Kristie Bell v. Cheswick Generating Station Ge

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 12-4216
_____________

KRISTIE BELL; JOAN LUPPE,

Appellants

v.

CHESWICK GENERATING STATION, GENON POWER
MIDWEST, L.P.
_____________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(No. 2-12-cv-00929)
District Judge: Honorable Terrence F. McVerry
_____________

Argued June 25, 2013

Before: FUENTES, FISHER, and CHAGARES, Circuit
Judges

(Opinion Filed: August 20, 2013)
James E. DePasquale, Esq.
310 Grant Street
Suite 1302
Pittsburgh, PA 15219

Peter W. Macuga, II, Esq. [ARGUED]
Macuga & Liddle
975 East Jefferson Avenue
Detroit, MI 48207

Counsel for Appellants

Scott C. Oostdyk, Esq. [ARGUED]
McGuireWoods
901 East Cary Street
One James Center
Richmond, VA 23219

Paul K. Stockman, Esq.
McGuireWoods
625 Liberty Avenue
23rd Floor, Dominion Tower
Pittsburgh, PA 15222

Counsel for Appellee

Makram B. Jaber, Esq.
Allison D. Wood, Esq.
Hunton & Williams
2200 Pennsylvania Avenue, N.W.
Washington, DC 20037

2
Counsel for Amicus Curiae Utility Air Regulatory Group in
Support of Appellee
_____________

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

1
The Complaint was filed in April 2012 in the Court of
Common Pleas of Allegheny County, Pennsylvania. GenOn
is a limited partnership organized under the laws of Delaware
with its organizational headquarters and principal place of
business in Houston, Texas. According to GenOn,
“Cheswick Generating Station, GenOn Power Midwest, L.P.”
is not a legal entity. However, GenOn admits that it operates
the Cheswick Generating Station. See Bell v. Cheswick
Generating Station, 903 F. Supp. 2d 314, 314 n.1 (W.D. Pa.
2012). The error in the caption does not affect our ruling in
any way.

3
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 the Clean Air Act preempts state
law tort claims brought by private property owners against a
source of pollution located within the state. 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 preempted. Accordingly, we reverse the
decision of the District Court and remand the case for further
proceedings.

I. REGULATORY FRAMEWORK

A. Environmental Regulation Under the Clean Air Act

The Clean Air Act, 42 U.S.C. § 7401 et seq., enacted
in 1970, is a comprehensive federal law that regulates air
emissions under the auspices of the United States
Environmental Protection Agency (“EPA”). Congress
enacted the law in response to evidence of the increasing
amount of air pollution created by the industrialization and
urbanization of the United States and its threat to public
health and welfare. 42 U.S.C. § 7401(a)(2). The Clean Air
Act states that air pollution prevention and control is the
primary responsibility of individual states and local
governments but that federal financial assistance and
leadership is essential to accomplish these goals. Id.
§ 7401(a)(3)-(4). Thus, it employs a “cooperative
federalism” structure under which the federal government
develops baseline standards that the states individually
implement and enforce. GenOn Rema, LLC v. EPA, No. 12-

4
1022, 2013 WL 3481486, at *1 (3d Cir. July 12, 2013). In so
doing, states are expressly allowed to employ standards more
stringent than those specified by the federal requirements. 42
U.S.C. § 7416.

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. Id. § 7409(b)(1). Before such levels are
adopted or modified by the EPA, “a reasonable time for
interested persons to submit written comments” must be
provided. Id. § 7409(a)(1)(B). The EPA itself does not
typically regulate individual sources of emissions. Instead,
decisions regarding how to meet NAAQS are left to
individual states. Id. § 7410(a)(1). Pursuant to this goal, each
state is required to create and submit to the EPA a State
Implementation Plan (“SIP”) which provides for
implementation, maintenance, and enforcement of NAAQS
within the state. Id. All SIPs must be submitted to the EPA
for approval before they become final, and once a SIP is
approved, “its requirements become federal law and are fully
enforceable in federal court.” Her Majesty the Queen in Right
of the Province of Ontario v. Detroit, 874 F.2d 332, 335 (6th
Cir. 1989) (citing 42 U.S.C. § 7604(a)).

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, 42 U.S.C.
§ 7410(a)(2)(C), and implement a mandatory permit program
that limits the amounts and types of emissions that each
stationary source is allowed to discharge, id. §§ 7661a(d)(1),
7661c(a). “[E]ach permit is intended to be a source-specific

5
bible for Clean Air Act compliance containing in a single,
comprehensive set of documents, all [Clean Air Act]
requirements relevant to the particular polluting source.”
North Carolina, ex rel. Cooper v. Tenn. Valley Auth., 615
F.3d 291, 300 (4th Cir. 2010) (internal quotation marks
omitted). Furthermore, pursuant to the federal Prevention of
Significant Deterioration of Air Quality program in areas
attaining NAAQS, “a covered source must, among other
things, install the ‘best available control technology [] for
each pollutant subject to regulation . . . .’” Coalition for
Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 133 (D.C.
Cir. 2012) (quoting 42 U.S.C. §7475(a)(4)).

B. Modes of Redress Under the CAA

The Clean Air Act contains a “citizen suit” provision,
see 42 U.S.C. § 7604, which permits the filing of civil suits in
district courts “against any person . . . who is alleged to have
violated . . . or to be in violation of (A) an emission standard
or limitation under this chapter or (B) an order issued by the
Administrator or a State with respect to such a standard or
limitation.” Id. § 7604(a)(1). The statute further grants a
cause of action against the EPA if it fails to perform any non-
discretionary responsibility, id. § 7604(a)(2), and also allows
suit against any entity that constructs a source of emissions
without securing the requisite permits. Id. § 7604(a)(3).
Furthermore, the EPA “retains the power to inspect and
monitor regulated sources, to impose administrative penalties
for noncompliance, and to commence civil actions against
polluters in federal court.” Am. Elec. Power Co., Inc. v.
Connecticut, 131 S. Ct. 2527, 2538 (2011).

6
 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).

42 U.S.C. § 7604(e). This is the Clean Air Act’s “citizen suit
savings clause.”

The Clean Air Act also contains a separate savings
clause entitled “Retention of State authority,” codified at 42
U.S.C. § 7416. This provision focuses on states’ rights, and
reads as follows:

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 . . . .

Id. § 7416. This is the Clean Air Act’s “states’ rights savings
clause.”

7
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 42 U.S.C. §§ 7661a-f. Subchapter V program authority
has in this instance been delegated to Allegheny County.
GenOn’s Subchapter V permit for Cheswick (the “Permit”)
imposes limits on the emission of various particulate matter,
gasses, chemical, and compounds from coal combustion. See
App. 91-161.

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,” App. 106 (§ IV.3);
must “take all reasonable actions to prevent fugitive air
contaminants from becoming airborne,” App. 112 (§ IV.19);
may not “conduct . . . any materials handling operation in
such manner that emissions from such operation are visible at
or beyond the property line,” App. 106 (§ IV.4); must ensure
that “[a]ll air pollution control equipment” is “properly
installed, maintained, and operated,” App. 106 (§ IV.5); and

8
may not “operate any source . . . in such manner that
emissions from such source . . . [m]ay reasonably be
anticipated to endanger the public health, safety, or welfare.”
App. 96 (§ III.1).

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

2
The following factual allegations are taken from the
Complaint, and we accept them as true for the purposes of
this appeal.

9
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

3
These particulates include arsenic compounds, barium
compounds, chromium compounds, copper compounds,
dioxin and dioxin-like compounds, hydrochloric acid,
hydrogen fluoride, lead compounds, manganese compounds,
mercury compounds, nickel compounds, polycyclic aromatic
compounds, sulfuric acid, vanadium compounds, and zinc
compounds. App. 10-11.

10
recklessness; and (3) trespass.4 Although the Complaint also
seeks injunctive relief on the nuisance and trespass counts,
the Class admits that such relief would be limited to an order
requiring GenOn to remove the particulate that continuously
falls upon the Class members’ properties. Oral Arg. at 13:50;
Bell, 903 F. Supp. 2d at 318.

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

4
The Class also asserted a strict liability claim, but has
conceded that it must fail because power generation is not an
ultra-hazardous activity. See Bell, 903 F. Supp. 2d at 317.

11
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

5
The District Court had diversity jurisdiction pursuant to 28
U.S.C. § 1332. We have appellate jurisdiction under 28
U.S.C. § 1291. In reviewing a motion to dismiss, we must
accept as true all well-pleaded facts and allegations, and must
draw all reasonable inferences therefrom in favor of the
plaintiff. Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008).
A district court’s order granting a motion to dismiss is given
plenary review. Grier v. Klem, 591 F.3d 672, 676 (3d Cir.
2010).

12
 thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.

U.S. Const. art. VI, cl. 2. The Supreme Court has interpreted
the Supremacy Clause as preempting any state law that
“interferes with or is contrary to federal law.” Free v. Bland,
369 U.S. 663, 666 (1962). “Federal law can preempt state
law in three ways: (1) express preemption, (2) field
preemption, and (3) conflict preemption.” Farina v. Nokia,
625 F.3d 97, 115 (3d Cir. 2010). “Conflict preemption
nullifies state law inasmuch as it conflicts with federal law,
either where compliance with both laws is impossible or
where state law erects an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.”
Id. (internal quotation marks omitted). GenOn argues that
state tort law conflicts with the objectives of the Clean Air
Act, because it “would undermine the [Act]’s comprehensive
scheme and rival the work of regulators as they strike their
desired balance in implementing emissions standards.”
Appellee Br. at 26.

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,
33 U.S.C. § 1251, et seq. In International Paper Co. v.
Ouellette, 479 U.S. 481 (1987), the Court was asked to
determine whether the Clean Water Act preempted a Vermont
common law nuisance suit filed in Vermont state court, where
the source of the alleged injury was located in New York.

13
Plaintiffs, a group of property owners who resided on the
Vermont (“affected state”) shore of Lake Champlain, alleged
that the defendant paper company, which operated a pulp and
paper mill on the New York (“source state”) side of the lake,
was discharging “effluents” into the lake, polluting the water
and thereby diminishing the value of their property. Id. at
484. Defendants argued that the Clean Water Act preempted
the court from applying Vermont state law against a source of
pollution located in New York. In response, Plaintiffs argued
that the Clean Water Act’s savings clauses indicated “that
Congress intended to preserve the right to bring suit under the
law of any affected State.” Id. at 493.

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 . . . .

33 U.S.C. § 1365(e). Section 510 of the Clean Water Act
focuses on states’ rights, and 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

14
 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.

Id. § 1370.

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 common-law
as well as higher statutory restrictions.” Id. (internal citation
omitted). The Court acknowledged that a source state’s
“nuisance law may impose separate standards and thus create
some tension with the permit system,” but explained that this
“would not frustrate the goals of the Clean Water Act,”
because “a source only is required to look to a single
additional authority, whose rules should be relatively
predictable.” Id. at 498-99.6 Thus, a suit by Vermont citizens

6
Ultimately, the Ouellette Court concluded that “the [Clean
Water Act] precludes a court from applying the law of an

15
would not be preempted if brought under the law of New
York, the source state.

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 (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

affected State against an out-of-state source,” id. at 494,
reasoning that if “affected States were allowed to impose
separate discharge standards on a single [out-of-state] point
source, the inevitable result would be a serious interference
with the achievement of the full purposes and objectives of
Congress,” id. at 493 (internal quotation marks omitted).

16
 or in any manner affecting any right or
jurisdiction of the States with respect to the
waters (including boundary waters) of such
States.

33 U.S.C. § 1370 (emphasis added). By way of comparison,
the states’ rights savings clause of the Clean Air Act
provides:

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 . . . .

42 U.S.C. § 7416. As a side-by-side comparison of the text
indicates, the only meaningful difference between the two
states’ rights savings clauses is the portion of the Clean Water
Act italicized above which refers to the boundary waters of
the states. The reason why such language is not included the
in Clean Air Act is clear: there are no such jurisdictional
boundaries or rights which apply to the air. If anything, the
absence of any language regarding state boundaries in the
states’ rights savings clause of the Clean Air Act indicates
that Congress intended to preserve more rights for the states,
rather than less. In no way can this omission be read to
preempt all state law tort claims.

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 Act. In Her

17
Majesty the Queen in Right of the Province of Ontario v.
Detroit, 874 F.2d 332 (6th Cir. 1989), the Sixth Circuit held
that the Clean Air Act did not preempt plaintiffs from suing
the City of Detroit under the Michigan Environmental
Protection Act (“MEPA”), finding that “the [Clean Air Act]
displaces state law only to the extent that state law is not as
strict as emission limitations established in the federal
statute.” Id. at 342 (emphasis removed from original). The
court reasoned that “the plain language of the [Clean Air
Act’s] savings clause . . . clearly indicates that Congress did
not wish to abolish state control,” id. at 342-43, and, relying
on Ouellette, concluded:

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.

Id. at 344.

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

18
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

19
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 controls this case, and thus, 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.7 Accordingly, the suit here, brought by
Pennsylvania residents under Pennsylvania law against a
source of pollution located in Pennsylvania, is not preempted.

2. Public Policy Considerations

GenOn argues that our holding may undermine the
comprehensive regulatory structure established by the Clean

7
The Supreme Court’s recent decision in American Electric
Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), does
nothing to alter our analysis. There, the Court held that the
Clean Air Act displaced any federal common law right to
seek abatement of carbon-dioxide emissions from power
plants. Id. at 2537. However, the Court acknowledged that
“[l]egislative displacement of federal common law does not
require the same sort of evidence of clear and manifest
[congressional] purpose demanded for preemption of state
law,” and explicitly left open the question of whether the
Clean Air Act preempted state law. Id. at 2537, 2540; see
Gallisdorfer, 99 Va. L. Rev. at 139 (“the displacement finding
in [American Electric] hardly compels—or even presages—a
corresponding finding of preemption”).

20
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

21
 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.

Id. at 498-99.

Thus, the Court recognized that the requirements
placed on sources of pollution through the “cooperative
federalism” structure of the Clean Water Act served as a
regulatory floor, not a ceiling, and expressly held that states
are free to impose higher standards on their own sources of
pollution, and that state tort law is a permissible way of doing
so. Id. at 497-98. Indeed, courts in other circuits have
affirmed decisions granting plaintiffs relief against sources of
air pollution under state law nuisance theory. See e.g., Ellis v.
Gallatin Steel Co., 390 F.3d 461 (6th Cir. 2004) (upholding
award of injunctive relief and compensatory and punitive
damages for violation of Kentucky nuisance law where
“fugitive dust” from defendant’s steel plant settled on
plaintiffs’ property).

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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 (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.

III. 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 (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.

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