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Blog to observe Summer Break

Dear Readers,
I would like to take this time to thank you for participating in our blog during it's inaugural year. In it's first year the amount of feedback and subscribers has surpassed what we ever imagined. Because of the success of the blog we have added two online editor positions to the editorial blog. Kim Coghill and Tanner James will be taking over the reins from me and lead the blog this upcoming year. Currently the University of Kentucky College of Law is commencing finals and we cannot ask our staff writers to commit to posting while studying for finals. The success of this blog would not be possible without them and I would like to thank all of them as well as the editorial board for allowing me to undertake this project. I believe that the future of law journals lies in the Internet where ongoing dialogues can develop between legal scholars, students and practitioners.

Because school is not in session over the summer it is unlikely that posting will recommence until August. I have no doubt that at that time the blog will be back better than ever. Again, thank you for your time. This is Production Editor Mark Rouse signing off!

Jockey Safety: Mandatory Medical Information Reporting

By: Jennifer Parker, Staff Member

A study of the years 1993 through 1996, reported in The Journal of the American Medical Association, found that 6545 injuries to jockeys occurred during official horse races in those years. Anna E. Waller, et al.,

Jockey Injuries in the United States

, Journal of the Amer. Med. Assoc. 1326, 1327 (2000). To help deal with these injuries more quickly and safely, many racetracks across the nation have requested that jockeys voluntarily submit their medical information to the track before races. Jeffrey McMurray,

Keeneland Mandates Jockey Medical Information

, Bus. Wk., Apr. 15, 2010,

available at

http://www.businessweek.com/ap/financialnews/D9F3HJJO1.htm. This information is compiled in the Jockey Health Information System, in operation since 2008.

Id.

In this way, medical personnel at the track are able to quickly determine any pertinent medical conditions, allergies, etc. in order to safely treat jockeys at the track.

Recently, Keeneland Race Track in Lexington, Kentucky announced that submission of jockey medical information is now mandatory at the track prior to entering a race.

Id.

While numerous tracks make such submissions voluntary, Keeneland is the first track to mandate it.

Id.

However, since Keeneland's track physician, Barry Schumer, estimates that prior to the mandate approximately 95% of jockeys submitted their medical information voluntarily, it seems that making this a requirement will create no significant problems with compliance.

Id.

The most significant concern with such a requirement would likely be privacy issues if some jockeys do not wish to provide certain medical information. Such privacy issues are protected by this system, however. The Jockey Health Information System can only be accessed with an identification code by medical professionals.

Id.

With such a high number of injuries being incurred by jockeys on racetracks and significant compliance already, mandating submission of medical information is a move in the right direction regarding jockey safety. With success stories already arising from access to this reporting system, other tracks are likely to follow Keeneland's lead and make submission of jockey medical information a requirement. But jockeys should be aware that this is a new requirement that may be catching on nationwide. They will need to determine whether reporting their medical information is voluntary or mandatory at a particular track prior to racing there and deal with any problems they might have with this beforehand, so as not to be prevented from racing.

It’s Time for the Lobster Monopoly to End: Maine Needs to Grow Up Like Its Lobsters

Article By: Leslie M. MacRae, JNREL Vol. 18, No. 2

Abstract By: Brandon Wells, Staff Member

Want to go to Maine and catch your own lobster? Well you may find yourself in a lot of trouble. Along with other types of regulation such as limiting quotas, equipment regulation, and seasonal restrictions, Maine has a system of regulation based on state citizenship. In effect, this means that unless you have been a resident of Maine for at least a couple years or so, and in some cases have participated in a type of lobster apprenticeship, you can forget about commercially fishing for lobster legally. While many of the types of regulations used by Maine on its lobster industry are legal and in many cases promote economic well being, regulations based on durational residency requirements are arguably unconstitutional.

Some earlier cases with facts very similar to the issue in Maine have been decided based on the Privileges and Immunities Clause of the United States Constitution. In the earlier case, Hicklin v. Orbeck, 437 U.S. 518 (1978), the court fashioned a two-part test to determine unconstitutionality. The first part of the test was that the state had to demonstrate that non-residents constituted a particular "source of evil." The second part of the test stated that the discrimination had to have a "substantial relationship" to the problem. Being able to prove that non-residents are sources of evil will be hard for Maine, or any other state to do, although it has happened in some cases. See State v. Kemp, 44 N.W. 2d 214 (S.D. 1950).

Over thirty years ago, Maine had implemented a durational residency requirement much like the one they have today. In 1974, the case of Massey v. Appolonio held that the residency requirement violated the Equal Protection Clause. Massey v. Appolonio, 387 F. Supp. 373, (D. Me. 1974). The only problem with the court's decision was that it made clear that it was only discussing the constitutionality of the residency requirement (which was three years at the time) and not whether Maine was able to limit fishing to Maine residents only. In a future suit based on these unresolved matters, it seems likely that Maine will be in a very precarious position, and may very well lose again.

It is anticipated that Maine will argue that nonresidents are a "source of evil" when it comes to protecting their local commercial lobster industry. Maine may say that they are protecting their culture, but it is extremely hard to see how the residency requirements would solve this problem. Even so, there are many other ways to protect this perceived harm, such as regulations based on the type and size of boat.

Maine may additionally argue that non- residential lobstermen will destroy the state's conservation efforts. However, non-residents will be subject to the same regulations and laws as Maine lobstermen. Another potential argument is that lobster is the state's own unique resource. Nevertheless, there are a number of facts to rebut Maine's argument, as lobsters are mobile and are found in many spots far south of Maine on the east coast. Also, the Court has all but out right rejected the idea of ownership over living natural resources.

Along with this shift in thinking by the Court, along with the rigid tests of the Privileges and Immunities Clause and the case law that follows it, Maine will have a very difficult time holding its durational residency requirement up to constitutional muster. Maine has the ability and the knowledge to maintain its beautiful industry and resources without resorting to such illegal statutes and manners. Putting to work its legal and constitutional controls over lobster fishing will see to it that Maine's foothold in the commercial lobster industry continues for many years to come.

Is Cap and Trade Really "Dead"?

By: Brandon Wells, Staff Member

Over the past year, a major hot button issue that has enraged and divided those in the coal industry and those working for environmental protection is the cap-and-trade legislation debate. Cap-and-Trade essentially involves setting the limits at which power plants and other polluters can send emissions into the air, and at the same time creating a trading market for those plants to trade emission limits.

Proponents of cap-and-trade see the bill as an economic solution to the issue of greenhouse gas emissions and pollutants, allowing trading to properly reflect demand and to influence participants to lower their greenhouse gas emissions. The bill will also force participants to invest more in pollution control, enabling them to sell unused credits.

The coal industry basically sees the bill as nothing more than another regulation being imposed on an industry that is already prone to an extreme amount of regulation. Cap-and-trade is a threat to the coal industry because it has the possibility to greatly lower the demand for coal, greatly affecting energy prices, especially in places where coal makes energy costs very low. Since plants must lower their pollution, they will be very cautious and may take less coal and take more costly, cleaner forms of energy. They may also invest more heavily in pollution control. Both of these costs will be passed on to the ultimate consumer, raising energy costs for all.

But as of just last month, Senator Lindsey Graham, a leader in getting cap-and-trade legislation passed has declared the bill "dead." Darren Samuelsohn, G

raham's Cap-And-Trade Pronouncement Reframes Hill Debate,

The New York Times, March 3, 2010

available at

http://www.nytimes.com/gwire/2010/03/03/03greenwire-grahams-cap-and-trade-pronouncement-reframes-h-19532.html

.

Senator Graham claims himself that his statements were only meant to stir debate, and they certainly have. Some are now worried that the United States is moving in a radical direction when it comes to climate change, and are moving away from the cap and trade legislation.

Id.

Others are not necessarily convinced that anything has changed and that cap and trade is cap and trade no matter what you call it.

Id.

It remains to be seen this coming year whether or not cap-and-trade or some other form of climate legislation will make it through Congress. But what do you think? Is Cap-and-trade really "dead?"

Legislature approached with differing slot machine plans for Horse Industry

By: Tara Hester, Staff Member

Disclaimer: The following post reflects the views of the author and not that necessarily of

KJEANRL

.

Governor Beshear's slot plan was not received well by the House or Senate. House Speaker Greg Stub filed a competing plan shortly after receiving Beshear's, which would spend the tax revenue from slots on a massive school construction program, instead of helping to erase the shortfall in the next two years budget, as Beshear had proposed. Janet Patton,

Beshear Slots Plan Gets Tepid Reception

, Lexington- Herald Leader Jan. 21, 2010, available at

http://www.kentucky.com/2010/01/21/1104634/beshear-slots-plan-gets-tepid.html

(last April 2, 2010). House Democrats have caucused to get support for Beshear's proposal, which would allow racetracks to add electronic slots under existing lottery laws.

Id.

However, although no official vote was taken, it appears that there was not much sentiment in favor of Beshear's bill, with one Representative calling the plan "delusional".

Id.

Stumbo said of his own competing bill "over a billion dollars worth of construction… best thing we could do for the budget is create jobs all over the state".

Id.

Stumbo said in his bill anticipates that 400-500 million in state tax revenues will be collected from slots over the next two years when all facilities are fully up and running.

Id.

Beshear said temporary slots could be up and running within six months, and projected 295 million in tax revenues for the first 18 months of slots.

Id.

Beshear's plan also takes into account the new casino's in Ohio, which is estimated to cut revenues at Turfway Park by 40%.

Id.

The horse industry seems to be very supportive of Beshear's and Stumbo's proposals, in a large part because the horse industry is facing significant competitive challenges.

Id.

However, while seemingly supporting both Beshear and Stumbo's bills, many in the horse industry are willing to talk with others proposing plans in an effort to help the struggling industry, and it seems that slots may be the best way to do this.

Id.

Statutory Interpretation and the Chevron Test in Citizens Coal Council v. Norton: A Problem of Administrative Law in the Context of Environmental Policy

Article By: Erin G. McKenzie; JNREL Vol. 18, No. 2

Abstract By: Bryan Henley, Staff Member

Passed in 1977, the Surface Mining Control and Reclamation Act (SMCRA) set forth a new federal regulation system on coal mining. As evidenced by its name, the SMCRA is designed to regulate surface mining, which it does by creating a federal agency, the Office of Surface Mining (OSM). This agency's role is to oversee state regulation of mining by assuring compliance with federal standards. These federal standards, also laid out in the SMCRA, proscribe "surface coal mining operations" in national parks and other similar areas. However, what happens if underground mining affects the surface? Subsistence is a term that describes some of the effects that underground mining can have of the surface land above the mine; but is it regulated by this statute? The answer is not as forthcoming as one might hope.

The SMRCA, through its original text and amendments, was possibly subject to two alternative interpretations. In Citizen's Coal Council v. Norton, the federal courts were forced to confront this conflict and determine if the language of the statute generally prohibited subsistence. Citizen's Coal Council v. Norton, 330 F.3d 478 (D.C. Cir. 2003). The Secretary of the Interior (and National Mining Assoc., an intervening defendant) interpreted the statute to indicate that the subsistence was not within the scope of the SMRCA , and thus underground mining was permissible in the protected areas where surface mining was not. Citizen's Coal Council, argued that this interpretation was arbitrary and capricious, therefore an inappropriate administrative action under the Administrative Procedures Act. Resolution depended upon the court's application of the Chevron test.

The Chevron test provides a framework for a court to analyze an administrative agency's interpretation of a statute. The test first requires the court to analyze if the statute is clear. If the statute is clear, then it is followed. If the statute is not clear, then the agency's interpretation is afforded deference and the court upholds that interpretation as long as it is reasonable. The district court granted summary judgment, finding that the statue was clear and denied underground mining in protected areas. The appellate court reversed, holding that the statute was unclear but that the agency's interpretation was reasonable. What should be a conceptually simple test was applied to directly opposite results by these courts. This highlights the difficultly of applying the Chevron test. In her article, Erin G. McKenzie analyzes the problems in applying this test and its possible effects such an inconsistency may have on the coal industry.

EPA Announces Settlements with Glass and Cement Makers

By: Derek Leslie, Staff Member

In late January, the EPA announced that Saint-Gobain Containers, Inc., a glass manufacturer, and Lafarge North America, Inc., a cement manufacturer, both agreed to multi-million dollar settlements. The settlements, which cover fifteen glass manufacturing plants and thirteen Portland cement manufacturing plants, represent the first major EPA action since announcing a renewed focus on improving compliance among industries that emit significant amounts of air pollution. Under the settlements, the companies are required to install new pollution control upgrades, accept enforceable emission limits, and pay substantial civil penalties.

In the complaint, filed concurrently with the settlement statement, the EPA alleged the companies had violated new source permit provisions under the Clean Air Act ("CAA"). The CAA requires major sources of air pollution to obtain a permit before modifying the facilities in a way that would significantly increase the emissions of pollutants. CAA permits limit these emissions for specific pollutants at a particular facility. As part of the settlement, Saint-Gobain has agreed to install pollution control equipment totaling an estimated $112 million in order to reduce emissions of NOx, SO2, and particulate matter (PM) by approximately 6,000 tons each year. Additionally, they have agreed to pay a $2.25 million civil penalty, split between the federal government, ten states, and two regulatory agencies. Similarly, Lafarge has agreed to pay a $5 million civil penalty, and spend an estimated $170 million installing and implementing control technologies to curb NOx emissions by 9,000 tons each year and SO2 by more than 26,000 tons per year at their cement plants.

These settlements are an example of more rigorous EPA oversight over CAA emissions, and indicate that the EPA will be enforcing the act more aggressively, pushing NSPS permitting beyond the paradigmatic regulated industries. Indeed, Ignacia Moreno, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division in the announcement suggested, "Enforcing the Clean Air Act's new source review program is a priority, not just in the coal-fired power plant industry, but also in industries like cement and glass manufacturing that have been identified as major sources of pollution. Companies in these industries should strongly consider the benefits of these types of settlements as we intend to aggressively enforce compliance with the law."

Source: United States Announces Two Major Clean Air Act New Source Review Settlements at 28 Industrial Plants Nationwide, January 21, 2010, http://yosemite.epa.gov/opa/admpress.nsf/0/3CCB6EBF63B522AF852576B2006439B7

EPA & NAFTA: Tensions Rise When Trade With Mexico Threatens United States’ Environmental Regulations

Comment By: Melissa Logan, JNREL Vol. 19, No. 1

Abstract By: Alex Torres, Staff Member

This comment examines the nexus between the protectionist goals of the EPA and their interaction with other departments and agencies within the federal government. Specifically addressed are the regulations promulgated by the Department of Transportation (DOT) and Federal Motor Carrier Safety Administration (FMCSA), pursuant to Presidential order. The regulations in question provided for the permitting of Mexico-domiciled trucks to operate in the United States, pursuant to the goals of the North American Free Trade Agreement (NAFTA).

The Bus Regulatory Reform Act of 1982 had the practical effect of restricting the entering of Mexico-domiciled trucks into the United States, with the consequent effect of burdening trade between the United States and Mexico, in order to comply with the goals of NAFTA. However, in 2001 then President George W. Bush indicated his intent to modify the Bus Regulatory Reform Act. The lifting of the moratorium on Mexico-domiciled trucks was to take place upon the creation of pertinent safety regulations by the DOT and FMSCA.

In the landmark case Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), the Supreme Court rejected the contention that the FMSCA was required to prepare an Environmental Impact Statement (EIS) that detailed the environmental impacts of their regulations. Specifically, the National Environmental Policy Act of 1969 requires that an EIS be prepared for "major Federal actions significantly affecting the . . . human environment." The trial court divided this consideration into two questions: causality and severity. While the trial court found both, the Supreme Court held that there was insufficient causal connection between the implementation of the regulations and the alleged environmental harm, notably the pulmonary danger resulting from increased diesel smog levels due to increased traffic.

The Court is quick to point out that a mere assertion of "but for" causality is insufficient to satisfy the causality requirement. Rather the Court looks to NEPA and applies the "rule of reason" to determine if there is a strong causal relationship between "the environmental result and the suspected cause." Ultimately, the Court sides with the arguments of the DOT, that the effect of increased traffic, and thus pollution, is the result of the Presidential order (and thus Congress in granting such power), not the creation of regulations defining the boundaries of safety.

Here the DOT and FMCSA are bound by law to create these safety regulations, and according to the Court, the regulations they do create have no causative relation to the environmental harm. Any connection between the harms and the regulations are correlative and incidental, but not causative. Thus the Court determines that there would be no "overall usefulness" in preparing an EIS as the FMSCA and DOT lacked the authority to utilize such findings in the discharge of its duties and alter the moratorium instituted by President Bush.