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NRG Energy’s GenOn Must Face Emissions Suit, Court Rules

Aug. 20 (Bloomberg) -- NRG Energy Inc.’s GenOn Energy unit must face a lawsuit claiming that ash and contaminants from its coal-fired power plant in Springdale, Pennsylvania, damaged nearby properties, an appeals court ruled.

The U.S. Appeals Court in Philadelphia today reversed a lower-court decision dismissing the suit, rejecting GenOn’s claims that the federal Clean Air Act pre-empts state law claims brought by property owners over pollution.

“Based on the plain language of the Clean Air Act and controlling Supreme Court precedent, we conclude that such source state common law actions are not pre-empted,” a three-judge panel of the appellate court said in its ruling.

At least 1,500 people own or inhabit homes within one mile (1.6 kilometers) of GenOn’s Cheswick Generating Station, according to the complaint filed in state court in April 2012. Homeowners seek damages claiming that odors produced by the plant, about 18 miles northeast of Pittsburgh, made them “prisoners in their own homes” while ash and unburned byproducts settled on their properties.

“We see nothing in the Clean Air Act to indicate that Congress intended to pre-empt source state common law tort claims,” the appeals court said. “If Congress intended to eliminate such private causes of action, ‘its failure even to hint at’ this result would be ‘spectacularly odd’.”

The appeals court cited as precedent the Supreme Court’s ruling that the Clean Water Act, a similarly comprehensive environmental statute, didn’t pre-empt a Vermont common law nuisance lawsuit.

There is no “meaningful distinction” between the Clean Water Act and the Clean Air Act, the appeals court said.

David Knox, a spokesman for Princeton, New Jersey-based NRG, didn’t immediately return a phone call seeking comment on the ruling.

The case is Bell v. Cheswick Generating Station, 12-04216, U.S. Court of Appeals for the Third Circuit (Philadelphia).

To contact the reporter on this story: Sophia Pearson in Philadelphia at spearson3@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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