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Environmental – Private Nuisance – Class Action – Water Pollution – Regulatory Issues – Use & Enjoyment of Property

Haynes v. Blue Ridge Paper Products Inc. (Lawyers Weekly No. 10-04-0850, 15 pp.) (Martin Reidinger, J.) W.D.N.C.

Holding: Plaintiffs who live on land bordering a river containing discharge from a paper mill have no federal common-law nuisance claim because such claims have been entirely preempted by legislative measures including the Clean Water Act.

Dismissed with prejudice.

Facts

 The case began in 2009 when plaintiffs filed a proposed class-action suit against defendant alleging that the defendant’s pulp and paper mill on the Pigeon River in Canton interfered with their rights to use and enjoy their property. The plaintiffs alleged diversity jurisdiction and sought compensatory damages.

Defendants moved to dismiss on jurisdictional grounds, saying that plaintiffs have same citizenship as corporate defendant. Plaintiffs then filed an amended complaint alleging that 69 members of the class live outside North Carolina.

Plaintiffs claim the defendant’s mill discharges chemicals into the Pigeon River causing it to be polluted, and that they are entitled to “agricultural, recreational, and scenic use and enjoyment of their lands and the water bordering their lands.”

They claim the matter is actionable under federal common law of nuisance. They acknowledge, however, that a previous lawsuit against defendant’s predecessor corporation was unsuccessful because the court found that it is a governmental, not judicial function, to determine what could be discharged from the plant.

Plaintiffs do not bring this suit to enforce any permits issued by the EPA and allege they can seek only monetary relief. Plaintiffs note that their amended complaint does not assert a claim of nuisance under state law.

They say that while the Clean Water Act passed by Congress does generally serve to preempt federal common law nuisance claims, it is not an obstacle to this suit because defendant operates under a permit that allows it to run in violation of the Clean Water Act by discharging pollutants upstream of plaintiffs’ homes.

Analysis

The plaintiffs have the burden of proving that subject-matter jurisdiction exists. The parties here do not dispute jurisdictional facts, but rather applications of law.

The plaintiffs acknowledge that under the Clean Water Act, federal common-law nuisance actions have generally been preempted. But they argue that their claim is not preempted because the permit under which the mill operates expressively provides that plaintiffs may bring a federal action. They rely in part on language that says the permit does not “authorize any injury to private property or the invasion of personal right.”

The Supreme Court has explicitly held that the federal common law of nuisance for water pollution has been entirely preempted by legislative measures. If common-law nuisance claims were held to be an exception to the general federal preemption in this area, such would be the exception that swallows the rule, and Supreme Court rulings would be obviated. The court rejects the plaintiffs’ objections to the magistrate judge’s recommendation.

Motion to dismiss is granted and the action is dismissed with prejudice.


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