Third Circuit rejects preemption under CAA, and opens door to common law tort claims.

• Author: Boone, Walter H.
• Position: Clean Air Act - Reprinted from IADC Environmental and Energy Law Committee newsletter, October 2013 - Reprint

This article originally appeared in the October 2013 Environmental and Energy Law Committee newsletter.

ON August 20, 2013, the Third Circuit opened the door to common law tort claims even though the defendant was in full compliance with its Clean Air Act ("CAA") permit, and held that those tort claims were not preempted by the CAA. (1) Bell and Luppe brought a class action on behalf of 1,500 individuals, all of whom owned property within one mile of a coal-fired electrical generation facility operated by GenOn. The class plaintiffs complained of ash and contaminants setding on their property, and brought suit under several tort theories. GenOn argued that the plant was already subject to extensive regulation under the CA'A; the plant was in full compliance with its own CAA permit; it owed no extra duty under state tort law; and the class claims were preempted by the CAA. The district court agreed and determined that the CAA preempted state common law claims brought by private property owners against a source of pollution located within the state. The Third Circuit, however, reversed, determining that the federal regulation was designed to set a floor and nothing in the CAA prohibited a state from enforcing stricter standards against pollution sources within that state.

1. Federalism and Mechanics of the Clean Air Act

   The court determined that the CAA is designed to employ "cooperative federalism," meaning that state and local governments have the primary responsibility for air pollution prevention but that the federal government's assistance is "essential" in achieving that goal. The Environmental Protection Agency ("EPA") sets the standards for acceptable national ambient air quality standards (called "NAAQS"), and each state must do the following: formulate a plan (State Implementation Plan or "SIP") for implementing, maintaining, and enforcing those standards; submit the plan to the EPA for approval; and enact laws to enforce the plan. As part of the enforcement protocol, states must put a mandatory permitting program into place for all stationary sources, limiting the amounts and types of emissions each source is allowed to discharge. The permit for each stationary source is designed to be source-specific, tailoring the CAA's requirements to each source based on relevance. The court determined that the CAA provides for citizen suits; EPA regulation, fines, and civil actions; and state regulation.

2. Preemption

   The complaint in Cheswick...