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Kentucky Federal Court Rules that Common Law Tort Claims Are Not Preempted by the Clean Air Act


By Kelly D. Bartley, Attorney, Bingham Greenebaum Doll LLP

On March 19, 2014, the U.S. District Court for the Western District of Kentucky entered a memorandum opinion in a lawsuit asserting negligence, nuisance, and trespass claims against Diageo Americas Supply, Inc. (Diageo) regarding ethanol emissions that allegedly led to “whiskey fungus” impacts on plaintiffs’ property. Merrick v. Diageo Americas Supply, Inc., Case No. 12-334. Plaintiffs argued that whiskey fungus created conditions that required costly cleaning and reduced the value of their property. Diageo moved to dismiss on the ground that the common law damage claims were preempted by the regulation of the emissions under the Clean Air Act.

The court noted the issue of preemption of state common law damage claims for emissions regulated under the Clean Air Act had not been directly addressed by the U.S. Supreme Court or the Sixth Circuit Court of Appeals. However, other courts of appeals have considered the issue, specifically the Third and Fourth Circuits, and reached differing holdings. State courts in Kentucky have also split on the issue with the Franklin Circuit Court finding against preemption of state common law and the Jefferson Circuit Court finding the Clean Air Act preempted common law damage claims for whiskey fungus conditions.

The district court sided with the Third Circuit and determined the Clean Air Act did not preempt the plaintiffs’ Kentucky common law claims under the facts of the case. The court stated that “courts have increasingly interpreted the Clean Air Act’s saving clauses to permit individuals to bring state common law tort claims against polluting entities.” Whether the Sixth Circuit will adopt the court’s reasoning is yet to be determined. The concern with the ruling is that by allowing nuisance and similar common lawsuits to go forward against sources operating under Clean Air Act emission permits, a patchwork of inconsistent compliance standards could be set across the country undermining the comprehensive regulatory structure established by the Clean Air Act.

To view a complete PDF of the First Quarter 2014 Air Quality Letter, click here.


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