Public Nuisance Prohibitions in State Implementation Plans: A Cutting Edge Merger of Citizen Suits and Tort Law

By Kirsten Nathanson posted 11-19-2014 16:45

  

A novel approach to Clean Air Act (“CAA”) enforcement litigation has the potential to create a new wave of “tort citizen suits” on behalf of residents living near facilities regulated under the CAA.

Toxic tort cases alleging injury from air emissions have typically relied on state law tort theories and, consequently, faced preemption issues in light of the federal CAA.  The Third Circuit held last year in Bell v. Cheswick Generation Station, 734 F.3d 183,  2013 WL 4418637 (3rd Cir. August 20, 2013), that the CAA did not preempt the tort claims of a putative class of property owners alleging diminution of property values as a result of air emissions from a neighboring power plant.  But the fate of the preemption argument is currently in play:  the U.S. Supreme Court is considering a petition to review a ruling by the Iowa Supreme Court that upheld the rights of citizens to bring state-law nuisance suits for alleged air emission injuries.  Grain Processing Corp. v. Laurie Freeman, No. 14-307 (Sept. 11, 2014).    

In an attempt to circumvent these preemption issues, citizen activists are crafting a novel use of environmental citizen suits to raise nuisance claims.  The CAA provides for citizen suits to redress violations of an “emission standard or limitation,” which includes any standard established under a State Implementation Plan (“SIP”).  42 U.S.C. § 7604(b). 

An Innovative Approach

On October 7, 2014, the Sierra Club filed a notice of intent to sue AEP Generation Resources, Inc. (AEP) for nuisance claims under the CAA.  The Sierra Club argues that emissions of sulfur dioxide from a coal-fired power plant in Ohio endanger the health of residents living close to the plant and violate a prohibition on public nuisance contained in Ohio’s SIP.

Ohio’s SIP defines public nuisance as air emissions “in such manner or in such amounts as to endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to property.”  The Sierra Club is arguing that because the SIP is federally approved, the prohibition is federally enforceable.  This revolutionary use of citizen suits could spark new environmental enforcement litigation utilizing tort theories and allow plaintiffs to avoid the preemption argument altogether.

Implications

The Sierra Club’s suit is novel because of its reliance on federal SIP approval to enforce a state law prohibition on public nuisance.  Because other states have similar nuisance prohibitions, this litigation model can easily be replicated.  States with SIPs containing public nuisance prohibitions include Montana, North Dakota, Vermont, and Puerto Rico.

One outcome of the citizen suit vehicle is that successful plaintiffs can obtain attorneys’ fees, which are generally not available in common-law tort cases.  Thus, the Sierra Club is seeking to “enjoin violations, ensure future compliance, impose penalties for violations, recover attorney’s fees and costs of litigation, and obtain appropriate relief.”  These citizen suits also invoke federal question jurisdiction because they allege violations of the federal CAA.

After giving notice to AEP, the Sierra Club can file its complaint in early December.  It remains to be seen whether the actual complaint will include both claims under the CAA and stand-alone nuisance claims.  If the complaint alleges stand-alone nuisance claims, the Sierra Club may be able to obtain compensatory relief and punitive damages in addition to injunctive relief and attorneys’ fees.    

Authored by



Cliff Zatz



Kevin Mayer

and 
Kirsten Nathanson
Crowell & Moring LLP

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