Kristie BELL; Joan Luppe, Appellants v. CHESWICK GENERATING STATION, GenOn Power Midwest, L.P.
No. 12-4216.
United States Court of Appeals, Third Circuit.
Argued: June 25, 2013. Opinion Filed: Aug. 20, 2013.
734 F.3d 188
Scott C. Oostdyk, Esq., [Argued], McGuire Woods, Richmond, VA, Paul K. Stockman, Esq., McGuireWoods, Pittsburgh, PA, for Appellee.
Makram B. Jaber, Esq., Allison D. Wood, Esq., Hunton & Williams, Washington, DC, for Amicus Curiae Utility Air Regulatory Group in Support of Appellee.
Before: FUENTES, FISHER, and CHAGARES, Circuit Judges.
OPINION OF THE COURT
FUENTES, Circuit Judge:
Kristie Bell and Joan Luppe are the named plaintiffs in a class action complaint (the “Complaint“) filed against Cheswick Generating Station, GenOn Power Midwest, L.P. (“GenOn“).1 The putative class (the “Class“) is made up of at least 1,500 individuals who own or inhabit residential property within one mile of GenOn‘s Cheswick Generating Station, a 570-megawatt coal-fired electrical generation facility in Springdale, Pennsylvania (the “Plant“).
Complaining of ash and contaminants settling on their property, the Class brought suit against GenOn under several state law tort theories. GenOn argued that because the Plant was subject to comprehensive regulation under the Clean Air Act, it owed no extra duty to the members of the Class under state tort law. The District Court agreed with GenOn and dismissed the case. On appeal, we are faced with a matter of first impression: whether
I. REGULATORY FRAMEWORK
A. Environmental Regulation Under the Clean Air Act
The Clean Air Act,
The Clean Air Act makes the EPA responsible for developing acceptable national ambient air quality standards (“NAAQS“), which are meant to set a uniform level of air quality across the country in order to protect the populace and the environment.
States are tasked with enforcing the limitations they adopt in their SIPs. They must regulate all stationary sources located within the areas covered by the SIPs,
B. Modes of Redress Under the CAA
The Clean Air Act contains a “citizen suit” provision, see
The citizen suit provision contains a “savings clause” which provides, in pertinent part:
Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).
The Clean Air Act also contains a separate savings clause entitled “Retention of State authority,” codified at
Except as otherwise provided ... nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution....
C. Regulation at the Cheswick Plant
Federal, state, and local authorities extensively regulate and comprehensively oversee the operations of the Cheswick Plant pursuant to their authority under the Clean Air Act. The EPA, the Pennsylvania Department of Environmental Protection, and the Allegheny County Health Department comprise the administrative bodies that are primarily responsible for defining environmental emission standards and policing compliance with the Clean Air Act at the Plant. As discussed above, at the EPA‘s direction and with its approval, states issue operating permits for all stationary sources under Subchapter V of the Clean Air Act. See
The Permit collects all the operational requirements that are contained in Subchapter V of the Clean Air Act, and approved by the EPA. It specifically provides that GenOn may not “operate ... any source in such manner that emissions of malodorous matter from such source are perceptible beyond the property line,”
However, it also provides that “nothing in this permit relieves the permittee from the obligation to comply with all applicable Federal, State and Local Laws and regulations,” App. 96 (Declaration of Policy), and contains a savings clause which provides that:
Nothing in this permit shall be construed as impairing any right or remedy now existing or hereafter created in equity, common law or statutory law with respect to air pollution, nor shall any court be deprived of such jurisdiction for the reason that such air pollution constitutes a violation of this permit.
App. 102 (§ III.31).
II. GENERAL FACTUAL AND PROCEDURAL OVERVIEW
A. The Complaint2
The Complaint alleges that GenOn‘s operation, maintenance, control, and use of the Plant releases malodorous substances and particulates3 into the surrounding neighborhood, causing fly ash and unburned coal combustion byproducts to settle onto the Class members’ property as a “black dust/film ... or white powder” which requires constant cleaning. App. 9. These odors and particulates are harmful and noxious and have caused substantial damage to Class members’ property and the loss of their ability to use and enjoy their properties, making them “prisoners in their [own] homes.” App. 12. The operation of the Plant has been the subject of numerous and constant complaints by the residents of the surrounding neighborhood and by organizations and interested persons within the area. However, these complaints have not compelled GenOn to cease the improper operation of the Plant or to discontinue the ongoing invasion and trespass of the Class members’ properties. The Complaint alleges that GenOn knows of the “improper construction, and operation of the [Plant], which allows discharge” of these particulates, yet “continues to operate the [Plant] without proper or best available technology, or any proper air pollution control equipment.” App. 12-13.
Based on these allegations, the Class seeks to recover compensatory and punitive damages under three state common law tort theories: (1) nuisance; (2) negligence and recklessness; and (3) trespass.4 Although the Complaint also seeks injunctive relief on the nuisance and tres-
B. The District Court Decision
In July 2012, GenOn removed the case to the Western District of Pennsylvania invoking the District Court‘s diversity jurisdiction, and promptly moved to dismiss the action on the grounds that the state law tort claims were preempted by the Clean Air Act. It argued that allowing such claims to go forward “would undermine the [Clean Air Act]‘s comprehensive scheme, and make it impossible for regulators to strike their desired balance in implementing emissions standards.” App. 84. In October 2012 the District Court granted GenOn‘s motion, finding that the Clean Air Act preempted all of the Class‘s state law claims.
The District Court began by summarizing the extensive regulatory framework governing the Plant. It then reviewed the Complaint and determined that “the allegations of Plaintiffs, as pleaded, assert various permit violations and seek a judicial examination of matters governed by the regulating administrative bodies.” Bell, 903 F.Supp.2d at 320. Thus, it moved on to examine “whether the Clean Air Act preempts the state common law claims or whether the savings clause in the citizen suit provision allow those claims to survive.” Id. at 321. After discussing the relevant case law, the District Court concluded that, “[b]ased on the extensive and comprehensive regulations promulgated by the administrative bodies which govern air emissions from electrical generation facilities, the Court finds and rules that to permit the common law claims would be inconsistent with the dictates of the Clean Air Act.” Id. at 322. The Court found that the “savings clause of the Clean Air Act does not alter this analysis.” Id. The Class now appeals this decision.
III. DISCUSSION5
A. Preemption Analysis
The Supremacy Clause of the United States Constitution states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
1. Legal Precedent
While the extent to which the Clean Air Act preempts state law tort claims against an in-state source of pollution is a matter of first impression in this Circuit, the Supreme Court has addressed this issue in the context of a similarly comprehensive environmental statute: the Clean Water Act,
Like the Clean Air Act, the Clean Water Act contains two savings clauses, one located in the citizen suit provision, and another which focuses on states’ rights. Section § 505(e) of the Clean Water Act, which is located in the Act‘s citizen suit provision, states:
Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief....
Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; ... or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.
The Ouellette Court found that the Clean Water Act‘s savings clauses clearly preserved some state law tort actions, but that the text of the clauses did not provide a definitive answer to the question of whether suits based on the law of the affected state were preempted. 479 U.S. at 492, 497. However, it found definitively that “nothing in the [Clean Water Act] bars aggrieved individuals from bringing a nuisance claim pursuant to the laws of the source State.” Id. at 497 (emphasis in original). The Court reasoned that, “[b]y its terms the Clean Water Act allows States ... to impose higher standards on their own point sources,” and “this authority may include the right to impose higher com-
GenOn argues that Ouellette is distinguishable from this case because the savings clauses of the Clean Water Act are broader than the corresponding provisions in the Clean Air Act. However, a textual comparison of the two savings clauses at issue demonstrates there is no meaningful difference between them.
As the Supreme Court has acknowledged, and GenOn concedes, the citizen suit savings clause of the Clean Water Act is “virtually identical” to its counterpart in the Clean Air Act. City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 328, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981); Appellee Br. at 30. Thus, GenOn‘s argument hinges on its expansive reading of the Clean Water Act‘s states’ rights savings clause, which again provides:
Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; ... or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.
Except as otherwise provided ... nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution....
The only other circuit courts to have examined this issue in depth have also found no meaningful distinction between the Clean Water Act and the Clean Air
If the plaintiffs succeed in state court, it will simply be an instance where a state is enacting and enforcing more stringent pollution controls as authorized by the [Clean Air Act]. With MEPA, the State of Michigan has created a mechanism under which more stringent limitations may be imposed than required by federal law. It is, by its terms, supplemental to other legal and administrative procedures and requirements, and in this case principles of comity and federalism require us to hold these MEPA actions are not preempted by federal law.
In North Carolina ex rel. Cooper v. Tennessee Valley Authority, 615 F.3d 291 (4th Cir.2010), the state of North Carolina brought a state law public nuisance suit against the Tennessee Valley Authority (“TVA“), a federal agency which owned and operated eleven coal-fired power plants located in Tennessee, Alabama, and Kentucky. After a bench trial, the District Court for the Western District of North Carolina issued an injunction against four of the TVA plants, imposing emission standards on the plants that were stricter than what was required by the Clean Air Act. On appeal, the Fourth Circuit reversed, finding that the district court had incorrectly applied the law of the affected state in violation of Ouellette, and that the TVA plants’ emissions were not a public nuisance under the laws of the source states. In explaining its decision to apply Ouellette, the court noted that the savings clauses of the Clean Air Act and the Clean Water Act are “similar.” Id. at 304. It also noted that the Clean Water Act is “similarly comprehensive” to the Clean Air Act, and that “[w]hile Ouellette involved a nuisance suit against a source regulated under the Clean Water Act, all parties agree its holding is equally applicable to the Clean Air Act.” Id. at 306.
Ultimately, as commentators have recognized, “there is little basis for distinguishing the Clean Air Act from the Clean Water Act—the two statutes feature nearly identical savings clauses and employ similar ‘cooperative federalism’ structures.” Scott Gallisdorfer, Note, Clean Air Act Preemption of State Common Law: Greenhouse Gas Nuisance Claims After AEP v. Connecticut, 99 Va. L.Rev. 131, 150 (2013). Both Acts establish a regulatory scheme through which source states, and not affected states, play the primary role in developing the regulations by which a particular source will be bound. Both Acts contain citizen suit provisions which allow individuals to bring suit to enforce their terms under certain circumstances, and both Acts contain two savings clauses: one located within the citizen suit provision which focuses on the rights of individuals to sue, and a second independent savings clause which focuses on states’ rights.
Given that we find no meaningful difference between the Clean Water Act and the Clean Air Act for the purposes of our preemption analysis, we conclude that the Supreme Court‘s decision in Ouellette
2. Public Policy Considerations
GenOn argues that our holding may undermine the comprehensive regulatory structure established by the Clean Air Act by allowing the jury and the court to set emissions standards. Furthermore, amicus Utility Air Regulatory Group (“UARG“) argues that allowing such cases to move forward would open the proverbial floodgates to nuisance claims against sources in full compliance with federal and state environmental standards, creating a patchwork of inconsistent standards across the country that would compromise Congress‘s carefully constructed cooperative federalism framework. Such inconsistency, it argues, would make it extremely difficult for sources to plan and operate, as they would never be sure of precisely what standards apply to their operations.
However, “[t]he Supreme Court addressed this precise problem” in Ouellette, Cooper, 615 F.3d at 301, and rejected the very same concerns that GenOn and UARG now raise. Indeed, while the Ouellette Court acknowledged that allowing “a number of different states to have independent and plenary regulatory authority over a single discharge would lead to chaotic confrontation between sovereign states,” 479 U.S. at 496-97 (quoting Illinois v. City of Milwaukee, 731 F.2d 403, 414 (7th Cir.1984)), it found that “[a]n action brought ... under [source state] nuisance law would not frustrate the goals of the [Clean Water Act] as would a suit governed by [affected state] law,” id. at 498. Its reasoning was straightforward:
First, application of the source State‘s law does not disturb the balance among federal, source-state, and affected-state interests. Because the Act specifically allows source States to impose stricter standards, the imposition of source-state law does not disrupt the regulatory partnership established by the permit system. Second, the restriction of suits to those brought under source-state nuisance law prevents a source from being subject to an indeterminate number of potential regulations. Although [source state] nuisance law may impose separate standards and thus create some tension with the permit system, a source only is required to look to a single additional authority, whose rules should be relatively predictable. Moreover, States can be expected to take into account their own nuisance laws in setting permit requirements.
Thus, the Court recognized that the requirements placed on sources of pollution through the “cooperative federalism”
B. Political Question Doctrine
GenOn argues in the alternative that the Class‘s claims should be barred by the political question doctrine based on the existence of the Clean Air Act. “The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass‘n v. Am. Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). No court has ever held that such a constitutional commitment of authority regarding the redress of individual property rights for pollution exists in the legislative branch. Indeed, if such a commitment did exist, the Supreme Court would not have decided Ouellette in the first place. Accordingly, we reject this argument.
IV. CONCLUSION
“In all pre-emption cases ... we start with the assumption that the ... powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). We see nothing in the Clean Air Act to indicate that Congress intended to preempt source state common law tort claims. If Congress intended to eliminate such private causes of action, “its failure even to hint at” this result would be “spectacularly odd.” Id. at 491. The Supreme Court‘s decision in Ouellette confirms this reading of the statute. Accordingly, we hold that the Class‘s claims are not preempted. We will reverse the decision of the District Court and remand this case for further proceedings.