Tag Archives: Supreme Court

Kentucky Supreme Court Holds that Compliance with a Regulatory Air Permit Precludes Injunctive Relief for an Alleged Nuisance

By Donald J. Kelly and H. Carl Horneman

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

Supreme Court Overturns EPA’s MATS Rule

By Max E. Bridges

Supreme Court 2On 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