Toxic torts in Bourbon country - "fugitive ethanol emissions" and "whiskey fungus&quo
The Kentucky Supreme Court entered its opinion in Brown-Forman Corp. v. Miller on September 28, 2017, 2014-SC-000717-DG. For his complaint against the Bourbon manufacturer, Mr. Miller complained of a black fungus that covered his property due to its proximity to one of the industry giant's warehouses.
The fouling substance at issue in the lawsuit was caused by the "Angel's share," the alcohol that escapes from inside the oak barrels when stored. The effect on the environment is that the escaping fumes can cause an unsightly fungus to grow nearby. For those interested in biology the Supreme Court identifies it as, "Baudoinia compniacensis."
Whatever you call it, Mr. Miller didn't appreciate it and he didn't want it effecting his property value or his use and enjoyment of his property. Unfortunately, for Mr. Miller, his claims didn't get far. The Supreme Court said he was not entitled to an injunction requiring the Defendant to harness the escaping fumes or otherwise provide remediation. The Supreme Court did rule that Mr. Miller could go forward with his state claims and that he would not be barred by the Federal Clean Air Act and the Supremacy Clause. Miller will be allowed to pursue claims under the laws of this Commonwealth. The Court noted along the way that Brown-Forman was in compliance with their state permits so it seems unlikely Mr. Miller will prevail.
