3rd Circuit Considers Preemption of Tort Law By The Clean Air Act

On August 20, 2013, the U.S. Court of Appeals for the 3rd Circuit in Bell et al. v. Cheswick Generating Station, GenOn Power Midwest, L.P.  Case: 12-4216 answered a question of first impression: “whether the Clean Air Act preempts state law tort claims brought by private property owners against a source of pollution located within the state?”  In this case, Plaintiffs filed claims under state tort law against the GenOn’s Cheswick Generating Station, a 570-megawatt coal-fired electrical generation facility in Springdale, Pennsylvania for allegations of ash and contaminants settling on their residential property (located within a mile of the plant).  The Appeals Court held that “(b)ased on the plain language of the Clean Air Act and controlling Supreme Court precedent, we conclude that such source state common law actions are not preempted.”  Thus, claimants may bring a common law action against a source of air pollution, if the claim is based upon the tort law of the state within which the source is located.

This decision was based upon the U.S. Supreme Court precedent found in Intl. Paper Co. v. Ouellette, 479 U.S. 481, 483 (1987).  The question presented by Intl. Paper Co. v. Ouellette was “whether the [Clean Water] Act pre-empts a common-law nuisance suit filed in a Vermont court under Vermont law, when the source of the alleged injury is located in New York.”  Intl. Paper Co. v. Ouellette, 479 U.S. 481, 483 (1987).  The U.S. Supreme Court held that: (1) Clean Water Act preempted Vermont nuisance law to extent that that law sought to impose liability on New York point source, but (2) Act did not bar aggrieved individuals in Vermont from bringing nuisance claim pursuant to law of source state of New York.  Intl. Paper Co. v. Ouellette, 479 U.S. 481 (1987).

The Supreme Court of Appeals of West Virginia has previously applied the Intl. Paper Co. v. Ouellette  decision to the Clean Air Act in Ashland Oil, Inc. v. Kaufman, 384 S.E.2d 173 (W. Va. 1989).  The Supreme Court of Appeals of West Virginia held that Intl. Paper Co. v. Ouellette  “requires the application of the statutory or common law of the source state to an interstate pollution dispute when the pollutants in question are regulated by the Clean Air Act. However, the procedural law of West Virginia shall be followed when the issues are being litigated in this State’s courts.”Ashland Oil, Inc. v. Kaufman, 384 S.E.2d 173, 180 (W. Va. 1989).  Thus under Ashland Oil, Inc. v. Kaufman if the source of pollution is an out of state source, claimants may bring a common law action in West Virginia where the damages are alleged to have occurred, but the West Virginia court would be obligated to apply the procedural law of West Virginia.

Thus, it appears, at least in the 3rd Circuit, that while the Clean Air Act does preempt the tort law of a state other than the state hosting the source, it does not preempt the application of the tort law of the state in which the source is located.

David Flannery has focused his practice in the areas of environmental and energy law. Ranked as one of the leading lawyers in America in these areas, Flannery is a member of the American College of Environmental Lawyers and a Commissioner to the Ohio River Valley Water Sanitation Commission (ORSANCO).
 
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