On August 20, the Third Circuit U.S. Court of Appeals reversed a ruling by the U.S. District Court for the Western District of Pennsylvania that had dismissed a private tort lawsuit against a coal-fired power plant, alleging state tort law claims in negligence, nuisance and trespass.  The Third Circuit held that under a 1987 U.S. Supreme Court case, International Paper Co. v. Oullette, allowing private tort suits against facilities holding Clean Water Act permits, such suits against facilities holding Clean Air Act permits are not preempted by the Clean Air Act.  The court distinguished the 2011 Supreme Court case of American Electric Power v. Connecticut because it only addressed federal common law.  The Third Circuit’s ruling has led to at least one new private tort class action against another coal-fired power plant operated in Pennsylvania by FirstEnergy Corp.  The tort lawsuits claim that emissions from the power plants fall on private property causing property and other damages.  Although the Third Circuit ruling split with other Circuits addressing the same issue, it could lead to more private tort lawsuits against coal-fired power plants in other areas of the country.

For more information, contact Steve O’Day or Andy Thompson.