Court Says Individuals May Sue Power Plants for Harm Done by Pollution

RobertUkeileyBy ROBERT UKEILEY

In the September/October edition of SOLAR TODAY, I wrote that President Obama’s plan to address climate change is good, but far from sufficient to level the economic playing field between dirty energy and renewable energy and energy efficiency (RE/EE). I explained that RE/EE advocates and supporters need to ensure multiple measures to accomplish that goal — 2014 is shaping up as a year of possibilities on this front.

The U.S. Environmental Protection Agency claims that in 2014 it will issue regulations covering water pollution from coal-fired power plants, coal combustion waste, ambient ozone (smog levels), interstate transportation of ozone and fine particulate matter (soot) as well as greenhouse gases. RE/EE really needs to make sure its voices are heard on these rules. The fossil fuel industry and laggard utilities will be very vocal with their usual dire warnings that the lights will go out as the economy collapses.

One wildcard is tort law. For hundreds of years, it was illegal under tort law for one person to dump their pollution onto someone else’s property. Modern environmental regulations legalize pollution, albeit with some limits on the amount. Or do they?

There have been some recent victories on this front. In August of last year, the U.S. Court of Appeals for the Third Circuit ruled in favor of members of a class action who are suing the Cheswick coal-fired power plant in Springdale, Pa., owned by GenOn. The court ruled that individuals can sue a polluting power plant under state tort law if they are only seeking compensation for the damage the pollution has done to them. The court decided that a power plant’s compliance with the Clean Air Act does not let it off the hook for damage it does to the health and property of individuals. The Third Circuit covers Pennsylvania, Delaware and New Jersey. A week after the Third Circuit issued its decision, another class action suit was filed against FirstEnergy’s Hatfield’s Ferry coal-fired power plant in Masontown, Pa. These cases have the potential to help greatly in internalizing the cost of pollution into dirty energy.

Robert Ukeiley (rukeiley@igc.org) is a lawyer who represents environmental nonprofits in Clean Air Act litigation affecting energy issues.

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