Comply with your air permit and be sued anyway. That is what the Third Circuit has just held in Kristie Bell et al. v. Cheswick Generating Station et al., No.12-4216 (3d Cir. Aug. 20, 2013).
My colleague Peg Hill, partner and environmental litigation practice group leader at Blank Rome, and I have spent time discussing the court’s decision yesterday that, in brief, determined that the federal Clean Air Act does not preempt state common law property damage tort claims—even where the facility is in compliance with its air permit!
The importance of this breathtaking decision to permitted entities cannot be overstated. A clear message has been delivered: the federal Clean Air Act and state Clean Air Acts are no longer in complete control of determining compliance with air emissions.
Peg and I have to ask ourselves, and our readers, whether this decision creates the Clean Air Act-version of “no good deed goes unpunished.” The floodgates of air litigation are now open in the Third Circuit—even against the good guys.
For further details, please click here to read our just-released alert, “Where is Compliance with Your Air Permit Considered Tortious Conduct? In the Third Circuit.”