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Supreme Court lets stand decision allowing state law nuisance suits against power plants

From the June 9, 2014 issue of Public Power Daily

Originally published June 9, 2014

By Robert Varela
Editorial Director

The Supreme Court on June 2 let stand an appeals court ruling that the Clean Air Act (CAA) does not pre-empt state tort law suits by property owners against power plants in the same state. Without comment, the Supreme Court denied NRG Energy’s appeal of an Aug. 20, 2013, decision by the U.S. Court of Appeals for the Third Circuit. NRG Energy’s NRG Power Midwest LP unit now must face a class-action lawsuit claiming that ash and contaminants from its coal-fired Cheswick Generating Station in Springdale, Pa., damaged nearby properties.

NRG argued that the case presented a "critically important and recurring question" that the Supreme Court left open in a 2011 opinion in which it held that the Clean Air Act displaces nuisance suits under federal common law. That open question is whether the CAA pre-empts nuisance claims filed under state common law that impose different emissions restrictions than those adopted pursuant to the CAA, NRG said.

"Based on the plain language of the Clean Air Act and controlling Supreme Court precedent, we conclude that such source state common law actions are not pre-empted," the Third Circuit said. "We see nothing in the Clean Air Act to indicate that Congress intended to pre-empt source state common law tort claims," the appeals court said. "If Congress intended to eliminate such private causes of action, ‘its failure even to hint at’ this result would be ‘spectacularly odd.’" The appeals court cited as precedent the Supreme Court’s decision that the Clean Water Act didn’t pre-empt a Vermont common law nuisance lawsuit.

The class action suit was brought on behalf of at least 1,500 people who own or inhabit homes within one mile of the Cheswick Generating Station. The suit alleges that operation of the plant releases malodorous substances and particulates, causing fly ash and unburned coal combustion byproducts to settle onto the class members’ property. The odors and particulates are harmful and noxious and have caused substantial damage to class members’ property, making local residents "prisoners in their [own] homes," the suit alleges.


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Vice President, Integrated Media and Communications
Meena Dayak

Editorial Director
Robert Varela

Editor, Public Power Daily
Jeannine Anderson

Communications Assistant
Fallon W. Forbush

Manager, Integrated Media 
David L. Blaylock

Integrated Media Editor 
Laura D’Alessandro