Agriculture and Antibiotics: A Healthy Mix?

by Sarah Baker, Staff Member

The great majority of Americans enjoy their commercially produced meat—hotdogs, chicken, steaks, bacon, and ham. We spend less on our packaged protein, trust the safety of the greater food supply, and are well served by modern agriculture methods, or so it would seem.

But, at what cost to our health?

This question is one the Obama administration has been asking over the past year in its efforts to ban antibiotics from being used in healthy animals. Patty Khuly,

Antibiotics Benefit Farm Animals (and People) But at What Cost?

,

USA Today

, March 11, 2010 available at http://www.usatoday.com/life/lifestyle/pets/2010-03-10-dolittler11_N.htm. Intended to promote growth and prevent disease, the animal agricultural industry feeds hogs, chicken, and cattle a daily dose of antimicrobial drugs. As a result, the animals grow larger, faster and healthier. Id. However, antibiotic resistance is an emerging threat.

When antibiotics are supplied to healthy animals in low doses for a long duration of time, resistance to the drugs build up, enabling bacteria to survive and multiply instead of being destroyed. The Pew Campaign on Human Health and Industrial Farming,

Antibiotic Resistance and the Industrial Animal Farm

, http://www.saveantibiotics.org/resources/PewAMRfactsheetfinal1.pdf (last visited Oct. 26, 2010). Humans can acquire the resistant bacteria by eating meat from these animals or by not using proper sanitation techniques during food handling or preparation. Id. Many of the antibiotics given to animals are very similar to those used to treat humans, including tetracyclines and penicillins, among others. Id. Therefore, the bacteria becoming resistant to the drugs in animals are also likely to be resistant to those drugs when proscribed to sick humans.

The impact of bacteria resistance is finally gaining some attention on the national political scene. Some recent findings show that up to seventy percent of U.S. antibiotics go to healthy farm animals to offset crowding and poor sanitation on industrial farms, and 300,000 hospitalizations and 5,000 human deaths each year are caused by foods containing E. coli and salmonella, which are increasingly becoming antibiotic resistant. Id. Statistics of this magnitude are too frightening to be ignored.

President Obama has proposed a ban on non-therapeutic antimicrobials in animal feed. Opponents, however, argue that the use of antibiotics in the animal agricultural industry keeps animal sickness manageable in crowded environments, and costs low in the supermarket. Khuly, supra. As a meat loving people, however, we must consider the implications of current agriculture practice and long-term health consequences. I’ll take a burger, minus the antibiotic resistant bacteria, please.

Holiday Hiatus

It's officially that time of year again.

For many of you, that means gearing up for what promises to be another happy holiday season. For the law students--much like the ones who operate this blog--that means buckling down for what promises to be another miserable final exam period.

For us here at the KJEANRL Blog, it means that it is time for a brief hiatus. Never fear, however, because we will promptly return once classes resume in January 2011.

Until then, from all of the staff members here at the Kentucky Journal of Equine, Agriculture & Natural Resources Law, we wish you a safe and very happy holidays!

Sincerely,
KJEANRL Online Editors

Kentucky Coal and Governor Beshear file suit

By Bethany Baxter, Staff Member

Under the Clean Water Act (CWA) the EPA has authority to review state issued permits pursuant to §402(d)(2). 33 U.S.C.A. §1342 (d)(2). Kentucky, in assuming responsibility for implementing the CWA, must provide the EPA with notice of permits the state plans to issue, and the EPA may then object to the requirements defined by the state in the permit.

Id

.

Historically the EPA has been reluctant exercise this authority. However, an EPA report published in April of this year has prompted the Agency to utilize §402 authority in imposing heightened requirements specifically affecting mining permits under the CWA. The EPA released “Detailed Guidance for Appalachian Coal Streams,” in which the EPA links coal mining activity to increases in conductivity levels in waters. 75 Fed. Reg. 18,500 (April 1, 2010). The report sets benchmarks for conductivity levels, based on scientific finding that increased conductivity adversely affects aquatic life in streams. The report explicitly states that the report should be used to “clarify EPA’s expectations,” and states that the EPA expects that Regions 3, 4, and 5 “begin using this interim final guidance immediately in your review of Appalachian surface coal mining activities.” 75 Fed. Reg. 18500 at 1-2.

Kentucky’s narrative water quality standards state, “total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected.” 401 KAR 10:031, §4(1)(f). Based on this standard and the newly released report, the EPA rejected several Kentucky permits, finding that the Kentucky Division of Water failed to consider emerging science regarding coal mining affects on water, and failed to incorporate available science concerning conductivity. The Kentucky Coal Association (KCA) filed suit last week against the EPA and Administrator Jackson, claiming that scientific underpinnings of the report are seriously flawed and hence the Agency’s reliance on the report is arbitrary and capricious.

See

complaint, at 19-20. KCA publically called EPA action an “illegal agenda to end coal mining in Kentucky,” and Governor Beshear, who joined the suit stated, “the arbitrary and unreasonable decisions being made by the EPA threaten to end the responsible mining of coal and eliminate the jobs of an estimated 18,000 Kentucky miners who depend on mining for their livelihood.” Dori Hjalmarson,

Coal industry, Beshear administration sue EPA over coal mining permits

, Oct 19, 2010, Lexington Herald Leader. Both the National Mining Association and the state of West Virginia filed similar suits.

Coal mining is central to the cultural and economic identity of Kentucky. Recently industry practices, particularly mountain top removal, have received much critical attention on the national level. The EPA, in rejecting state permits, is more proactively addressing water quality and pollution associated with coal mining. It is no surprise that the industry and state are resistant. It will be interesting to see how this suit reflects the broader coal debate and tensions between economic growth and environmental protection.

To review the Kentucky Coal Association’s complaint:

http://www.kentuckycoal.com/documents/Complaint.pdf

To read the EPA’s “Detailed Guidance for Appalachian Coal Stream:”

http://www.epa.gov/owow/wetlands/guidance/pdf/appalachian_mtntop_mining_detailed.pdf

Is Bankruptcy an excuse for neglect?

By Ena Viteskic, Staff Member

Following the massive BP oil spill in mid-2010, uproar ensued among the political branches and communities throughout the United States. On one side, individuals were voicing their revulsion for BP while on the other side, individuals were angry at the government for insufficient regulation in the oil refinery business. Conservatives, who advocate the “hands off” approach to government, were contending that the government did not reasonably regulate the oil refineries. The question of what should be done dominated the American media and the hearts and minds of ordinary Americans. Oil companies in the past have raised several defenses as to why they should not clean up their own oil spills and messes. Some oil companies have even claimed that they are protected under bankruptcy law; therefore, negating their responsibility to perform any clean-ups.

On August 25, 2009, the United States Court of Appeals for the Seventh Circuit issued a decision that affected companies facing environmental clean-up responsibilities who file for bankruptcy protection. In United States v. Apex Oil, 579 F.3d 734 (7th Cir. 2009), the United States sought injunctive relief requiring Apex Oil Co. to stop a petroleum plume at an oil refinery owned by Apex. The main issue in this case was whether the government’s claim had been discharged in bankruptcy—the court answered in the negative.

United States v. Apex Oil Company: Bankruptcy Does Not Discharge RCRA Injunctive Claims

, Beveridge & Diamond, P.C., March 22, 2010, http://bdlaw.com/news-833.html. When the Apex disaster happened, over one million gallons of gasoline and other petroleum products from a plume beneath Hartford, Illinois were floating on the groundwater table and enmeshed in sub-surface soils. This caused severe consequences to humans and buildings. The petroleum fumes and thereby caused hundreds of odor complaints, health complaints, and even some fires.

Id

.

More recently, On October 4, 2010, the Supreme Court of the United States refused to hear the appeal from Apex Oil. Apex Oil Co. v. United States, 2010 U.S. LEXIS 6286 (US 2010). Apex still argued that its duty to clean up the site was discharged with its other debts during the bankruptcy proceedings.

Court won’t spare Apex from oil spill clean up

, WTOP Radio Network, October 4, 2010, http://www.wtop.com/?nid=858&sid=2069538. However, the Supreme Court simply did not side with Apex Oil Co.

The decision by the Supreme Court of the United States not to hear the appeal by Apex Oil Co. sends an important message to other oil companies—clean up your mess! Although it is only one small decision regarding a big problem, it is a step in the right direction. Regardless of what kind of defense or excuse an oil company may claim, it is clear that the Supreme Court will not tolerate any neglect or irresponsibility on behalf of these oil companies.

Better fuel economy; fewer sales?

By Ashley Payne, Staff Member

In a press release on Friday October 1, 2010, the U.S. Department of Transportation’s (DOT) National Highway Traffic Safety Administration (NHTSA) and the U.S. Environmental Protection Agency indicated they would begin developing tougher fuel economy standards for vehicles made between the years of 2017 and 2025. Olivia Alair,

Move Should Save Consumers Money, Reduce Dependence on Oil

(October 1, 2010), http://www.nhtsa.gov/Press-Releases (select "2010" from the drop-down menu labeled "Select Year"; then follow hyperlink dated October 01, 2010). This builds on the first phase of the program, which covers cars made from 2012-2016.

Id.

This comes as a response to President Barack Obama’s request that the NHTSA and EPA take “additional coordinated steps...to produce a new generation of clean vehicles.” Barack Obama, Presidential Memorandum Regarding Fuel Efficiency Standards (May 21, 2010), http://www.whitehouse.gov/the-press-office/presidential-memorandum-regarding-fuel-efficiency-standards.

The NHTSA and EPA determined that “a variety of automotive technologies are available, or are expected to be available, to support an increase in fuel economy and reduction in greenhouse gas emissions in the MYs 2017-2025 timeframe....” U.S. Dep’t of Transp., Notice of Intent FactSheet, http://www.nhtsa.gov/staticfiles/rulemaking/pdf/cafe/FactSheet_%20NOI_TAR.pdf (last visited Nov. 6, 2010). The proposed standards would increase the current standards from 34.1 mpg to between 47-62 mph in 2025.

Id.

The increase in fuel economy does not come without costs. The initial assessment indicated that vehicle prices would rise an estimated $800 to $3,500 per vehicle. While this increase would be offset by an approximate savings of $5000 to over $7000 in fuel costs, the average American may not view these standards in such a positive light.

Id.

Because most Americans live in the now, the increase in up front costs may deter them from buying new cars even though they ultimately save more money in the long run.

Soy Beans: Brought to You By Monsanto

By Nathan Kolb, Staff Member

In 1996, Monsanto first introduced Roundup Ready soybeans, a crop which would come to dominate the soybean production industry. Roundup Ready soybeans are genetically engineered soybeans that are resistant to the glyphosate based herbicide, Roundup. By planting Roundup Ready soybeans, a farmer can easily and efficiently control weeds by simply spraying Roundup, which kills the weeds, but due to the Roundup Ready trait in the beans, leaves the soybeans as healthy as ever, reducing overall costs and increasing profit potential.

Monsanto

, http://www.monsanto.com/products/Pages/soybean-seeds.aspx (last visited Oct. 6, 2010).

Monsanto has patented two specific traits which make Roundup Ready soybeans what they are. These two patents are U.S. Patent No. 5,633,435 (filed Sept. 13, 1994), and U.S. Patent No. 5,352,605 (filed Oct. 28, 1993). Together, these patents protect the genetic traits that are responsible for Roundup Ready soybeans’ ability to resist the effects of glyphosate, and, as a result, Roundup herbicide.

Monsanto Co. v. McFarling

, 488 F. 3d 973, 976 (Fed. Cir. 2007). Roundup Ready soybeans have come to dominate soybean production in the United States. The National Agricultural Statistics Service released its yearly findings on June 30, 2010, in which they reported that 93 percent of the total soybean acreage in the United States was planted with herbicide resistant seed varieties, an increase of 2 percent from 2009.

National Agricultural Statistics Service Acreage Report for 2010

, 34 (2010),

available at

http://usda.mannlib.cornell.edu/usda/current/Acre/Acre-06-30-2010.pdf. The Roundup Ready traits patented by Monsanto dominate these herbicide resistant varieties, giving Monsanto an exorbitant amount of control over soybean production in this country.

Prior to purchasing Roundup Ready soybeans, Monsanto, through their agent seed companies, requires producers to sign a Technology Agreement. These agreements limit the usage of the soybeans to one growing season, precluding a farmer from saving Roundup Ready soybeans for use as seed the following year.

Monsanto Co. v. Strickland

, 604 F. Supp. 2d 805, 808 (D. S.C. 2009). By requiring this agreement, Monsanto not only protects its patent, but also ensures its control of the soybean seed market. This agreement forces farmers to continue to purchase Roundup Ready soybeans from Monsanto and their subsidiary seed companies, and pay the requisite licensing fees which accompany said purchase.

Monsanto has proven extremely zealous in their enforcement of this Technology Agreement. Rumors constantly swirl about Monsanto’s employment of Pinkerton Security and Consulting, and other like companies, as spies to locate farmers who may be infringing upon Monsanto’s patents by saving Roundup Ready soybeans to use as seed. It is hard to say whether or not these rumors have any real substance to them. However Monsanto obtains the information, one thing is certain: Monsanto is not reluctant to file suit against any farmers who it thinks are in violation of the Technology Agreement.

Monsanto Co. v. McFarling

, 488 F. 3d 973, 976 (Fed. Cir. 2007), and

Monsanto Co. v. Strickland

, 604 F. Supp. 2d 805, 808 (D. S.C. 2009), are two typical examples of such suits.

Monsanto Co. v. Parr

, 545 F. Supp. 2d 836 (D. N.D. Ind. 2008), provides a further example of the length Monsanto will go to in order to protect its patents. In

Parr

, Monsanto brought suit against defendant Parr for operating a seed cleaning business. Monsanto claimed the defendant was cleaning Roundup Ready soybeans, thereby enabling farmers to plant the seed the following year, in violation of their Technology Agreement. As a result of this suit, the court enjoined Parr from cleaning soybeans that contained the Roundup Ready trait.

Something needs to change in order to combat the increasingly large influence that Monsanto has over soybean production in the United States. Monsanto is forcing farmers to pay their licensing fees to plant Roundup Ready soybeans and filing suit against anyone who violates their Technology Agreement. They are enjoining seed cleaners from even cleaning Roundup Ready soybeans claiming that they are inducing patent infringement. At this point, nothing short of an Anti-Trust suit can ease Monsanto’s ever-tightening grip on soybean production. Fortunately, there are already rumors of a Justice Department investigation into Roundup Ready soybeans and possible anti-competitive behavior. Jack Kaskey,

Monsanto’s Roundup Ready Soybeans Probed by Justice

,

Bloomberg Businessweek, Jan. 14, 2010,

available at

http://www.businessweek.com/news/2010-01-14/monsanto-says-investigators-request-more-information-update1-.html.

Even if an anti-trust suit does not come about, at least there is light at the end of the tunnel. Monsanto’s patent on Roundup Ready soybeans expires in 2014, at which point farmers will be able to save Roundup Ready seed from the prior year’s harvest. At least, that is, until Roundup Ready 2 is developed. (Available for the 2011 season, from Monsanto!)

Abandoned horses, whose property?

By Elizabeth Rives, Staff Member

In May 2008, Pat Dawson of Time.com wrote an article entitled “An Epidemic of Abandoned Horses.” The problem discussed in this article is still around over two years later. According to Dawson, two main factors contribute to the rise in abandoned horses: “rising grain and gas prices” and “the closure of American slaughterhouses.” Pat Dawson,

An Epidemic of Abandoned Horse

,

Time.com

, May 28,2008,

available at

http://www.time.com/time/nation/article/0,8599,1809950,00.html.

Volunteer horse rescue groups are attempting to alleviate the problem but the cost of caring for horses is too great for some to maintain. Carol Holmes, owner and operator of White Cloud Ranch in Malibu, California, spent roughly $2,500 every three weeks on food alone after having 27 horses abandoned on her property. Stephanie Bertholdo,

Bad economy causing horses to be abandoned at an alarming level

,

Thousand Oaks Acorn

, January 7, 2010,

available at

http://www.toacorn.com/news/2010-01-07/Front_Page/Bad_economy_causing_horses_to_be_abandoned_at_an_a.html. Although the cost of keeping and caring for the horses is high, many of the horse rescue groups are weary of giving the horses away because of the possibility that the horses will then be sold to slaughterhouses outside of the U.S.

Id

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Most recently in the news, two abandoned horses were rescued in a field in New Mexico. Lee Ross,

Two Abandoned Horses Rescued

,

ABOJournal.com

, October 1, 2010,

available at

http://www.abqjournal.com/abqnews/abqnewseeker-mainmenu-39/24307-two-abandoned-horses-rescued.html. A local horse rescue organization, Walkin’ N Circles Ranch, found the horses in an open field with no available water. Id. Eleanor, one of the horses, was unable to graze because she was missing teeth.

Id.

Walkin’ N Circles Ranch, is currently nursing the two horses back to health.

Id

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The question then becomes, who owns these horses and who is responsible for paying for them? According to Rachel McCart, an equine attorney, this is not always a simple question. Rachel McCart,

Abandoned Horses: Finders, Keepers?

,

Equine Legal Solutions Horse Law Blog

(September 15, 2008) http://www.equinelegalsolutions.com/2008/09/abandoned-horses-finders-keepers.html. In most cases, you do not gain title to the horse regardless of if there is a boarder relationship or the horse simply ended up on your property and should contact local authorities to determine the appropriate action to take.

Id

. The answer to financial responsibility is more difficult. The caregiver might have a hard time getting reimbursed for care or may choose not to fight it because of the legal costs associated with such a battle.

Id

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In order to alleviate this problem, there needs to be definitive measures available for people to take who choose to care for abandoned horses.

Electricity and the Constitution in South Africa

By Brad Larkin, Staff Member

Following the fall of apartheid, South Africa’s consumption of energy has steadily grown as electricity has been extended to more areas of the country, putting a great strain on the electrical grid. In 2008, this increase in demand coupled with a lack of attention to energy producing facilities resulted in widespread power outages. Chris McGreal,

Gold Mines Shut as South Africa Forced to Ration Power Supply

,

The Guardian

, January 26, 2008,

available at

http://www.guardian.co.uk/world/2008/jan/26/southafrica.international. In response to these capacity problems, earlier this year South Africa applied and eventually received a loan from the World Bank for over three billion dollars to build a coal-firing plant that will produce more carbon dioxide in a year than 115 countries, causing an international uproar. John Vidal,

Britain Has the Key Vote on World Bank Loan to Medupi Power Station

,

The Guardian

, April 1, 2010

available at

http://www.guardian.co.uk/environment/2010/apr/01/medupi-world-bank-loan-vote. Opposition party members even sought help from the United States and the United Kingdom to block the loan.

Zille Lobbies Against Eskom Loan

,

Mail and Guardian

, April 8, 2010,

available at

http://www.mg.co.za/article/2010-04-08-zille-lobbies-against-eskom-loan.

In challenging the loan, the main focus for the opposition was potential corruption, not the environment.

Id

. Residents of the region, however, were naturally more concerned about the potential for environmental harm petitioned the World Bank.

Residents Complain to World Bank about Eskom Loan

,

Mail and Guardian

, April 7, 2010

available at

http://www.mg.co.za/article/2010-04-07-residents-complain-to-world-bank-about-eskom-loan. Residents could also have used a domestic legal argument, as the Constitution provides that “everyone has the right to ... an environment that is not harmful to their health or well-being.” S.Afr. Const. ch. 2, §24, 1996.

And yet, in the last few days, despite the approval of the loan, several plans for more environmentally friendly energy sources have appeared. Plans are underway to build a solar power park in the Northern Cape Province, which could provide a substantial amount of energy.

S. Africa Looks to Solar, Nuclear Power

, UPI, September 29, 2010,

available at

http://www.upi.com/Science_News/2010/09/29/S-Africa-looks-to-solar-nuclear-power/UPI-93711285807222/. Furthermore, South Africa is investigating increasing its nuclear energy capacity as well.

Id

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It certainly appears that the South African government is concerned about the environmental impacts of energy production. However, if the government does indeed follow through with these plans to build green sources of energy it will be interesting to see how quickly the government is willing to shift the burden of electrical production. The new plant has significantly raised the debt burden of South Africa, so it is unlikely that a quick shut down will occur. How will environmental groups react? Will they continue to utilize political action to encourage a quicker transition to the greener production facilities, or will they begin to seek assistance in the courts through Section 24 of the Constitution? While there are important caveats within the text of Section 24 regarding reasonableness and economic development, the fact that the coal-firing plant is located in Limpopo, one of South Africa’s poorest regions close to the border with Botswana, certainly raises questions. How South Africa deals with the shift from traditional sources of electrical generation to more green solutions will have important impacts not only on South Africa but the entire Southern African region.

Electric car infrastructure -- are electric cars really the answer?

By Litany Webster, Staff Member

Manufacturers of electric cars, such as Nissan and Ford, are only supplying the initial roll-out of new models to cities they deem fit for the electric lifestyle. The top three factors considered by the manufacturers when reviewing cities are (1) whether there are a large number of hybrid owners, (2) whether the electric cars will be accepted, and (3) whether there is sufficient public policy and utilities. Julie Wernau,

Chicago gets geared up for electric vehicles

, Chicago Tribune, August 23, 2010,

http://www.chicagotribune.com/classified/automotive/ct-biz-0824-electric-cars-new-20100823,0,5131217.story

.

Considering the amount of money that will be invested in establishing sufficient infrastructure in these cities to charge these vehicles and reduce the fear of power outages and “range anxiety," it still must be determined whether these cars actually reduce pollution since they are powered by coal plants. While electric cars themselves eliminate the need for fossil fuels, coal plants are still necessary to generate the electricity to charge them.

Nevertheless, there are several advantages to the electric car over gasoline models. First, since coal-powered generation plants are large-scale operations they can boast efficient designs to reduce the amount of emissions compared to the smaller internal combustion engine designs of gasoline powered vehicles. Further, coal plants are single-point sources of pollution, which allows for easier clean up by regulating the smoke stacks instead of controlling millions of tailpipes. Finally, generation of electricity is not limited to coal. Renewables can be used, such as wind and water, to generate electricity to fuel the electric cars. As renewable energy technology is expanded the electric car may one day create low emissions or no emissions, while its gasoline powered counterparts are limited by their combustion engines.

Why are electric cars considered green when they use electricity from coal to power them?

, DIY Solar Panels Review, June 18, 2010,

http://power-shift.org/why-are-electric-cars-considered-green-when-they-use-electricity-from-coal-to-power-them

.

Overall, the electric car does provide many environmental advantages over the inferior gasoline models, especially as future renewable technology is created. Yet, there is still fear that the money spent on providing infrastructures to make electric cars a practical option is fruitless, if another so called “green” car is found to be more efficient and once again leads to the fall of the electric car. The risk is only multiplied due to Toyota’s and GM’s continued work on hydrogen vehicles. Larry Greenemeier,

The Great Electric Car Quandary: How to Build a Charging Infrastructure Before Demand Grows

, Scientific American, August 14, 2009,

http://www.scientificamerican.com/article.cfm?id=electric-car-quandary

.

However, amidst all this risk and uncertainty one thing is for certain, Kentucky is not likely to see any of the initial electric car models due to our failure to meet the primary factors set forth by electric car manufacturers.