities of a nearby coal-fired power plant. By holding that state law tort claims were not preempted under the federal regulations, the Third Circuit guaranteed that impacted residents almost always have some way to receive compensation for damage to their property. However, the Third Circuit’s ruling in Bell v. GenOn appears to only slightly increase an operator’s potential for liability under the CAA because it comported with the plain language of the Act’s savings clause and existing caselaw on the subject. Although it does not drastically transform the state of operator liability under the CAA, Bell v. GenOn serves as a reminder of the increasing prevalence of litigation in the fields of energy and environmental law and how the legal boundaries of these fields are far from settled.