BROWN-FORMAN CORPORATION AND HEAVEN HILL DISTILLERIES, INC. APPELLANTS
GEORGE MILLER APPELLEE
REVIEW FROM COURT OF APPEALS CASE NO. 2013-CA-002048-MR
JEFFERSON CIRCUIT COURT NO. 12-CI-003382
COUNSEL FOR APPELLANT BROWN-FORMAN CORPORATION: Charles J.
Cronan, IV Mark Richard Overstreet Bethany A. Breetz Marjorie
COUNSEL FOR APPELLANT HEAVEN HILL DISTILLERIES, INC.:
Virginia Hamilton Snell Donald Joseph Kelly Lisa Catherine
COUNSEL FOR APPELLEE GEORGE MILLER: None/Withdrawn
COUNSEL FOR AMICI CURIAE David James Treacy
George Miller,  owns property in Jefferson County near
warehouses owned by Appellants, Brown-Forman Corporation and
Heaven Hill Distilleries, Inc. (referred to collectively as
Brown-Forman). Brown-Forman's warehouses contain barrels
of aging bourbon.
is a uniquely Kentucky liquor. The confluence of geology,
geography, fertile soil, and availability of land 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 Brown-Forman, as
of 2014, Kentucky distillers produce 95% of bourbon
enticing characteristics come from distilling a unique,
combination of ingredients and the use of a distinct aging
process. 27 C.F.R. § 5.22. Before being labelled
bourbon, the distilled spirit must be aged a minimum of
two-years in new charred-oak barrels. Id. This
distinct aging process is at the epicenter of this dispute.
the aging process, Brown-Forman uses warehouses in Jefferson
County to store its barrels of bourbon. As it ages, the
bourbon interacts with the barrel as the liquid expands and
contracts based on ambient temperature and air-flow. Warmer
temperatures cause the bourbon 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 over time gives bourbon its color and taste.
complaint centers around fugitive ethanol emissions (the
so-called "angels' share") that escape from the
barrels during this aging process. These fugitive emissions
promote the growth of the Baudqinia compniacensis
fungus (colloquially referred to as "whiskey
fungus"). Miller alleges the whiskey fungus causes a
black film-like substance to proliferate on his property,
covering virtually all outdoor surfaces-including wood,
vinyl, metal, and concrete.
filed suit in Jefferson County seeking damages based on
several state tort theories and injunctive relief.
Brown-Forman filed a motion to dismiss for failure to state a
claim upon which relief could be granted. The trial court
granted Brown-Forman's motion to dismiss, as it
determined the federal Clean Air Act preempted Miller's
claims. Miller appealed and the Court of Appeals reversed and
remanded, holding that the Act did not preempt Miller's
claims. This Court granted Brown-Forman's motion for
reasons that follow, we affirm the Court of Appeals insofar
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 of Appeals'
holding regarding Miller's injunctive relief. While we
disagree with the trial court that the Act preempted the
injunctive relief, we hold that the injunctive relief was
inappropriate for other reasons.
STANDARD OF REVIEW
begin our analysis by looking through the lens of the proper
standard of review. A trial court should dismiss an action
for failure to state a claim upon which relief may be granted
only when "it appears the pleading party would not be
entitled to relief under any set of facts which could be
proved . . . ." Pari-Mutuel Clerks' Union Local
541 v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky.
1977). "In ruling on a motion to dismiss, the pleadings
should be liberally construed in the 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 of review eliminates any need by
the trial court to make findings of fact; 'rather, the
question is purely a matter of law. Stated another way, the
court must ask if the facts alleged in the complaint can be
proved, would the plaintiff be entitled to relief?"'
Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting
James v. Wilson, 95 S.W.3d 875, 884 (Ky. App.
2002)). Appellate courts review questions of law such as this
de novo, affording no deference to the trial court.
Id. at 7.
conducting this de novo review, we must decide two separate,
but related, legal questions. First, we must determine
whether the 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 Miller
Clean Air Act
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 Protection Agency (EPA). However, Congress also
specifically designated a role for states.
the Act, each state may adopt a State Implementation Plan
setting out emission limitations, emission standards, and
other requirements to meet the National Ambient Air Quality
Standards established by the EPA. 42 U.S.C. § 7410.
States submit their individual plans to the EPA Administrator
for approval. 42 U.S.C: §7410(a)(1). The Act sets out
the contents and the ...