The Third Circuit Reinstates Nuisance Claims Against Cheswick Generating: Bad Idea

On Wednesday, in Bell v. Cheswick Generating Station, the 3^rd Circuit Court of Appeals revived class action nuisance claims brought by residential property owners living within one mile of GenOn's Cheswick Generating Station. (Full disclosure – this firm represents GenOn, now NRG, in various matters, though not this litigation.) The District court had ruled that the claims were preempted by the Clean Air Act's comprehensive regulatory scheme. The 3^rd Circuit disagreed, holding that the CAA's savings clause preserved such nuisance claims.

While I understand the logic of the Court's decision, it nonetheless seems not just wrong, but willfully wrong. The 3^rd Circuit relied on the Supreme Court decision in International Paper Co. v. Ouellette, which held that the savings clause in the Clean Water Act preserved at least some state law tort claims, as long as the plaintiffs only seek to apply the law of the source state.