In the grand scheme of life, the question whether an odor is a “pollutant” may not be the most pressing philosophical or even scientific question. However, in the more narrow context of insurance-coverage law—which, perhaps not surprisingly, lacks the grand metaphysical questions raised by the study of philosophy—the question is a serious one. While admittedly still not among the most existential questions of our times, the question is nevertheless a vexing one that calls for careful legal analysis.

The most recent U.S. court to address this question was the U.S. District Court for the Middle District of Georgia. That court, however, failed to conduct the exacting analysis necessary to answer the question. Instead, in Recyc Systems Southeast, LLC v. Farmland Mutual Insurance Co., No. 4:17-CV-225 (CDL), 2018 WL 2247247 (M.D. Ga. May 16, 2018), the court, it seems almost reflexively, concluded “that the alleged noxious odors plainly fall within the [relevant insurance] Policy’s unambiguous definition of ‘pollutants.’” However, that conclusion is far from “plain;” indeed, it is not even correct.

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