Bell v. Cheswick Generating Station

• Citation: 903 F.Supp.2d 314
• Decision Date: 12 October 2012
• Docket Number: No. 2:12–cv–929.,2:12–cv–929.
• Court: U.S. District Court — Western District of Pennsylvania
• Parties: Kristie BELL and Joan Luppe, Plaintiffs, v. CHESWICK GENERATING STATION, GenOn Power Midwest, L.P., Defendant.

903 F.Supp.2d 314

Kristie BELL and Joan Luppe, Plaintiffs,

v.CHESWICK GENERATING STATION, GenOn Power Midwest, L.P., Defendant.

No. 2:12–cv–929.

United States District Court, W.D. Pennsylvania.

Oct. 12, 2012.

James E. Depasquale, Pittsburgh, PA, for Plaintiffs.

Paul K. Stockman, McGuireWoods LLP, Pittsburgh, PA, Scott C. Oostdyk, McGuireWoods, Richmond, VA, for Defendant.

MEMORANDUM OPINION AND ORDER OF COURT

TERRENCE F. McVERRY, District Judge.

Presently pending before the Court is the MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Doc. No. 6) with Brief in Support (Doc. No. 7) filed by Defendant Cheswick Generating Station, GenOn Power Midwest, L.P. (“GenOn” or “Defendant”).¹ Plaintiffs Kristie Bell and Joan Luppe, Putative Class Action Representatives, (“Plaintiffs”) have filed a Brief in Opposition (Doc. No. 12), Defendant has filed a Reply Brief (Doc. No. 13), and Plaintiffs have filed a Sur–Reply Brief (Doc. No. 14). Accordingly, the Motion is ripe for disposition.

Background

Plaintiffs commenced this lawsuit on April 19, 2012 by the filing of a “Class Action Complaint in Civil Action” in the Court of Common Pleas of Allegheny County in which they assert that emissions from Defendant's 570–megawatt coal-fired electrical generating facility, the Cheswick Generating Station, did and continues to cause damage to the property of Plaintiffs and a putative class that they purport to represent.² Plaintiffs aver that this putative class is comprised of at least one thousand and five hundred (1,500) individuals who reside or own residential property within a one-mile radius of the power plant in the Borough of Springdale, Allegheny County, Pennsylvania.

Defendant GenOn is a limited partnership organized under the laws of Delaware with its organizational headquarters and principle place of business located in Houston, Texas. After GenOn was properly served, it timely removed the case to this Court based on diversity of citizenship. Defendant has now moved the Court to dismiss the Complaint in its entirety under Fed. R. Civ. P. 12(b)(6).

The Complaint alleges that Defendant's operation, maintenance, control and use of its facility has caused this putative class “similar property damage, the invasion by and inhalation of similar odors, and the deposit of similar particulate coal dust, including fly ash and particulates formed by gases and chemicals emitted by [Cheswick Generating Station].” ³ Moreover, Plaintiffs claim that the atmospheric emissions fall upon their properties and leave a film of either black dust ( i.e., unburned coal particulate/unburned coal combustion byproduct) or white powder ( i.e., fly ash). According to the Plaintiffs, those discharges require them to constantly clean their properties, preclude them from full use and enjoyment of their land, and “make [them] prisoners in their own homes.”

Plaintiffs also aver that the operation of the facility by GenOn has been the subject of numerous and constant complaints of the residents of the surrounding neighborhood, by organizations and interested persons within the area, and by “government action.” As Plaintiffs' Complaint states, that dissention has not compelled GenOn to cease the improper operation of its facility or to discontinue the ongoing invasion and trespass of their properties by damaging air contaminants, odors, chemical and particulates.

The Complaint also asserts that Defendant knew of or allowed the improper construction and operation of the facility and that GenOn continues to operate the power plant without proper or best available technology or any proper air pollution control equipment, thereby allowing the generating station's emissions to invade and damage the properties within a one-mile radius. Likewise, the Complaint avers that GenOn “has installed limited technology to reduce or eliminate emissions from the Cheswick Power Plant,” and that “Defendant's Permit to Operate does not allow [its] operations including emissions to damage private property.”

Based on said allegations, Plaintiffs seek to recover compensatory and punitive damages under four (4) common law tort theories: (I) nuisance; (II) negligence and recklessness; (III) trespass; and (IV) strict liability. At Counts One and Three, Plaintiffs also request that this Court order injunctive relief.

Standard of Review

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) challenges the legal sufficiently of the complaint filed by plaintiff. The United States Supreme Court has held that “[a] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)) (alterations in original).

The Court must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made clear in Twombly, the “factual allegations must be enough to raise a right to relief above the speculative level.” Id. The United States Supreme Court has subsequently broadened the scope of this requirement, stating that only a complaint that states a plausible claim for relief survives a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Thus, after Iqbal, a district court must conduct a two-part analysis when presented with a motion to dismiss for failure to state a claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009). First, the Court must separate the factual and legal elements of the claim. Id. Although the Court “must accept all of the complaint's well-pleaded facts as true, [it] may disregard any legal conclusions.” Id. at 210–11. Second, the Court “must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’ In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.” Id. at 211 (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). The determination for “plausibility” will be “ ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).

As a result, “pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” Id. at 211. That is, “all civil complaints must now set out ‘sufficient factual matter’ to show that the claim is facially plausible. This then ‘allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Id. at 210 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).

However, nothing in Twombly or Iqbal changed the other pleading standards for a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and the requirements of Fed. R. Civ. P. 8 must still be met. See Phillips v. Co. of Allegheny, 515 F.3d 224, 231 (3d Cir.2008) (internal citations omitted). Rule 8 requires a showing, rather than a blanket assertion, of entitlement to relief, and “contemplates the statement of circumstances, occurrences, and events in support of the claim presented and does not authorize a pleader's bare averment that he wants relief and is entitled to it.” Twombly, 550 U.S. at 555 n. 3, 127 S.Ct. 1955 (internal citations and quotations omitted). Additionally, the United States Supreme Court did not abolish the Fed. R. Civ. P. 12(b)(6) requirement that “the facts must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on those merits.” Phillips, 515 F.3d at 231(citing Twombly, 550 U.S. at 553, 127 S.Ct. 1955).

Discussion

Defendant advances multiple arguments in support of its Motion to Dismiss including (1) that Plaintiffs have not satisfied the pleading requirements under Twombly and Iqbal; (2) that the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq., preempts Plaintiffs' common law claims; (3) that the Political Question Doctrine, see Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), bars the Plaintiffs' action as non-justiciable; and (4) that Plaintiff's strict liability count must fail because power generation is not an ultra-hazardous activity. Throughout its Motion, Defendant frames the Complaint as a request to have this Court regulate emission standards by asserting that the requested relief would undermine the scheme of the Clean Air Act.

In response, Plaintiffs dispute that characterization and challenge each argument advanced by Defendant with the exception that they “do not dispute Defendant's position as to [the] strict liability claim.” In sum, Plaintiffs assert (1) that the Clean Air Act cannot preempt their common law claims because the savings clause in the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7604(e), preserves their right to bring suit for property damage; (2) that the Complaint “do[es] not speak to nor attack emission standards, and [it] has no relationship to emission standards”; (3) that the Political Question Doctrine is inapposite here because “[p]rotection can be ‘judicially molded’ in this case just as it is molded in any other action to protect property rights”; (4) that they only seek redress for property injuries allegedly traceable to Defendant's facility; and (5) that this case is “solely an action for damage to property, not an attempt to challenge the regulations of emissions in any way.” Defendant's Reply directly challenges two of those assertions.

First, Defendant argues that contrary to Plaintiff...