Third Circuit Preserves Common Law Nuisance Claims To Correct Harmful Air Emissions

Counsel for property owners residing near dirty coal plants will be pleased with the Third Circuit's decision in Bell et al. v. Cheswick Generating Station, Genon Power Midwest, L.P., No. 12-4216 (3d Cir. Op. filed Aug. 20, 2013). The Third Circuit held that the federal Clean Air Act does not pre-empt state law nuisance claims.

Plaintiffs Bell and Luppe were named plaintiffs in a class action representing 1,500 persons residing near Genon's 750-megawatt coal-fired power plant located in a bedroom community north of Pittsburgh along the Allegheny River.  The community, Springdale, also happens to be home to one of the finest old-fashioned custard stands east of the Mississippi.

Genon Power Plant
Springdale, Pa.

Plaintiffs sued under a variety of state law tort theories, alleging that ash and other contaminants from the plant were harming their property. Genon sought summary judgment, asserting that the Clean Air Act (CAA) pre-empted the state law claims.

The CAA's citizen suit provision contains a savings clause that reads:

"Nothing 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 any other relief (including relief against the Administrator or a State agency)."

The CAA also contains a so-called "state's rights" savings clause that protects the right of states to impose limits that are more stringent than federal law.

In a matter of first impression, the Third Circuit's analysis was guided by the Supreme Court's decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987).  There, property owners on a lake sued under state common law theories for reduced property values being caused by a pollutional discharge into the lake.  The Supreme Court found that the Clean Water Act's (CWA) savings clauses preserved the right of states to impose standards that were more stringent than federal law, and that those more stringent standards could be imposed either by statute or through the common law.

Finding no meaningful difference between the savings clauses under the CAA and CWA, the Third Circuit properly concluded that Ouellette controlled its decision and remanded the case to the district court for further proceedings.

The CAA's national ambient air quality standards are intended to protect public health and welfare. The secondary standards, in particular, are designed to prevent impacts to things such as buildings.  As a practical matter, compliance with those standards should shield good operators from these types of common law nuisance suits. But the Third Circuit recognized that the principles of cooperative federalism embodied in the CAA provide plaintiffs another tool to redress harm where the federal regulatory framework fails to prevent harm to local residents, as alleged in this case.

In Pennsylvania, the General Assembly has made it difficult for the state to adopt regulatory standards that are more stringent than federal law. Section 4.2(b) of Pennsylvania's Air Pollution Control Act prohibits the Environmental Quality Board from adopting control measures and other requirements that are more stringent than federal law without substantial justification. As such, the Third Circuit's decision preserving common law nuisance claims has particular import for Pennsylvania residents allegedly being harmed by air pollution.

Act 13 Watch: PUC and DEP File Petition To Get New Justice Involved

As has been reported, the Pennsylvania Public Utility Commission (PUC) and Department of Environmental Protection (DEP) filed a joint petition last week requesting that the Robinson Township case, which challenges the constitutionality of Act 13, be resubmitted to the full Court so that new Justice Correale Stevens may participate in the  decision. 

When oral argument was heard on October 17, 2012, there were only six justices on the bench as former Justice Joan Orie Melvin was suspended while being prosecuted for public corruption charges. She was eventually convicted.

Governor Corbett appointed Correale Stevens to replace Melvin. He was sworn in last Tuesday, and though the Supreme Court has yet to decide the Robinson Township case, it said that Stevens would not participate in the decision unless he heard oral argument. According to StateImpact, a spokeswoman for the Court indicated that it has rarely ordered re-argument, but that another avenue for Stevens to participate might be for the parties to resubmit briefs. Considering that the Supreme Court said that oral argument was an "integral" part of their decision-making process, it is difficult to understand how resubmitting briefs in an already well-briefed case would, by itself, make a difference in whether Justice Stevens should participate in the decision.

To review, the Commonwealth Court in Robinson Township decided that a provision of Act 13, which mandated municipalities to allow industrial activities in areas not zoned for those activities, unconstitutionally harmed those that depended on that zoning to purchase property in the district, in violation of their substantive due process rights under Art. 1, Sec. 1 of the Pa. Constitution. The Commonwealth Court also declared unconstitutional a separate provision granting DEP the right to waive gas well set-back requirements because the legislature provided no guidance for the executive branch agency to exercise that discretion, in violation of Art 1, Sec. 2 of the Pa. Constitution. In effect, the Court said that the legislature did not properly delegate its authority to the DEP.

While on the Superior Court, Justice Stevens issued no opinions on the constitutional provisions relied on by the majority in Robinson Township to strike down portions of Act 13. He did participate in a handful of decisions that raised substantive due process claims, but those cases were criminal cases that shed little light on his views. For example, Commonwealth v. Gaines involved a claim that substantive due process entitled an individual to have his arrest record expunged, and Commonwealth v. Teeter involved an individual's right to be free from vague and discriminatory sentencing statutes. Both principles are well established, but the claims of the individual defendants were rejected in those cases without much analysis.

During his tenure, Justice Stevens has not issued or joined an opinion that reveals his view of how the courts should use substantive due process to protect an individual's right to life, liberty and, in particular, the right to acquire, own and protect property as guaranteed by Art 1, Sec. 1 of the Pa. Constitution.