Bethlehem Landfill Co., in Bethlehem, Pennsylvania. Photo: Google

A dismissed nuisance lawsuit over noxious odors, filed by Bethlehem homeowners against the Bethlehem Landfill, has been revived by a federal appeals court.

The U.S. Court of Appeals for the Third Circuit in a precedential decision reversed a lower court's holding that too many residents were similarly affected to sustain a private claim for public nuisance, that the odors were too widespread and the landfill was too far away from them to constitute a private nuisance, and that the plaintiffs' negligence claim fell short because they couldn't show the landfill had a duty of care.

The lawsuit was filed by Robin and Dexter Baptiste, who brought an action against the Bethlehem Landfill Co. claiming violations of Pennsylvania's Solid Waste Management Act. The Baptistes were joined by amici the Public Interest Law Center and Philly Thrive over their concern for "environmental injustices."

According to Third Circuit Judge Luis Restrepo's opinion Monday, the plaintiffs argued that U.S. District Judge Chad Kenney of the Eastern District of Pennsylvania in his ruling below misunderstood nuisance law, and as a result, imposed restrictions on their public and private nuisance claims that don't exist under Pennsylvania common law.

Bethlehem countered that the court was correct in dismissing the case because the plaintiffs filed a "mass nuisance" claim too large to be filed by private individuals.

However, Restrepo said that the plaintiffs alleged sufficient public and private claims showing that they and their class were uniquely affected by the odors.

"While everyone in the community—including visitors, commuters and residents alike—may suffer from the discomfort of having to breathe polluted air in public spaces, the Baptistes have identified cumulative harms that are unique to them and their fellow residents as homeowner-occupants or renters, such as the inability to use and enjoy their swimming pools, porches, and yards. The complaint specifically alleges that the presence of these odors is 'especially injurious' to class members 'as compared with the public at large, given the impacts to their homes,'" Restrepo said.

The Third Circuit also rejected the district court's reasoning that because the odors constituted a public nuisance affecting the "whole community" instead of "some particular person," it couldn't be considered a private claim.

"Although public and private nuisance are distinct causes of action, they are not mutually exclusive. Again, the critical difference between these two theories of liability is not the number of persons harmed but the nature of the right affected," Restrepo said. "A public nuisance requires interference with common or public rights, while a private nuisance requires only interference with personal or private rights."

Detroit-based Nicholas Coulson represented the plaintiffs on appeal and said the ruling reaffirmed the use of class actions as a tool to protect property from corporations.

"We've always maintained that polluting your neighbors' property can't possibly become permissible by simply doing more of it," Coulson said in an email. "We are glad the Third Circuit agreed, and rejected the landfill's request for special treatment because of the broad scope of the pollution we allege it's caused. We look forward to continuing to hold the landfill to account."

Eric Klein of Beveridge & Diamond in Boston represented the defendants on appeal and did not respond to a request for comment.