                                                  RENDERED:    SEPTEM~ER·28,   2017
                                                                   TO BE PUBLISHED

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                                2014-SC-000717~DG          .   .


BROWN-FORMAN CORPORATION AND                                            APPELLANTS
HEAVEN.HILL DISTILLERIES, INC.


                       ON REVIEW FROM COURT OF APPEALS
v.                        CASE NO. 2013~CA-002048-MR
                    JEFFERSON CIRCUIT COURT NO~ 12-CI-003382


GEORGE MILLER                                                              APPELLEE


                    OPINION OF THE COURT BY JUSTICE WRIGHT

     AFFIRMING IN PART AND REVERSING AND REMANDING IN PART


                                   1.· BACKGROUND
      Appellee, George Miller,1 owns property in Jefferson County near

warehouses owned by Appellants, Brown:-Forman Corpora~on and Heaven Hill

Distilleries, Inc. (referred to collectively as Brown-Forman). Brown-Forman's

warehouses contain barrels of aging bourbon.
            .       ·\

      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'




      I Several Appellees were originaIJ.y involved in. this case.· However, all the
Appellees apart from George Miller filed a motion to dismiss, which this Court granted.
 Brown-Forman; as of20i4, Kentucky distillers produce 95% of ~9µrbon

 worldwide.

       Bourbon's enticing characteristics come from distilling a unique, .

·combiriation of ingredients and the use of a distinct aging process. 27 C.F.R. §

 5.22. Before being labelled bourl::mn, the distilled spirlt must be aged a

 minimum of two-years in new charred-oak barrels. ·Id. This distinct aging · ·

 process is at the   ~picenter   of this   disp~te.   ·

       During the aging process, Brown-Forman uses w~ehou'ses 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 te~perature

and ~r-flow. Warmer temperatures cause the b~urbon to expand and seep

further into the barrel,- while colder temperatures cau~e ·c~ntraction and less

contact with the barrel. Movement into and out of the wood over ·ti~e gives

bourbon its color and taste.

       Miller's complaint centers ar.ound fugitive ethanol emissions (the so-· ·

c~led "angels' sh~e") ~hat escape from the barrels during this aging process.

These fugitive emissions promote· the growth of the Baud9inia compniacensis

fungus (colloquially referred to as "whiskey fungus"). Miller alleges the whiskey

. fungus ~.auses a black film-like substance 'to ·proliferate on his property,
 .                    .
covering virtually all outdoor surfaces-·including wood, vinyl, metal, and

concrete.

       Miller·filed suit in Jefferson County seeking damages based on several

state tort theories and injunctive ~elief. Brown-Forman .filed a motion to

dismiss for failure to state a claim upon which ~elief.could be granted. The

trial court granted Brown-Forman's motion to ciismiss, as it determined the
                        ..          '2
 federal Clean Air Act preempted Miller's claims. Miller appealed and the Court

 of Appeals reversed and remanded, holdii:ig that the Act did not preempt

 Miller's claims. This Court granted Brown-Forman's motion for discretion.ary

 review .

       . For reasons that follow, we affirm the Court o( Appeals 1.nsofar as it held

 that the tnal 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 reUef, we hold that ·the injunctive relief was inappropriate for

 other reasons.

                              II. STANDARD OF REVIEW

       We begin our analysis by looking through the lens of the proper standard

 of review. A trial court should dismiss an action for failu.re 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

 80 l; 803 (Ky. 1977). "In ruling on a motion to dismiss, the pleadings should .

 be liberally_construed in-the light most favorable t_o the plaintiff, all allegations
   I                                            •


 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?m Fox v. Grayson, 317 S.W.3d 1,

                                           3
    7 (Ky. 2010) ( uoting James v.          Wilsqn~   95 S.W.3d 875, 884 (Ky. App. 2002)).

· Appellate cou ts review· questions of law such as this d~ nova, affording no

· deference to t e trial Gourt. Id. at 7.

             In. conducting this de nova review, we must decide two separate, but
                                .           ~                                      .

    ~elated, .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             a.n injunction such as the one :Mmer
    sought.

                                                III. ANALYSIS
    ·A. Clean Air Act
             We will first look to the federal act on which this litigation hinges. In

.   pa~sing    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.

             Under the Act; each    ~tate   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 th~·EPA. 42 U.S.C.

    ~ 7410. States submh th,eir: individual plans to ~e EPA Administrator for

    approval. 42 U.S.C: §.7410(a)(l) .. The Act sets out the contents arid the

    authority states must possess. before the Administrator may approve a State

    Plan. 42 U.S.C. ~§ 7410(a)(l).:(2) ..

         . After significant amendments
         .                    .   .     to the Clean Air
                                                     . Act in 1990, Congress
· allowed the Administrator to_ authorize state            ~-d· local   governments (called

·permitp.ng authorities) to issue operating perrriits. 42 U.S.C.,§ 76.61. The Act


                                                      4
 defines   ~e   requisite legal authority eac.h permitting authority· must possess,

 prescribes the process for judicial review of permitting decisions, and allows

·the EPA to promulgate other requirements .. 42 U.S.C. § 766la(b). Once a

 permitting authority's plan satisfies those requirements, then the

Administrator may authorize it to issue permits under the Act.

       ·In Jefferson County, the Administrator specifically authorized the

 Louisville Metro Air Pollution Control District (Metro District)· to issue operating

 permits. 40 C.F.R. § 70, App. A-Kentucky. The Administrator also approved

 Kentucky's State Plan, which includes Metro District's :i;-egulations. 40 C.F.R. §

 52. 923. Brown-Forman and Heaven Hill both maintain permits, and Miller

 does not allege. either distiller is in violation of its operating permit; therefore,

we proceed under the premise that the companies are in full compliance with

the requ1site permits mandated by the Act.

    l. Federal Preemption
       "The Supremacy Clause makes the laws of the United States 'the

supreme Law of the Land ... any Thing in the Constitution or Laws of any

.State to the Contrary notwithstanding. m, Hughes v. Talen Energy Mlctg., 136 S .

. Ct. 1288, 1297 (2016) (quoting U.S. Const. art. VI, cl. 2). The Supremacy
                                                                                   /
Clause binds this Court and requires th8;t we give precedence to lawful federal

enactments over the laws of the Commonwealth. "[T]he states have no power,
                                                                                         ;.

by taxation· or otherivise, to retard, impede, burden, or in any manner c9ntrol,

the operations of the constitutional laws enacted by congress to carry into

execution the. powers vested in the general government." M'Culloch v.

Maryland, 17 U.S. 316, 436 (1819) (emphasis.added).           "Put simply, federal law

preempts contrary state law." Hughes, 136        s: Ct. at 1297. State law is
                                            5
 contrary "to the extent of any conflict with a federal statute." Crosby v. Nat'l

 Foreign Trade Council, 530 U.S. 363, 372 (2000). Notably, this occurs "where,

 under the circumstances of a particular case, the challenged state law stands

 as an obstacle
             .
                to the accomplishment
                         ~     .
                                      and execution of the full purposes .and

 objectives of Congress~" Hughes, 136 S. Ct . .at 1297 (citing Crosby, 530.U,R at

 373). Chief Justice John Marshall recognized nearly two centuries ago that "[i]t
                    .             .                               .
 is of the very ~ssence of supremacy, to remove all obstacles to its action within

 its own sphere, and .so to modify every power_ vested in. subordinate

 governments; as tO exempt its own operations-.from their own influence."

 M'Culloch, 17 U.S. at 427.

       With that in n:iind, we turn back to the federal Clean Air A~t,-which seeks .
                     .                       .
 to strike a balance between encouraging economic development and protecting

 the environment-a task here entrusted to both the Metro District ~d EPA.-

 Specifically, in taking a cost-benefit approach, the Act directs.the

 Administrator to "consider all of the economic, public health, and .

 environmental benefits of efforts to comply withJsuch standard," 42 U.S.C. §

 7612(b), as well as "the effects of such standard on employment, -productivity,

 cost of. living, economic
        •          .
                           growth, and the overall economy," 42       u.s.c. § 7612(c)
                                                                                 .
                                                                                       .

       After this careful balancing was taken into ·account, Brown-Forman and

·Heaven Hill were issued separate kinds of permits based on the. amount of air

. pollutants each releases. Brown-Forman operates under a Title V permit,

 which is required for. sta:tionary so~rces emltting 100 t~n.s per year or more of

 any non-fugitive.air pollutant. See U.S.C. §§ 7661 et seq.; 40 C.F.'R. § 70;

· Metro Dist. Regulation 2.16. Since Heaven Hill emits less than 100 tons of

 non-fugitive air pollutants per year, it holds a Federal Enforceable District
                                         6
 Origin Operating Permit. See Metro Dist. Regulation 2.-17. Because no party

·argues ~thetwise, we make no distinction in our analysis between the two types

. of permits ..

       ·2. Saui.ngs Clauses .
          . In determining whether the Act preempts any or all of Miller's claims,

 we must construe the Act as a whole and give effect to two separate savings

 clauses. · These savings clauses allow states to retain power in spite of the Act's

 other provisions. In these clauses, Congre&s declared that certain types of

 c~nflicts bet~e.en the Act and state law that might othernise be pr~empted
 should, instead, be tolerated.

          Specifically, 42 U.S.C. § 7416 reserves to the states the power to adopt

 and ·enforce more stringent staridard.s thah those established by' the Act. That

 clause reads:

           [N]othing in this chapter shall preclude or deny the right .of
           any State or political subdivision thereof to adopt or enforce
          ·( 1) any ~tandard ·or limitation respecting emissions of air
           pollutants or (2) any requirement .respecting control or·
           abatement of air pollution; except that if an emission
         . standard or limitation is in effect under an applicable
                              .

         ·implementation pl~ or under section 7411 or section 7412
           of this title, such State or political subdivision may not adopt ·
           or enforce any ~mission standard or limitation which· is less·
         . stringentthan the standard or limitation under such plan or
           section.

 Id.

          The second savings clause appears in 42 U.S.C. §7_604 and. grants

· individuals the power to commence citizen s~its ·.to enforce the Act. While we

 acknowledge that·Miller did not bring a citfaen suit, §7604 also covers other

 actions._ In particular, the subsection titled "Nonrestriction. of other rights" (as

 in, rights. other than citizen s1:1its) states: "Nothing in this section shall restpct .-
                                              ·7
·any right which any person (or class of persons) may have under any statute or

. common law to seek enforcement of any emission standard or lim'.itation or to

 seek any other relief (including relief against the Administrator or a State

 agency)." 42 u.s.c. § 7604(e).

 B.    State Tort Claims
       Again, this case is before us on the trial court's   ord~r   to dismiss ·Miller's.

 case for failure to state a claim upon which relief can be granted. At the tri8.l

 court, Miller sought damages under state tort theories of negligence,. trespass,

 and nuisance. In granting Brown-Forman's motion, the trial court determined

 all claims were p:r:eempted py the ·clean Air Act. Our holding on this issue is

 limited to whether-.as a matter of law-the action can proceed despite Brown-

 Forrnan's preemption argument. We pass no judgment on the merits of Miller's

 tort actions.
                                                             .         .
      . To ascertain the Act's preemptive effect on Miller's state tort claims, we

find a recent Sixth Circuit case   persuas.iv~.   In Merrick v. Diageo Americas

 Supply, Inc., 805 F.3d 685, 686 (6th Cir. 2015), the Sixth Circuit concluded

that the Clean Air Act does· not preempt common law claims· brought against

an emitter based on the law of the ~tate in which the em~tter operates. The

same individual, Merrick, brought both the case considered by the SiXth

Circuit and the case underlying the present action (though he has since been

dismissed as a party herein); In the Sixth Circuit case, Merrick brought a

_similar putative class action against Diageo Americas Supply, Inc: Id. at 686.

There, the plaintiffs alleged that in the course of Diageo's distilling and aging

whiskey at its Louisville facility, large amounts of ethanol are emitted. Just as
                                    .                                              .
in the present case, the plaintiffs alleged those emissions waft onto nearby ~eal
                                         .8
  and personal propertY where; when combined with condensation, create

  whiskey fungus. Id. TJ:ie pla~ntiffs in Merrick alleged this whiskey fungus

                  .
  constituted a substantial annoyanc~ and an unreasonable interfe~ence with the .
                                         .



  use and enjoyment·of their property. Id. at 687.

        In Merrick, the class action pl8.int1ffs sought compensatory and punitive

  damages for negligence, nuisance, and trespass, along with an injl:lnction

  requjdng Diageo to abate its ethanol emissions through implementing certain .

  control technology at the facilities. Id. at 698. In responding to the suit,

  Diageo argued that all of the plaintiffs' claims we·re pree:m,pted by the Clean Air

  Act. Id. The district court dismissed the negligence claim, finding the plaintiffs

  had not pled sufficient facts to establish they were owed a duty of care that was

  breached, but otherwise the lower court allowed the state    la~   claims to

  proceed.· Id.   Subs~quently,   Diageo sought interlocutory review by   th~   Sixth

  Circuit. Id. at 690.

        First, the Sixth Circuit conciuded that the states' rights savings clause of

  the Clean Air Act expr~ssly preserved the state common law standards .under

  which the plaintiffs had sued. Id. The Sixth·Circuit determine_d that "[s]tate

  courts are arms of the 'State, m and that the phrase ."any requirement,"

  employed in the states' rig?ts savings clause, dearly covered common law

  standardi;; ·adopted by those state courts. Id.

        Second, beyond the savings clause ofthe Clean Air Act, the Sixth Circuit

  observed that permitting states to apply their comm<?n law to emissions

· · advanced .the Act's stated purpose, "byempowerihg states to address and

  cur.tail air polluti~n at its source." Id. at 691. further, the Sixth Circuit noted

 · that the legislative history of the Clean Air Act made clear that Congress did
                                             9
not in.tend to pr_eempt state common law claims, like those raised by the

Plaintiffs. Id. Specifically, the Report of the Senate Committee on Public

Works reflects that the "citizen suits" provision of the Clean Air Act, "would

specifically preserve any rights or remedies under any other law. Thus, if

damages could be shown, other remedies would remain available. Compliance .

with standards under this Act would not be a defense to a common law action

for pollution damages.". Id. (quoting S.Rep. No. 91-1196 .at 38 (1970)).

      Looking beyond the text and history of the Act,. the S!xth Circuit.noted

that Supreme Court precedent regarding the Clean Water Act was persuasive

authority since the Clean Water Act was modeled·ori the Clean Air Act and "the

two acts are often 'in pari materia."' Id. at 692. In Int'l Paper Co. v. Ouellette,

479 U.S. 481 (1987), the Supreme Court held that the nearly identical states'.

rights savings clause in the Clean Water Act specifically preserired common law

claims brought by aggrieved individuals against "sources" _of water pollutio!l in

their own state (as opposed.to out-of-state sources). As the Sixth Circuit

appropriately found, "[t]he Ouellette Court's interpretation of the Clean Water

A.crs states' rights savings clause fo preserve claims .ba.sed on the law of the

source state leads directly to the conclusion that the analogous states' rights

savings Clause .in the Clean Air Act similarly preserves claims based on the law

of the source state." Id. at 692.

      The conclusion that the Clean Air Act does not preempt state common

law claims also finds support, as the Sixth   Circ~it   noted,· jn the Third Circuit's

decision in Bell v. Cheswick Generating Station, 734 F.3d 188, 192-93 (3d        ~ir.


2013), and the Supreme· Court of Iowa's decision in Freeman v. Grain

Processing Corp., 848 N.W.2d 58, 80 (Iowa 2014). Id, In North Carolina ex rel.
                                      10
 Cooper v. Tennessee Valley Authority, 61SF.3d 291 (4th Cir. 2010), the Fou~th

. Circuit Court of Appeals found       preemp~ion        of state law claims-but under

·markedly different circumstances, i.e., where North Carolina brought claims

under North Carolina law against companies located in Alabama and

Tennessee. Noting that the result in that case was due to issues of federalis~

and the Supreme Court's holding in         Ou~llette,      the Sixth Circuit noted that the

 Cooper resuJt was actually consistent with Bell and Freeman. · Id. Indeeq, the

Sixth Circuit explained that "[a]ll three courts distinguished between claims
                                                     .       '

based on the common law of the source state-which are not preempted by the · ·

Clean Air Act-and claims based on the common law of a non-source

state-which are preempted by the Clean Air Act." Id. at 69.3.

       Finally, the Merrick Court noted there is a ·strong presumption against

federal pr(!!emption of state law, "one that operates with special force in cases in

which Congress has legislated ... in a field which the States have traditionally

occupied~"   Id. at 694 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)) .

.Given that states.have traditionally occupied the field of environmental

regulation, the Sixth Circuit. opined that even. witho~t the Clean Air Act's

states' rights savings clause, state common law claims would likely be

preserved under     "prin~iples   of federalism and respect for states' rights." Id.

      In sum, the text of the Clean Air Act and its legislative history, Supreme

Court precedent construing the virtually ide.ntical provisions of the Clean Water
                .                           •                    I

                .        .
Act, persuasive opinions from other federal courts and a state court, and the

strong presumption against preemption in the field of environmental
         .                         .
.regulation, all led to the Sixth Circuit's rejection of preemption .arguments by


                                                11
Diageo. We agree and adopt the Sixth Circuit's analysis as to this issue .. Thus,

we affirm the Court of Appeals insofar as it held that the Clean Afr Act did not

preempt Wilson's state tort causes of action.

   3. Monetary· Damages
      We further hold that the Act does not preempt a trial court from·

awarding monetary damages on state tort causes of action. Awarding damages

for a particular harm tospecifiG property in no way "retard[s], impede[s],

burden[s], or in any manner control[s], the operations" of the .Act. M'Culloch,

17 U.S. at 436. Nor does it "stand[] as an obstacle to the accomplishment and .

execution of the fu11 purposes and objectives of Congress." Hughes, 136 S. Ct.

at 1297.

      An award of monetary ciamages to an aggrieved party fundamentally

differs from supplanting a permitting decision of an expert agency. This is

primarily   s~   because "the [Act] _does not provide damage remedies to han;ned

individuals:" Freeman, 848 N.W.2d at 69. Monetary damages also withstand
                                                                                   ~


scrutiny·in part because "'personalized' remedies are not a first priority of the

Act." Ellis   v. Gallatin Steel Co., 390 F.3d 461, 477 (6th Cir. 2004).
      To be sure, the Supreme Court in American Electric Power Co. v.

Connecticitt, 564 U.S. 410, 426 (2011), held that a public nuisance claim was

preempted because the Act displaced federal common law. But in doing so, the

Court made clear that its analysis of federal   c~mmon    law differed from that of

state law. Specifically, it stated: ·"Legislative displacement of federal common

law does not require the same sort of evidence of a clear and manifest

congressional purpose demanded for preemption of state law." Id. at 423

(quotation J:I!arks and brackets omitted). ·
                                      . 12
                               .                                   /


        Furthermore,· that case rests upon the premise that under the Act, the

 duty to prevent and abate public nui_sances is vested in the EPA and permitting
                                                              .                      .

 authorities .. The regU.lato:ry regime created by the Act supplants feder~ public
                       '           .
 nuisance _claims because the Act incorporates those same types of protections

 against generalized harm. 2 However, the
                           '           .
                                          case
                                           .
                                               at. bar differs from American

 /3lectric Power. The nuisance at issue here is a private nuisance claim under

 state tort law, rather than a public nuisance claim under federal common law.

· . (It is·.a claim
               .
                    from
                      . damages
                             .
                                caused by specific harm.to specific•property
                                           .          .-       .
                                                                             rather

·than general harm,) ·Jn Bell, 734 F.3d at 192-93~ the Third Circuit

 distinguished private nuisance
                   .   . . .
                                state tort actions
                                              .
                                                   and determined that the Act

 did not preempt the plaintiffs p~ivate nuisance and 'tr~spass claims seeking

·.monetary damages:

      · The .Act does not provide El. mechanism for awarding monetary

 compensatio"n to an injured party suffering from a particul~ed hatm. "Thus,

 a property owner seeking full compensation for harm related to the use and

·enjoyment   ~f   property at a specific location must resort to common law or state

 faw theories to obtain a full recovery."· Freeman; 848 N.W.2d at 70.

       We agree with the Iowa Supreme Court that "state commo_n. law and

 nuisance.actions have_ a different purpose than the regulatory regime



       .2. Iii 42 U.S.C. § 7602, Congress declared 1;hat "{a]ll language referring to effects
 on welfare includes ... : ·. damage to and deterioration of property." . While· we
 ackriowledge.that several proVisions in the Act refer to welfare, and by extension to
 damage and deterioration of property, we read this to apply generally to .all property to
·the extent protected by th~ duty imposed under a theory ofpublic nuisance. We do
 not read this to protect discrete private property to the same extent as the duty
 imposed under a theory of private nuisance because the Act also requires· the
 balancing of inter~sts, of which preventing.damage_and deterioration of property is but
 one.
                                               . 13
 established by the [Act]. The.purpose 9f.state nuisance and common law

 actions is to protecLthe use and enjoyment of specific propez:fy, not to achieve

 a general regulatory purpose." Id.. at 84. _Like the plaintiffs .iri Freeman, Miller

 here "seek[s] damages related ·ta specific properties at specific locations

 allegedly caused by a specific source." Id. at 85. The purpose and function of

 the Act differs sufficiently from the purpose        ~d     function of "a private lawsuit

 seeking. damages anchored in       owner~hip      of real   p~operty,"   id., to avoid issues of

 conflict preemption.

       The Act does not state that Congress intended to prevent injured

 property owners suffering particularized harm from recovering monetary
                                           .             .




 damages   un~er   state law. Absent such language or a vividly demonstrable

 obstacle to the Act's operation, we cannot conclude it preempts state trial

 courts from awarding monetary damages in tort actions fo.r negligence, private

 nuisance," or trespass.

       As no,ted above, the specifics of Miller's state tort claims are not currently
                                '              .
 before this Court. Whether· those causes of actio_n ultimately succeed is a

 matter .to be determined at.trial. We hold only. that the Act does not preempt

 Miller's state law tort claims seeking damages and remand this matter to the

 trial court for further proceedings.

 C. Injunction
       The injunction Miller sought from the trial court would have requfred

 Brown-Forman to implement pollution-control technology pot required by its

 permit issued under the Clean Air Act. We must first determine if the Act

. preempts this type of injunctive relief.· In doing so, we must construe the Act

 as a whole because "[c]ourts have a duty to construe statutes, not isolated .
                                           14
·provisions." Graham.Cty;
                      .
                          Soil&
                              .
                                Water Conservation
                                         .      ..
                                                   Dist.
                                                    .'   v.. United
                                                                  .
                                                                  .
                                                                    States ex

 rel. Wilson, 559 U.S. 280, 290 (2010} (internal citations and quotation marks

 omitted}. This means
                 .    we cannot read a section quarantined
                                                         .
                                                           from the,
                                                                  .
                                                                     Act's

 overalJ.context .. We will first turn to th.e second of the Act's savings clauses _(the

 citizen-suit clause discussed above) to determine if the Act saved,the powers in
     ..
 question for the states.

          In construing the citizen-suit provision. of the Clean Water Act in City       of
·Milwaukee     v. Rlinois, the Supreme Coutt said:
           Subsection 505(e) is virtually identical to subsections in the
          citizen-suit provisions of several environment.al statutes. The ·
           subsection is common language accompanying citizen-suit .
          ·Prc;>visions and we think t.hat it means only that the provision of
           such suit does not revoke other remedies. It most assuredly
          cannot be read to mean that the Act as a whole does not supplant
          formerly available federal common-law actions but only that the
          particular section authorizing citizen suits does ·not do so.

 451 U.S. 304, 328-29 (1981) (footnote omitted). We acknowledge· that, in that

 case, the Supreme Court was int~rpreting the citizen-suit provi'sion of the
                                     .      ..
 Clean Water Act,_not the Cleari AitAct. In doing so, however, the Court

 specifically cited the "virtually identical" citizen-suit provision appearing in the

 Clean Air Act.
                   .        .


          We adopt the Supreme Court's reasoning interpreting the Clean Water'

. Act as applying with equal force to the Clean Air Act.. First, Congress's creation

 of the citizep. suit as a statutory remedy.does not lirnit rem~dies otherwis~

 available. Nothing in the section authorizing cit~zen suits, 42_ U.S.C. § 7604,

 revokes other available        remedie~,   including injunctive relief linked to state tort

law. In other words, Congress did hot intend cjtizen suits to be an exclusive·

 remedy. Therefore, the Clean Air_ Act does not preempt state injunctive relief.

                                                     15
        Howeve~, ev~n though injunctive re~ief is not preempted by the A~t, it is

 still unavailable in this case. The Act and Kentucky regulations provide for

citizen input in the permitting process. The permit is issued only after careful

balancing of the economic and environmental ii:npact. So long as compani':!s ·

operate within the bounds of their permits conGerning air pollutants (which is

.not contested in the case at bar), injunctive relief for an alleged. nuisance is not

an appropriate remedy.3 Here, by seeking an injunction demanding a ·

particular pollution-control technology, Miller asked the trial court to second-

guess the reasonableness of a decision the Act undeniably entrusted to Metro.

District and the
               . .
                   EPA. As. previously noted, the
                                               . Act directs the EPA

Administrator to "consider all of the economic~ public l).ealth, and

environmental benefits of efforts to comply with such standard," 42 U.S.C. §

7612(b), as well as. "the effects of such standard on employment, productivity,
                                                                        .


cost of living, economic growth, and the overall economy," 42 U.S.C. § 7612(c).

Jn making the decision to issue the permits, dtizens have the opporhinity for

input.. The agency made a specific determination which balanced the risks to ·

the environment with the economic impact of any pollution-control measures.

For th~ trial court to issue the injunction Miller seeks ~ould impose. higher

standards than the Clean Air Act requires~

       Furthermore; while the Act's states' rights savings clause, 42 U.S.C. §

7416, specifically reserves to·the states the power to adopt and enforce more


       a Our holding is limited to injunctive relief in nuisance cases where the
 regulatory authority (in this case, both federal and state) has issued a permit after
·carefully balancing environmental and economic fac.tors. Issuing an injunction to .
                                        a
 require different technology to prevent nuisance is markedly different from issuing
 a.ii injunction for other purposes, such as when public health or the ertv.i.ronment are
 endangered or there is a violation of law.                                 ·
                                            16
 stringent standards than those established by the Act, the Kentucky General

. Assembly has restricted the Energy .and Environment Cabinet from exercising·

 that saved power. Specifically, ·the Gen,eral Assembly has charged the Energy

and Environment Cabinet with adopting clean air regulations that       are "no more.
stringent than federal requirements." KRS 224.10-100(26). Even though the·

Act would allow Kentucky to enact more stringt'.nt standards under this savings

. clause, Kentucky statute~ expressly prohibit the Cabinet. from issuing more

stringent regulations. Id. We find the fact that Kentucky has explicitly chosen
                         .                 '   .

not to. allow its regulatory body to utilize more stringent regulations persuasive

as to the Legislature's intent. ·

      We hold that the requested injunction, which would require

implementation of a particular type of pollution-control technology not required

under Brown-Forman's and Heaven Hill's permits, conflicts with the Act by

invading EPA and Metro District's "regulatory turf," id., iri a manner tl'lat the

Kentucky General Assembly has spoken against.         Therefore, an injunction to

control an alleged nuisance when the state has already specifically balanced

those factors is inappropriate;· To conclude otherwise would produce the

untenable situation· identified in American Electric Power where ·courts act on

limited records on an ad-hoc basis in an arena where they do not possess the

necessary scientific, economic and technological expertise. We cannot have the

circuit courts of this· Commonwealth imposing. pollution control technqlogies on

distillers that might differ from circuit to cfr~uit. The impact on the bourbon

industry would be far too dire.

      Therefore, we reverse the Court of Appeals insofar as it would allow this

type of. injunctive relief. While the trial court's reasoning was incorrect, the
                                           17
 result remains the same. The trial court properly dismissed the plea for

 injunctive relief as it i.ndeed failed to state a claim. upon which relief could be

 granted.

                                   IV. CONCLUSION ·

       For the foregoing reasons, we affirm the Court    o~ Appeals   as to Miller's

 state-law damages claims; however,. we reverse the Court ·of Appeals insofar as

 it held that Miller's claim for injunctive relief could go forward. Therefore, we

 remand this case to Jefferson Circuit Court for further proceedings consistent
                  \


 with this   opinion~


      . All sitting. All concur.




. COUNSEL FOR APPELLANT BROWN-FORMAN CORPORATION:

 Charles J. Cronan, IV
 Mark Richard Overstreet .
 Bethany A. Breetz -
 Marjorie Ann Farris

 COUNSEL FOR APPELLANT HEAVEN HILL DISTILLERIES,. INC~:

 Virginia Hamilton Snell
 Donald Joseph Kelly
 Lisa Catherine D~Jaco
                                                                                       ,.
 COUNSEL FOR APPELLEE GEORGE MILLER:

 None /Withdrawn

 COUNSEL FOR AMICI CURIAE

· David -!ames Treacy




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