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State Tort Claims Not Preempted by the Clean Air Act, Says 3rd Cir

By Gabriella Khorasanee, JD on August 23, 2013 | Last updated on March 21, 2019

Earlier this week, the Third Circuit Court of Appeals was faced with an issue of first impression: whether state tort claims, brought by private property owners against an in-state source of pollution, were preempted by the Clean Air Act. The district court found that the claims were preempted.

The Third Circuit disagreed, and reversed and remanded for further proceedings.

The Pollution

Plaintiffs consist of a class of 1,500 people who own or live in residences within one mile of a coal-fired power generating plant run by defendant, GenOn. The plant's business activities result in layers of black film and white powder on plaintiffs' property, requires constant cleaning and results in making plaintiffs "prisoners in their [own] homes."

The Clean Air Act

The Clean Air Act is a shining example of cooperative federalism at its best. The EPA creates national ambient air quality standards ("NAAQS"), and states create state implementation plans ("SIPs") to implement the EPA-approved NAAQS; each state is responsible for enforcing their SIPs.

The Clean Air Act contains two savings clauses: one preserving private citizen suits, and the other preserving states' rights. Despite the savings clauses, the district court found that the plaintiffs' claims were preempted by the Supremacy Clause.

The Preemption Issue

The Third Circuit began its preemption analysis with a review of supremacy doctrine. Though the issue before the court was one of first impression, in 1987 the Supreme Court decided a similar case -- International Paper Co. V. Ouellette, with two distinctions -- the Ouellette decision dealt with (1) the Clean Water Act; and (2) the plaintiffs brought suit in the affected state, rather than the pollution source state.

First, the court noted that the savings clauses of the Clean Water Act and the Clean Air Act were "virtually identical." Next, the court discussed Ouellette's holding as it related to the distinction between the laws of affected, and source states.

In Ouellette, the Supreme Court "found that the Clean Water Act's savings clauses clearly preserved some state law tort actions ... [and] nothing in the [Clean Water Act] bars aggrieved individuals from bringing a nuisance claim pursuant to the laws of the source State." The plaintiffs' claims ultimately failed because they brought suit under the laws of the affected state, but the Court's analysis led the Third Circuit to conclude that plaintiffs would have been able to bring suit under the laws of the source state. Here, because the source and affect of the pollution was all in one state -- it did not bar plaintiffs' claims.

The 3rd Circuit's Tough Stance

In the past two months, the Third Circuit has handed down two EPA decisions that are not favorable to polluters, especially GenOn. The court noted that the EPA NAAQS establish the base, not the ceiling -- and states can impose stricter emissions standards. Based on these two recent cases, polluters will have a hard time arguing their way out of their dirty business -- at least in the Third Circuit.

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