In a decision that may make it easier for plaintiffs to maintain tort claims against certain facilities permitted under the federal Clean Air Act, the U.S. Court of Appeals for the Third Circuit held that property owners could bring nuisance, negligence, and trespass claims against a power plant allegedly releasing particulates onto their properties. See Bell v. Cheswick Generating Station, No. 12-4216 (3d Cir. Aug. 20, 2013), available at www.bdlaw.com/assets/attachments/bellvcheswick.pdf.

Plaintiffs, a putative class made up of at least 1,500 individuals who own or inhabit residential property within one mile of GenOn’s Cheswick Generating Station, brought this action alleging that the odors and particulates released by the plant have caused substantial damage to, and loss of enjoyment of, their property. Bell, slip op. at 3, 9-10. The trial court in the Western District of Pennsylvania found the Clean Air Act preempted Plaintiffs' state law claims. Id. at 11-12.

On appeal, Defendants argued that Pennsylvania tort law conflicted with the Clean Air Act and was preempted. Id. at 13. Defendants distinguished the Supreme Court’s Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987), which allowed state tort claims under the Clean Water Act, on the grounds that the Clean Air Act states’ rights savings clause was narrower than the Clean Water Act’s analogous clause. Id. at 16.

The Third Circuit disagreed, holding that the Supreme Court’s Ouellette decision controlled this case because “there is no meaningful difference” between the two savings clauses. Id. at 16, 20. The court also rejected Defendants’ argument that state tort claims would create inconsistent standards, noting that the Supreme Court’s Ouellette decision shows “states are free to impose higher standards on their own sources of pollution” using state tort law. Id. at 21-22. According to the court,“[i]f Congress intended to eliminate such private causes of action, ‘its failure even to hint at’ this result would be ‘spectacularly odd.’” Id. at 23 (citations omitted).