New Wave of State Law Air Pollution Torts?

The U.S. Supreme Court’s denial of certiorari in Bell v. Cheswick could pave the way for more state common law air pollution tort suits and greater exposure for emitters.

A new wave of state common law air pollution tort claims may be upon us, given the U.S. Supreme Court’s recent announcement it would not review an August 2013 decision by the U.S. Court of Appeals for the Third Circuit that the Clean Air Act (CAA) does not preempt such claims. In the year since the Third Circuit’s decision, a number of other courts have reached the same result and allowed air pollution tort claims to move forward. These decisions spell uncertainty for emitters, who must look beyond the requirements in their government-issued air permits to determine if their emissions are lawful. Even if they are in full compliance with the CAA, sources — including fossil fuel-fired power plants, petroleum refineries, and emitters of greenhouse gases (GHGs) — can be liable for claims that their emissions constitute a nuisance or trespass. As these state law tort claims can potentially result in larger damages awards than CAA citizen suits, plaintiffs may bring more of these air pollution tort claims in the future.

Background to Bell v. Cheswick Generating Station -

The decision at the vanguard of what could be a new wave of pollution tort claims came in the case captioned Bell v. Cheswick Generating Station. Named plaintiff Kristie Bell and more than 1,500 residents of Springdale, Pennsylvania filed a class action complaint in the U.S. District Court for the Western District of Pennsylvania in April 2012 against the Cheswick Generating Station, a 570 megawatt coal-fired power plant in Springdale. The class claims that the plant emits harmful and noxious odors and particulate matter, including fly ash and coal combustion byproducts, and that the odors and particulate matter cause property damage and make the residents “prisoners in their own homes.” The suit alleges a number of theories under Pennsylvania tort law, including nuisance, negligence, recklessness and trespass. Notably, the complaint does not allege that the power plant is violating the CAA or the facility’s CAA Title V operating permit.

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