“Federal Income Tax incentives for Energy from Renewable Resources”

Appearing in JNREL Vo1. 20, No.2, the following article was written by John Kaufmann. Staff member Kyle Hermanson wrote the following abstract. Readers should note that this article discusses the tax code as it existed at the time of the article's publication. Any person citing the article or engaged in tax planning should consult the current edition of the Code.

Countless experts have discussed the necessity for the United States to develop clean, renewable sources of energy in order to avoid the parade of horribles attendant upon continued dependence on fossil fuels. Despite this national dialogue, businesses and consumers have not invested heavily in renewable energy projects until recently. Two things are now beginning to make these projects cost effective. First, the tremendous increase in the cost of fossil fuel in the recent past has encouraged academics and business people alike to turn to renewable energy sources as a way to avoid the risks of price fluctuation in the fossil fuel markets. Second, the cost of energy from renewable sources is approaching that from traditional sources. Given these factors, investment in renewable energy sources presents a unique opportunity to do normative good and at the same time, to succeed economically.

When weighing an investment in a renewable energy project, one of the factors a business person needs to consider is the tax effect of the project. The Internal Revenue Code contains several sections which provide tax subsidies for users and producers of renewable energy sources. Many of these tax credits were added or amended by the American Jobs Creation Act of 2004 and Title XIII of the Energy Policy Act of 2005. The tax code implicates everything from events as small as a taxpayer adding a residential solar water heater or photovoltaic cell to events as large as an agricultural operation becoming an open-loop biomass energy facility. This article explores and explains the federal income tax benefits of renewable energy investments, listing subsidies and discussing their real effect on different classes of taxpayers.

Pony Up: Gov. Beshear Predicts Video Slot Machines May Be Legalized at Kentucky Racetracks in 2010

The following post was written by staff member Donald Smith.

Kentucky has, in various forms, debated the legalization of gambling, particularly in the form of video slot machines at racetracks, for more than a decade. Beth Musgrave & Janet Patton, Beshear Wants Slots Bill by Winter, Lexington Herald-Leader, Nov. 5, 2009, available at http://www.kentucky.com/181/story/1006050.html?storylink=omni_popular (last visited Nov. 17, 2009). After Ohio residents passed a referendum on November 3, 2009, allowing casino gambling in four major cities, including Cincinnati, the efforts to legalize gambling gained momentum. Id. Governor Beshear issued the following statement after the referendum passed: "Clearly, the time to act on expanded gaming is now.… Ohio citizens are going to reap the benefits of thousands of new jobs and millions of dollars in tax revenue. Ohio's decision reinforces the urgency to pass the video lottery terminal bill I proposed earlier this year." Id.

In addition to questionable popular support, the proponents of legalizing gambling have faced the criticism that the move can only legally be made through amendment of the state constitution, an argument that Governor Beshear labels as a stall tactic that cannot be tolerated as the Kentucky horseracing industry faces tough times. Id. Although last term a bill passed the democrat-controlled House, but did not get out of committee in the Senate, Governor Beshear now predicts that the bill would pass both houses in 2010, after changes in membership. Ryan Alessi, Beshear: Slots Will Pass the Full Senate if Given a Chance, Bluegrass Politics, http:// bluegrasspolitics.bloginky.com/2009/11/17/beshear-slots-will-pass-the-full-senate-if-given-a-chance/ (last visited Nov. 17, 2009). Speaking of the impact on the horse industry, which would receive a cut of profits under the proposed bill, Governor Beshear stated: "In my opinion we must protect this industry. Why? Not because there are two to three rich guys in it. But because there are 100,000 hard working Kentuckians who work in that industry every day." Id. Only time will tell whether the bill will in fact pass the legislature, and if so, only the courts will tell if the bill passes constitutional muster.

“The Battle for the Bluegrass: An Overview of the Struggle Between Conservation and Development”

Appearing in JNREL Vol. 20, No.2 the following Note was written by former staff member Elizabeth Clevinger. Staff member J. Anthony Cash wrote the following abstract.

The Bluegrass Region of Kentucky has gained great economic benefit from its agricultural lands, particularly those utilized by the equine industry. In addition to money, these farmlands provide a cultural and aesthetic value that is unique to the region and irreplaceable. However, these farmlands can become a victim of their own success. For as with any economic boon, comes development. In the Bluegrass Region of Kentucky, such development can easily consume the farmlands that made such growth possible.

With such a clash of competing and coalescing interests, the struggle to strike a balance between development and conservation of farmland is difficult. It is made increasingly difficult because farmland is privately owned and thus protection of farmland depends upon the cooperation of landowners. However, the creation of several non-profit and governmental bodies that engage in the purchase or collection of donated easements has helped to ease this tension. The easements collected by these organizations guarantee that the land will be available for farm use in perpetuity by restricting the use of farmland upon which the easement is placed.

Even with these easements a number of factors can still affect the balance between development and conservation. First, the donation of these easements is heavily dependent on the tax deductibility of these easements. However, Congress has considered reducing the amount of the deduction granted for these types of donations. Additionally, funding for the purchase of additional easements by the local and state governments is becoming increasingly difficult because funding is drying up. Finally, the community of farmers, entrepreneurs, developers, and ordinary citizens of the Bluegrass has not decided exactly how to find the balance that is needed between development and conservation. While there is no simple answer, it is important that whatever solutions are used balance the need for conservation against the need for economic development.

Happy Thanksgiving!

KJEANRL, along with the University of Kentucky, will be observing the Thanksgiving Day holiday and no posts will be made the remainder of the week.

We are thankful for your support and wish you all a Happy Thanksgiving!

Pin-pointing a Reason for Horse-Slaughter Legislation – Easier Said Than Done

The following post was written by staff member Tanner James.

For many, there is something inherently unsettling about the notion of horse-slaughter. Anti-slaughter organizations have established a relatively strong presence on the internet, soliciting public activism in an effort to eradicate all vestiges of the largely-illegal industry. See Stop Horse Slaughter Home Page, http://www.stophorseslaughter.com (last visited Nov. 16, 2009); Just Say Whoa!, http://www.justsaywhoa.org (last visited Nov. 16, 2009). In fact, this sentiment has reached all the way to Capitol Hill—especially through the efforts of Michigan Representative John Conyers, Jr.

On January 14, 2009, Rep. Conyers introduced H.R. 503, to be known as the Prevention of Equine Cruelty Act of 2009, a bill identical to his Prevention of Equine Cruelty Act of 2008. Prevention of Equine Cruelty Act, H.R. 503, 111th Cong. (2009); Prevention of Equine Cruelty Act, H.R. 6598, 110th Cong. (2008). This proposed bill would amend Chapter 3 of Title 18 of the U.S. Code, adding language that would criminalize the practice of knowingly "possess[ing], [shipping], transport[ing], purchas[ing], sell[ing], deliver[ing], or receiv[ing], in or affecting interstate commerce or foreign commerce, any horse [or horse carcass] with the intent that it is to be slaughtered [or used] for human consumption." Id. Engaging in this prohibited conduct could carry a three-year prison sentence. Id.

Surely, such a statute would require a relatively solid foundation—some well-established, persuasive reason—for potentially imprisoning a future violator. And yet, if such reasoning exists, it has not been well-represented by Mr. Conyers. In his House Report, submitted during the second session of the 110th Congress, the section entitled "Background and Need for the Legislation" seems to be little more than an emotional appeal to animal-lovers and owners. H.R. Rep. No. 110-901, at 2 (2008).

The report begins with a brief recap of relevant state case law and moves on to define the term "horse slaughter," followed by an acknowledgment that the practice of horse slaughter has not been eradicated, but merely modified into an industry of international transport. Id. at 2-5.Ultimately, when the time arrives for justifying the bill, Conyers relies upon three distinct-yet-similar reasons:

(1) Sellers who auction their horses may be devastated to learn that the buyer was in the business of slaughtering;

(2) The transportation is inhumane; and

(3) The methods of slaughter are inhumane.

See id.

Each of these "reasons" appears to be little more than an appeal to sympathy. As additional evidence of that point, one entire paragraph of the report is devoted to describing a particular slaughter method that is common in Mexico. Id.The reader is given a brief introduction to the method, followed by an illustration of a worst-case scenario wherein a horse was forced to endure "13 stabs in the [...] back before [it] collapsed." Id.Certainly, images such as this are not pleasant, but the question remains: Are these reasons sufficient to justify a federal statute? Furthermore, are these "inhumane" conditions notably worse than those afforded other animals? The report offers no enlightenment.

The slaughter of livestock is nothing new. The methods of slaughter, when exposed to the public, are always sources of disgust. And yet, for some unspoken reason(s), Rep. Conyers suggests that horses are distinguishable from other livestock—that horses should be treated with more respect. But, the House Report doesn't elaborate; it doesn't offer rationally satisfactory arguments. It simply draws a conclusion, tugs on the collective heartstrings of the constituency, and waits for the bill to be passed (which has yet to occur). Perhaps, if there was a bit more reasoned persuasion, the Prevention of Equine Cruelty Act could find its way in to the U.S. Code.

Conservation Easement Tax Advantages Are Set to Expire

The following post was written by staff member Katie Shoultz.

On December 31, 2009, favorable tax deductions for individuals with qualified conservation easements will expire. Farm and Dairy, Land conservation tax break is set to expire Dec. 31, http://www.farmanddairy.com/news/land-conservation-tax-break-is-set-to-expire-dec-31/13279.html (last visited Nov. 16, 2009). A conservation easement is a restriction placed on a piece of property. The Nature Conservancy, Conservation Easements, http://www.nature.org/aboutus/howwework/conservationmethods/privatelands/conservationeasements/about/art14925.html (last visited Nov. 16, 2009). In executing an easement, a landowner either donates or sells certain rights attached to his or her property whereby a private or public organization then agrees to enforce the landowner's promise not to exercise the rights. Id. Such easements are generally seen as favorable in the farming industry because they serve as a protective measure for family farms. Farm and Dairy, Land conservation tax break is set to expire Dec. 31, http://www.farmanddairy.com/news/land-conservation-tax-break-is-set-to-expire-dec-31/13279.html (last visited Nov. 16, 2009). Advocates of easements also tout the added benefit of creating needed cash flow for many in the farming industry. Juan Espinosa, Rocky Ford, Colo., Farmers Receive Tax Advantages by Conservation Easement, The Pueblo Chieftain, June 22, 2002 available at http://www.encyclopedia.com/doc/1G1-120638712.html. This cash flow is particularly beneficial in depressed economic times and can help encourage sustainability. From a greater public perspective - these tax benefits provide incentives to a crucial sector in our society as "[a]gricultural producers not only provide the food we eat, but open space, wildlife habitat, and potentially carbon sequestration." Private Landowner Network, Conservation Tax Provisions making their way through Congress, http://www.privatelandownernetwork.org/plnlo/taxprovisions.asp?pp=true (last visited Nov. 16, 2009). In fact, one source indicates that from 2003-2007, over a half million acres have been placed in conservation easements. Id.

Currently, the legislation allows landowners to take deductions of up to fifty percent of their adjusted gross income (AGI). Farm and Dairy, Land conservation tax break is set to expire Dec. 31, http://www.farmanddairy.com/news/land-conservation-tax-break-is-set-to-expire-dec-31/13279.html (last visited Nov. 16, 2009). This percentage "allows grantors to realize the value of preserved property more quickly." Id. Qualified farmers who earn more than half of their income from farming operations are allowed to deduct up to one hundred percent of their AGI. Id. The expiring legislation also provides a longer time period for those claiming such deductions. Id. Those who have taken advantage of the more favorable legislation have up to 16 years "to carry forward the unused balance(s)." Id. Prior to the legislation, only six years was allowed. Id. For further information, the IRS released Notice 2007-50 to provide guidance for such deductions. I.R.S. Notice 07-50, 2007-25 I.R.B. (Jan. 4, 2007).

Two bills are currently set before Congress that would extend the aforementioned benefits permanently - HR 1831 (the Conservation Easement Incentive Act) and S 812 (the Rural Heritage Conservation Extension Act). It would obviously be quite advantageous for individuals, particularly farmers and ranchers, interested in placing an easement on their property if such proposals were adopted. Permanency would also lend "legal certainty for those involved in these long term projects." Private Landowner Network, Conservation Tax Provisions making their way through Congress, http://www.privatelandownernetwork.org/plnlo/taxprovisions.asp?pp=true (last visited Nov. 16, 2009).

“The Suitability of Government for Economic Valuation of Natural Resources and Environmental Harm”

Appearing in JNREL Vol. 20, No. 1, the following Note was written by former staff member LeeAnne Edmonds Applegate. Staff member Katie Huddleston wrote the following abstract.

Law and economics arose in the 1970's as a legal theory that promoted the application of economic principles to the law. Despite many evolutions over the past three decades, the theory has remained and has been applied to many legal fields, including environmental law. Its application in this field provides an interesting example of the theory at work and of the various criticisms made of the theory.

From the standpoint of law and economics, commercial transactions that produce environmental effects result in market failure. In such transactions, the environmental effects of consumer activities are not included in the price of such activities. Rather, these additional costs are borne by the larger society, people outside of the actual commercial transaction. In economic terms, this is a market failure. Therefore, government regulation has evolved in an effort to rectify this market failure by making the cost of such transactions to the consumer more closely approximate the larger cost of the activity to society.

The modern trend is to rectify market failure through the use of a "sin tax." A "sin tax" uses tax incentives to promote environmentally beneficial behavior, while imposing taxes for environmentally damaging behavior. The major problem with this approach is that to determine the appropriate amount for the "sin tax," the government must calculate the value of the environment and the societal cost of damage to it.

There are two main theories as to how to make these seemingly impossible valuations. Preservationists seek to set the tax according to an evaluation of the intrinsic value of the environment in its natural state. Conservationists, on the other hand, think the tax should be set according to the value of the environment as a resource. For example, when a tree is cut down, preservationists would value that tree in accordance with its function of air purification, soil retention, animal habitat, etc. Conservationists would set the value of the tree based on the value of the lumber that could be derived from it.

Aside from these two theories on valuation, there are two methods of economic valuation that can be used in setting the taxes. First is the Market Price Method. This method is useful when a market actually exists for the parts of the environment sought to be valued, such as products or resources derived there from. The current market price for the "commodity" is measured and studied for changes over time. This method is useful because it uses actual, easily identifiable and understandable data. However, it has limited applicability because of the limited markets for the environment and environmental goods. The market price may also bad indicator of the true, underlying value to society of such goods and activities, merely perpetuating the problem of market failure.

The other option is the Contingent Value Method. This method involves surveys in which people are interviewed about various hypothetical situations and asked to put a dollar value on an environmental service or commodity. This method has the benefit of being more flexible than the Mark Price Method. However, critics cite the time and effort that must be put into designing such surveys, the lack of actual observation of consumer behavior and the possibly inaccurate results that could result from it.

Are environmental lawsuits for everyone?

The following post was written by staff member Derek Leslie.

Who is permitted to bring an action to protect the environment or a natural resource when it is threatened? As a plaintiff, the answer to that question can mean getting your foot in the door, or alternatively, having it slammed in your face. The question's significance, then, can hardly be underestimated and certainly cannot be overlooked. In the area of environmental law, where groups like the Sierra Club pursue court action protecting the environment, standing has been a contentious issue.

While statutes can expand and limit what is required for standing with respect to a particular cause of action, the Supreme Court has recognized three elements required for so-called "classical" standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the plaintiff must have suffered an injury in fact; this injury must be concrete and particularized as well as actual and imminent. Secondly, the injury and conduct complained of must be casually connected. Finally, it must be likely that a favorable decision of the court would redress the injury. Id. at 560-561.

It is easy for plaintiffs, particularly national environmental groups, to run afoul of the simple requirements, particularly with respect to the need for injury in fact. For example, what injury did an environmental group called 4 Clean Lakes, whose membership consists entirely of citizens from Town A, suffer when Citizen B pollutes Town B's lake, a lake no member of 4 Clean Lakes has ever visited? Obviously, it is more natural that an avid swimmer in Town B's lake brings a suit rather than any member of 4 Clean Lakes. This example implicitly acknowledges that a group may bring an action, however, where one of its members would have had standing to bring the action herself, the interests it seeks to protect are germane to its purpose, and neither the claim asserted nor the relief requested require the individual members' participation in the lawsuit. Hunt v. Washington State Apple Advertising Com'n, 432 U.S. 333, 333 (1997). The bar for an individual's injury in fact is actually fairly low. Plaintiffs may adequately allege injury in fact if they use the area in question, and the aesthetic and recreational values of the area will be diminished by the challenged activity. Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 183 (2000).

Looking to the policy reasons behind standing, the requirements appear to further these goals. Generally speaking, standing is meant to ensure that courts do not entertain litigation based on tenuous legal interests with parties who may not pursue claims as diligently as someone who is injured directly. Thus, standing requirements help to manage the number of cases on a court's docket and also helps to ensure robust litigation between fully invested parties. Nevertheless, some have considered these standards in an environmental case too stringent. In response, several states have passed their own Environmental Protection Acts, which among other things have reduced the requirements of standing in state environmental cases. Potential plaintiffs, therefore, would do well to be aware of their particular jurisdiction's stance on the requirements of standing.

“The Outsiders: Broadening the Scope of Standing in the Whistleblower Actions in Light of Anderson v. U.S. Dep’t of Labor”

Former staff member Dawn Franklin wrote the following comment appearing in JNREL Vol. 20 No. 2. Staff member Sunni Harris wrote the following abstract.

In 1972, Congress passed the first Whistleblower Provision to protect employees that were discriminated against because they testified or filed suit under the Water Pollution Act. Since 1972, almost every state has enacted whistleblower statues to protect those bringing suits under environmental bills. However, as law surrounding this area matures, the question has become whether anyone other than employees and "authorized representatives of employees" have standing to bring a whistleblower claim against a company.

The court in Anderson v. Dep't of Labor, 422 F.3d 1155 (10th Cir. 2005), seems to answer this question in the negative. In this case, the mayor of Denver appointed the Plaintiff to serve as a political appointee on Metro Reclamation District's ("Metro") board in hopes that she would represent the aims of Metro's employee union ("OCAW"). Metro is a wastewater treatment plant. When the plaintiff discovered that Metro was planning to accept treatment wastewater from a Superfund site, she immediately spoke out against the plan to the public and press. As a result, Metro threatened the plaintiff with censorship and other sanctions. In response, the plaintiff filed a suit alleging that Metro's actions violated seven environmental whistleblower provisions.

The Anderson court held that the plaintiff's status as a political appointee precluded her from bringing a lawsuit against Metro pursuant to whistleblower statutes. The court's reasoning was two-fold. First, it determined that the plain language and congressional intent of the whistleblower statutes excluded her from the scope of their protection. Second, it determined that Anderson could not serve two masters. Specifically, Anderson could not be both an agent for the state of Colorado as a political appointee and an authorized representative of the OCAW board.

The Anderson court seems to underestimate the value of non-employee whistleblowers. Non-employees, including political appointees such as the plaintiff, should not fear retaliation from an employer upon reporting employer violations. Without the protection of the law to allow them to perform their jobs feely, a nonemployee's job becomes nearly impossible. Thus, in the future, courts should expand protection of whistleblower statutes to cover non-employees.