(Photo by Gina Passarella)

American whiskey business is booming. According to the Distilled Spirits Council of the United States, sales of bourbon and Tennessee whiskey are up 19.6 percent since 2008. Revenue exceeded more than $2.4 billion in 2013 alone. Indeed, Congress has recognized bourbon as a “distinctive product of the United States” and regulators have sought to keep this business truly American, by establishing rules and regulations limiting the definition of “straight-bourbon” and “Tennessee whiskey” to products manufactured in the United States.

To meet the growing demand for American whiskey, distilleries are investing millions in expanding their facilities and building more warehouses. However, with this increased production, the environmental impacts of the whiskey manufacturing process has recently come under attack with numerous class actions filed in both state and federal court in Kentucky. In particular, individuals in Kentucky have filed class action lawsuits against a host of distilleries seeking to recover damages under common-law causes of action for nuisance, trespass and negligence for the growth of “whiskey fungus” on their property. (See Merrick v. Brown-Forman, No. 12-CI-3382 (Jefferson Cir. Ct, 9th Div.); Mills v. Buffalo Trace Distillery, No. 12-CI-00743 (Franklin Cir. Ct., 2nd Div.); and Merrick v. Diageo Americas Supply, No. 3:12-CV-334-CRS, 2014 (W.D. Ky.).) Whiskey fungus results from the combination of ethanol emitted from distillery facilities with condensation on real and personal property, causing the appearance of black mold.