Brown-Forman Corporation v. George Miller ( 2017 )

RENDERED: SEPTEMBER 28, 2017
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TO BE PUBLISHED .
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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~rrimId. 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 companiId. 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
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