On October 12, 2012, the U.S. District Court for the Western District of Pennsylvania found that the Clean Air Act displaced all state common law claims relating to dust emissions from a coal-fired power plant. The plaintiffs, representatives of a purported class of 1,500 property owners around the 570-MW Cheswick Generating plant in Springdale, Pennsylvania, alleged dust and other emissions had devalued their property. All the class members lived within 1-mile of the plant. They alleged “atmospheric emissions” caused “film of black dust” (from unburned coal) or “white powder” (from fly ash) to fall on their property, which ultimately devalued their property. They also alleged the plant failed to install proper technology to prevent dust and other air emissions. The case was filed in state court, but removed to federal court based on diversity.
In its motion to dismiss, GenOn, the owner of the plant, argued the Clean Air Act (“CAA”) preempted all common law claims related to air emissions. Plaintiffs made two points on reply. First, they pointed to the savings clause of the CAA, which provides “[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 any other relief (including relief against the Administrator or a State agency).” 42 U.S.C.A. § 7604(e). Second, in response to GenOn’s claim that American Electric and Kivalina preempted the state nuisance claim, the plaintiffs alleged those cases only displaced federal common law, not state law.
In a relatively thin analysis of the issues, the court granted GenOn’s motion to dismiss. According to the court, the CAA preempted all state common law claims if they related to air emissions from the power plant. Pointing to the Fourth Circuit’s analysis in North Carolina, ex. rel Cooper (the public nuisance case), and based on the extensive and comprehensive regulations promulgated by the administrative bodies which govern air emissions from electrical generation facilities, the Court found that to permit the common law claims would be inconsistent with the dictates of the CAA.
In its holding, the court noted that the CAA provides Plaintiffs multiple avenues for redress to enforce any of the emissions standards of or limitations on the Cheswick Generating Station. First, the CAA allows for so-called “citizen suits” against persons who violate various promulgations of the Act or orders issued by the EPA or states. Second, the court noted, the EPA also “retains the power to inspect and monitor regulated sources, to impose administrative penalties for noncompliance, and to commence civil actions against polluters in federal court,” but “may delegate implementation and enforcement authority to the States.” In its reply, Plaintiffs explained to no avail that they were seeking money damages, and, at the hearing on the motion to dismiss, they agreed to drop any injunctive relief claim that appeared to seek new technologies to restrict air claims. In the end, the court observed that the recovery sought—monetary damages and injunctive relief—was simply inconsistent with those provisions–the CAA already provides a means to seek limits on emissions, and the Court will not create a parallel track.
This case represents a major development for industrial facilities and other emitters in defending against state common law claims involving air emissions. Assuming its holding stands up on appeal, all state nuisance claims involving climate change would also be preempted. This is a major point for climate change litigation because the major court decisions (American Electric and Kivalina) that have determined that the CAA displaces nuisance law claims against greenhouse gas emitters have been in the context of the federal common law and have not addressed preemption of state common law. The case, however, will almost certainly be appealed.
A copy of the opinion is available here.