Clean Air Act does not preempt common-law claims arising from "whiskey fungus"

Merrick v. Diageo Americas Supply, Inc., No. 14-6198 (6th Cir. Nov. 2, 2015).

Whiskey fungus at the Jim Beam plant in Kentucky (credit: lincolnblues / flickr)

Whiskey fungus at the Jim Beam plant in Kentucky (credit: lincolnblues / flickr)

Diageo, a multinational beverage company, is the world’s largest whiskey producer. Alcohol vapor from Diageo’s whiskey-distilling plant in Louisville wafts onto neighbors’ property, where it creates “whiskey fungus,” which looks like soot

The neighbors have sued Diageo for negligence, nuisance, and trespass under Tennessee law. The federal Clean Air Act, however, regulates alcohol emissions. Does the Act preempt the claims here?

The Sixth Circuit has little trouble concluding that the Clean Air Act does not preempt the claims. In fact, the Act expressly provides that it doesn’t preempt “any requirement respecting control or abatement of air pollution.” These “requirement[s]” include common-law standards. So the Act does not preempt the Tennessee courts’ common-law standards governing the control or abatement of alcohol vapor from whiskey distilleries.