GenOn Power Midwest v. Bell et. al

Case Updates

In the coalition brief, the U.S. Chamber asked the U.S. Supreme Court to review a decision from the Third Circuit and address the critically important question of whether the Clean Air Act (CAA) preempts state tort claims that would prohibit emissions that are permitted by EPA and state regulating bodies. The Chamber argued that the Third Circuit incorrectly found that source state-law nuisance claims may proceed despite their direct intrusion with the goals and application of the CAA through the permitting process. If allowed to stand, the decision will empower courts and juries to use open-ended state-law nuisance claims to interfere with and effectively override permitting decisions made by EPA and state regulators after careful regulatory review and public notice and comment. Subjecting the regulated community to such an open ended and erratic process of re-evaluation would undermine Congress’s goal to provide certainty and balance the benefits of regulation with its economic costs, in order to enable businesses to engage in long-term planning, investment, and operations with assurance. The Chamber pointed out that the comprehensive regulatory system established by Congress to police air pollutant emissions cannot coexist with a separate and parallel quasi-regulatory liability regime grounded in state tort law.

The Chamber filed the brief jointly with the American Petroleum Institute and the American Fuel & Petro Chemical Manufacturers.

Ryan L. Bangert of Baker Botts LLP represented the Chamber as co-counsel to the National Chamber Litigation Center.