RENDERED: SEPTEMBER 28, 2017 

TO BE PUBLISHED . 

jupmn~ filnurf nf ~~.~n @l 

2014-SC-000717-DG rLrrr~ ~ 

BROWN-FORMAN CORPORATION AND 

HEAVEN HILL DI~TILLERIES, INC. 

v. 

ON REVIEW FROM COURT OFAPPEALS 

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 

. A ppellee, 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: 

Id. 

[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. 

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 BrownFoiman'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<?n law to emissions 

· · 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 the1 Act's .,. - . . 

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<?s . 

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 secondguess 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 . 

require different technology to prevent a 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 

18 

,..- .