In a yet-to-be published Opinion rendered September 28, 2017, the Kentucky Supreme Court, in a matter of first impression, dealt with whether the Clean Air Act (CAA) preempts state common law tort claims for damages or injunctive relief where harm is alleged to result from air pollutant emissions authorized by a permit issued by a regulatory authority entrusted to carefully balance environmental and economic factors. In Brown-Forman Corporation and Heaven Hill Distilleries, Inc. v. George Miller, ___S.W.3d__ (2017), 2017 WL 4296968, Plaintiff seeks to certify a class action based upon the alleged accumulation of “whiskey fungus” on surfaces in proximity to Defendants’ alcoholic beverage production and warehousing operations. In addition to seeking class certification for alleged damages to both real and personal property, Plaintiffs brought claims based upon Continue reading Kentucky Supreme Court Holds that Compliance with a Regulatory Air Permit Precludes Injunctive Relief for an Alleged Nuisance
On Monday, the United States Supreme Court rejected an appeal from 20 states seeking to block the MATS rule from taking effect while the EPA undertakes a second determination whether regulating power plant mercury emissions is appropriate and necessary. As previously discussed on this blog, the MATS rule was promulgated pursuant to Section 112 of the Clean Air Act to limit emissions of mercury and other hazardous air pollutants from coal- and oil-fired electric utility steam generating units. To regulate hazardous air pollutants from electric utility steam generating units, Section 112 of the Act requires the EPA to evaluate hazards reasonably anticipated to occur from emissions occurring after other Clean Air Act mandates are in place, and determine whether regulating the emissions with a Section 112-based standard is appropriate and necessary. In June 2015, the Supreme Court ruled that the EPA failed to comply with the Clear Air Act when it made its “appropriate and necessary” determination without considering compliance costs. However, the Supreme Court remanded the case to the Continue reading Supreme Court Rejects Challenge to MATS Rule
In November, the Sixth Circuit Court of Appeals held that the Clean Air Act (CAA) does not preempt state common law tort claims. It reached this conclusion in an action by property owners who allege that ethanol emissions from Diageo Americas Supply whiskey aging warehouses harm their property. Merrick v. Diageo Americas Supply, Inc., 14-6198, 2015 WL 6646818 (6th Cir. Nov. 2, 2015). The plaintiffs, on behalf of a putative class, allege that the ethanol emissions combine with condensation to promote the growth of an unsightly and difficult to remove “whiskey fungus.” They filed a class action lawsuit in federal District Court alleging that under the Kentucky common law of negligence, trespass and nuisance, they are entitled to an injunction mandating that Diageo capture and control the emissions, and recover damages. Diageo sought to have the action dismissed, arguing that plaintiffs’ state law claims are preempted by the CAA because they “conflict with the Clean Air Act methods for regulating emissions and, therefore, that allowing such claims to proceed would frustrate the purposes and objective of the Act.” Id. at *4. The District Court rejected this defense but certified the question to the Sixth Circuit Court of Appeals.
Writing for the three-judge panel of the Sixth Circuit, Judge Rogers affirmed the District Court’s decision to reject Diageo’s preemption defense: “The Clean Air Act’s text makes clear that the Act does not preempt such claims,” he wrote. Id. at *1. In addressing arguments that a Continue reading Sixth Circuit Rejects Clean Air Act Preemption Argument
On June 29, the U.S. Supreme Court struck down the EPA’s Mercury and Air Toxics Standards (MATS), an Obama administration effort to limit toxic emissions of mercury and other hazardous air pollutants (HAPs) from Electric Generating Units (EGUs). In a 5-4 decision under the name Michigan v. EPA, the Court held the EPA unreasonably interpreted the Clean Air Act (CAA) to not require consideration of emissions reduction costs when it decided whether to regulate HAP emissions from EGUs. The 1990 amendment to the Clean Air Act included several provisions to force reduction of EGU emissions that according to Justice Scalia “were expected to have the collateral effect of reducing [their] emission of [HAPs].” So, Congress directed the EPA to study public health hazards posed by HAP emissions from EGUs and regulate the emissions under Section 112 of the Act if the Agency found that to be “appropriate and necessary.” CAA §7412(n)(1). In 2000 the EPA found regulation of HAP emissions from oil and coal fueled EGUs to be appropriate and necessary without giving any consideration to the costs or benefits of such regulation. Then in 2012 the EPA reaffirmed that Continue reading Supreme Court Overturns EPA’s MATS Rule