Last week, the U.S. Court of Appeals for the Third Circuit said
"no" and the decision has already prompted at least one
new air emissions lawsuit against a power plant owner.
In Kristie Bell, et al. v. Cheswick Generating
Station, GenOn Power Midwest, L.P., No. 12-1426 (3d Cir.
Aug. 20, 2013), the Third Circuit held that the Clean Air Act (CAA)
does not prevent Pennsylvania residents from alleging that air
emissions from a Pennsylvania power plant have created a nuisance
under Pennsylvania state law. The decision holds, in essence,
that the CAA's "comprehensive" scheme for regulating
air emissions is not so comprehensive as to preempt all air-related
tort claims.
The Bell decision turns on the fact that the plaintiffs
are relying on state tort law against an in-state
source of air pollution; they are not relying on federal
common law or trying to impose Pennsylvania's tort law on an
out-of-state source. The decision means that the
plaintiffs – a putative class
