“Whiskey Fungus” Claims Not Preempted
A federal court in Kentucky has determined that distillery neighbors may
proceed with state law-based tort claims alleging that the facility’s emissions
cause “whiskey fungus” to accumulate on their real and personal property.
Merrick v. Diageo Americas Supply, Inc., No. 12-0334 (W.D. Ky.,
Louisville Div., order entered March 19, 2014). Additional details about the
lawsuit appear in Issue 444 of this Update.
Finding conflicting authority on whether the Clean Air Act (CAA) preempts
the plaintiffs’ claims for negligence and gross negligence, temporary and
permanent nuisance and trespass, the court carefully analyzed related U.S.
Supreme Court, federal court and state court rulings. It concluded that the
Third Circuit’s analysis in Bell v. Cheswick Generating Station, 734 F.3d 188
(3d Cir. 2013), and the Sixth Circuit’s in Her Majesty the Queen in Right of the
Province of Ontario v. City of Detroit, 874 F.2d (6th Cir. 1989), “capture the
prevailing law for CAA preemption” by interpreting “the CAA’s savings clauses
to permit individuals to bring state common law tort claims against polluting
entities.”
The court dismissed the plaintiffs’ negligence claims, however, agreeing
with the defendant that they had failed to plead facts showing that Diageo
owed them a duty or that it breached any duty. The court also found that
the plaintiffs “failed to show how they, as property owners, could maintain a
private cause of action based on Diageo’s alleged violation of a city ordinance
or regulation.” While the court allowed the plaintiffs to proceed as to their
temporary and permanent nuisance claims, finding them adequately pleaded,
it noted that the plaintiffs will eventually have to elect between them and that
the claim for permanent nuisance may be time barred. Because the parties
had not addressed the latter issue, the court declined to decide it. The court
further allowed the plaintiffs to pursue their claims for intentional trespass
and injunctive relief, finding them sufficiently pleaded.
Issue 519
