Brown-Forman Corp. v. Miller
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The Supreme Court affirmed in part and reversed in part the judgment of the court of appeals reversing the trial court’s dismissal of Plaintiff’s claims. Plaintiff sued Defendant, which uses warehouses in Jefferson County to store its barrels of bourbon, seeking damages based on several state tort theories and injunctive relief. Plaintiff claimed that fugitive ethanol emissions that escape from the barrels as the bourbon ages promote the growth of the “whiskey fungus,” which causes a black film-like substance to proliferate on his property. The trial court determined that the federal Clean Air Act preempted Plaintiff’s claims. The court of appeals reversed, ruling that the Act did not preempt Plaintiff’s claims. The Supreme Court held (1) Plaintiff’s state tort claims for damages were not preempted by the Act; but (2) Plaintiff’s requested injunction was inappropriate.
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RENDERED: SEPTEM~ER·28, 2017 TO BE PUBLISHED ~uprttttt <!tnurf ~f .~tnfurku 2014-SC-000717~DG . . BROWN-FORMAN CORPORATION AND HEAVEN.HILL DISTILLERIES, INC. APPELLANTS ON REVIEW FROM COURT OF APPEALS CASE NO. 2013~CA-002048-MR JEFFERSON CIRCUIT COURT NO~ 12-CI-003382 v. GEORGE MILLER APPELLEE OPINION OF THE COURT BY JUSTICE WRIGHT AFFIRMING IN PART AND REVERSING AND REMANDING IN PART 1.· BACKGROUND Appellee, George Miller,1 owns property in Jefferson County near warehouses owned by Appellants, Brown:-Forman Corpora~on and Heaven Hill Distilleries, Inc. (referred to collectively as Brown-Forman). Brown-Forman's warehouses contain barrels of aging bourbon. . ·\ Bourbon is a uniquely Kentucky 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 originaIJ.y involved in. this case.· However, all the Appellees apart from George Miller filed a motion to dismiss, which this Court granted. Brown-Forman; as of20i4, Kentucky distillers produce 95% of ~9µrbon worldwide. Bourbon's enticing characteristics come from distilling a unique, . ·combiriation of ingredients and the use of a distinct aging process. 27 C.F.R. § 5.22. Before being labelled bourl::mn, the distilled spirlt must be aged a minimum of two-years in new charred-oak barrels. ·Id. This distinct aging · · process is at the ~picenter of this disp~te. · During the aging process, Brown-Forman uses w~ehou'ses 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 te~perature and ~r-flow. Warmer temperatures cause the b~urbon to expand and seep further into the barrel,- while colder temperatures cau~e ·c~ntraction and less contact with the barrel. Movement into and out of the wood over ·ti~e gives bourbon its color and taste. Miller's complaint centers ar.ound fugitive ethanol emissions (the so-· · c~led "angels' sh~e") ~hat escape from the barrels during this aging process. These fugitive emissions promote· the growth of the Baud9inia 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 all 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-Forman .filed a motion to dismiss for failure to state a claim upon which ~elief.could be granted. The trial court granted Brown-Forman's motion to ciismiss, as it determined the .. '2 federal Clean Air Act preempted Miller's claims. Miller appealed and the Court of Appeals reversed and remanded, holdii:ig that the Act did not preempt Miller's claims. This Court granted Brown-Forman's motion for discretion.ary review . . For reasons that follow, we affirm the Court o( Appeals 1.nsofar as it held that the tnal 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 failu.re to state a claim upon which relief may be granted only when "it appears .the pleading party . · · would not be entitled to relief under any set of facts which could be proved .. . ." Pari-Mutuel Clerks' Union Local 541 v. Kentucky Jockey Club, 551 S.W.2d 80 l; 803 (Ky. 1977). "In ruling on a motion to dismiss, the pleadings should . be liberally_construed in-the light most favorable t_o the plaintiff, all allegations I • 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 findings of fact; 'rather, 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?m Fox v. Grayson, 317 S.W.3d 1, 3 Wilsqn~ 7 (Ky. 2010) ( uoting James v. 95 S.W.3d 875, 884 (Ky. App. 2002)). · Appellate cou ts review· questions of law such as this d~ nova, affording no · deference to t e trial Gourt. Id. at 7. In. conducting this de nova review, we must decide two separate, but . . ~ ~elated, .legal questions. First,. we must determine whether the Clean Air Act . . ' preempts· Miller's state law tort claims seeking damages. Then, we must determine whether a trial court may issue a.n injunction such as the one :Mmer sought. III. ANALYSIS ·A. Clean Air Act We will first look to the federal act on which this litigation hinges. In . pa~sing the .Clean Air Act, Congress delegated its implementation and administration to the federal Environmental-Protection Agency (EPA). However, Congress also specifically designated a role for states. Under the Act; each ~tate may adopt a State Implementation Plan setting ·out emission limitations, emission standards, and other requirements to meet the National Ambient Air Quality Standards established by th~·EPA. 42 U.S.C. ~ 7410. States submh th,eir: individual plans to ~e EPA Administrator for approval. 42 U.S.C: §.7410(a)(l) .. The Act sets out the contents arid the authority states must possess. 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 ~-d· local governments (called ·permitp.ng authorities) to issue operating perrriits. 42 U.S.C.,§ 76.61. The Act 4 defines ~e requisite legal authority eac.h permitting 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 Louisville 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 :i;-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. l. 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. m, Hughes v. Talen Energy Mlctg., 136 S . . Ct. 1288, 1297 (2016) (quoting U.S. Const. art. VI, cl. 2). The Supremacy / Clause binds this Court and requires th8;t we give precedence to lawful federal 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 operations of the constitutional laws enacted by congress to carry into execution the. powers vested in the general government." M'Culloch v. Maryland, 17 U.S. 316, 436 (1819) (emphasis.added). preempts contrary state law." Hughes, 136 5 "Put simply, federal law s: Ct. at 1297. State law is 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 accomplishment and execution of the full 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 ~ssence 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 n:iind, we turn back to the federal Clean Air A~t,-which seeks . . . to strike a balance between encouraging economic development and protecting the environment-a task here entrusted to both the Metro District ~d 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. living, 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 of permits based on the. amount of air . pollutants each releases. Brown-Forman operates under a Title V permit, which is required for. sta:tionary so~rces emltting 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.-17. Because no party ·argues ~thetwise, we make no distinction in our analysis between the two types . of permits .. ·2. Saui.ngs 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&s declared that certain types of c~nflicts bet~e.en the Act and state law that might othernise be pr~empted should, instead, be tolerated. Specifically, 42 U.S.C. § 7416 reserves to the states the power to adopt and ·enforce more stringent staridard.s thah those established by' the Act. That clause reads: [N]othing in this chapter shall preclude or deny the right .of any State or political subdivision thereof to adopt or enforce ·( 1) 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 pl~ or under section 7411 or section 7412 of this title, such State or political subdivision may not adopt · or enforce any ~mission standard or limitation which· is less· . stringentthan the standard or limitation 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 s~its ·.to enforce the Act. While we acknowledge that·Miller did not bring a citfaen suit, §7604 also covers other actions._ In particular, the subsection titled "Nonrestriction. of other rights" (as in, rights. other than citizen s1:1its) 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 lim'.itation 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 ord~r to dismiss ·Miller's. case for failure to state a claim upon which relief can be granted. At the tri8.l 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 p:r:eempted py the ·clean Air Act. Our holding on this issue is limited to whether-.as a matter of law-the action can proceed despite BrownForrnan'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.iv~. In Merrick 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 ~tate in which the em~tter operates. The same individual, Merrick, brought both the case considered by the SiXth Circuit and the case underlying the present action (though he has since been dismissed as a party herein); In the Sixth 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 Louisville facility, large amounts of ethanol are emitted. Just as . . in the present case, the plaintiffs alleged those emissions waft onto nearby ~eal .8 and personal propertY where; when combined with condensation, create whiskey fungus. Id. TJ:ie pla~ntiffs in Merrick alleged this whiskey fungus . constituted a substantial annoyanc~ and an unreasonable interfe~ence with the . . use and enjoyment·of their property. Id. at 687. In Merrick, the class action pl8.int1ffs sought compensatory and punitive damages for negligence, nuisance, and trespass, along with an injl:lnction requjdng 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 pree:m,pted by the Clean Air Act. Id. The district court dismissed the negligence claim, finding the plaintiffs had not pled sufficient facts to establish they were owed a duty of care that was breached, but otherwise the lower court allowed the state proceed.· Id. Subs~quently, la~ claims to 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 determine_d that "[s]tate courts are arms of the 'State, m and that the phrase ."any requirement," employed in the states' rig?ts savings clause, dearly covered common law standardi;; ·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 comm<?n law to emissions · · advanced .the Act's stated purpose, "byempowerihg states to address and cur.tail 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 that Congress did 9 not in.tend to pr_eempt 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 S!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 pari materia."' Id. at 692. In Int'l Paper Co. v. Ouellette, 479 U.S. 481 (1987), the Supreme Court held that the nearly identical states'. rights savings clause in the Clean Water Act specifically preserired common law claims brought by aggrieved individuals against "sources" _of water pollutio!l 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 A.crs 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 Circ~it noted,· jn the Third Circuit's decision in Bell v. Cheswick Generating Station, 734 F.3d 188, 192-93 (3d ~ir. 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, 61SF.3d 291 (4th Cir. 2010), the Fou~th . Circuit Court of Appeals found preemp~ion 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 69.3. Finally, the Merrick 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 text of the Clean Air Act and its legislative history, Supreme Court precedent construing the virtually ide.ntical provisions of the Clean Water . . • I . 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 preemption .arguments 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 Afr Act did not preempt Wilson's state tort causes of action. 3. Monetary· Damages We further hold 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 tospecifiG property in no way "retard[s], impede[s], burden[s], or in any manner control[s], 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 fu11 purposes and objectives of Congress." Hughes, 136 S. Ct. at 1297. An award of monetary ciamages to an aggrieved party fundamentally differs from supplanting a permitting decision of an expert agency. This is primarily s~ because "the [Act] _does not provide damage remedies to han;ned individuals:" Freeman, 848 N.W.2d at 69. Monetary damages also withstand ~ 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). To be sure, the Supreme Court in American Electric Power Co. v. Connecticitt, 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 c~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:I!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.lato:ry regime created by the Act supplants feder~ public . ' nuisance _claims because the Act incorporates those same types of protections against generalized harm. 2 However, the case at. bar differs from American . . ' /3lectric 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 . . . . . .- ·than general harm,) ·Jn Bell, 734 F.3d at 192-93~ the Third Circuit distinguished private nuisance state tort actions and determined that the Act . . . . . did not preempt the plaintiffs p~ivate nuisance and 'tr~spass claims seeking ·.monetary damages: · The .Act does not provide El. mechanism for awarding monetary compensatio"n to an injured party suffering from a particul~ed hatm. "Thus, a property owner seeking full compensation for harm related to the use and ·enjoyment ~f property at a specific location must resort to common law or state faw theories to obtain a full recovery."· Freeman; 848 N.W.2d at 70. We agree with the Iowa Supreme Court that "state commo_n. law and nuisance.actions have_ a different purpose than the regulatory regime .2. Iii 42 U.S.C. § 7602, Congress declared 1;hat "{a]ll language referring to effects on welfare includes ... : ·. damage to and deterioration of property." . While· we ackriowledge.that several proVisions in the Act refer to welfare, and by extension to damage and deterioration of property, we read this to apply generally to .all property to ·the extent protected by th~ duty imposed under a theory ofpublic 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 9f.state nuisance and common law actions is to protecLthe use and enjoyment of specific propez:fy, not to achieve a general regulatory purpose." Id.. at 84. _Like the plaintiffs .iri Freeman, Miller here "seek[s] damages related ·ta 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 owner~hip seeking. damages anchored in ~d of real function of "a private lawsuit 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 such language or a vividly demonstrable obstacle to the Act's operation, we cannot conclude it preempts state trial courts from awarding monetary damages in tort actions fo.r negligence, private nuisance," or trespass. As no,ted 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-control technology pot required by its permit issued under 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; Soil& 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 . . . overalJ.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 construing the citizen-suit provision. of the Clean Water Act in City ·Milwaukee of v. Rlinois, the Supreme Coutt said: Subsection 505(e) is virtually identical to subsections in the citizen-suit provisions of several environment.al statutes. The · subsection is common language accompanying citizen-suit . ·Prc;>visions 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 (1981) (footnote omitted). We acknowledge· that, in that case, the Supreme Court was int~rpreting the citizen-suit provi'sion of the . .. Clean Water Act,_not the Cleari AitAct. In doing so, however, the Court specifically cited the "virtually identical" citizen-suit provision appearing in the Clean Air Act. . . We adopt the Supreme Court's reasoning interpreting the Clean Water' . Act as applying with equal force to the Clean Air Act.. First, Congress's creation of the citizep. suit as a statutory remedy.does not lirnit rem~dies otherwis~ available. Nothing in the section authorizing cit~zen suits, 42_ U.S.C. § 7604, revokes other available remedie~, including injunctive relief linked to state tort law. In other words, Congress did hot intend cjtizen suits to be an exclusive· remedy. Therefore, the Clean Air_ Act does not preempt state injunctive relief. 15 Howeve~, ev~n though injunctive re~ief 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 ii:npact. So long as compani':!s · operate within the bounds of their permits conGerning air pollutants (which is .not contested in the case at bar), injunctive relief for an alleged. nuisance is not an appropriate remedy.3 Here, by seeking an injunction demanding a · particular pollution-control technology, Miller asked the trial court to secondguess the reasonableness of a decision the Act undeniably entrusted to Metro. District and the . EPA. As previously noted, the Act directs the EPA . . . Administrator to "consider all of the economic~ public l).ealth, and environmental benefits of 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). Jn making the decision to issue the permits, dtizens have the opporhinity 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 th~ 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 and enforce more a 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 balancing environmental and economic fac.tors. Issuing an injunction to . require different technology to prevent nuisance is markedly different from issuing a.ii injunction for other purposes, such as when public health or the ertv.i.ronment are endangered or there is a violation of law. · a 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,eral 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 stringt'.nt standards under this savings . clause, Kentucky statute~ expressly prohibit the Cabinet. from issuing more stringent regulations. Id. We find the fact that Kentucky has explicitly chosen . ' . not to. allow its regulatory body to utilize more stringent regulations persuasive 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 and Heaven Hill's permits, conflicts with the Act by invading EPA and Metro District's "regulatory turf," id., iri a manner tl'lat 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 cfr~uit. 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 the plea for injunctive relief as it i.ndeed failed to state a claim. upon which relief could be granted. IV. CONCLUSION · For the foregoing reasons, we affirm the Court o~ Appeals as to Miller's state-law damages claims; however,. we reverse the Court ·of Appeals insofar as it held that Miller's claim for injunctive relief could go forward. 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 . Bethany 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 18 ,.
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