Originally published in Law360 on December 17, 2012.
Left open by the U.S. Supreme Court’s decision in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), was the question of whether state law nuisance claims for the emission of carbon dioxide were viable in the face of the Clean Air Act. That question continued to be answered in the negative with the decision of the U.S. District Court for the Western District of Pennsylvania last month in Bell v. Cheswick Generating Station, GenOn Power Midwest L.P. (W.D. Penn. Oct. 12, 2012), which was appealed to the Third Circuit the Friday before Thanksgiving. In Bell, plaintiffs, neighbors to the defendant’s coal-fired electricity generating plant, filed suit alleging:
that the [defendant’s] atmospheric emissions fall upon their properties and leave a film of either black dust (i.e., unburned coal particulate/unburned coal combustion byproduct) or white powder (i.e., fly ash). According to the Plaintiffs, those discharges require them to constantly clean their properties, preclude them from full use and enjoyment of their land, and “make [them] prisoners in their own homes.” Order at 2.
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