A Revival of Air Pollution Common Law? The Third Circuit’s Holding in Bell v. Cheswick Generation Station

A Revival of Air Pollution Common Law? The Third Circuit’s Holding in Bell v. Cheswick Generation Station

By: Andrea Grossman, Associate 

The Third Circuit recently breathed new life into common law claims to combat air pollution with the holding in Bell v. Cheswick Generation Station.[1] Historically, air pollution was addressed through a variety of common law remedies, primarily trespass and private nuisance.[2] Over the past forty years, the creation and implementation of Federal statutory environmental laws, such as the Clean Air Act, has drastically reduced the number of common law actions brought to combat air pollution.[3] The Supreme Court has even held that other Federal environmental statutes entirely preempt related claims brought under common law theories.[4] This led to a debate over the continuing viability of common law claims to address air pollution.

The Cheswick case, decided in August 2013, concluded that the Clean Air Act does not preempt claims relying on the source state’s common law.[5] At issue in the case was a coal-fired plant that was causing ash and contaminants to settle on nearby properties.[6] The neighbors brought a complaint relying on several state law tort theories.[7] The District Court found that, because the plant was subject to comprehensive regulation under the Clean Air Act, there could be no extra liability under tort theories.[8] The Third Circuit, relying on “the plain language of the Clean Air Act and controlling Supreme Court precedent,” determined that Clean Air Act does not preempt the source state common law actions, and reversed the District Court.

The Third Circuit noted that the Clean Air Act relies on a cooperative federalism structure, which allows states to “employ standards more stringent than those specified by the federal requirements.”[9] The Circuit Court then examined the savings clauses in the Clean Air Act: the citizen suit savings clause[10] and the retention of state authority clause.[11]

The decision hinged on the Circuit Court’s analysis of preemption, which is based on the Supremacy Clause.[12] Federal law can preempt state law in three ways: (1) express preemption, (2) field preemption, and (3) conflict preemption. The power plant argued that state tort law claims undermine the Clean Air Act and are thus invalid under conflict preemption.[13]

In examining preemption, the Third Circuit relied heavily on the Supreme Court’s language in International Paper Co. v. Oulette,[14] in which the Court analyzed whether the Clean Water Act preempted a common law claim brought under an affected state’s law. The Circuit Court used Oulette because the savings clause language of the Clean Water Act is extremely similar to that in the Clean Air Act.[15] Oulette ultimately determined that suits based on the law of the affected state were preempted.[16] As noted by the Third Circuit, however, the Supreme Court found definitively in Oulette that “nothing in the [Clean Water Act] bars aggrieved individuals from bringing a nuisance claim pursuant to the laws of the source State.”[17] The Supreme Court reasoned that because the Clean Water Act allows states to imposed higher standards on their own point sources, this authority could include the right to impose common law restrictions.[18] This conclusion was bolstered by the fact that applying source state common law requires a source to look only to a single additional authority.[19]

The Third Circuit saw nothing in the Clean Air Act that indicates a Congressional intent to preempt source state common law claims.[20] The Circuit Court also found no basis for distinction between the Clean Air Act and the Clean Water Act, and so it relied on the Oulette decision to find that the Clean Air Act does not preempt state common law claims based on the law of the state where the source of the pollution is located.[21]

This is a developing area of the law worth watching: the Cheswick decision creates an apparent circuit split with the Fourth Circuit’s holding in North Carolina v. TVA,[22] which held that a facility’s Clean Air Act permit preempted a state law nuisance claim. Thus there is some potential for a Supreme Court decision on the matter, which would go far to “clear the air” concerning the viability of common law air pollution claims.

[1] Bell v. Cheswick Generating Station, 2013 U.S. App. LEXIS 17283 (3rd Cir.).
[2] Roger Meiners & Bruce Yandle, Common Law and the Conceit of Modern Environmental Policy, 7 Geo. Mason L. Rev. 923, 926–38 (1999).
[3] David P. Currie, Air Pollution, Federal Law and Analysis 1-3 (1981).
[4] Milwaukee v. Illinois, 451 U.S. 304, 331 (1981) (concerning the Clean Water Act).
[5] Cheswick at 27-28.
[6] Cheswick at 2.
[7] Id.
[8] Cheswick at 12.
[9] Cheswick at 5, citing 42 U.S.C. § 7416.
[10] 42 U.S.C. § 7604(e).
[11] 42 U.S.C. § 7416.
[12] U.S. Const. Art. VI, cl. 2.
[13] Cheswick at 13.
[14] 479 U.S. 481 (1987).
[15] The defendant company argued that Oulette was distinguishable because the states’ rights savings clause of the Clean Water Act contains language about “boundary waters.” The Third Circuit determined that this difference was not meaningful and, if anything, indicated that Congress intended the Clean Air Act to preserve more rights for the states, rather than less. See Cheswick at 20.
[16] 479 U.S. at 492, 497.
[17] Cheswick at 15, citing Oulette at 479 (emphasis in original).
[18] Oulette at 479.
[19] Id. at 498-99.
[20] Cheswick at 23, citing Oulette at 491 (“If Congress intended to eliminate such private causes of action, ‘its failure even to hint at’ this result would be ‘spectacularly odd’.”).
[21] Cheswick at 19-20.
[22] North Carolina ex rel. Cooper v. TVA,615 F.3d 291, 302 (4th Cir. 2010).

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