A recent decision by the U.S. Supreme Court is very important on the issue of federal preemption. The high court denied GenOn Power Midwest LP’s request to reconsider a Third Circuit ruling. The appeals court had ruled that the Clean Air Act doesn’t preempt certain state law claims brought by property owners. GenOn had argued in a petition for writ of certiorari to the Supreme Court that the appeals court erred in reviving a proposed class action. It was alleged in the suit that GenOn’s Springdale, Pa.-based coal-fired power plant released damaging toxic emissions. The company contended that the Third Circuit’s ruling conflicts with the Clean Air Act’s goal of ensuring a level of uniformity and certainty in the application of air emissions standards nationwide.
GenOn claimed that if the appeals court’s decision was allowed to stand, it would create a dangerous precedent under which companies that are in full compliance with the Clean Air Act would face a continuing risk of being held liable under emissions standards established by state courts or juries. It’s significant that when Congress enacted the modern Clean Air Act in 1970, it left in place the historic availability of state common law as the main source of redress for folks whose health was impaired or their property harmed by air pollution.
Kristie Bell filed her suit in April 2012, claiming that GenOn’s operation, maintenance, control and use of the Cheswick Generating Station caused property damage, the inhalation of odors and the deposit of coal dust. The case was removed to federal court later that year, and a U.S. District Judge found the Clean Air Act preempted Ms. Bell’s state law claims.
In August, the Third Circuit revived the proposed class action, finding in a precedential decision that the Act’s language and Supreme Court precedent dictate that lawsuits making state law claims — when a source of pollution is located within the state — are not preempted. The appeals court relied extensively on the high court’s 1987 ruling in International Paper Co. v. Ouellette, which also dealt with the Clean Water Act. In that case, the Plaintiffs argued that the Act’s savings clauses indicated “that Congress intended to preserve the right to bring suit under the law of any affected state.”
GenOn claimed in its petition to the Supreme Court that the Third Circuit’s reliance on Ouellette was misguided, rejecting the appeals court’s finding that the savings clauses of both the CAA and CWA are “indistinguishable.” GenOn contended that the plain language of the CAA’s savings clause preserves only state law claims seeking to enforce an emissions standard through a statute or regulation, not claims under state common law. Ms. Bell is represented by Sean H. Donahue and David T. Goldberg of Donahue & Goldberg; Adina Rosenbaum of Public Citizen Litigation Group, Peter W. Macuga of the Detroit, Mich.- based firm Macuga Liddle & Dubin and James E. DePasquale, a Pittsburg, Penn., lawyer. They did an outstanding job in this important case.
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