Agriculture's Role in Federal Climate Legislation

The following post was written by staff member Natasha Farmer.

On June 26, 2009 the House of Representatives passed the American Clean Energy and Security Act, H.R. 2454, also known as the Waxman-Markey Bill. Pew Center on Global Climate Change, http://www.pewclimate.org/acesa (last visited Nov. 3, 2009). If passed by the Senate, the bill would cut emissions by putting a cap on planet-warming greenhouse gases. Id. Emission cuts would start in 2012 and this comprehensive legislation would regulate 85 percent of the overall economy, however because of vulnerability to climate change agriculture would not be directly regulated. Kentucky Resource Council, http://www.kyrc.org/webnewspro/125347301215435.shtml (last visited Nov. 3, 2009).

Kentucky Resources Council Director, Tom Fitzgerald, believes the Act offers agriculture a role in helping reduce greenhouse gas loading into the atmosphere. Id. Director Fitzgerald relied on a report issued by the U.S. Global Change Research Program to explain that many crops show positive responses to elevated carbon dioxide and low levels of warming. Id. In addition, weeds, diseases, and insects benefit from warming, and increased heat and weather extremes are likely to reduce livestock production. Id. With the implementation of this law, agriculture would thrive because of the reduced amount of heat caused by greenhouse gases.

Agriculture has much to gain from this widespread policy. The bill makes agriculture part of the solution by offering incentives, greenhouse gas offsets, and opportunities to supply bio-energy. Pew Center Global Climate Change, http://www.pewclimate.org/federal/what-waxman-markey-does-for-agriculture (last visited Nov. 9, 2009). Title III of the Act will provide gas emission allowances for agriculture projects that reduce pollution to prevent the conversion of land that would increase greenhouse emissions. Id. The Act will also increase the demand for bio-based forms of energy and provide incentives to stimulate this industry. Id. The Act requires that 20% of electricity come from renewable power by 2020. Id. This could incentivize wind power on agriculture farms. Id.

Even though this Act has benefits for agriculture, there are also cost increases associated. The cost for transitioning away from fossil fuels will most likely cause fossil-based energy and products such as nitrogen fertilizer to rise. Id. However, the overall benefits of this legislation to the agriculture sector outweigh the increased costs. Therefore, implementation should be the path taken.

Congrats to the UK Mock Trial Team for winning the Kentucky Intrastate Mock Trial Competition

This past Thursday-Saturday the University of Kentucky College of Law Intrastate Mock Trial Teams competed in the Kentucky Intrastate Mock Trial Competition. Held every fall this competition pits two trial teams from each law school in the Commonwealth of Kentucky against one another. This year the competition was hosted by Northern Kentucky University and held at the Circuit Courthouse of Kenton County in downtown Covington on the banks of the scenic Ohio River.

KJEANRL would like to congratulate 3L Nick Mudd and 2L Adam Bowling for winning this years competition. Nick Mudd also happened to tie for Best Advocate in the competition. 2L Brittany MacGregor and 3L Mark Rouse were the witnesses for the championship team.

UK was also represented by 3L Renee Ferrell and 2L Paco Villalobos. Their witnesses were 2L's Whitney Mobley and Jillian Dove.

The team was coached by UK alumni Justin Peterson and Kathryn Paisley.

Congrats again to all UK participants!!!

“Watch Your Speed... The EPA is Ticketing in Brazoria County v. Texas Commission on Environmental Quality”

Appearing in JNREL Vol. 21. No.1, the following comment was written by former staff member Haley Prevatt. Staff member Andrew Leung wrote the following abstract.

In deciding Brazoria County v. Texas Commission on Environmental Quality, 128 S.W.3d 728 (Tex. App. 2004), the Texas Appellate Court upheld legislation implementing environmental speed limits and other environmental regulations propagated by the Texas Transportation Commission as not violative of the Texas Clean Air Act, the Texas Transportation Code, and the Texas Administrative Procedure Act. "Watch Your Speed... The EPA is Ticketing in Brazoria County v. Texas Commission on Environmental Quality" examines the court's analysis and explains possible nationwide consequences of this decision.

The Federal Clean Air Act allows the Environmental Protection Agency ("EPA") to set national standards for cleanliness of ambient air, more commonly known as National Ambient Air Quality Standards ("NAAQS"). The NAAQS set permissible levels of pollutants in ambient air but do not contain a mandated method for obtaining that level. Because of the wide array of technological means available to meet NAAQS standards, each individual state has complete discretion to adopt a combination of control devices in order to meet national standards for ambient air.

In Brazoria County, the EPA found levels of pollutants elevated beyond the permissible NAASQ amounts in eight Texas counties in the Houston-Galveston area. The EPA subsequently ordered Texas to create a feasible plan to reduce pollutants to acceptable levels. In response, the Texas Commission on Environmental Quality ("TCEQ") implemented regulations which had three primary effects: (1) reducing of speed limits on state highways to 55 mph; (2) setting forth a vehicle inspection and maintenance program; and (3) prohibiting use of commercial lawn-maintenance equipment at times other than afternoon hours.

Brazoria County, one of the eight counties affected by the TCEQ regulations, brought suit against the TCEQ alleging that it exceeded its authority in promulgating the aforementioned regulations. The Court found that the implementation of the environmental speed limits ("ESLs") was an authorized act because the legislature later acted to ratify the ESLs statutorily. With respect to the vehicle inspection and maintenance and lawn-maintenance regulation, the Court held that they were beyond the scope of the Texas legislation because the regulations were implemented to meet federal NAAQS limitations.

Because the Court's decision in Brazoria County is legally sound and based primarily on precedent, it is unremarkable in that manner. One facet of the case left unaddressed by the court is the possible policy implications of the case. Here, residents of Brazoria County and eight neighboring counties were merely inconvenienced by the environmental regulations promulgated by the TCEQ. The Court's decision leaves open the possibility of more invasive regulation in Texas and the other states of the Union, perhaps even to the extent that the takings clause of the United States Constitution might be implicated.

“The Threatened and Endangered Species Recovery Act, or ‘The Wildlife Extinction Bill?’”

Appearing in JNREL Vol. 20, No.2 the following Note was written by former staff member Jacob Eaton. Staff member Jessica Drake wrote the following abstract.

When the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544 (2005), was enacted, its framers designed it to meet its goals through four specific features: 1) providing discretion to the Secretary of the Interior in listing and delisting species; 2) implementing protection of species on a nationwide level; 3) giving the Secretary the power to acquire and protect from development habitats for these endangered species (a provision in the ESA termed "Critical Habitat Protection"); and 4) creating state programs supported by federal funds and abiding by federal standards. S. Rep. No. 93-307, as reprinted in 1973 U.S.C.C.A.N. 2989, 2990-2991. In the years since its inception, the ESA, while doing tremendous good in the eyes of some, has been criticized for the discretion it provides the secretary in the first feature. Criticisms also arise through the litigation of the critical habitat provision of the ESA. With respect to this provision, courts implemented a balancing test between the interests of the endangered and those of developers – a balance that endangered species all too often lost out on. Critics argue that this further frustrates the effort of ESA in its protective goals. Furthermore, opponents contend that throughout the history of the ESA, few species have moved up or off the lists in the years of protection, and that the act, therefore, does little to protect those species on the list. This lack of movement forces fewer species to be added over time and even those that should be added are often refused because of presumably more pressing concerns.

In response to these types of criticisms, Representative Pombo introduced the Threatened and Endangered Species Recovery Act of 2005 ("TESRA"), H.R. 3824, 109^th Cong. (2005) as a remedy for the existing problems faced by the ESA. In his view, the ESA has largely failed in its attempt to conserve and provide recovery for endangered/threatened species and that this new legislation will ultimately improve the success rate in this area. The TESRA deviates from the ESA in many respects, most radically with a focus on incentives to private landowners to establish conservation plans on their own. The TESRA mechanisms such as cooperative agreements between states and Indian Tribes and improved recovery plans might provide greater protection for endangered species; however, the other deviations from the ESA, those of narrower definitions, broader exceptions, and repeal of critical protections (like habitat protection), could very much outweigh the improvements.

While the push behind the TESRA is one insisting of greater conservation and preservation of endangered species, it comes in disguise. The reality of its implementation is one that will not only frustrate three of the four objectives established by the ESA but also weaken the protections afforded to the endangered and threatened species of the United States created by the ESA. Because TESRA focuses on the private property owner, it focuses less on the species that should be paramount in conservation legislation. The kinds of incentives provided to landowners would be expensive to the budget of the Act and not dependent upon actual implementation, only a proposed plan to conserve sometime in the future. With the narrow focus of the proposed Act, the criticism and problems created by the ESA will not be solved.

Got Milk at a Fair Price? Southeastern Dairy Farmers Allege Antitrust Violations

The following post was written by staff member Matt Cocanougher.

The battle for class action certification has begun in an action pitting Southeastern dairy farmers against Dean Foods Company, Dairy Farmers of America and National Dairy Holdings, among others. In one corner are the plaintiffs, dairy farmers from Kentucky, Tennessee, North Carolina, South Carolina and Virginia, who are accusing the defendants of antitrust violations. In the other corner are the defendants, who maintain that the lower milk prices paid to the farmers were caused by "market forces and the 'worldwide recession'." Bill Jones, Dozens of Lawyers Before Judge Greer in Case that Could Have Major Impact, The Greenville Sun, Sept. 14, 2009, available at http://www.greenevillesun.com/story/305659.

The plaintiffs accuse the defendants of "conspiring to monopolize raw milk production through price fixing, flooding the milk market in the Southeast and requiring independent dairy farmers to market their milk through Dairy Farmers of America-controlled entities in order to gain access to fluid Grade A milk bottling plants." Jaime S. Jordan, Dairy Farmers sue Dean Foods, Others, Dallas Business Journal, July 24, 2007, available at http://dallas.bizjournals.com/dallas/stories/2007/07/23/daily7.html. The plaintiffs allege that the defendants have been able to accomplish this price fixing scheme by owning milk bottling plants consisting of 77 percent of the bottling capacity in the Southeast as well as creating full-supply agreements with bottlers and supermarkets which the plaintiffs argue gives the defendants control over about 90 percent of the Grade A milk produced in the Southeast. Id. Plaintiffs claim that defendants bought these bottling plants for the purpose of stifling competition and introduced milk from other parts of the country into the Southeast market to depress prices paid to the Southeastern farmers. See Jones, supra.

The defendants paint an entirely different picture of the alleged antitrust violations. They argue that the lower milk prices being paid to farmers are the result of the current economic downturn and merely reflect market forces. Id. In addition, the defendants turn the plaintiffs' argument about full-supply agreements on its head, arguing that these agreements actually benefit Southeastern dairy farmers by ensuring that they have a market for their milk. Id. In the defendants' view, without the full-supply agreements, milk bottlers would leave the Southeast and go to parts of the country with surpluses of milk to buy the milk at a lower price, effectively cutting out the Southeastern dairy farmers.

Each side will soon get its chance to make these arguments in court. While the suit was originally filed in 2006, it has now picked up steam, with the most recent hearing on September 10, 2009 packing the courtroom with around "40 lawyers" and including "nine hours of oral arguments" about which documents should be made public. Id. Additionally, while the defendants are defending this action in Tennessee, they must also turn their attention to a nearly identical suit filed in Burlington, Vermont on behalf of Northeastern dairy farmers alleging the same antitrust violations. See Rick Barrett, Farmers Sue Dean Foods, Dairy Farmers of America over low milk prices, Milwaukee Journal Sentinel, Oct. 9, 2009, available at http://www.jsonline.com/business/63875622.html.

A victory for the plaintiffs in the Southeast would not only have a big impact on the similar case filed in the Northeast, but it could also greatly affect the future of the dairy farming industry in the entire United States.

Animals (and Disease) on the Move: Implementation and Implications of the National Animal Identification System (NAIS)

The following post was written by staff member Stephanie Wurdock.

With the arrival of the H1N1 outbreak this year, national concern has arisen regarding the ease and speed at which a disease can move through a population. Alarm accompanies virtually all new strains of disease and rears its ugly head on a relatively regular basis. While diseases that affect humans are often the main focus, they are not the only cause for concern in the community. In 2004, the United States Department of Agriculture (USDA) recognized a concern for disease outbreak in the agricultural community, as well. In response, the USDA introduced the National Animal Identification System (NAIS) to safeguard the health of livestock and poultry and the economic interests of those industries. The Kentucky Horse Council, http://www.kentuckyhorse.org/nais (last visited Nov. 1, 2009).

NAIS creates a partnership between the affected industries and state and federal governments whose main task is to form a fast-acting disease response network. United States Department of Agriculture: National Animal Identification System (NAIS), http://animalid.aphis.usda.gov/nais/index.shtml (last visited Nov. 1, 2009). Once implemented and enforced, NAIS will provide the USDA with the tools to (1) pinpoint the origin of harmful disease, and (2) impede the spreading thereof. Whenever there is an outbreak of disease, animal health officials will, within 48 hours, be able to identify which animals are involved, where those animals are currently located, and what other animals may also have been exposed. Id.

Producers can participate in NAIS in any or all of three ways: premises regulation, animal identification, or animal tracing. Premises regulation operates by requiring producers to identify the geographic location where their animals are raised, housed, or boarded. USDA: About NAIS, http://animalid.aphis.usda.gov/nais/about/nais_components.shtml (last visited Nov. 1, 2009). Currently 14,000 of 61,000 premises in the state of Kentucky are registered. Kentucky Department of Agriculture: Office of State Veterinarian, http://www.kyagr.com/statevet/nais/index.htm (last visited Nov. 1, 2009). Producers register their premises by completing a Premises Identification Number (PIN) application on their state department of agriculture website or by contacting their state or tribal NAIS administrator. USDA: Premises Regulation, http://animalid.aphis.usda.gov/nais/premises_id/index.shtml (last visited Nov. 1, 2009). The application process is free to the producer and protects his private and confidential business information. Id.

Because a single report of disease such as Bovine Tuberculosis or Equine Viral Arteritis can rapidly halt the movement of animals and raise questions about their health, it carries significant negative consequences for the owner. Id. Some of these consequences include lower selling prices, lost jobs, and decreased income. Premises regulation takes the unaffected producer out of the equation and allows him to maintain the luxury to move his animals freely. Id.

Animal identification is the second way in which producers can participate in NAIS. During this process, an identification number is assigned to either an individual animal (Animal Identification Number, AIN) or a group of animals (Group/Lot Identification Number, GIN). See supra USDA: About NAIS. The AIN or GIN is attached to the animal using either an ear tag or injective responder, and it remains associated with that animal throughout its entire lifetime. Id.

The final way a producer can participate is through animal tracing, a process that allows the USDA to access animal movement records and locate at-risk animals. Id. The main component is a network of Animal Tracking Databases (ATDs) that makes it easy for producers, the state, industry, and the USDA to define the scope of a particular disease and locate infected animals. USDA: Animal Tracing, http://animalid.aphis.usda.gov/nais/animal_track/index.shtml (last visited Nov. 1, 2009). This is perhaps the least developed component of NAIS.

NAIS is important for the agricultural industry because it plays an important role in monitoring, eradicating, and controlling harmful diseases such as Bovine Tuberculosis and Equine Viral Arteritis that can have widespread consequences. USDA: Why NAIS, http://animalid.aphis.usda.gov/nais/why/animal_disease.shtml (last visited Nov. 1, 2009). The program is not, however, well received by many members of the agricultural community. These producers, owners, and associations debate the program's value in consideration with its significant costs. See supra The Kentucky Horse Council.

Some of critics' concerns are that full implementation will be too expensive for small operations to afford, will be too difficult to manage, and a will be a sneaky opportunity for the government to tax non-commercial animals. Id. Websites such as "NoNAIS.org," launched in 2006, characterize the program as a "violation to the traditional right to farm." NoNAIS.org, http://nonais.org/ (last visited Nov. 1, 2009). They focus on the possibility that there would be no exceptions to the registration requirements. As a result, every Mom and Pop operation would eventually be ordered to register as "farm premises" which would entail considerable paperwork and the payment of fees. Some negative consequences, they argue, would be higher food prices, forced registration of non-commercial animals (pets), tedious record-keeping and inordinate costs to small farmers who cannot qualify for Group/Lot Identification. Id.

In order to address these concerns and encourage participation, the USDA has implemented a phased-in approach. And, although there is speculation that the voluntary program may someday become mandatory, no such steps have been taken to reach that result. See supra The Kentucky Horse Council.

During this time, while NAIS is still voluntary, the state of Kentucky and the federal government must weigh the potential costs and benefits of the program in light of the entire agricultural community. They must consider the realistic outcomes for American producers and owners, both large and small, and determine whether or not it would be possible for NAIS to enjoy the same success as it has in other countries such as the European Union, Canada, and Australia. See supra Kentucky Department of Agriculture: Office of State Veterinarian.

“Mother May I? California’s Struggle for Clean Air Under the Federal Government’s Preemptive Thumb: Engine Manufacturers Ass’n v. South Coast Air Quality Management District”

Appearing in JNREL Vol. 20 No. 2 the following comment was written by former staff member Anne Todd. Staff member Tara Hester wrote the following abstract.

The federal Clean Air Act (CAA) is superior to the laws of the states and cannot be preempted. Not only does the CAA rely on this general rule of preemption, but has explicit preemptory language as well, stating that "no state shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles . . . . " Engine Manufacturers Ass'n v. South Coast Air Quality Management District, 541 U.S. 246,252 (2004), involved the implementation of " Fleet Rules" issued by the South Coast Air Quality Management District (AQMD), and is centered on whether those "Fleet Rules" constituted a standard in violation of the CAA.

During World War II, Los Angeles began to see the effects of increasing industrialization in the form of severe air pollution. Due to California's distinctive air pollution problems, Congress recognized that more stringent measures would be needed to combat the poor air quality, and the CAA granted California exclusive authority to set tougher emission standards than those implemented by the federal government.

The defendant in the subject case, AQMD, has the responsibility of ensuring the Los Angeles area achieves certain air quality standards. AQMD enacted "Fleet Rules" requiring various public and private operators of area fleets of fifteen or more vehicles to buy alternative fuel or cleaner fuel vehicles when these vehicles were commercially available. The fleet rules did not regulate manufactures, but set purchase requirements for when new vehicles were needed. However, the Engine Manufactures Association (EMA) said the purchasing requirements were standards preempted by the CAA and therefore not enforceable.

The District Court's decision is centered on an extensive analysis of the preemption doctrine. The court noted that the CAA states that fleet rules must be established in areas of high pollution, and it does not seem logical that the CAA would authorize purchasing requirements in the form of fleet rules and then prohibit them as the adoption of a "standard". The Court stated that in the area of traditional local police powers, such as air pollution prevention, the presumption is that local powers are not preempted.

However, the Supreme Court took a different view, characterizing the AQMD's Fleet Rules as standards and therefore in violation of the CAA. The Court first stated that if AQMD could enact standards, then other political subdivisions could do the same, and this would undo Congress's regulatory scheme. However, the most significant error the Court made was its reliance on a textual interpretation of the CAA rather than a broader look at the preemption doctrine. As suggested by the dissent, AQMD's purchasing requirements were not mandates because they only required the purchase of lower emission vehicles that were already on the market, and were not applicable if the fleet operators required models that were unavailable in a cleaner fuel model. Also, while the fleet rules may have reduced the demand for higher emission vehicles, it would not have completely destroyed the market for them.

By disallowing AQMD's fleet Rules, the Court took away a direct route to air quality improvement and forced AQMD to work through the California legislature to get results implemented. The AQMD must go back to the long line of those awaiting Congress' attention in order to make a change affecting fuel emissions. Additionally, agencies like the AQMD will no longer be able to provide strong incentives for manufacturers to create "cleaner" vehicles. This extremely broad reading and application of preemption led the Court to essentially ignore public policy reasoning in support of air quality.

Alternative Gaming Revenue: Good for Kentucky’s Horse Industry?

The following post was written by staff member Adrianne Crow.

The horse industry is a vital part of Kentucky's economy. In fact, the industry is alone responsible for 80,000-100,000 jobs in the state. Kentucky Equine Education Project, Why Kentucky's Horse Industry Needs Support (2007), available at http://www.horseswork.com/pdf/why_to_support.pdf. However, this industry is currently threatened by increased competition from surrounding states that allow alternative gaming revenue. Because revenue from casino style gambling at racetracks boosts purses and breeding incentives, horses traditionally bred and run in Kentucky are now being taken elsewhere because of the opportunity to earn greater amounts of money.

Kentucky currently has five thoroughbred racetracks in the state: Churchill Downs in Louisville, Keeneland in Lexington, Ellis Park in Henderson, Turfway Park in Florence, and Kentucky Downs in Franklin. Gregory A. Hall, Ky. horse tracks request fewer racing dates in 2010, COURIER-JOURNAL, Oct. 26, 2009, available at http://www.courier-journal.com/article/20091026/BUSINESS/910260343/Ky.+horse+tracks+request+fewer+racing+dates+in+2010. Kentucky tracks have already requested fewer racing dates for 2010 due to decreased revenue, and if things continue in the current fashion, it could mean the end of one or several of these historic venues. Id.

Although the racing industry is suffering nationwide, several states have managed to avoid some of the problems that Kentucky is currently experiencing through the introduction of alternative gaming. According to statistics found in the American Gaming Association's 2009 State of the States report, 12 other horse racing states, including Indiana and West Virginia, allow patrons at the track to wager on video gambling machines, slot machines or other casino-style games. American Gaming Association, State of the States 2009: The AGA Survey of Casino Entertainment (2009), http://www.americangaming.org/assets/files/aga-sos2009web.pdf. This type of expanded gaming has allowed those states to increase purse sizes, attracting many of Kentucky's thoroughbreds to race at those locations rather than in Kentucky.

The size of the purse that racetracks can offer directly affects the quality and quantity of horses that run at the track and the bettors and money that come in to the state. Comparing the purses at Kentucky's Turfway Park and Pennsylvania's Presque Isle Downs, it is clear that purses increased dramatically after the introduction of casino betting in Pennsylvania. Kentucky Horsemen's Benevolent and Protective Association, Inc., Understanding Kentucky's Horse Industry (2009), available at http://www.kyhbpa.org/resources/IndustryHandout.pdf. High purses also mean more jobs for residents of the state. Id.

Additionally, many states have greatly increased purses for horses which are born in that state. See supraAmerican Gaming Association. This practice entices horse owners to move their breeding operation to certain states to ensure that their horses are eligible for the state-oriented prizes, thereby affecting Kentucky breeding farms which have experienced reduced stallion and foaling or broodmare income. Id.

This past June during a special legislative session, Kentucky's House of Representatives passed the Video Lottery Bill which would have allowed slot machines at racetracks. John Cheves, Slots bill dies in committee, LEXINGTON HERALD-LEADER, June 23, 2009, available at http://www.kentucky.com/302/story/839602.html. However, the bill soon died in the Senate. Id. According to Senator Tim Shaughnessy, D-Louisville, the issue is not over: "[t]he reality is, history is on our side. This is eventually going to happen, whether it's done by an act of the legislature or put before the voters of Kentucky for a formal vote. It may be stopped today, but the issue isn't if this happens, it's when this happens." Id.

According to Attorney General Jack Conway, however, it doesn't appear necessary to send the decision to Kentucky voters. In an opinion issued by Conway in June responding to a request by State Representative Jody Richards, Conway found that the "General Assembly may authorize the Kentucky Lottery Corporation to establish, license, regulate and tax video lottery terminals at designated horse racing tracks under Ky. Const. § 226(1) without further amendment to the Kentucky Constitution." Video Lottery Terminals at Kentucky's Horse Race Tracks, Op. Att'y Gen. 09-004 (2009), http://www.law.louisville.edu/sites/www.law.louisville.edu/files/OAG09004.pdf. While this opinion is merely advisory and not legally binding, it represents a well-reasoned argument analyzing Kentucky's laws and furthering the idea that the General Assembly is permitted to make the decision on slots without putting it on the ballot, allowing them to more quickly respond to the urgent situation with Kentucky's horse industry.

The bottom line is that horses help create and support jobs in Kentucky, and it is important for our legislators to support the industry that is so vital to our local economy. Ultimately, if Kentucky allows expanded gaming at the state's racetracks, it will increase revenues, thereby increasing purses and breeding benefits, and will help keep horses and jobs in Kentucky.

“Double Criminal Liability Under RCRA: An Analysis of United States v. Wasserson.”

Appearing in JNREL Vol. 21 No.1 this comment was written by former staff member Stephanie Vincent. The following abstract was written by current staff member Warren B. Wells.

When Congress passed the Resource Conservation and Recovery Act ("RCRA"), its main goal was to put in place legislation that could control hazardous wastes from creation to disposal, and to remove many of the dangers inherent in unregulated hazardous wastes. 42 U.S.C.A. § 6901 (2006). Section 6928(d) is the sanction provision of the RCRA, and it separates violations into transport and disposal violations.

In a recent decision of the Third Circuit, United States v. Wasserson, it was held that a generator of hazardous waste could be held liable under both the provision for disposal as well as the provision of transport, even if he did not dispose of it himself. United States v. Wasserson, 418 F.3d 225 (3^rd Cir. 2005). This was on the theory that the generator "aided and abetted" the disposal.

Unlike the Third Circuit, the district court in Wasserson and the Ninth Circuit in Fiorillo held that a generator of hazardous waste could not be held liable for "aiding and abetting" the disposal. United States v. Fiorillo, 186 F.3d 1196 (9^th Cir. 1999). The Wasserson district court and Fiorillo focused on the plain language of the sanction provision and found that there was a distinction between creating and shipping the waste and receiving and disposing of the waste. The district court was also uncomfortable with the possibility of a double jeopardy conviction, noting that "If a generator who did not actually dispose of the materials himself were able to be convicted under both subsection(s) . . . then he would be convicted twice for the same conduct." Wasserson, 2004 WL 433824 at *4.

Disregarding the district court's interpretation, the Third Circuit agreed with the government's contention that the sanction provisions of 6928(d) triggered "aiding and abetting" liability. The Third Circuit opened up the ability for the generator to be convicted of both the transport and the disposal of the waste, as long as he "aided and abetted" the disposal, no matter how little his involvement was. In doing so, the Third Circuit ignored the fact that only one act had taken place in the Wasserson case. Wasserson had the ability to dispose of the waste himself, but he did not, and hired a separate company to do that for him. Under the facts, there was no way for Wasserson to know that the disposal of the chemicals was being performed illegally.

In drafting the RCRA, Congress clearly had the ability to include a causation element both with respect to the creation and transport sanction and the disposal sanction. While it does include a causation element with respect to the former, it does not with the latter. If it had intended for hazardous waste generators to be convicted twice simply because they caused the hazardous waste to be created or transported, then Congress would have included the causation element in the disposal sanction as well. Due to the fact that Congress clearly chose not to punish twice for a single act, and the unfair convictions that would result from an "aiding and abetting" reading of the statute, when faced with this issue, future courts should follow decisions such as Fiorillo and the Wasserson district court and not allow for multiple convictions under the RCRA.