University of Kentucky researchers explore alternative to filling surface mining sites in Appalachia

By: Donald Smith, Staff Member

There is a new stream at Guy Cove in Kentucky's Robinson Forest, and it could have a significant impact on the future of environmental law with regard to surface-mining. Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www/.
kentucky.com/latest_news/
story/1118658.html#. When coal companies remove rock for surface mining, the "spoil" (extra rock and dirt) that cannot be placed back in the mined area because it swells, is placed into fills in hollows around the site and compacted for stability. Id. This process often results in covering up parts of streams, to the extent that a 2003 federal study found that an estimated 730 miles of streams in Eastern Kentucky were wiped out by surface-mining activities. Id. This is likely an underestimate, as Greg Pond, formerly a biologist with the Kentucky Division of Water who is currently employed at the Environmental Protection Agency ("EPA"), explains in a 2004 research paper that the estimate in the federal study addressed only a particular class of stream, and it is likely that surface-mining has in fact buried hundreds more miles of headwater areas in Kentucky. Gregory Pond, Effects of Surface Mining and Residential Land Use on headwater Stream Biotic Integrity in the Eastern Kentucky Coalfield Region, http://www.water.ky.gov/NR/rdonlyres/ED76CE4E-F46A-4509-8937-1A5DA40F3838/0/coal_mining1.pdf (last visited Feb. 2, 2010). The coal industry has taken a different approach entirely as to what constitutes a stream. As explained in the Lexington Herald-Leader, "[the coal industry says it would be impossible to mine coal without creating fills. To many associated with the industry, the areas high on the side of a hill where water begins to collect are not streams at all, but merely drainage ditches that only flow with water when it rains or when snow melts." Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www.kentucky.com/latest_news/
story/1118658.html#.

University of Kentucky researchers built a new stream atop the fill at Guy Cove, and planted vegetation and trees. Id. The result is a promising alternative to the current method of filling that, while in its early stages, appears, to have provided for high quality water in a stable stream as a method of reclaiming watersheds. Id. The new research development is particularly interesting against the backdrop of the current legal climate with regard to stream reclamation. The EPA has stalled dozens of permit applications in Appalachia, including Eastern Kentucky, for further review, for concerns including restoration of stream functions after mining. Id.

Yellowstone, Snowmobiles, and Confusion: What Has the NPS Done For You Lately? The Ongoing Battle Over Fund for Animals v. Norton

Comment by Kimberly Ratliff, Former Staff Member; originally appeared in JNREL Vol. 19 No. 2

Abstract by: Matt Cocanougher, Staff Member

A war has been waged in the western United States between the snowmobile industry and conservation groups regarding the use of snowmobiles in national parks, specifically Yellowstone National Park. Interestingly, by handing down opposing decisions, two federal courts have allowed battles to be won by both sides. This has created a great amount of confusion for the conservation groups as well as the snowmobile industry. Additionally, the party charged with putting an end to the confusion, the National Parks Service ("NPS"), played an important role in causing the uncertainty in the first place.

Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003), was a suit brought by numerous environmental organizations in the Washington D.C. circuit court to challenge the NPS's decision to allow snowmobile use at Yellowstone National Park. The events leading up to this case began in 1997 after some environmental problems arose because of the use of snowmobiles. The NPS responded to a suit by environmental groups which addressed these problems by completing an Environmental Impact Statement in 1998 and issuing a Finding of No Significant Impact, while vowing to continue studying the environmental impacts. Later, in 2001, the NPS decided on the Snowcoach Rule, which would phase out snowmobiles by the 2003-2004 seasons and replace them with mass transit snowcoaches. However, two years after the Snowcoach Rule was decided upon, the NPS completely changed its mind and decided to allow 950 snowmobiles to access Yellowstone daily, mandating that the snowmobiles conform with the best available technology standards.

After the NPS decision reversing its earlier Snowcoach Rule, Fund for Animals and other environmental organizations sued in the D.C. court based on the argument that the 2003 change of the rule was arbitrary and capricious, which violated the Administrative Procedure Act ("APA"). The D.C. court agreed that the 2003 rule was arbitrary and capricious and issued an order reinstating the 2001 decision and allowing the NPS to promulgate new rules to address the matter.

While it seems as though this should be the end of the story, it is not. After the D.C. decision, the International Snowmobile Manufacturers Association and the state of Wyoming brought suit to reopen their pending case challenging the 2001 Snowcoach Rule in Int'l Snowmobile Mfr. Ass'n v. Norton, 304 F. Supp. 2d 1278 (D. Wyo. 2004). Because the Wyoming District Court found that the NPS had not spent an adequate amount of time reviewing the environmental consequences of the Snowcoach Rule, it found that the Rule was invalid. This decision, therefore, ordered the NPS to restore the status quo of no restrictions on snowmobiles.

As a result of both of these cases, the environmental groups involved in the first D.C. case went back to the D.C. court to ask to resolve these inconsistent decisions. The D.C. court ruled that the NPS now has to create a new "rule making process in a manner consistent with, and addressing the concerns" of the Wyoming District Court. Funds for Animals v. Norton, 323 F. Supp. 2d 7, 10 (D.D.C. 2004). Therefore, the NPS has a very difficult task ahead of it of addressing the issues of both the snowmobile industry and environmental groups while keeping in mind the decisions issued in these two cases.

The Impact of Agriculture on Rebuilding Haiti

By: Sunni Harris, Staff Member

After a magnitude 7.0 earthquake hit Haiti, countries around the world sent search and rescue teams to find trapped victims and treat injured people. Elise Labott et al., Aid Begins Flowing to Haiti, Jan. 14, 2010, http://www.cnn.com
/2010/WORLD/americas
/01/13/haiti.aid.response/index.html (last visited Feb. 1, 2010). While it seems that Haiti still has many immediate needs (e.g. food aid), the relief efforts have shifted to focus on long-term sustainability. Lisa Bryant, Relief Efforts Shift to Rebuilding Haiti's Agriculture, Jan. 25, 2010, http://www1.voanews.com/english/news/disaster/Relief-Efforts--Rebuilding-Haitis-Agriculture--82598607.html (last visited Feb. 1, 2010). It seems that agriculture will have a huge impact on whether Haiti can survive and rebuild as a country.

On January 29^th 2010, the Food and Agriculture Organization of the United Nations (FAO) announced an investment plan to restore Haiti's agricultural ministry. Adriana Brasileiro, UN Group Urges $700 Million Investment in Haitian Agriculture, Jan. 29, 2010, http://www.bloomberg.com/apps/news?pid=20601086&sid=at_vFIabEsso (last visited Feb. 1, 2010). The FAO has urged international donors to invest $700 million over the next eighteen months for the purpose of "repairing infrastructure, boosting national food production and creating employment for the thousands of people fleeing the Caribbean country's capital." UN News Centre, UN calls for donors to back $700 million agricultural recovery plan, Jan. 29, 2010, http://www.un.org/apps/news/story.asp?NewsID=33619&Cr=haiti&Cr1 (last visited Feb. 1, 2010). However while this plan spans eighteen months, there is an immediate need for $32 million "to buy seeds, tools and fertilizers so Haitian farmers can start planting in March." Adriana Brasileiro, UN Group Urges $700 Million Investment in Haitian Agriculture, Jan. 29, 2010, http://www.bloomberg.com/apps/news?pid=20601086&sid=at_vFIabEsso (last visited Feb. 1, 2010). Dr. Diuff, director-general of the FAO stated, "to prevent this urban disaster [from] becoming a rural tragedy… it is crucial that we save the upcoming planting season," UN News Centre, Post-quake recovery in Haiti begins with farmers, UN agency says, Jan. 21, 2010, http://www.un.org/apps/news/story.asp?NewsID=33543&Cr=haiti&Cr1 (last visited Feb. 1, 2010).

Other short-term measures in the FAO plan include: repairing a major sugar refinery, protecting watersheds, steps to ensure reforestation, the reconstruction and reinforcement of collapsed riverbanks and damaged irrigation channels, and the rehabilitation of 600 kilometers of roads. UN News Centre, UN calls for donors to back $700 million agricultural recovery plan, Jan. 29, 2010, http://www.un.org/apps/news/story.asp?NewsID=33619&Cr=haiti&Cr1= (last visited Feb. 1, 2010).

Takings Jurisprudence as Three-Tiered Review

Article by: Mark W. Cordes, originally appeared in JNREL Vol. 20, No.1

Abstract by: John Hendricks, Staff Member

Takings jurisprudence has been for all practical purposes a complex and often confusing legal area. However, in analyzing takings jurisprudence, it is possible to draw comparisons to the traditional Supreme Court jurisprudence regarding equal protection. While this comparison is not exact, it does provide an overarching classification system for takings. Like equal protection analysis, takings jurisprudence can be roughly divided into three-tiers of scrutiny based on what type of taking has occurred.

The type of takings subject to the most stringent level of review is takings which involve the permanent physical invasion of property. This category of takings is analogous to the strict scrutiny applied to equal protection claims. The Court has adopted a near per se rule that physical invasions constitute a taking. Just as the Court has protected against suspect classifications, so has it been protective of physical invasions of property by the government, such government action is almost always unconstitutional.

The second level of review in takings jurisprudence involves situations regarding development extractions. Under the standards announced in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), a court should look for a "rough proportionality" between the extraction and the use of the land. This approach can be compared to intermediate scrutiny, in that it is not invalid per se and the court will look at the reasons for the government action.

Finally, the third type of takings is takings based on a land use regulation's economic impact. These types of takings can best be compared to the deferential review or minimum rationality review applied in equal protection cases. While the comparison between takings based on a land use regulation's economic impact and deferential review may seem to conflict with the Court's analysis in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1977), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), in an abstract sense, both types of review are similar. While takings based on a land use regulation's economic impact are subject to a factual inquiry, the government is still granted a level of deference that is similar to deferential review in equal protection cases. Ultimately, the comparisons between takings jurisprudence and equal protections cases provide an analytical framework for understanding the sometimes murky world of takings jurisprudence.

Some Hopeful Signs for Kentucky’s Water

By: Tara Hester, Staff Member

Governor Steve Beshear and his Energy and Environment Cabinet as well as several other groups are working closely with the coal industry to protect Appalachian creeks and streams from the impact of surface mining. Stephanie McSpirit, Some Hopeful Signs for Kentucky's Water, Lexington Herald-Leader, Jan. 25, 2010, available at http://www.Kentucky.com/589/story/1109938.html. The recent reclamation advisory gives clear guidelines so that more excess spoil is retained on the mine site and not bulldozed into valleys and streams. Id. These guidelines are not only good for streams and creeks and the biological communities that they host but are also beneficial to communities downstream from surface mine sites. Id. Stricter guidelines with more attention on protecting stream and creek channels will help reduce the impacts associated with flooding and flash-flooding events. Id. Currently, these guidelines are not mandatory, but only "best practice" guidelines that coal mines are encouraged to follow. There is hope, however, at both the federal and state level that the guidelines will be followed. Id. In Kentucky, stricter federal standards between the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers in granting 404 dredge and fill permits under the Clean Water Act will undoubtedly push more coal companies into adhering to these new reclamation guidelines. Id.

There are several things that can be done to further protect the Appalachian waters. One suggestion is more collaboration and sharing of information and data between the Division of Water and the Department of Natural Resources in evaluating the cumulative impacts of mine activities on waterways. Id. The Department of Natural Resources needs access to the data collected by the Division of Water to better review the impacts of mining activities on surface water. Id. However, it appears efforts to protect Kentucky's waters are moving in the right direction by encouraging discussion among experts and stakeholder groups in developing strategies and recommendations to better protect Kentucky's natural resources and our communities. Id.

Agriculture: The Sixth Circuit Allows Punitive Damages for Negligent Manufacture of Alpaca Seed

By: Meghan Jackson Tyson, Staff Member

The United States Court of Appeals for the Sixth Circuit recently decided a case regarding the allowance of punitive damages in products liability suits. Magical Farms, Inc. v. Land O'Lakes, Inc., No. 07-3568, 2009 WL 4641742 (6th Cir. Dec. 8, 2009). Magical Farms, an alpaca farm, filed suit against Land O'Lakes Farmland Feed alleging that Land O'Lakes' alpaca feed was contaminated with a toxic ingredient (salinomycin) that caused the deaths of 73 alpacas. Id. at *1. Although Magical Farms was successful on its negligence claim, the district court denied Magical Farms' request for punitive damages. Id. Specifically, the district court noted that the Ohio Legislature requires a showing of "flagrant disregard of the safety of persons who might be harmed by the product in question" for an award of punitive damages. Id. at *2-*3. The district court determined that Magical Farms did not meet this burden because "the harm caused injury to alpacas, not to humans." Id. at *2. The court of appeals refused to apply so strict a standard, stating that the Ohio Supreme Court has allowed punitive damages "where the plaintiff alleged only that the defendant consciously disregarded its rights, and specifically its property rights, rather than the safety of a person." Id. at *4. The decision of the court of appeals is significant in that it affords protection to the property interests of persons in their animals. It is interesting to note that although the appellate court was applying Ohio law, this decision could have a significant impact in Kentucky as the Kentucky Legislature has established a standard regarding the allowance of punitive damages similar to that of the Ohio Legislature. See Ky. Rev. Stat. Ann. § 411.184 (1988) (using language including "human death and bodily injury"). It is also interesting to consider whether the court would have reached the same result had the alpacas been pets as opposed to essential elements of a business enterprise.

Gregory A. Napier, “Got Gas? A Comment on Shell Petroleum, Inc. v. United States.” JNREL Vol. 19, No.2

Comment By: Gregory A. Napier, Former Staff Member; Comment originally appeared in JNREL Vol. 19, No. 2.

Abstract by: Stephanie Wurdock, Staff Member

In 2004 the United States of America faced skyrocketing prices at the gasoline pumps for the second time in decades. The country first dealt with such monolithic price hikes during the 1973 oil embargo which placed stringent restrictions on gasoline distribution and usage. President Carter's administration began to phase such controls out in 1979 which led to Congress's enactment of the "Crude Oil Windfall Profit Tax Act of 1980" (COWPTA or Act). One of the Act's main tools was a tax credit for the use of shale and tar sand oils as alternatives sources of energy. However, the definition of those substances eluded documentation and resulted in a trilogy of cases involving Shell Petroleum, Inc. ("Shell") and the United States. The most recent of which being Shell Petroleum, Inc. v. United States, 319 F.3d 1334 (Fed. Cir. 2003).

When Shell was denied tax credit for oil it produced in California during 1983 and 1984, it filed suit against the United States and was defeated both in trial and on appeal. Strike one. The company made a second attempt in 1989 and was again denied the credit. In its opinion, the Shell II court mandated that in order to qualify for the credit, a company must physically inject new technology into the oil well or otherwise use that technology to remove the highly viscous hydrocarbons from the well. Strike two. Unfazed by the court's ruling, Shell moved forward with its third suit, unsuccessfully arguing that the court's previous definitions of shale oil and tar sand oil were erroneous. Strike three. And Shell is out.

So who is right? The main question of these ground-breaking cases is whether or not Congress intended to exclude from tax credit eligibility technologies that already existed in 1980 at the time of the Act. The courts in the Shell series relied upon public policy and congressional intent to support their rulings that it did. However, a closer look at those same sources reveals that Congress may have intended to do no such thing. In fact, the Shell definitions not only seem to sacrifice any semblance of a scientific basis, but also undermine the overarching intent of Congress in creating tax incentives – to encourage domestic oil.

The impact of the Shell decisions is not a gentle one. It has numerous negative implications for the industry and the state of Alaska – the new target for large-scale drilling. The credit also creates opportunities for abuse in both direct and indirect ways. Finally, in setting such a high standard to receive the tax credit, these decisions fail to encourage or achieve domestic tar sand oil productions.

Perhaps, though the court set a couple things right by getting a lot of things wrong. Realizing that the tax credit offered potential for abuse and little else, the court preened its applicability to avoid its ineffectiveness thereby preventing such abuses.

Unknown Economic Effects of Greenhouse Gas Regulation on Agriculture May be Forestalled

By: Anthony Cash, Staff Member

The Southwest Farm Press recently reported that the American Farm Bureau Federation ("AFBF") voted at their annual meeting to oppose "cap and trade legislation," such as the American Clean Energy and Security Act ("ACES") that was passed by the House of Representatives on June 26, 2009, and any attempt by the EPA to regulate green house gases under the Clean Air Act. Top Concerns of AFBF Delegates, Southwest Farm Press, Jan. 15, 2010, http://southwestfarmpress.com/news/afbf-concerns-0115/ (last visited Jan. 21, 2010). However, commentators have pointed out that the economic impact of ACES or any greenhouse gas regulation on farmers is widely contested, with the AFBF estimating income losses to farmers at $5 Billion by 2020 and Iowa State's Center for Agricultural and Rural Development arguing that there will be very little impact to farmers. USDA Climate Bill Analysis: Ag Gains, Southwest Farm Press, Jan. 15, 2010, http://southwestfarmpress.com/legislative/laws-column-0118/ (last visited Jan. 21 2010).

With such widely varying economic analysis, it is difficult for lay persons to understand exactly what impact such legislation would have on agriculture, generally, and in the state of Kentucky, specifically. Clearly, more public debate is needed on the issue to fully vet the claims proffered by various groups. However, such a debate cannot fully occur if the Environmental Protection Agency succeeds in its attempts to regulate greenhouse gas emissions through the powers granted to it under the Clean Air Act. This action by the EPA follows from the Supreme Court case of Massachusetts v. EPA, in which Justice Stevens wrote for a five member majority. Justice Stevens wrote, "In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change." Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 534 (2007).

As James Madison, speaking of the importance of the Senate in Federalist No. 63, articulated "[T]here are particular moments in public affairs . . . when the people may call for measures which they themselves will afterwards be most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens[.]" The Federalist No. 63 (James Madison). Thus, the recent renewal of attempts by Senator Lisa Murkowski of Alaska to pass legislation that would foreclose the EPA's ability to regulate greenhouse gases, regardless of the motivations behind the legislation or the wisdom of a policy regulating greenhouse gas emissions, may enable a more meaningful public discourse on the possible economic effects of such legislation on agriculture in the United States and fulfill an important function of the United States' bicameral system of legislature.

Crossroads: The Collision of Bankruptcy's Automatic Stay and Environmental Law’s Injunctive Relief

By: Adam M. Back , Former Staff Member; Note Published in JNREL Vol. 20, No.1

Abstract by: Addison Schreck, Staff Member

The goals and policies of environmental law and bankruptcy law are not concepts generally thought to be of much consequence to one another. However, when a polluting company approaches insolvency, the interaction between the two becomes significantly more apparent. The Bankruptcy Code's automatic stay, as well as its creditor priority provisions, 11 U.S.C. § 362 and 11 U.S.C. § 726 respectively, bring the conflict between the two fields into the limelight.

The automatic stay provisions act to suspend any government enforcement proceedings including environmental ones. This accompanied by the government's status as a low priority creditor under § 726 make the situation a unique one. In general, the policy behind the government's low priority is sound. It is the government's inherent duty to foster economic well-being. Therefore, it makes sense that they would allow their own coffers to go wanting so that private creditors can be paid. However, the public policy argument which is generally applicable is not as appropriate in this case.

Environmental incidents are by their nature worsened by the passage of time. Therefore, the impediments created by the provisions of the Bankruptcy Code oftentimes force governmental agencies to pursue injunctive actions to remedy the situation. Such actions can force the insolvent party even further into debt and also result in sub-sufficient cleanup efforts due to the entity's already depleted resources and lack of expertise. While an environmental exception has been proposed to the automatic stay provisions of the Bankruptcy Act, perhaps the most promising solution proposed is heightening the government's priority during the distribution of a bankrupt entity's assets.

Given the current volatile state of the economy, bankruptcy law promises to be an area that will see developments over the coming years. Whether and to what extent these changes will give deference to environmental concerns is as yet unknown, but it is clear that the current state of affairs does not appropriately address the competing interests at hand.