Can You See Me Now? The Struggle Between Cellular Towers and NIMBY

Comment By: Camille Rorer; originally appearing in JNREL Vol. 19, No.2

Abstract By: Bryan Henley, Staff Member

Cellular telephones, like most modern conveniences, are generally regarded as being beneficial to society. Much like sewage treatment and the production of sausages, most people want them to exist without being exposed to the unseemly processes and facilities that provide them. However, the inner workings that enable cellular telephones cannot be sequestered or buried beneath the pavement because those systems take the form of radio transmission towers. Instead, cell towers must typically be in an open area (and thus visible) and situated in an overlapping grid that covers all places where a person would want to make a telephone call. That's everywhere!

This puts the populace surrounding a potential site in a position of wanting a tower to exist, just not wanting it there. This is the NIMBY, or "Not-In-My-Back-Yard" obstacle. NIMBYs are groups of citizens and organizations that, at least in the context of cellular telephones, oppose the currently proposed site, but would support the tower's existence in another location. While immediately reasonable in any instant debate, this problem only becomes apparent when it is considered that every site would have its own separate NIMBY group in opposition. Left unrestrained, these isolated NIMBYs could comprehensively halt cellular service.

In response to this problem, the federal government amended the Federal Telecommunications Act in 1996. This act declares the ground rules for resolving these conflicting interests. These rules are clearly designed to further the placement of towers, as some reasons for denying a cell tower site are proscribed completely and all others must meet a standard of substantial evidence. This evidentiary standard is the fighting issue in these decisions which are very valuable to both the cellular service providers and the landowners who own the proposed site. In "Can You See Me Now? The Struggle Between Cellular Towers and NIMBY," Camille Rorer explores many such disputes and identifies five of the most common arguments put forth by NIMBYs. Each argument in analyzed from its legal and, when necessary, scientific positions. As our reliance on such communication enhancing devices increases as a society, so will these types of dispute. Through her analysis, Ms. Rorer offers a well considered understanding of what is likely to be a common dilemma.

Obama v. Kentucky Coal

By: Zach Greer, Staff Member

Earlier this month, President Obama and his administration released their proposed fiscal budget for 2011, which will "cut roughly $2.3 billion in coal subsidies over the next decade." Halimah Abdullah, Ky. lawmakers blast federal budget's proposed coal subsidy cuts, Lexington Herald-Leader, Feb. 1, 2010, available at http://bluegrasspolitics
bloginky.com/2010/02/01/ky-lawmakers-blast-federal-budgets-proposed-coal-subsidy-cuts/. These cuts, as well as "the repeal of roughly $36 billion in subsidies to the oil and gas industry," stem from last year's G-20 summit, where the Obama administration agreed to "phase out fossil fuel subsidies to help reduce global greenhouse gas emissions by 10 percent." Id. While environmental groups support the President's budget, claiming that it "'promotes America's energy independence by reducing our reliance on foreign oil, starting the transition away from dirty fossil fuels, and investing in conservation and clean power like wind and solar,'" others worry that removing these subsidies could be detrimental to those Kentucky individuals, families, and counties that depend "on coal for their livelihood." Id.

The Obama Administration's position, evidenced by a White House Office of Management and Budget analysis released earlier this month, is that "coal subsidies are costly to the American taxpayer and do little to incentivize production or reduce energy prices." Id.

However, the Commonwealth of Kentucky "has been one of the top three coal producers in the United States for the last 50 years." In 2006, the Kentucky industry "directly employ[ed] 17,669 persons" and had "average electricity costs [of] 5.43 cents/kilowatt-hour, the 4th lowest in the United States." Kentucky Office of Energy Policy, Expanded Online Kentucky Coal Facts, http://www.coaleducation.org/Ky_Coal_Facts/default.htm (last visited Feb. 20, 2010).

The White House states, "removing these [coal] subsidies would reduce greenhouse gas emissions and generate $2.3 billion of additional revenue over the next 10 years." Abdulla, supra.
But, in December 2009, Kentucky's jobless rate rose to 10.7 percent. Justine Detzel, Kentucky's jobless rate increases to 10.7 percent in December, Workforce Kentucky, Jan. 21, 2010, available at
http://www.workforcekentucky.ky.gov/article.asp?PAGEID=4&SUBID=&articleID=844.

With such a high unemployment rate, are the Obama administration's proposed budget cuts beneficial or detrimental to the Commonwealth of Kentucky? Any thoughts?

Animal Welfare Bill Reaches the Kentucky State Senate Floor

By: Katie Huddleston, Staff Member

On February 4, 2010, the Agriculture Committee in the Kentucky State Senate passed a bill creating a commission "to set rules for how animals are treated on farms." American Agricultural Law Association, Farm Animal Welfare Bill Passes Kentucky Senate Committee, THE UNITED STATES AGRICULTURAL & FOOD LAW AND POLICY BLOG, February 4, 2010, http://www.agandfoodlaw.com/search?updated-max=2010-02-08T08%3A49%3A00-08%3A00&max-results=7. The measure, sponsored by Committee Chairman David Givens, a Republican from Greensburg, Kentucky, is not the first of its kind, but rather follows an example set by Ohio last fall. Gregory A. Hall, Senate Committee Passes Farm Animal Welfare Bill, THE COURIER JOURNAL, February 4, 2010, available at

http://www.courier-journal.com/article/20100204/BUSINESS/2040336/Senate-committee-passes-farm-animal-welfare-bill. Ohio State Congress passed a bill creating a "Livestock Care Standards Board" that would set similar rules for the treatment of livestock on farms. The measure was later made law by a statewide ballot initiative. American Agricultural Law Association, supra.

The Kentucky bill creates a "standards board," like that in Ohio, which will be made up of fourteen members, will be chaired by Agriculture Commissioner Richie Farmer, and will include the State Veterinarian Robert Stout, who will be a non-voting member. Hall, supra. The bill, although it prevents local governments from passing "standards that are stricter than those set by the state commission," expressly states that "it does not preclude the authority of the Kentucky Horse Racing Commission and the Kentucky Board of Veterinary Examiners." Id. According to Senator Givens, the goal of the commission is to ensure that "the conversation" about animal rights on farms "be driven by scientific standards and practical animal care standards and […] not be driven by emotion." Id.

Put more bluntly, proponents of the measure seek to "pre-empt animal-rights groups from changing state livestock laws via ballot initiatives." American Agricultural Law Association, supra. Specifically, Commissioner Farmer cites his desire to "block efforts seen in other states by groups like People for the Ethical Treatment of Animals and the Humane Society of the United States to restrict farming the name of animal welfare." Hall, supra. The Commissioner went on to further demonstrate his wariness of claims of animal abuse on farms, saying that it "simply doesn't make sense that farmers are going to mistreat their animals because that's how they make a living." Id. Taking a more tempered approach, State Veterinarian Stout acknowledges that "some animal abuse complaints are valid," but also cautions that "many are not and the people reporting them are often not […] familiar with agricultural practices." Id.

Having passed the Senate Agriculture Committee, the fate of the Commission is now on the Senate Floor where the measure will either be defeated or passed and sent to the House for its consideration.

Must NEPA Always Be Followed to the Letter When Obtaining an Environmental Assessment to Acquire a Conservation Easement?...

...After All, Aren’t We Maintaining the Environmental Status Quo?”

Note By: Ben W. Alderton; Originally published in JNREL Vol. 19, No. 2

Abstract By: Brandon Wells, Staff Member

Land that the Department of Defense (“DOD”) has been entrusted with for the training of military personnel has increasingly become a refuge for many threatened and endangered animals. Questions about what the DOD should do in this scenario have led to the solution of allowing the DOD to purchase lands surrounding training grounds and designating them as conservation lands. But, another question has arisen from these purchases of conservation lands. When acquiring conservation lands, should the DOD (or any other military department) be required to comply with the National Environmental Policy Act (“NEPA”) and prepare an Environmental Assessment (“EA”)?

NEPA is only triggered by a “major federal action”, and once triggered, requires the federal agency to complete an EA. An EA can result in one of two outcomes, either a finding of no significant impact (“FONSI”) or a duty to prepare an Environmental Impact Statement (“EIS”). Since acquiring conservation land would seem to lead to a FONSI, it seems wasteful to require a government agency to expend time and resources in preparing an EA. However, recent case law has not lead to a definitive answer.

“NEPA is a procedural statute that demands that the decision to go forward with a federal project which significantly affects the environment to be an environmentally conscious one.” Sabine River Auth. V. U.S. Dept. of Interior, 951 F.2d 669, 676 (5th Cir. 1992). The federal agencies have the responsibility for issuing the EA and the FONSI or EIS. Before the DOD or other federal department can issue a FONSI, they have to also issue an EA. An EA is not to be taken lightly, and can result in high expenses in both cost and time to federal departments.
The court in Sabine River came close to resolving this issue. The holding in Sabine River seemed to indicate that acquiring a conversation easement was merely maintaining the status quo, and therefore NEPA was not triggered. However, there was no specific language in the case stating NEPA was not triggered. Also, in Sabine River the federal agency had already prepared an EA, failing to answer the question of whether the EA was actually required.

There has been a circuit split on the issue of whether NEPA is triggered when the Department of the Interior is designating a critical habitat under the Endangered Species Act (“ESA”). Pacific Legal dealt with the specific issue of whether the federal agency must prepare an EIS when listing endangered species. The court in Pacific Legal noted that “the legislative history [suggests that NEPA] was not intended to be applied to agencies whose function it was to protect the environment.” Pacific Legal Found. v. Andrus, 657 F.2d 829 (6th Cir. 1981).

The Ninth Circuit case of Douglas County v. Babbitt addressed the issue of whether a federal agency triggered NEPA when it was acting within the statutory scope of the ESA because an EA had been prepared prior. Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). The court in Douglas County determined that NEPA did not apply to the designation of a critical habitat. However, in Catron County, the Tenth Circuit concluded that NEPA was triggered when designating a critical habitat under the ESA. Catron County Bd. of Comm’rs. v. Babbitt, 75 F.3d 1429 (10th Cir. 1996).

Even though the cases resulted in different outcomes, one possible explanation may be that in Douglas County the designation of habitats only affected federal lands. In Catron County some of the designated land potentially affected land owned by the county. Questions of standing such as these lead to the question of whether a challenge can be made to not preparing an EA in response to acquiring conservation easements.

A plaintiff who asserts purely economic injuries does not have standing to challenge any agency action under NEPA. Douglas County, 48 F.3d at 1499. Therefore, the plaintiff challenging the agency action must have some concrete and cognizable interest in the suit. Courts seem to be lenient in allowing plaintiffs to proceed, but one major group, developers, will undoubtedly be excluded by this standing requirement.

Thus, after much discussion, the question still remains as to whether the DOD must prepare an EA when acquiring these conservation easements. Sabine River seems to indicate that NEPA may not be triggered, but in that case an EA had already been filed prior to acceptance of the easement. The circuit split between Douglas County and Catron County doesn’t do much except to confuse the issue. Until the issue is taken up by Congress or the Supreme Court, the mystery will remain. In the meantime, prudence will likely require the DOD to prepare an EA to protect itself from litigation when acquiring conservation lands.

Proposed Legislation Seeks to Encourage Biofuel Industry

By: Derek Leslie, Staff Member

A new bill making the rounds in Congress could have a significant impact on agriculture across the country. Charles Abbot, House bill would prevent EPA regulating carbon, Reuters, Feb. 3, 2010, http://www.reuters.com/

article/idUSTRE6124L720100203. While the legislation, introduced by Representatives Ike Skelton, Collin Peterson, and Jo Ann Emerson, has received attention mostly for its provisions amending the Clean Air Act to exclude six greenhouse gases from being listed as "air pollutants," frustrating a recent EPA ruling that held otherwise, it also is meant to spur growth in the biofuel industry. Id. The bill would encourage greater use of biofuels in two ways. First, it would adopt a broad definition of biomass. This would include crops, trees, algae, and manure. All of which could be used to make renewable fuels. Id. The legislation would also allow for the use of biomass from federal forests and conservation areas. Secondly, the legislation would prevent the EPA from considering greenhouse gas emissions from foreign land use change, such as forest clearing or the development of cropland, when determining the relative emissions levels of fuel production. Id. These developments, their proponents claim, will help spur the growth of the renewable fuel industry in the United States. Id.

The new bill is far from a done deal however. It faces opposition from the Obama Administration, as well as from many members of Congress. Id. While comprehensive climate change legislation has stalled out in the Senate, this bill may fare better given its more limited scope. Nevertheless, due to its controversial provisions excluding some greenhouse gas from being listed as "air pollutants," it is likely to face a tough fight during this election year.

Welcomes the 2010-2011 KJEANRL Editorial Board

Over the past two evenings the current Editorial Board interviewed dozens on talented staffers to place on next year's board. After tough deliberations we have decided on 13 individuals for next year. One decision of note for online readers is that we have selected two individuals as Online Editors to work specifically on the blog. We hope that in the future this will increase the quality and content of the blog! Congrats to the new board!

Editor in Chief
Kyle Hermanson

Executive Editor
Jessica Drake

Technical Editor
Anthony Cash

Articles Editors
Addison Schreck
Stephanie Wurdock

Notes Editors
Zach Greer
Zach Becker

Comments Editors
Matt Cocanougher
Mattea Carver Van Zee

Online Editors
Kim Coghill
Tanner James

Production Editor
Bryan Henley

Administrative Editor
Ramsey Groves

Valid Concerns Over Environmental Tobacco Smoke or Rights Going Up in Smoke?: An Analysis of Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health

Comment by Emily Heady; originally appeared in JNREL Vol. 19, No. 2

Abstract by Mattea Carver Van Zee, Staff Member

Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health, 591 S.E.2d 744, 752 (W. Va. 2003), investigates a state's adjudication on the legitimacy of Clean Indoor Air Regulations (CIAR). While CIARs have been upheld on federal constitutional challenges, the question remains as to whether local health boards hold the authority to enact such regulations.

Foundation demonstrates the potential state application of legitimacy determinations by looking first to the state's legislative mandates. The Supreme Court of Appeals determined whether the West Virginia Legislature granted local boards of health the authority to prohibit smoking in public places. The legislation provided that environmental health protection included methods of promoting and maintaining clean and safe air, water, food, and facilities. Local boards of health may uphold these public interests where necessary and proper for the protection of the general health of the area and for the prevention of disease. The court determined that the CIAR was consistent with the Legislature's mandate maintaining that the Legislature had delegated broad power to the local boards. When regulations are promulgated by a legally enabled board of health, the regulations are to be construed as valid if the regulation is reasonably calculated to achieve the Legislature's intended result.

Constitutional challenges facing locally-promulgated CIARs include the taking of private property without just compensation and as an inappropriate exercise of eminent domain. The court concluded that a regulation does not represent an unconstitutional taking where the regulation is reasonably found to promote the health, safety, morals, or the general welfare of the public. Additionally, the regulation must not destroy all economic use of the property. Second, challengers contended that CIARs represent an unconstitutional deprivation of due process. The court distinguished that the bans were not deprivations as the regulations apply to truly public areas. Truly private areas, such as one's home, would not allow such regulations.

Third, challengers argued the regulations usurped the power of the state Legislature by creating criminal laws and penalties. Challengers failed to recognize the penal possibilities set forth by the Legislature itself. Instead of usurpation, the local boards of health were merely reciting the penalties in their own regulations. Fourth, it was argued that the local CIARs violated the equal protection clause of the state constitution. With the local CIAR, distinctions were made between differing types of facilities, such as bars, gaming facilities, and restaurants. While bars are exempted from the smoking bans, restaurants were not. However, the court reasoned that because the regulations did not differentiate between facilities of the same type, equal protection was not denied.

Aside from West Virginia, other localities have varied in upholding the constitutionality of such regulations. Like West Virginia, the states seem to focus on health issues, preemption, and property rights. In conclusion, it is unclear what other factors state courts will utilize to analyze the constitutionality of health-related regulations.

Senate Leaders Upset Over Russian Restrictions

By: Adrianne Crow, Staff Member

At the beginning of the year, the Russian government announced that it was imposing new restrictions on poultry imports. Rossella Brevetti, Senate Agriculture Leaders Blast Russian Meat Restrictions, Association of Brazilian Beef Exporters, Jan. 19, 2010, http://www.ab

iec.com/.br/eng/news_view.

asp?id={16946861-6B9C-457A-BBF6-0E6E27242A93}. Despite the fact that poultry processed with chlorine rinses has been found to be perfectly safe worldwide, Russia has decided that it will no longer accept poultry that has been processed using this technique. Id. Because most of the poultry plants in the United States employ this technique, Russia's ban effectively closes its market to the United States. Id.

In response to this action, the leaders of the Senate Agriculture Committee recently wrote to President Obama requesting that his administration work to open access to the Russian market for American producers. Id. The senators claim that Russia's "attempts to manage the flow or imports raises questions regarding Russia's willingness and readiness to become a member of the World Trade Organization." Id.

In addition to restrictions on poultry, there is also some indication that Russia may begin to impose more stringent restrictions on U.S. beef as well. Id. Speculations suggest that Russia would only allow imports of U.S. products that have been inspected according to Russian standards, a restriction that would have a significant impact on U.S. exports of pork, poultry and beef. Id. Due to the economic difficulties that many livestock and poultry producers are currently facing, U.S. senators are very concerned about the effect that the loss of the Russian market could have on this industry and worried that these new restrictions could make a struggling industry even worse off.

Sustainable Development and the Regulation of the Coal Bed Methane Industry in the United States

Article by: Allan Ingelson; Originally published in JNREL Vol. 20, No. 1

Abstract by: Derek Leslie, Staff Member

This article critiques the regulatory regime in place to facilitate Coal Bed Methane (CBM) development and production in the United States. Applying the principles underlying the concept of sustainable development, Professor Ingelson suggests that the regulations affecting CBM development are to a large degree a mixed bag and are far from being considered an example of regulation that would successfully promote sustainable development.

The article begins by considering both the theoretical underpinnings of sustainable development as well as the CBM regulatory process as it exists under the current framework. The President's Council on Sustainable Development (PCSD), established in 1993 by President Clinton, proposed ten draft sustainability goals that incorporated five widely recognized sustainability principles that provide the necessary metric for reviewing the CBM regulatory regime. These five baseline principles suggest that Sustainable Development 1) respects ecological integrity, 2) is based on an efficient use of natural, manufactured, and social capital, 3) promotes equity, 4) relies on participatory approaches, and 5) requires environmental stewardship by all levels of decision-makers.

The CBM regulatory system advances these principles to varying degrees. The system is only partially successful at respecting ecological integrity. Regulation advancing this principle includes the scheme's incorporation of the Endangered Species Act, an ecosystem management planning approach for federal lands, and environmental impact assessments under the National Environmental Protection Act (NEPA). However, due to constitutional constraints, much of the process is truncated with respect to development on private lands, where significant development is likely to occur. The principle of the efficient use of resources reveals a system that is to some points sustainable. However, it does not seem to provide for an efficient use of capital as neither full-cost accounting, a polluter pays principle, nor the precautionary approach have been fully incorporated. As to the promotion of equity, the regulatory scheme also fails. This sustainability principle suggests costs and benefits should be distributed equally among the current and future generations. However, the legal system now in place does not require CBM developers to compensate owners for "reasonable use" damage caused by CBM operations. Landowners may not receive compensation for loss of crops, soil damage, decreased land values, et cetera. Inter-generational equity is also challenged by the current regime, because of the nature of the development and current consumption of CBM, depriving future generations of this finite resource. The fourth sustainability principle of public participation is largely addressed by the framework in place. The environmental impact assessment process, as well as citizen lawsuit provisions, provides stakeholders with a reasonable opportunity to participate in the decision-making process. The fifth principle, stewardship, suggests the government must promote and advocate the idea of sustainability both to the public and industry. While the EPA's attempt to incorporate some sustainability concepts in the CBM regulatory framework represents to some degree this principle, the Bureau of Land Management, as well as the various state agencies, have shown no effort to provide leadership in pursuing sustainable CBM development.

Looking at these concepts in detail, Professor Ingelson concludes that the CBM regulatory system does not effectively promote CBM sustainability. While aspects of the system certainly aim towards the goal of CBM sustainability, other features of the regime clearly prioritize other policy goals such as economic growth and use of CBM as an energy resource.