On October 12, 2012, the U.S. District Court for the Western District of Pennsylvania issued an opinion and order in Kristie Bell v. Cheswick Generating Station, GenOn Power Midwest, L.P., No. 2:12-cv-929, holding that state law nuisance claims are preempted by the federal Clean Air Act (CAA). While numerous courts have held that the CAA preempts federal common law public nuisance claims with respect to power plant emissions, a principle recently confirmed by the U.S. Supreme Court, the district court’s ruling further applies that reasoning to Pennsylvania common law claims and with important implications for standard toxic tort actions as well as climate-related litigation.

The Complaint -

In Bell, plaintiffs had filed suit on April 19, 2012, alleging emissions from GenOn’s Cheswick power plant, a 570-MW coal-fired facility, caused damage both to the plaintiffs’ property and to a putative class of at least 1,500 individuals within a one-mile radius of the facility, located in the borough of Springdale, Allegheny County, Pennsylvania. Specifically, the complaint alleged damage in the form of odors and the deposition of coal dust and combustion residuals on private property. The plaintiffs sought compensatory and punitive damages under the common law tort theories of nuisance, negligence and recklessness, trespass and strict liability, as well as injunctive relief in connection with the alleged nuisance and trespass. The suit originally was filed in the Allegheny County Court of Common Pleas, but was removed to federal court on diversity of citizenship.