RENDERED: SEPTEMBER 28, 2017 TO BE PUBLISHED .

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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

.Appellee, George Miller, 1 owns property in Jefferson County near warehouses owned byAppellants, Brown-Forman Corporation and Heaven Hill Distilleries, Inc. (referred to collectively as Brown-Forman). Brown-Forman's warehouses contain barrels ofaging-bourbon. Bourbon is a uniquely Kentuckj liquor. The confluence ofgeology, geography, fertile soil, and availability ofland 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 apartfrom George Miller filed a motion to dismiss, which this Court granted.. /Brown-Forman; as of2oi4, Kentucky distillers produce 95% ofbo11rbon

. . . . . . _,, worldwide.

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

. · ·. . ·combinationofingredients and the use ofa distinct aging process. 27 C.F.R. §· 5.22. Before being labelled bourbon, the distilled spirit must be aged a**~inimu_m** oftwo-years_in new charred-oak barrels. ·Id. This di_stinct aging · .**proce~s** is at the**~picehter** ofthis clispu_te.

. . During the aging process, Brown-Forman uses**w~ehouses** in Jefferson County to store its barrels ofbourbon. 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 overtime 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 ofthe 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 grantedBrown-Forman's motion to dismiss, as it determined the 

### '2federal Clean Air Act preempted Miller's claims. Miller appealed and the Court ofAppeals 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 ofAppeals 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 ofAppeals' holding regarding Miller's . .injunctive relief. While we disagree with the.trial courtthat the Act preempted the injunctive reUef; we hold thatthe injunctive reliefwas inappropriate for other reasons.. II. STANDARD OF REVIEW We begin our analysis by looking through the lens ofthe proper standard ofreview. A trial court should dismiss an action for failure to state a claim

. . upon which reliefmay be granted only when "it**app~ars** the pleading party .· would not be entitled to reliefunder any set offacts 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 ofreview eliminates.any need by the trial court to make findi_ngs offact; 'ratJ:ier, the question.is purely a matter of_law. Stated another way, the court_must ask ifthe facts alleged in the complaint can be proved, would the plaintiffbe entitled 

### tO relief?"' Fox v. Grayson, 317 S.W.3d 1, 37 (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. at7. In·conducting this de nov_g review, we must decide two separate, but related, legal questions. First,. we.musfdclermine 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-ProtectionAgency (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 NationalAmbientAir Quality Standards established by the'EPA. 42 U.S.C. § 7410. States _submit _their individual plans to the EPAAdministrator for approval. 42 

### u.s.c; § 7410(a)(l).. The Act sets out the contents arid the authority states must**posses~** before the Administrator mayapprovea 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 4defines**tl~e** requisite legal authori_ty each pemlitting authority must possess, prescribesthe process forjudicial review ofpermitting 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 ofits operating permit; therefore, we proceed under the premise that the companies are in full compliance with the requ1site·permits mandated by the Act. 1. FederalPreemption "The Supremacy Clause makes the laws ofthe United States 'the supreme Law ofthe Land ... any Thing in the Constitution or Laws ofany 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 ofthe Commonwealth. "[T]he states have no power, by taxation·orotherivise, to retard, impede, burden, or in any manner c9ntrol, the ope;rations ofthe constitutional laws enacted by congress to carry into execution the powers vested inthe general government." MCulloch v. Maryland, 17 U.S. 316, 436 (1819) (emphasisadded). "Put simply, federal law preempts contrary state law." Hughes, 136 S: Ct. at 1297. State law is 5contrary "to the extent ofany 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 ofa particular case, the challenged state law stands as an obstacle to' the a?complishment and execution ofthe fuII purposes.and objectives of**Congress~"** Hughes, 136 S. Ct. .at 1297 (citing Crosby, 530.U.R at 373). ChiefJustice John Marshall recognized nearly two centuries ago that "[i]t

. 

### . is ofthe very essence ofsupremacy, to remove all obstacles to its action within its own sphere, and so to modify every powervested in subordinate governments, as tO exemptits 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 ofthe economic, public health, and . environmentalbenefits ofefforts to comply withJsuch standard," 42 U.S.C. §

· 7612(b), as well as "the effects ofsuch 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.fpermits

### 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 peryear 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 peryear, itholds a Federal Enforceable District 6Origin Operating Permit. See Metro Dist. Regulation 2.17. Because no party ·argues**~the:twise,** we 1I1ake no distinction in our analysis between the two types

·ofpermits..
·2. Savings Clauses

.In determining whetherthe Act preempts any or all ofMiller'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 ofthe Act's .

other provisions..In these clauses, Congre.ss·declared that certain types of

. \

. . . . . . . . . conflicts betWe_en theAct 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 thereofto adopt or enforce . (l.) any**~tandard** or limitation respecting emissions ofair pollutants or (2) any requirement respecting control or· abatement ofair pollution; exceptthat ifan emission standard or limitation isin effect under an applicable ·implementation pla,n or under section 7411 or section 7412 ·ofthis title, such State or political subdivision may notadopt ·

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 "Nonrestrictionofother rights" (as in, rights.other than citizen suits) states: "Nothing in this section shall restpct ·: . 7·any rightwhich any person (or class ofpersons) mayhave under any statute or

. common lawto seek enforcement ofany emission standard or limitation or to

seek any other relief (including reliefagainst theAdministrator 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 reliefcan be granted. At the trial court, Miller sought damages under state tort theories ofnegligence,. 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 oflaw-the action can proceed despite BrownFoiman's preemptionargument. We pass nojudgment on the merits ofMiller's tort actions. To ascertain the Act's preemptive effecton 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 ofthe 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 ofDiageo's distilling and aging

·whiskey at its**Louisvill~** facility, large amounts ofethanol are emitted: Just as

in the present case, the plaintiffs alleged those emissions waft onto nearby real .8and 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 oftheir 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 ofthe 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 lawstandards.under which the plaintiffs had sued. Id. The Sixth Circuit determined that "[s]tare courts are arms ofthe 'State;'" and thatthe 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 CleanAir 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 ofthe 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 Reportofthe Senate Committee on Public Works reflects that the "citizen suits" provision ofthe Clean AirAct, "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-ofthe Act, the SJ.xth Circuit.noted that Supreme Court precedent regarding the Clean WaterAct was persuasive authority since the CleanWaterAct was modeled·ori the Clean AirAct and "the two acts are often 

### 'inp·ari materia."' Id. at 692. lri 

### Int'lPaper Co. v. Ouellette, 479 U.S. 481 (1987), the Supreme Court held that the nearly identicai"states'. rights savings clause in the Clean WaterAct specifically preserired common law. claims brought by aggrieved individuals against "sources"_ofwater pollution in their own state (as opposed to out-of-state sources). As the Sixth Circuit appropriately found, "[t]he 

### Ouellette Court'sinterpretation ofthe Clean Water Act's states' rights savings clause 

### fo preserve claims.ba.sed on the law ofthe 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 ofthe 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 ofIowa'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 ValleyAuthority, 615 F.3d 291 (4th Cir. 2010), the Fourth Circuit Court ofAppeals 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 

### CooperresuJt 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 ofthe source state-which are not preempted by the ·· CleanAirAct-and claims based on the common law ofa non-source state-which are preempted by the Clean Air Act." 

### Id. at 693. Finally, the Merri9kCourt.noted there is a strong presumption against federal**pr~emption** ofstate 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 ofenvironmental 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** offederalism and respect for states'rights." 

### Id. In sum, the tex_t ofthe Clean Air Act and its legislative histO:ry, Supreme Court precedent construing the virtually identical**p~ovisions** ofthe Clean Water

. . . Act, persuasive opinions from other federal courts and a state court, and the strong presumption against preemption in the field ofenvironmental

. 

### . .regulation, all led to the Sixth Circuit's rejection ofpree!fiptiori .atguments by 11Diageo. We agree and adopt the Sixth Circuit's analysis as to this issue.. Thus, we affirm the Court ofAppeals insofar as it held that the Clean Air Act did not preempt Wilson's state tort causes ofaction. 3. Monetary· Damages We further hol_d that the Act does not preempt a trial. court from · awarding monetary damages on state tort causes ofaction. Awarding damages for a particularharm to specifiG property in no way**~retard[sJ,** impede[s], burden[s], or in any manner control[sJ, the operations" ofthe Act. 

### M'Culloch, 17 U.S. at 436. Nor does it "stand[] as an obstacle to the accomplishment and . execution ofthe full purpose.sand objectives ofCongress." Hughes, 136 S. Ct. at 1297. An award ofmonetary damages to an aggrieved ·party fundamentally differs from supplanting a permitting decision ofan expert agency. This is primarily so because "the [Act] does not provide damage remediesto 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 ofthe Act." 

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

### !o be sure, the Supreme Court in

### AmericanElectric Power Co. 

### v. Connectiait, 564 U.S. 410, 426 (2011), held thata public nuisance claim was preempted because the Act displaced

### federal common law. But in doing so,.the Court made clear that its analysis offederal cc:>mmon law differed from that of state law. Specifically, it stated: "Legislative displacement offederal common law does not require the same sort ofevidence ofa clear and manifest congressional purpose demanded for preemption ofstate law." Id. at 423 (quotation J:!!.arks and brackets omitted).

"° 12Furthermore,.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 ofprotections 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 theAct 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 seekingfull compensation for harmrelated to the" use and enjoyment ofproperty 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.actionshave.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 ofproperty.".While· we ack:Ilowledge.that several provisions in the Act refer to welfare, and by extension to damage and**det~rioration** ofproperty, we read this to apply generallyto.all property to

.the extent protected_by**th~** dutyimposed under

### atheory of public nuisance. We do not read this to protect discrete private property to the same extent.as the duty ' imposed under a theory ofprivate nuisance because the Act also requires·the balancing of**inter~sts,** ofwhich preventing.damage and deterioration ofpropertyis but

. . one.

. 13established by the [Act]. The purpose of.state nuisance and common law actions is to protect.the use and enjoyment ofspecific 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** ofre8.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 theAct'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 ofMiller's state tort claims are not currently

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

.matter.to be determined at.trial. We hold onlY: thatthe 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 ifthe Act

. preempts this type ofinjunctive 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 the1Act's

.,. - . . overall context.. We 

### .will first turn to th.e second ofthe Act's. savings clauses (the citizen-suit clause discussed above) to determine ifthe Act saved,the powers in question for the states. · In constrμing the citizen-suit provision. qfthe Clean WaterAct in 

### City 

### of Milwaukee 

## v; Rlinois, the Supreme Court said: Subsection 505(e) is vfrtuallyidentical to subsections in the citizen-suit provisions ofseveral environmental statutes. The · subsection 

### lS common languageaccompanying 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 readto mean that the Act as a whole does not supplant formerly available federal common-law actions but only that the

. . . . . particular section authorizingcitizen 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 ofthe

.. Clean WaterAct, 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 CleanAirAct. 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 relieflinked to state tort law. In other words, Congress did not intend citizen suitsto be an exclusive· remedy. Therefore, the Clean AirAct does notpreempt state injunctive relief. 15
.Howeve\, even though injunctive reliefis not preempted bythe**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 ofthe economic and environmental impact. So long as compani<?s . operate within the bounds oftheir permits conGerning air pollutants (whkh is .not contested in the case at ba:r), injunctive relieffor an alleged nuisance is.not . an appropriate remedy. 3 Here, by see.king an injunction demanding a · particular pollution-control technology, Millerasked the trial court to secondguess the reasonableness ofa decisionthe Act undeniably entrusted to Metro. District and the EPA. As previously noted,**~he** Act directs the EPA

. ( Administrator to "consider all ofthe economic, public health, and environmental benefits o_fefforts to comply with such standard," 42 U.S.C. § 7612(b), as well as "the effects ofsuch standard on employment, productivity, cost ofliving, 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 specificdetermination which balanced the·risks to · the environment with the economic impact ofany 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 reliefin nuisance cases where the regulatory authority (in this case, both federal and state) has issued a permit after ·carefullybalan.cing environmental and economic fac.tors. Issuing an injunction to . require different technology to prevent

## anuisance is markedly different from issuing 

## an injunction for other purposes, such as when public health or the environment are ·

. endangered orthere-is a violation oflaw. . 16stringent 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 regulationsthat 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~** expresslyprohibit 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 ofa particulartype ofpollution-control technology not required under Brown-Forman's arid HeavenHill'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 AmericanElectric Powerwhere ·courts act on· limited records on an 

### ad-hocbasis in 

### an arena where they do not possess the

. . necessary scientific, economic and technological expertise. We cannot have the

. circuit courts ofthis Commonwealthimposingpollution 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 ofAppeals insofar as it would allow this type ofinjunctive relief. While the trial court's reasoning.was incorrect, the 17result remains the same. The trial court properly dismissed theplea for injunctive reliefas it i?deed failed. to state a claimupon which relief could be granted. IV. CONCLUSION · For the foregqing reasons, we affirm the Court ofAppeals as to Miller's state-law damages claims; however, we reverse the Court·ofAppeals insofar as it held that Miller's**cl~m** for injunctive reliefcould go**forwa~d.** Therefore, we remand this case to Jefferson Circuit Court for further proceedings consistent ' with this opinion .

.All sitting. All concur.

. COUNSEL FORAPPELLANT-BROWN-FORMAN CORPORATION:

Charles J. Cronan, IV Mark Richard Overstreet . BethariyA. 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 ,..- .