Last week, the U.S. Court of Appeals for the Third Circuit said “no” and the decision has already prompted at least one new air emissions lawsuit against a power plant owner.

In Kristie Bell, et al. v. Cheswick Generating Station, GenOn Power Midwest, L.P., No. 12-1426 (3d Cir. Aug. 20, 2013), the Third Circuit held that the Clean Air Act (CAA) does not prevent Pennsylvania residents from alleging that air emissions from a Pennsylvania power plant have created a nuisance under Pennsylvania state law.  The decision holds, in essence, that the CAA’s “comprehensive” scheme for regulating air emissions is not so comprehensive as to preempt all air-related tort claims.

The Bell decision turns on the fact that the plaintiffs are relying on state tort law against an in-state source of air pollution; they are not relying on federal common law or trying to impose Pennsylvania’s tort law on an out-of-state source.  The decision means that the plaintiffs – a putative class of individuals who live or own property within one mile of GenOn’s Springdale, Pennsylvania, coal-fired Cheswick Generating Station – will be able to press forward with their assertion that the facility’s particulate matter and other emissions have harmed their property, thereby entitling them to money damages under nuisance, negligence and trespass theories. 

But the plaintiffs still have to prove their case, which may be difficult to do. The Fourth Circuit previously addressed similar nuisance claims arising under Alabama and Tennessee state law inNorth Carolina, ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010), and concluded that the plaintiffs there could not state a public nuisance claim because they were complaining about emissions that were expressly allowed by the defendant’s operating permits.  The Bell plaintiffs, whose lawyers commenced a similar lawsuit against a second coal-fired power plant just days after the Bell decision came down, may face a similar problem under Pennsylvania nuisance law.