Brown-Forman Corporation v. George Miller

Opinion

RENDERED: SEPTEMBER 28, 2017

@l TO BE PUBLISHED .

jupmn~ filnurf nf ~~.~n 2014-SC-000717-DG rLrrr~ ~ BROWN-FORMAN CORPORATION AND HEAVEN HILL DI~TILLERIES, INC.

ON REVIEW FROM COURT OFAPPEALS v. CASE NO. 2013-CA-002048-MR JEFFERSON CIRCUIT COURT NO. 12-CI-003382

GEORGE MILLER APPELLEE

OPINION OF. THE COURT BY JUSTICE WRIGHT

AFFIRMING IN PART AND REVERSING AND REMANDING IN PART

I. BACKGROUND .Appellee, George Miller, 1 owns property in Jefferson County near

warehouses owned by Appellants, Brown-Forman Corporation and Heaven Hill

Distilleries, Inc. (referred to collectively as Brown-Forman). Brown-Forman's

warehouses contain barrels of aging- bourbon.

Bourbon is a uniquely Kentuckj liquor. The confluence of geology,

geography, fertile soil, and availability of land helped birth the bourbon ..

industry in Kentucky. The Commonwealth's easily accessible limestone water, /

abundance of oak trees, and expansive land-combined with a four-season

climate conducive to growing corn and aging liquor in barrels-enabled

Kentucky's nascent bourbon industry to grow and prosper. According to

i Several Appellees were originally involved ·in this case. However, all the Appellees apart from George Miller filed a motion to dismiss, which this Court granted .. Brown-Forman; . . . . as of2oi4, Kentucky distillers produce 95% . . of bo11rbon _,,

worldwide .

. Bourbon's enticing characteristics come from distilling a unique . .· ·. .

·combination of ingredients and the use of a distinct aging process. 27 C.F.R. §·

5.22. Before being labelled bourbon, the distilled spirit must be aged a

~inimu_m of two-years _in new charred-oak barrels. ·Id. This di_stinct aging · .

proce~s is at the ~picehter of this clispu_te. . . During the aging process, Brown-Forman uses w~ehouses in Jefferson

County to store its barrels of bourbon. As it ages, the bourbon interacts with

the barrel as the liquid expands and contracts based on ambient ten:iperatute

and ~ir-flow. Warmer temperatures cause the b()urbon to expand and seep

further into the barrel,-while colder temperatures cause"contraction and less

contact with the barrel. Movement into and out of the wood over time gives

bourbon its color and taste .

.·Miller's complaint centers around fu~tive ethanol emissions (the so-· ·

called "angels' share") ihat escape from th~ barrels during this aging process.

These fugitive emissions .promote· the growth of the Baudpinia compniacensis . . . fungus (colloquially referred to as "whiskey fungus"). Miller alleges the whiskey

. fungus ~_auses a black film~like substance "to proliferate on his property,

covering.virtually ~l outdoor surfaces-·including wood, vinyl, metal, and

concrete.

Miller·filed suit in Jefferson County seeking damages based on several

state tort theories and injunctive ~elief. Brown-For~an filed a motion to

dismiss for failure to state a claim upon which ~eliefcould be granted. The

trial court granted Brown-Forman's motion to dismiss, as it determined the '2 federal Clean Air Act preempted Miller's claims. Miller appealed and the Court

of Appeals reversed and remanded, holding that the Act did not pree.mpt

Miller's claims. This Court granted Brown-Forman's motion for discretionary

review.

For reasons that follow, we affirm the Court of Appeals 1.nsofar as it held

that the trial court erred in granting Brown:...Forman's motion to dismiss the

state tort claims for damages, as we agree these claims are not preempted by

the Act. However, we reverse the Court of Appeals' holding regarding Miller's .

.injunctive relief. While we disagree with the. trial court that the Act preempted

the injunctive reUef; we hold that the injunctive relief was inappropriate for

other reasons ..

II. STANDARD OF REVIEW

We begin our analysis by looking through the lens of the proper standard

of review. A trial court . should dismiss an action for failure to state a claim .

upon which relief may be granted only when "it app~ars the pleading party . ·

would not be entitled to relief under any set of facts which could be proved ..

. · ." Pari-Mutu.el Clerks' Union Local 541 v. Kentucky Jockey Club, 551 S.W.2d

801, 803 (Ky. 1977). "I!l ruling on a motion to dismiss, the pleadings should.

be liberally_ construed in..fue light most favorable to the plaintiff, all allegations

being taken as true." Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009).

"This exacting standard of review eliminates. any need by the trial court to

make findi_ngs of fact; 'ratJ:ier, the question.is purely a matter of_law. Stated

another way, the court _must ask if the facts alleged in the complaint can be

proved, would the plaintiff be entitled tO relief?"' Fox v. Grayson, 317 S.W.3d 1,

3 7 (Ky. 2010) (quoting James v. Wilson~ 95 S.W.3d 875, 884 (Ky. App. 2002)).

· Appellate courts review·questions oflaw such as this d~ novo, affording no . . deference to the trial GOUrt. Id. at 7.

In· conducting this de nov_g review, we must decide two separate, but

related, legal questions. First,. we. musf dclermine whether th.e Clean Air Act

preempts· Miller's state law tort claims seeking damages. Then~ we must

determine whether a trial court may _issue an. injunction such as the one Mille:r; sought.

Ill. ANALYSIS ·A. Clean Air Act . . . We will first look to the federal act on which this litigation hinges. In

. passing the Clean Air Act, Congress delegated its implementation and

administration to the federal Environmental-Protection Agency (EPA). However,

Congre~s also specifically designated a role f~r states. . . Under the Act; each ~tate may adopt a State Implementation Plan setting ·out emission limitations, ·emission standards, and other requirernents to meet

the National Ambient Air Quality Standards established by the'EPA. 42 U.S.C.

§ 7410. States _submit _their individual plans to the EPA Administrator for

approval. 42 u.s.c; § 7410(a)(l) .. The Act sets out the contents arid the authority states must posses~ before the Administrator may approve a State

Plan. 42 U.S.C.~§ 7410(a)(l).:(2).

. After significant amendments to the Clean Air Act' in 1990, Congress

· allowed the Administrator to. authorize state and local governments. (called

·permit~ing authorities) to issue operating perniits. 42 U.S.C. § 76.61. The Act

4 defines tl~e requisite legal authori_ty each pemlitting authority must possess,

prescribes the process for judicial review of permitting decisions, and allows

·the EPA to promulgate other requirements .. 42 U.S.C. § 766la(b). Once a

permitting authority's plan satisfies those requirements, then the

Administrator may authorize it to issue permits under the Act.

·In Jefferson County, the Administrator specifically authorized the

Lo_uisville Metro Air Pollution Control District (Metro District)· to issue operating

permits. 40 C.F.R. § 70, App. A-Kentucky. The Administrator also approved

Kentucky's State Plan, which includes Metro District's t;"egulations. 40 C.F.R. §

52.923. Brown-Forman and Heaven Hill both maintain permits, and Miller

does not allege. either distiller is in violation of its operating permit; therefore,

we proceed under the premise that the companies are in full compliance with

the requ1site ·permits mandated by the Act.

1. Federal Preemption "The Supremacy Clause makes the laws of the United States 'the

supreme Law of the Land ... any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding."'' Hughes v. Talen Energy Mktg., 136 S.

Ct. 1288~ 1297 (2016) (quoting U.S. Const. art. VI, cl. 2). The Supremacy . I

Clause binds this Court and requires th8:t we give precedence to lawful fe~eral

enactments over the laws of the Commonwealth. "[T]he states have no power,

by taxation· or otherivise, to retard, impede, burden, or in any manner c9ntrol,

the ope;rations of the constitutional laws enacted by congress to carry into

execution the powers vested in the general government." MCulloch v.

Maryland, 17 U.S. 316, 436 (1819) (emphasis added). "Put simply, federal law

preempts contrary state law." Hughes, 136 S: Ct. at 1297. State law is 5 contrary "to the extent of any conflict with a federal . statute." Crosby . . v. Nat'l

Foreign Trade Council, 530 U.S. 363, 372 (2000). Notably, this occurs "where,

under the circumstances of a particular case, the challenged state law stands

as an obstacle to' the a?complishment and execution of the fuII purposes .and

objectives of Congress~" Hughes, 136 S. Ct. .at 1297 (citing Crosby, 530.U.R at

373). Chief Justice John Marshall recognized nearly two centuries ago that "[i]t . . is of the very essence of supremacy, to remove all obstacles to its action within

its own sphere, and so to modify every power vested in subordinate

governments, as tO exempt its own operations.from their own influence."

M'Culloch, 17 U.S. at 427.

With that in ~ind, we turn back to the federal Clean Air A~t,- which seeks .

to strike a balance between encou:raging ·economic development and protecting

the environment-a task here entrusted to both the Metro District and EPA.-

Specifically, in taking a cost-benefit approach, the Act directs the

Administrator to "consider all of the economic, public health, and .

environmental benefits of efforts to comply withJsuch standard," 42 U.S.C. §

· 7612(b), as well as "the effects of such standard on employment, .productivity,

cost of)iving, economic growth, and the overall economy," 42 u.s.c. § 7612(c).

After this careful balancing·was taken into account, Brown-Forman and

·Heaven .Hill were issued separate kinds o.f permits ba~ed on the amount of air

poIIutants each releases. Brown-Forman operates under a Title V permit,

which is required for sta:tionary sm~rces emitting 100 t~n.s per year or more of

any non-fugitive·air pollutant. See U.S.C. §§ 7661 et seq.; 40 C.F.'R. § 70;

· Metro Dist. Regulation 2.16. Since Heaven Hill emits less than 100 tons of

non-fugitive air pollutants per year, it holds a Federal Enforceable District 6 Origin Operating Permit. See Metro Dist. Regulation 2 .1 7. Because no party

·argues ~the:twise, we 1I1ake no distinction in our analysis between the two types

· of permits ..

·2. Savings Clauses . In determining whether the Act preempts any or all of Miller's claims,

we must construe the Act as a whole and give effect to two separate savings

. clauses. · These savings clauses allow states to retain power in spite of the Act's .

other provisions .. In these clauses, Congre.ss ·declared that certain types of . \ . . . . . . . . . conflicts betWe_en the Act and state law that might otherwise be preempted

should, instead, be tolerated.

Specifically, 42 U.S.C. § 7416 r~serves to the states the power to·adopt

and.enforce more stringent staridard.s than those established by.the Act. That

clause reads:

[N]othing in this chapter shall preclude or deny the right _of any State nr political subdivision thereof to adopt or enforce . ( l.) any ~tandard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or· abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable ·implementation pla,n or under section 7411 or section 7412 · of this title, such State or political subdivision may not adopt · or enforce any emission standard or limitation which is less· . stringent than the standard or limitatic;m under such plan or section.

Id.

The second savings clause appears in 42 U.S.C. §7_604 and. grants

individuals the power to commence citizen suits to enforce the Act. While we

acknowledge that Miller did not bring a citiZen suit, §7604 also covers other

actions .. In particular, the subsection titjed "Nonrestriction of other rights" (as

in, rights .other than citizen suits) states: "Nothing in this section shall restpct ·: . 7 ·any right which any person (or class of persons) may have under any statute or

. common law to seek enforcement of any emission standard or limitation or to

seek any other relief (including relief against the Administrator or a State

agency)." 42 u.s.c. § 7604(e). B. State Tort Claims Again, this case is before us on the trial court's ordt;r to dismiss ·Miller's . . case for failure to state a claini upon which relief can be granted. At the trial

court, Miller sought damages under state tort theories of negligence,. trespass,

and nuisance. In· granting Brown-Forman's motion,. the trial court determined

all claims were pr:eempted PY the Clean Air Act. Our holding on this issue is . . limited to wh~ther-as a matter of law-the action can proceed despite Brown-

Foiman's preemption argument. We pass no judgment on the merits of Miller's

tort actions.

To ascertain the Act's . preemptive . effect on Miller's state tort claims, we

find a recent Sixth Circuit case persuas.ive. In Me.rrick v. Diageo Americas

Supply, Inc., 805 F.3d 685, 686 (6th Cir. 2015), the Sixth Circuit concluded

that the Clean Air Act does not preempt common law claims· brought against

an emitter based on the law of the state in which the em~tter operates. The

same individual, Merrick, brought both the case considered by the Sixth

Circuit artd the case underlying the present action (though ·he has since been

dismissed as a party herein); . · .In the SQrth Circuit case, Merrick brought a

similar putative class action against Diageo Americas Supply, .Inc. Id. at 686.

There, the plaintiffs alleged that in the course of Diageo's distilling and aging

· whiskey at its Louisvill~ facility, large amounts of ethanol are emitted: Just as

in the present case, the plaintiffs alleged those emissions waft onto nearby real .8 and personal propertY where; when . . combined with condensation, create ..

whiskey fungus. Id. The plaintiffs in Merrick alleged this whiskey fungus

constituted a S"l!.bstantial annoyance and an unreasonable interferen~e with the . ' .. .

use and enjoyment of their property. Id. at 687.

In Merri.ck, the class action plaintiffs sought compensatory and punitive

damages for negligence, nuisance, and trespass, along with an injunction . . I

requiring Diageo to abate its ethanol emissions through implementing certain .

control. technology at the facilities. Id. at ·698. In responding to the suit,

Diageo argued that all of the plaintiffs' claims we·re preempted by the Clean Air . . .

Act. Id. The district court dismissed ·the negligence clairri, finding the plaintiffs

had not pled sufficient facts to establish they were owed a.duty of car~ that was

breached, but otherwise the lower court allowed the state la)V claims to

proceed. Id. Subsequently, Diageo sought interlocutory review by th~ Sixth

Circuit. Id. at 690.

First, the Sixth Circuit conciuded that the states' rights savings clause of

the Clean Air Act expr~ssly preserved· the state common law standards .under

which the plaintiffs had sued. Id. The Sixth Circuit determined that "[s]tare

courts are arms of the 'State;'" and that the phrase "any requirement,"

employed in the states' rig:tits savings clause, clearly covered common law

standard~ adopted by those state courts. Id.

Second, beyond the savings clause ofthe Clean Air Act, the Sixth Circuit

observed that permitting states to apply their c~rrim

· · advanced the Act's stated purpose, "by empowering states to address and

curtail air polluti~n at its source." Id. at 691. further, the. Sixth Circuit noted

· that the legislative history of the Clean Air Act made .clear tha:t Congress did 9 . . not intend to pr~empt state common law claims, like those raised by the . .

Plaintiffs. Id. Specifically, the Report of the Senate Committee on Public

Works reflects that the "citizen suits" provision of the Clean Air Act, "would

specifically preserve any rights or remedies under any other law. Thus, if.

damages . could be shown, other remedies would remain available. Compliance .

with standards under this Act would not be a defense to a common law action

for pollution damages.". Id. (quoting S.Rep. No. 91-1196.at 38 (1970)).

Looking beyond the text and history-of the Act, the SJ.xth Circuit.noted

that Supreme Court precedent regarding the Clean Water Act was persuasive

authority since the Clean Water Act was modeled ·ori the Clean Air Act and "the

two acts are often 'in p·ari materia."' Id. at 692. lri Int'l Paper Co. v. Ouellette,

479 U.S. 481 (1987), the Supreme Court held that the nearly identicai"states'.

rights savings clause in the Clean Water Act specifically preserired common law.

claims brought by aggrieved individuals against "sources" _of water pollution in

their own state (as opposed to out-of-state sources). As the Sixth Circuit

appropriately found, "[t]he Ouellette Court's interpretation of the Clean Water

Act's states' rights savings clause fo preserve claims .ba.sed on the law of the

source. state leads directly to the conclusion that the analogous states' rights

savings Clause .in the Clean Air Act similarly preserves claims based on the law

of the source state." Id. at 692.

The conclusion that the Clean Air Act does not preempt state common

law claims also finds support, as the Sixth Circl'.lit noted, in the Third Circuit's decision in Bell v. Cheswick Generating Station, 734 F.3d 188, 192-93 (3d Cir.

2013), and·the Supreme· Court of Iowa's decision in Freeman v. Grain

Processing Corp., 848 N.W.2d 58, 80 (Iowa 2014). Id, In North Carolina ex rel. 10 Cooper v. Tennessee Valley Authority, 615 F.3d 291 (4th Cir. 2010), the Fourth

Circuit Court of Appeals found preemption of state law claims-but under

. markedly different circumstances, i~e., where North Carolina brought claims

under North Carolina law against companies located in Alabama and

Tennessee. Noting that the result in that case was due to issues of federalis~

and the Supreme Court's holding in Ou~llette, the Sixth Circuit noted that the

Cooper resuJt was actually consistent with Bell and Freeman. · Id. Indeeq, the

Sixth Circuit explained that "[a]ll three courts distinguished between claims

based on the common law of the source state-which are not preempted by the · ·

Clean Air Act-and claims based on the common law of a non-source

state-which are preempted by the Clean Air Act." Id. at 693.

Finally, the Merri9k Court.noted there is a strong presumption against

federal pr~emption of state law, "one that operates with special force in cases in

which Congress has legislated ... in a field which the States have traditionally

occupied;" Id. at 694 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)) .

.Given that states ·have traditionally occupied the field of environmental

regulation, the Sixth Circuit' opined that even. witho~t the Clean Air Act's

states' rights savings clause, state common law claims would likely be

preserved under "prin~iples of federalism and respect for states' rights." Id.

In sum, the tex_t of the Clean Air Act and its legislative histO:ry, Supreme

Court precedent construing the virtually identical p~ovisions of the Clean Water . . . Act, persuasive opinions from other federal courts and a state court, and the

strong presumption against preemption in the field of environmental . . .regulation, all led to the Sixth Circuit's rejection of pree!fiptiori .atguments by

11 Diageo. We agree and adopt the Sixth Circuit's analysis as to this issue .. Thus,

we affirm the Court of Appeals insofar as it held that the Clean Air Act did not

preempt Wilson's state tort causes of action.

3. Monetary· Damages

We further hol_d that the Act does not preempt a trial. court from ·

awarding monetary damages on state tort causes of action. Awarding damages

for a particular harm to specifiG property in no way ~retard[sJ, impede[s],

burden[s], or in any manner control[sJ, the operations" of the Act. M'Culloch,

17 U.S. at 436. Nor does it "stand[] as an obstacle to the accomplishment and .

execution of the full purpose.sand objectives of Congress." Hughes, 136 S. Ct.

at 1297.

An award of monetary damages to an aggrieved ·party fundamentally

differs from supplanting a permitting decision of an expert agency. This is

primarily so because "the [Act] does not provide damage remedies to harJ?ed . . '

individuals." Freeman, 848 N.W.2d at 69. Monetary damages also withstand J

scrutiny·in part because "'personalized' remedies are not a first priority of the

Act." Ellis v. Gallatin Steel Co., 390 F.3d 461, 477 (6th Cir. 2004).

!o be sure, the Supreme Court in American Electric Power Co. v.

Connectiait, 564 U.S. 410, 426 (2011), held that a public nuisance claim was

preempted because the Act displaced federal common law. But in doing so,. the

Court made clear that its analysis of federal cc:>mmon law differed from that of

state law. Specifically, it stated: "Legislative displacement of federal common

law does not require the same sort of evidence of a clear and manifest

congressional purpose demanded for preemption of state law." Id. at 423

(quotation J:!!.arks and brackets omitted). "° 12 Furthermore,.that case rests upon the premise that under the Act,_ the

duty to prevent and abate public nui_sances is vested in the EPA and permitting

authorities .. The regu.latory regime created by the Ad supplants f~den1l public

nuisance claims because the Act incorporates those _same types of protections

against.generalized harm.2 However, the case at bar differs :from American

Electric Power~ The nuisance at issue here is a private nuisance claim under

state tort law, rather than a public nuisance claim under federal common law.

· (It is .a claim from damages caused by specific harm to specific property rather • • ~ • • r •

than. general harm.) Jn Bell, 734 F.3d at 192-93; the Third Circuit

distinguished privat~ nuisance state tort actions and determined that the Act

did not preempt "the plaintifrs private nuisance and "trespass claims seeking

·.monetary damages: .

· 'fhe .Act does not provide a mechanism for awarding monetary

compensation to an injured party suffering from a particularized harm. "Thus,

a property owner seeking full compensation for harm related to the" use and

enjoyment . of . property .at a specific location . must resort to common law or state .

law theories to obtai~ a full recovery." Freeman; 848 N.W.2d at 70.

We agree with the Iowa Supreme Court that "state common_ law and nuisance.actions have.a different purpose than the regulatory regime

2. ID 42 .U.S.C. § 7602, Congress-declared 1;hat "[a.JU language referring to effects on welfare includes-. : ·. damage to and deterioration of property.". While· we ack:Ilowledge.that several provisions in the Act refer to welfare, and by extension to damage and det~rioration of property, we read this to apply generally to .all property to .the extent protected _by th~ duty imposed under a theory of public nuisance. We do not read this to protect discrete private property to the same extent.as the duty ' imposed under a theory of private nuisance because the Act also requires· the .balancing of inter~sts, of which preventing.damage . and deterioration of property is but one. . 13 established by the [Act]. The purpose of.state nuisance and common law

actions is to protect.the use and enjoyment of specific property, not to achieve

a general regulatory purpose." Id .. at 84 ..Like the plaintiffs iri Freeman, Miller

here "seek[s] damages related to specific properties at specific locations

allegedly caused by a specific source." Id. at 85. The purpose and function of

the Act differs sufficiently from the purpose and function of "a private lawsuit

seeking damages anchored in owner~hip of re8.l p~operty," id., to avoid issues of

conflict preemption. ·

The Act does not state that Congress intended to prevent injured

property owners suffering particularized harm from recovering monetary

damages un~er state law. Absent s11ch language ora vividly demonstrable

obstacle to the Act's operation, we cannot conclude it preempts state trial

courts from awarding monetary damages in tort actions for negligence, private

nuisance, or trespass.

As noted above, the specifics of Miller's . state tort claims are not . currently

before this Court. Whether· those causes of actio.n ultimately succeed is a

. matter.to be determined at.trial. We hold onlY: that the Act does not preempt

Miller's state law tort claims seeking damages and remand this matter to the

trial court for further proceedings.

C. Injunction The injunction Miller sought from the trial court would have requfred

Brown-Forman to implement pollution:-conttol technology not required by its.

permit issued undet the Clean Air Act. We must first determine if the Act

. preempts this type of injunctive relief.· In doing so, we must construe the Act. . . as a whole· because "[c]ourts have a duty to construe statutes, not isolated . 14 ·provisions." Graham Cty; . . Soit &. Water Conservation . . Dist. v.. United ·~. . States ex

rel. Wilson, 559 U.S. 280, 290 (2010) (internal citations and quotation marks . . omitted). This means .,. we cannot read a section quarantined - . from the . Act's 1

overall context.. We .will first turn to th.e second of the Act's. savings clauses (the

citizen-suit clause discussed above) to determine if the Act saved,the powers in

question for the states. ·

In constrµing the citizen-suit provision. qf the Clean Water Act in City of Milwaukee v; Rlinois, the Supreme Court said: Subsection 505(e) is vfrtually identical to subsections in the citizen-suit provisions of several environmental statutes. The · subsection lS common language accompanying Citizen-suit . ·.pr9visions and we think t.hat it means only that the·provision of such suit does not revoke other remedies. It most assuredly cannot be read to mean that the Act as a whole does not supplant formerly available federal . . . common-law . actions . but only that the particular section authorizing citizen suits does not do so.

451 U.S. 304, 328-29 (198'1) (footnote omitted). We acknowledge·that, in that

case, the Supreme Court was interpreting the citizen-suit provi.sion of the .. Clean Water Act, not the Clean Air Act. In doing so, however, the Court

specifically cited the "virtually identical" citizen-suit provision appearing in the

Clean Air Act. . . . . . .

We· adopt the Supreme Coi:irt's reasoning interpreting the Clean Water'

Act as applying with equal force to the Clean Air Act. First, Congress's creation

of the citize;n suit as a .statutory remedy. does not ·limit rem~dies otherwise available. Nothing in the section authorizing citizen suits, 42 U.S.C. § 7604,

revokes other available remedies, including injunctive relief linked to state tort

law. In other words, Congress did not intend citizen suits to be an exclusive·

remedy. Therefore, the Clean Air Act does not preempt state injunctive relief.

15 . Howeve\, even . though injunctive relief . is not preempted by the A~t, it is

still unavailable in this case. The Act and Kentucky regulations provide for

citizen input in the permitting process. The permit is issued only after careful

balancing of the economic and environmental impact. So long as compani

operate within the bounds of their permits conGerning air pollutants (whkh is

.not contested in the case at ba:r), injunctive relief for an alleged nuisance is. not .

an appropriate remedy. 3 Here, by see.king an injunction demanding a ·

particular pollution-control technology, Miller asked the trial court to second-

guess the reasonableness of a decision the Act undeniably entrusted to Metro.

District and the EPA. As previously noted, ~he Act directs the EPA . (

Administrator to "consider all of the economic, public health, and

environmental benefits o_f efforts to comply with such standard," 42 U.S.C. §

7612(b), as well as "the effects of such standard on employment, productivity,

cost of living, economic growth, and the overall economy," 42 U.S.C. § 7612(c)". .. In making the decision to issue the perinits, ci_tizens have the opportunity for

input .. The agency made a specific determination which balanced the· risks to ·

the environment with the economic impact of any pollution-control measures.

For the trial court to issue the injunction Miller seeks ~ould impose higher

standards than the Clean Air Act requires.

Furthermore; while the Act's states' rights savings clause, 42. U.S.C. §

7416, specifically reserves to·the states the power to adopt arid enforce more

3 Our holding is limited to injunctive relief in nuisance cases where the regulatory authority (in this case, both federal and state) has issued a permit after ·carefully balan.cing environmental and economic fac.tors. Issuing an injunction to . a require different technology to prevent nuisance is markedly different from issuing an injunction for other purposes, such as when public health or the environment are · . endangered or there-is a violation of law. . 16 stringent standards than those established by the Act, the Kentucky General

. Assembly has restricted the Energy and Environment Cabinet from exercising·

that saved power. Specifically, ·the Gen,e~al Assembly has charged the Energy

and Environment Cabinet with adopting clean air regulations that are "no more.

stringent than federal requirements." KRS 224.10-100(26). Even though the·

Act would allow Kentucky to enact more stnngent standards under th!s savings

· clause, Kentucky statute~ expressly prohibit the Cabinet from issuing mor~

stringent regtilations. Id. We find the fact that Kentucky has explicitly chosen

not to allow its regulatory body to utilize more stringent regulations persuas~ve

as to the Legislature's intent. ·

We hold that the requested injunction, which would require

implementation of a particular type of pollution-control technology not required

under Brown-Forman's arid Heaven Hill's permits, conflicts with the Act by

invading EPA and Metro District's "regulatory turf," id., iri a manner tl"J.at the

Kentucky General Assembly has spoken against. Therefore, an injunction to

control an alleged nuisance when the state has already specifically balanced

those factors is inappropriate;· To conclude otherwise would produce the

untenable situation·identified in American Electric Power where ·courts act on· limited records on an ad-hoc basis in an arena where they do not possess the . . necessary scientific, economic and technological expertise. We cannot have the

. circuit courts of this Commonwealth imposing pollution control technqlogies on

distillers that might differ from circuit to cfrcuit. The impact on the bourbon

industry would be far too dire.

Therefore, we reverse the Court of Appeals insofar as it would allow this

type of injunctive relief. While the trial court's reasoning. was incorrect, the 17 result remains the same. The trial court properly dismissed theplea for

injunctive relief as it i?deed failed. to state a claim upon which relief could be

granted.

IV. CONCLUSION ·

For the foregqing reasons, we affirm the Court of Appeals as to Miller's

state-law damages claims; however, we reverse the Court ·of Appeals insofar as

it held that Miller's cl~m for injunctive relief could go forwa~d. Therefore, we

remand this case to Jefferson Circuit Court for further proceedings consistent ' with this opinion.

. All sitting. All concur.

. COUNSEL FOR APPELLANT-BROWN-FORMAN CORPORATION:

Charles J. Cronan, IV Mark Richard Overstreet . Bethariy A. Breetz . Marjorie Ann Farris

COUNSEL FOR APPELLANT HEAVEN HILL DISTILLERIES,- INC~:

Virginia Hamilton Snell Donald Joseph Kelly Lisa Catherine D~Jaco ,..- . COUNSEL FOR APPELLEE GEORGE MILLER:

None /Withdrawn

COUNSEL FOR AMICI CURIAE

David --!ames_ Treacy