Clean Air Act Does Not Preempt State Nuisance, Negligence Claims

Friday, March 30, 2018 3:59 am
April 2018 - Volume 46 Number 4

Neighbors can continue their nuisance and negligence suit against whiskey distilleries who allegedly promoted the growth of a destructive "whiskey fungus" by releasing ethanol vapor into the atmosphere.

Facts: Brown-Forman Corporation and Heaven Hill Distilleries, Inc. (together, Brown-Forman) operate whiskey distilleries in Kentucky. As part of the production process, the distilleries emit ethanol vapor into the atmosphere, which brings the emissions within the purview of the federal Clean Air Act. The distilleries' emissions did not exceed the limits set by the Clean Air Act. However, several neighbors, including lead plaintiff Bruce Merrick, alleged that the distilleries' ethanol emissions promoted the growth of "whiskey fungus," which creates a "pervasive black film covering virtually every outdoor surface."

Merrick owns a company that makes stadium seating, and he alleged that the whiskey fungus destroys any inventory left outdoor[..]