Legal Stink Over Landfill Odor Wafts Into 3rd Circuit

(Image via the Bethlehem Landfill Co.)

PHILADELPHIA (CN) — There’s a landfill in eastern Pennsylvania whose odor, residents say, extends for 20 square miles. The Third Circuit heard arguments Monday about whether one couple can seek damages on behalf of the entire community.

Eric Klein, an attorney for the Bethlehem Landfill Co., urged the federal appeals court to affirm dismissal, insisting that the class led by Robin and Dexter Baptiste is too big.

Last June, the Baptistes filed suit on behalf of 8,400 households that live within a 2.5-mile radius of the 224-acre landfill waste-management site. The landfill estimates the proposed class would include roughly 20,000 individuals.
When a private nuisance gets this big, Klein said, local authorities should handle the matter. An attorney with the law firm Beveridge and Diamond, Klein urged with the court to consider the financial burden that the landfill could expect with a class this big.

“You’re allowing a jury of 12 people to potentially hand out a damages award that is existential to a defendant,” said Klein.

Nicholas Coulson, representing the Baptistes with the firm Liddle and Dubin, skewered this argument in his rebuttal.

“If you can’t afford to pay for the rights of property owners, you probably shouldn’t take them,” said Coulson.  

Klein also used his argument time to say that the class cannot make a case for negligence since there is no allegation regarding toxins or pollution.

“Negligence requires a physical damage, and an odor does not cause physical damage,” said Klein.

U.S. Circuit Judge Jane Roth was quick to undercut Klein’s point, however, noting that an odor in the air could be seen as a type of pollution.

The Reagan appointee also questioned Coulson, however, on the government’s role in handling these issues.

“Don’t we have government agencies that control these types of things,” Roth asked.

“We do have them, but we cannot depend on them,” Coulson replied, pointing out that the landfill has several citations.

Roth also butted heads with Klein after suggesting that the lawsuit might be salvaged by dividing the class into smaller communities.

“You’re still just aggregating tens of thousands of claims,” said Klein.

“But you’re aggravating aggravated people,” said Roth.

The Baptistes say the odors emitted from the Northampton County landfill diminishes their property value and their enjoyment of living there.

They seek a reversal after a federal judge dismissed the suit in March, finding that the landfill does not have a duty to limit odors and that the class lacked the ability to file a private nuisance claim because they were not suffering a unique harm that was not affecting the general public.

Klein reiterated this point Monday at oral arguments. “At a certain point if something is affecting 20,000 people, it becomes the communities issues,” he said.

In an interview after arguments Klein thanked the court and expressed hope that it will affirm dismissal. Coulson declined to comment. 

The panel was rounded out by U.S. Circuit Judge Michael Fisher, a George W. Bush appointee, and U.S. Circuit Judge Felipe Restrepo, an Obama appointee.

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