Third Circuit Rejects Preemption under CAA, and Opens Door to Common Law Tort Claims
Boone, Walter H., Fowler, Haley A., Defense Counsel Journal
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.
I. 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.
The complaint in Cheswick alleged state tort claims for nuisance, negligence and recklessness, and trespass. Defendant moved to dismiss on the grounds of preemption. The Supreme Court has held that the Supremacy Clause preempts any state law that interferes with or is contrary to federal law. (2) Federal law can preempt state law in the following three ways: (1) express preemption, (2) field preemption, and (3) conflict preemption. (3) Express
preemption applies where the statutory language used by Congress expressly declares the intent to displace state law. (4) Field preemption applies where the "federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." (5) Conflict preemption supplants state law with federal law in all areas where the two conflict, either because compliance with both laws is impossible or because state law creates an "obstacle to the accomplishment and execution" of Congress' full purposes or objectives. (6)
The Cheswick court analyzed both field and conflict preemption within the context of whether the CAA preempted state tort claims against an in-state source and determined that two savings clauses in the CAA evince Congressional intent to reserve the right to sue under state common law. The Third Circuit found that the language of the savings clauses in the CAA manifest Congress' intent not to occupy the entire field and that the tension between the permit system and state nuisance law would not frustrate Congress' purpose with regard to the CAA. …