Court: CAA does not preempt common law tort claim against coal-fired power plant

Clean Air Act Cheswick Power Plant GenOn NRG Energy Pennsylvania

A three-judge panel for the 3rd Circuit Court of Appeals ruled today two plaintiffs can file a lawsuit over pollution from a power plant even if the plant is compliant with the Clean Air Act, stating the act serves as “a regulatory floor” rather than a ceiling and is meant to impose minimum standards only.

“We see nothing in the Clean Air Act to indicate that Congress intended to preempt source state common law tort claims,” the court said in ruling state lawsuits may be filed by private property owners against a source of pollution in the state.

The suit, filed against the 570 MW coal-fired Cheswick Generating Station and GenOn Power Midwest, complains about fly ash and contaminants settling on private property in Pennsylvania. The suit was filed by two residents on behalf of all residents living within a mile of the Cheswick power plant.

The district court originally ruled a claim could not be filed against the plant or GenOn under state tort law since the plant was subject to regulation under the Clean Air Act.

Although the plant was owned by GenOn when the suit was originally filed, it has been sold to NRG Energy Inc (NYSE: NRG).

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