Is President Bush’s Vision Impaired? An Analysis of President Bush’s ‘Climate VISION’ Initiative

By: Brittany Howell; article originally appeared in JNREL Vol. 19, No. 1

Abstract By: Ramsey Groves, Staff Member

The Department of Energy introduced the Bush Administration's "Climate VISION" initiative in February 2003. "VISION" represents "Voluntary Innovative Sector Initiatives: Opportunities Now." And its purpose is to encourage American businesses and industries to reduce the ratio of greenhouse gases (GHG's) by eighteen percent. However, because change is voluntary as opposed to mandatory, there is a concern that Climate VISION will have little positive impact on the environment.

Climate change references fluctuations in temperature, precipitation, and wind, and the impacts of these variations can be incredibly problematic. For example, experts predict that climate change will cause severe weather events, such as hurricanes, to occur more often. The earth's climate changes naturally due to variations in the concentration of certain gases in the atmosphere. However, humans can contribute to climate change when they engage in activities that emit greenhouse gases. Many of these gases are products of industrial activity, and thus a number of industries have a stake in the regulation of greenhouse gases.

Affected industries are not in favor of mandates requiring them to reduce emissions because this would be very costly. Further, the Bush Administration opposed policies that required reductions in emissions because of a fear that mandatory targets could harm economic growth. For instance, experts predict a considerable rise in gasoline and electricity prices in the event of emission regulation. The energy, manufacturing, transportation, and forest sectors of the economy would all be affected by mandates requiring emission reductions. While each of these sectors have taken some steps to reduce the ratio of greenhouse gases, many people feel that this voluntary program is not what is needed.

Opponents of the Climate VISION initiative take issue with, among other aspects, the fact that the program is voluntary. In the past, there have been several failures of voluntary initiatives. Few, if any, companies will voluntarily take steps to limit production in a way that will place them at a disadvantage relative to competition. Further, President Bush appears to have been influenced by friends in affected businesses. Critics claim that the Bush Administration consulted with oil companies concerning their climate change policy. These opponents argue that the input of oil companies resulted in an ineffective initiative.

Several viable alternatives to the Climate VISION initiative have been suggested by experts. One proposal is to begin a practice of carbon sequestration. Basically, this process entails storing carbon, a greenhouse gas, so that the buildup of carbon dioxide in the atmosphere will slow. Another alternative is to promote biomass energy.

While the Climate VISION initiative is a step in the right direction, it simply is not enough. Although we cannot implement a program that will negatively affect our struggling economy, other alternatives must be considered. Our legislators and policymakers must assume the task and make effective changes.

KJEANRL Spring Break 2010 Posting Schedule

Dear Readers,
This week the University of Kentucky is on it's annual Spring Break. Though classes are not in session we will be posting abstracts on Tuesday and Thursday.

Thank you for understanding!

Sincerely,
Mark Rouse, Production Editor

Training Minds to Consider the Environment: California’s Proposed Environmental Education Curriculum in Primary and Secondary Public Schools

By: Jessica Layne Drake, Staff Member

The children of our nation are, unquestionably, our future. They are the future presidents, congressmen, teachers, and parents who will pass on the American history and values that are taught to them from this generation. Most of this knowledge might come from the home, but a secondary, influential source is the school – most likely this influence comes from public education systems. The power of the school curriculum first made news this year with a New York Magazine article entitled How Christians Were the Founders, which discussed the Texas School Board's push to place emphasis on the Founder's intent to create a "Christian Nation" in their students' Social Studies education. Russell Shorto, How Christians Were the Founders, New York Times, Feb. 14, 2010, available at http://www.nytimes.com/2010/02/14/magazine/14texbooks-t.html?pagewanted=1. However, Texas is not the only one making changes to its curriculum in an effort to educate in a different way. California, while not as influential with textbook publishers as Texas (mostly because of its despairing financial state), has been working with the State's Environmental Protection Agency to find a way to bring a greater focus on the environment in elementary and secondary public schools – hoping to encourage students to grow up to become future scientists and green technology leaders. California Environmental Protection Agency, http://www.calepa.ca.gov/education/eei/ (last visited Mar. 1, 2010).

This initiative, termed the Education and Environment Initiative (EEI), would affect over 1,000 schools that serve over 6 million children across the state of California. Id. This movement began with legislation mandating the curriculum in public schools in 2003, and required several different California agencies to work together in this nation-leading effort. Id; See 2003 Cal. Legis. Serv. Ch. 665 (A.B. 1548) (West); 2005 Cal. Legis. Serv. Ch. 581 (A.B. 1721) (West). As of this year, proposed legislation will further the initiative in mandatory inclusion of environmental issues taught in public schools. Cal.Pub.Res.Code § 71303 (2009). On January 7, 2010, the California Environmental Protection Agency released a statement declaring that the final approval of this proposed curriculum was granted by the California State Board of Education. California Environmental Protection Agency, Press Release: State's First Environmental Education Curriculum Receives Approval from the State Board of Education (2010), http://www.calepa.ca.gov/PressRoom/Releases/2010/Jan06EEI.pdf. Its implementation, therefore, appears imminent.

Specifically, the curriculum will encourage and teach environmental protection and preservation that will work to establish a green economy in the state. Id. Further, it will expand environmental literacy among students and teach them problem-solving mechanisms in particular environmental areas. Id. Collectively, it will impact public school children in grades K-12 covering 85 EEI Curriculum units that will cover content standards in both Science and History-Social Science. California Environmental Protection Agency,

http://www.calepa.ca.gov/Education/EEI/Curriculum/Default.htm#CurriculumUnits.

While California is the first state to attempt this type of curriculum for their primary and secondary schools, hopefully it will not be the last. Our young students are who we will want to look for in the future for imagination and initiative in a continuing effort to protect and preserve the environment so vital to our world. As Senator Fran Pavley, who first introduced the 2003 legislation, stated in support of the curriculum, "today's environmental issues are integrated into everyday life, and this curriculum gives us the opportunity to help shape our future leaders and educate them about preserving our environment through their everyday academics." California Environmental Protection Agency, Press Release: State's First Environmental Education Curriculum Receives Approval from the State Board of Education (2010), http://www.calepa.ca.gov/PressRoom/Releases/2010/Jan06EEI.pdf. If we support a better environmental education to our students, we very well can assist, today, those future leaders in bettering their own world in the future, for tomorrow is only a day away.

Should CERCLA Contribution Action Be Available to Potentially Responsible Parties Absent Federal Civil Action?

Article By: Patricia L. Pearlberg; originally published in JNREL Vol. 19, No. 1

By: Natasha C. Farmer, Staff Member

Congress enacted the Comprehensive Environmental Response, Communication, and Liability Act ("CERCLA") on December 11, 1980. This Act was subsequently revised and reauthorized with the enactment of the Superfund Amendments and Reauthorization Act ("SARA"). These two enactments are collectively referred to as CERCLA. CERCLA was designed to prevent further contamination and the release of toxic substances by requiring clean-up of existing hazardous sites, ensuring that the costs of cleaning up these sites are borne by the "responsible" parties, and creating liability provisions to deter future environmental releases by imposing high costs on careless waste management and disposal practices.

Under CERCLA, Potentially Responsible Parties ("PRPs") are defined broadly and can include past operators and owners of facilities who can be sued. In determining liability, courts have determined that liability under CERCLA is strict, joint, several, and retroactive. In Avaiall Services, Inc. v. Cooper Indus., Inc., 312 F.3d 677 (5th Cir. 2002), the defendant and its predecessor companies owned and operated three facilities and were engaged in the business of aircraft engine maintenance that "required the use of petroleum and other hazardous substances." The plaintiff purchased the facilities and the aircraft engine maintenance business from the defendant. As a result of the hazardous substances seeping into the ground and groundwater, the plaintiff initiated an extensive cleanup, costing it millions of dollars and lasting for more than a decade. Soon after, the plaintiff filed a § 113(f)(1) contribution suit under SARA alleging the defendant as a PRP.

Section 113(f)(1) of SARA was enacted by Congress to encourage cost sharing among PRPs. This section allows PRPs to seek contribution from other PRPs if it assumed a disproportionate share of the cleanup costs, as the plaintiff claimed here. However, there is much dispute on what the statutory language of this section means. There are disputes to whether Section 113(f) is only limited to federal contribution actions "during or following" a federal action. Patricia L. Pearlberg's article, "Should A CERCLA Contribution Action Be Available To Potentially Responsible Parties Absent Federal Civil Action?" discusses CERCLA's statutory language and structure, legislative history, and public purpose of the Act.

Government to Fund Racial Bias Settlement with Black Farmers

By: Sunni Harris, Staff Member

In Pigford v. Glickman, 127 F. Supp.2d 35 (D.D.C. 2001), Black farmers claimed that the USDA discriminated against them "on the basis of race, and failed to investigate or properly respond to complaints from 1983-1997." Tadlock Cowan & Jody Feder, The Pigford Case: USDA Settlement of a Discrimination Suit by Black Farmers, (2009), http://www.nationalaglawcenter.
org/assets/crs/RS20430.pdf. While this case was settled in 1999, a new settlement was announced on Feb. 18, 2010 that addresses claims from black farmers who were excluded from participation in the earlier settlement. Paul Courson, Black farmers: Government to fund racial bias settlement, Cnn, Feb. 18, 2010, http://edition.cnn.com/2010/US/02/18/black.farmers.lawsuit/index.html?iref=allsearch. In the end the parties were able to reach a settlement. Id.

Although a settlement has been reached, the 2010 farm bill still needs to be approved by Congress which would place at least $1 billion in the hands of individuals who have received judgments in compensation claims. Id. Secretary of Agriculture Tom Vilsack doesn't think that "anybody in Congress doubts there's a responsibility to settle." Id. The secretary believes that the reason why funding wasn't provided to black farmers in the past was because there was concern by lawmakers that no agreement had been reached. Id. Since an agreement was reached on Feb.18, 2010, funding is now much more likely.

Once the farm bill is funded, there are two ways in which qualified black farmers can receive a payout: (1) On track A, qualified farmers would receive $50,000 "with minimal proof linking discrimination to the denial of federal farm support." Id., and (2) On track B, "A more rigorous system of proof could establish actual damages and yield a potential payout up to $250,000, depending on how many other claimants also prove their cases to draw from the funding provided by Congress." Id.

The implications of the black farmers settlement may be far reaching. Around the same time that black farmers filed their initial suit against the government, several other minority groups, including but not limited to females, Hispanics, and Native Americans, filed similar actions claiming bias in the way the USDA disbursed loan money. In the coming months we may see the government attempt to settle claims with these minority groups as well. However, if the government chooses not to settle with these similarly-situated minority groups, we may see a backlash from these communities.

Arizona v. California III: Res Judicata, Collateral Estoppel, and Indian Water Rights

Comment By: John J. Goodman; originally appeared in JNREL Vol. 19, No. 2

By: Katie Shoultz, Staff Member

In Arizona v. California, 530 U.S. 392 (2000), the fundamental issue was whether the Quechan Tribe's claims for compensation and water rights for 25,000 acres of reservation boundary land were precluded by reasons of Arizona v. California, 373 U.S. 546 (1963) (hereinafter Arizona I) or by a 1983 consent judgment issued by the U.S. Claims Court (hereinafter Arizona II). In Arizona I, the Court ruled with respect to the priorities of water rights but did not decide the rights of the parties in areas where the boundaries of the reservation remained in dispute. In Arizona II, the federal government and the Quechan Tribe reached a settlement without the boundary land water rights issue being addressed. In the latest case, Arizona III, the Supreme Court ruled that the states' preclusion argument was barred as it was not brought forth in a timely fashion. The Court also ruled that the Quechans' acceptance of the earlier settlement did not inherently contain an issue preclusion.

Arizona III details the longstanding legal saga between the Quechan Tribe and several western states regarding the dispute over ownership of the land with the associated water rights and examines the implications of the Court's decision in regards to Native American natural resources law. Even though the question of ownership remains unanswered since 1893 despite three court cases, three Department of Interior declarations, and a cash settlement of $15 million by the federal government, the implications of this decision are likely far-reaching.

First, the concept of res judicata is applied as a claim preclusion in this case, but it also could be viewed as a means by which judicial administration remains manageable. Second, even though the monetary settlement eliminated the Quechan Tribe's claim against the federal government, it did not eliminate the issue of water rights. This finding may prompt other tribes to review their settlements for unresolved issues. Third, the Court's decision to ignore a portion of the Indian Claims Commission's process may encourage other tribes to view such settlements as potentially non-binding and seek alternative remedies. Finally, the Court's ruling of res judicata may allow for an unequal approach to the different tribes.

Although the case involved important civil procedure concepts, the economic impact is certainly of great importance. Because the case was remanded back to the Special Master to determine the water rights, the Quechan Tribe may successfully establish rights to 25.6 billion gallons of water from the Colorado River on an annual basis. This water can then be sold in a bidding process. As such, enormous economic ramifications can result from the final judgment.

Equine Abuse and Neglect Educational Program in Kentucky

By: Katie Shoultz, Staff Member

In Kentucky, an educational program designed to help law enforcement officials detect equine abuse and neglect is being conducted by Speak Up For Horses. Speak Up for Horses is a non-profit organization that came into existence in 2006. Its primary mission is "to educate the public on the plight caused by an unknowing public, by inadequate
horse welfare laws, and by the woeful enforcement of existing laws at the federal, state, and local levels." Speak Up For Horses, http://speakupforhorses.org/about.lasso (last visited Mar. 3, 2010). The program, although primarily geared towards law enforcement and elected officials, is open to the public in an effort to encourage awareness and action. As part of the program, the Henneke Horse Body Condition Scoring System is taught as a means by which an official can decide whether intervention is necessary. This system is used throughout the country and provides one of the more uniform methods of determining horse abuse and neglect. The scoring system rates a horse from one to nine in terms of body fat and is viewed by many as an objective method. Equine Protection Network, Henneke Body Condition Scoring Chart, http://www.equineprotectionnetwork.com/cruelty/henneke.htm (last visited Mar. 3, 2010). It is also accepted by courts when such cases are litigated. Id.

Another aspect of the program is the discussion of animal cruelty law in Kentucky. Jared Nelson, Horse Abuse Case Prompts Training, The Times Leader Online, June 14, 2009, http://speakupforhorses.org/timesLeader.pdf. Kentucky law provides, in part, that a person is guilty of animal cruelty to animals in the second degree when though intentional or wanton behavior, a four-legged animal is subject to beating, mutilation, torture, torment or a failure to provide adequate food, drink, space, or health care. Ky. Rev. Stat. Ann. § 525.130(1)(a) (2009).

Because the law does not criminalize negligent behavior, this program is particularly helpful in instances where the abuse or neglect stems from lack of knowledge as to how to properly care for horses. Of course, in instances where the behavior is intentional or wanton, the program also equips those most often called to the scene with useful methods of ascertaining the situation, which can eliminate confusion and prompt greater enforcement of the anti-cruelty provisions.

The Balancing of Coal and Coalbed Methane Interests Within the Coalbed Methane Statutory Schemes of Virginia, West Virginia, and Kentucky

Article by: Sharon O. Flanery and Leslie R. Miller-Stover; originally appearing in JNREL Vol. 19, No. 2

Abstract by: Kyle Hermanson, Staff Member

Virginia, West Virginia, and Kentucky each have coal seams that lay within the Appalachian Basin and each of the states have adopted statutory schemes designed to maximize the utilization of those natural resources. Their statutes are intended to both ensure the safe production of coalbed methane (CBM) and coal within the same coal seam and balance the rights of the CBM and coal interest holders when they conflict. In 1990, Virginia became the first of the three states to specifically regulate the production of CBM, doing so within its existing scheme of oil and gas regulations. Virginia's statute states that its provisions should be construed to encourage the exploration for and production of the Commonwealth's oil and gas reserves. The statute goes on to provide that the production of coal should be maximized so long as it does not substantially affect the rights of a gas or oil owner. West Virginia and Kentucky's statutes differ in that they emphasize the recovery of coal and that the recovery of CBM should be promoted, provided it does adversely affect the safety or mining of coal seams.

CBM is natural gas that lies trapped in coal seams. CBM is unique in that it is both generated and stored within coalbeds, with the coal acting like a sponge and storing six times the volume of natural gas found in conventional reservoirs. CBM is often produced as a safety measure in advance of underground mining. However, CBM can also be produced for commercial reasons from unmined coalbeds as well as from the fractured rock wastes generated by longwall mining. In order to produce CBM, "stimulation" of the coal seam is usually required. Fluids are injected into the seam at high pressures in order to stimulate the coal and release the gas. There is some concern that this process may affect both the safety and productivity of coal mining.

Despite Virginia's stated emphasis on gas production over coal, the Commonwealth has the toughest standard for the production of CBM, requiring coal owner consent before a permit for stimulation can be granted and providing no venue for appeal should consent not be obtained. West Virginia and Kentucky, like Virginia, also require a permit for stimulation. However, where consent cannot be obtained, both states allow the stimulation applicant to request a hearing before a state agency review board. At the hearing, the applicant must prove that the stimulation will not render the coal seam unmineable or unsafe for mining in order to obtain a permit. In West Virginia, even if a CBM producer obtains a stimulation permit, absent coal owner consent, the producer is subject to tort liability for any damage caused to coal or mining equipment by the stimulation.

In addition to stimulation, the location and spacing of CBM wells provide ample grounds for conflict between CBM producers and coal operators due to potential safety hazards and significantly increased costs to coal operators related to well placement. Through the enactment of statutes, Virginia, West Virginia, and Kentucky have addressed these and several other issues involved in balancing the interests of the producers of two valuable resources, however each state's statutes differ in their specifics and goals.

Recession May Provide Opportunity for Senator to Stifle EPA’s Regulatory Authority under the Clean Air Act

By: Addison Schreck, Staff Member

In December of 2009, the Environmental Protection Agency announced that it had conclusively determined that greenhouse gases, previously notorious primarily for their effects on the environment, also threaten public health. msnbc.com, EPA: Greenhouse Gases are Dangerous to Humans, Dec. 7, 2009, http://www.msnbc.msn.com/
id/34311724/ns/us_news-environment/. In making this determination the EPA cleared the way for regulation of greenhouse gases under the Clean Air Act. This announcement peaked the interests of environmentalists and the fears of big businesses across the country.

Even more recently, on February 2^nd, Senator Lisa Murkowski (Alaska (R)) introduced a resolution intended to strip the EPA of the aforementioned ability to regulate greenhouse gases via the Clean Air Act. John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html. In addition to curtailing the EPA's ability to regulate six of the primary gases blamed for global warming, the bill seeks to restrain the EPA from finding that U.S. fuel production of biofuels, such as ethanol, is responsible for forest clearing and cropland expansion. Charles Abbott, House Bill Would Prevent EPA Regulating Carbon, Scientific American, Feb. 3, 2010, http://www.scientificamerican.com/article.cfm?id=house-bill-would-prevent.

The concerns voiced by Murkowski, which include predictions of increased agriculture costs come as no surprise after the alarms raised by the national business community in past years. Deborah Zabarenko, CO2 Regulation Could Hit 1 Million U.S. Firms, Reuters.com, Sept. 16, 2008, http://www.reuters.com/article/idUSN1529571120080916. The senator's resolution would require a majority vote in the Senate, and if the resolution does advance through the House it would face the near certainty of veto by President Obama, "because it would rob him of a critical regulatory tool." John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html.

The mood in the United States is one of hope, hope that we have seen the worst of the recession. Whatever legislation or regulation comes into existence, the tenuous economic situation the in which the country and world are positioned must be taken into account. So many of the jobs lost in the current recession are said not to be coming back, and we are seeing entire professions virtually disappear, whether to overseas markets or the relentless march of time. Catherine Rampell, The Growing Underclass: Jobs Gone Forever, N.Y. Times, Jan. 28, 2010, available at http://economix.blogs.nytimes.com/2010/01/28/the-growing-underclass-jobs-gone-forever/. However, the promotion of growth does not mean that progress on the climate change front must come to a halt. At least one side of the debate sees hope in the possibility of so called "green jobs," and if the old industries are no longer interested in doing business within our borders, then what's so wrong with reinventing ourselves? Carol E. Lee, Obama Focuses on Green Jobs, Politico, March 23, 2009, http://www.politico.com/news/stories/0309/20360.html. Necessity has always been the mother of invention, a quick look at today's headlines, and it's obvious, it's time to get inventive.