
Subscribe for updates
Recent Posts
- Tenth Circuit Applies Statute of Limitations That Is “Closest Fit” in CERCLA Action, Overrules Earlier Precedent
- New Jersey Weighs in on State Climate Tort Claims
- First Circuit Holds that Smelling Vehicle Exhaust Constitutes Injury-in-Fact under Clean Air Act
- Ninth Circuit Upholds Vacatur of Some Oil and Gas Leases
- Court Dismisses Microplastics Consumer Protection Suit Citing Federal Preemption
Topics
- NJDEP
- Connecticut
- Pollutants
- Federal Land Policy and Management Act
- Council on Environmental Quality
- Agency Action
- Loper Bright
- New Jersey Civil Rights Act
- Public Trust Doctrine
- Disparate Impact
- Title VI
- Environmental Justice
- Massachusetts
- Internal Investigation
- Evidence
- Citizens Suit
- FIFRA
- Federal Insecticide, Fungicide, and Rodenticide Act
- Georgia
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- Solvents
- National Priorities List
- Vapor Intrusion
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Environmental Covenants
- Federal Circuit
- National Contingency Plan
- Apportionment
- Divisibility
- Water Pollution Control Act
- Strict Liability
- Historic Resources
- Utilities
- Public Utilities Commission
- Hydraulic Fracturing
- Water Use
- PFAS
- Ohio
- Alternative Dispute Resolution
- Arbitration
- Climate Change
- Auer Deference
- Fees
- Commonwealth Court
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- Tribal Lands
- Gold King Mine
- Utah
- Federal Tort Claims Act
- New Mexico
- Delaware
- Delaware Department of Natural Resources and Environmental Control
- FERC
- National Forest Management Act
- Endangered Species Act
- United States Supreme Court
- Chevron Deference
- HSCA
- Alter Ego
- Corporate Veil
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- PCBs
- Building Materials
- First Circuit
- Property Damage
- Groundwater
- Natural Resource Damages
- Brownfields
- Brownfield
- Innocent Party
- Environmental Rights Amendment
- PHMSA
- Pipeline Hazardous Materials Safety Administration
- FOIA
- Effluents
- Sediment Sites
- EHB
- Pipelines
- Texas
- Missouri
- Coal Ash
- Injunction
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Drinking Water
- Michigan
- North Carolina
- Bankruptcy
- Hearing Board
- Clean Streams Law
- Civil Penalties
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Stigma
- Fair Market Value
- Tax assessment
- Damages
- Property Value
- Storage Tank
- Indemnification
- Energy
- Fifth Circuit
- Electric
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Discovery Rule
- Fourth Circuit
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Residential
- Inspection
- Freshwater Wetlands Protect Act
- New York
- Pennsylvania Department of Environmental Protection
- Natural Gas Act
- Federal Energy Regulatory Commission
- Hazardous Air Pollutants
- HAPs
- D.C. Circuit
- Mercury
- Takings
- Condemnation
- Storage
- Natural Gas
- Flooding
- Fifth Amendment
- Takings Clause
- Causation
- Spill Act
- NEPA
- Mineral Leasing Act
- Tenth Circuit
- Interior
- California
- Act 13
- Zoning
- Insurance Coverage
- Duty to Defend
- Landfill
- Eminent Domain
- Sixth Circuit
- Private Right of Action
- Illinois
- Water
- Subject Matter Jurisdiction
- Citizen Suit
- Diligent Prosecution
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Equal-Footing Doctrine
- Riverbed
- Navigability
- Montana
- Seventh Circuit
- Indiana
- Breach of Contract
- Public Lands
- Bona Fide Prospective Purchaser
- Green House Counsel
- CISWI
- Consent Decree
- Enforcement
- EPA
- Laches
- Boiler MACT
- Delay Notice
- Rulemaking
- Equity
- Declaratory Relief
- Second Circuit
- Contribution
- Procedure
- Standing
- NPDES
- Medical Monitoring
- Dimock
- Legislation
- Case Update
- Dukes
- Certification
- Contamination
- Louisiana
- CLE
- Discovery
- Work Product
- Cases to Watch
- Privilege
- Decisions of Note
- Expert Witness
- Cost Recovery
- CERCLA
- Insurance
- Defense Costs
- Real Estate
- Response Action Contractors
- Consultant Liability
- Negligence
- Remediation
- Donovan
- Rapanos
- Army Corps
- Nuisance
- Class Actions
- Hog Barn
- Kentucky
- Trespass
- Farming
- Odors
- New Jersey
- ISRA
- Informal Agency Action
- Administrative Hearing
- RCRA
- Railroad
- Cancer
- Emissions
- Waste
- Air
- Combustion
- Speaking Engagements
- Third Circuit
- Toxic Torts
- Removal
- Federal Procedure
- Permits
- Title V
- Clean Air Act
- Statute of Limitations
- Cleanup
- Supreme Court
- Superfund
- Tolling
- Camp Lejeune
- Statute of Repose
- Multi-District Litigation
- Marcellus Shale
- Due Process
- Deeds
- Clean Water Act
- Wetlands
- Mineral Rights
- Administrative Procedures Act
- Enforcement Action
- Drilling
- Oil and Gas
- Leases
- Exploration
- Royalties
Blog editor
Blog Contributors
This summer, we reported on the Third Circuit’s decision in the Bell v. Cheswick Generating Station case, which held that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims in a putative class action filed by over 1,500 residents complaining that the operations of GenOn Power Midwest, L.P.’s (“GenOn’s) coal-fired electric generation station constituted a nuisance under Pennsylvania common law.
In a Petition for Certiorari filed by GenOn on February 20th and made public last week (Docket No. 13-1013), GenOn urges the United States Supreme Court to overturn the Third Circuit’s decision and hold that the CAA preempts all state common law claims. GenOn argues that such a reversal is necessary in accordance with the Court’s prior decision in American Electric Power Co. v. Connecticut, which held that the CAA preempts federal common law nuisance suits aimed at curbing air pollution. In seeking Certiorari, GenOn argues that the Third Circuit erred in holding that the “savings clause” in the CAA preserved common law claims for air pollution, and that allowing such claims would result in an ad-hoc regulation of air pollution across the country, “that would allow a state court or jury to impose different standards than those adopted by EPA.” GenOn argues that the CAA’s “savings clause” does nothing more than preserve the ability of state or local political subdivisions to adopt additional emission standards and regulatory requirements through proper statutory and administrative processes, and that the “savings clause” does not create an avenue to regulate a source of air pollution through the common law. GenOn also argues that the Court’s decision in American Electric Power clearly held that when dealing with the regulation of air pollution, the “expert agency is surely better equipped to do the job than district judges issuing ad hoc, case-by-case injunctions,” and that therefore courts should “have only a secondary role, to review the expert agencies’ decisions and ensure compliance with statutory requirements.”
Plaintiffs’ opposition to GenOn’s Petition for Certiorari, should they choose to file one, is due later this month.