Third Circuit Decision Finding No CAA Preemption Of State Law Nuisance Creates Apparent Split With Fourth Circuit

A recent case from the Third Circuit has muddied the waters for emissions facilities complying with Clean Air Act ("CAA") permits.   In Bell v. Cheswick Generating Station, 2013 WL 4418637 (Aug. 20, 2013), the Third Circuit held that the Clean Air Act did not preempt a state law nuisance class action suit brought against a coal power plant by neighboring residents.  That decision is in considerable tension with a 2010 Fourth Circuit decision, North Carolina v. Tennessee Valley Authority, 615 F.3d 291, which found that coal power plants were shielded from a state law nuisance suit by complying with their CAA permits.

In Bell, the Third Circuit purported to follow the Supreme Court's decision in International Paper Company v. Oullette, 479 U.S. 481 (1987), which found that the Clean Water Act preempted a Vermont state law nuisance suit filed by Vermont residents in Vermont court against a paper mill in New York.  The sole problem with that cause of action, the Third