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Despite Bell, State Law CO2 Liability Claims Are Doomed
Law360, New York (November 07, 2013, 4:00 PM ET) -- “Therefore, the court declines to assert
supplemental jurisdiction over the remaining state law claims which are dismissed without prejudice to
their presentation in a state court action.” So ends the last analytical paragraph in Native Village of
Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009).
Thus, while plaintiffs’ federal common law carbon dioxide liability claims were extinguished on standing
and political question grounds, state law claims could go forward should the plaintiffs choose to refile.
Then, the U.S. Supreme Court decided American Electric Power Co. Inc. v. Connecticut, 564 U.S. __
(2011), and held a set of different plaintiffs’ federal common law claims were displaced by the Clean Air
Act. The court specifically declined to rule on state law claims of the type at issue in Kivalina: “None of
the parties have briefed preemption or otherwise addressed the availability of a claim under state
nuisance law. We therefore leave the matter open for consideration on remand.”
Last fall, we relied on Bell v. Cheswick Generating Station, 903 F. Supp. 2d 314 (W.D. Pa. 2012), out of
the Western District of Pennsylvania as support for the proposition that state law nuisance claims were
futile — preemption by the Clean Air Act doomed such claims. The Third Circuit's recent review, while
reversing the trial court, has not upended our conclusion.
In Bell, 1,500 neighbors of the 570 megawatt coal-fired Cheswick Generating Station operated by GenOn
Power Midwest LP became annoyed by ash and other contaminants allegedly settling on their property.
And so they brought a class action under Pennsylvania state tort law. GenOn defended based on the
comprehensive regulation of the Clean Air Act, which, it was asserted, preempted state law tort claims;
the trial court agreed.
On appeal, however, broad preemption by the Clean Air Act was not accepted. The appeals court
acknowledged the comprehensive program established by the act. But it also recognized that Congress
had specifically provided for a citizens suit provision, 42 U.S.C. § 7604, and that the act contained two
"savings" clauses.
The first, the "citizen suit savings clause," provided: "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).
