ELR Citation: 44 ELR 20078
No(s). 3:12-CV-334 (W.D. Ky. Mar 19, 2014) (Simpson, J.)

A district court held that the CAA does not preempt landowners' state common-law tort claims against a whiskey distillery for property damage. The landowners alleged that emissions from the distillery caused "whisky fungus" to grow on their property. The distillery filed a motion to dismiss, arguing that the CAA preempted the claims. But the court disagreed. In American Electric Power Co. v. Connecticut, 131 S. Ct. 2527, 41 ELR 20210 (2011), the U.S. Supreme Court held that federal common-law claims are displaced by the CAA. Since then, courts have increasingly interpreted the CAA's savings clauses to permit individuals to bring state common-law tort claims against polluting entities. This interpretation has been cited with approval by a Kentucky trial court, and it corresponds with longstanding Sixth Circuit precedent. As for the claims at issue in this particular case, the court found that the landowners alleged sufficient facts to proceed on claims for nuisance, trespass, and injunctive relief. But the court dismissed their negligence claims because the landowners failed to plead facts that show the distillery owed them a duty or breached any such duty.