KJEANRL named Top 100 Law Journal

Washington & Lee University School of Law has named the Kentucky Journal of Equine, Agriculture, & Natural Resources Law as one of the Top 100 Law Journals of 2010.



Among "Specialized Journals," the KJEANRL came it at #34, and ahead of some very reputable competitors.



Thanks to all of our staff and editors for their hard work and contributions that made this accomplishment possible. To view the full rankings, please visit Washington & Lee University School of Law, Law Journal Rankings, select the "2010 Comb." rankings, and click "Submit."

Cooped Up Hens: Cage v. Cage-Free Eggs

by Natasha Farmer, Staff Member

Egg-laying hens used for commercial egg production in the United States have been kept in cramped cages for many years. This has caused many states to start banning restrictive livestock cages and shift the hens to open pens. Seven states have passed laws that will eventually ban or limit the different types of livestock cages.

Chicken Rules have Unintended Consequences

,

Drovers

, April 26, 2010,

available at

http://www.drovers.com/news_editorial.asp?pgID=675&ed_id=7240

.

However, open pens have resulted in many unintended consequences. After decades of breeding, hen’s territorial instincts have been boosted, which has made the hens more prone to pecking attacks “so fierce they are often called cannibalism.”

Id.

Ian Duncan, a professor emeritus of animal welfare at University of Guelph in Guelph, Ontario, stated that cannibalism is a learned behavior, which is passed from one territorial hen to another.

Id

. Experts have warned that this behavior will increase if hens are moved from small cages with five to ten birds to open pens that can hold dozens.

Id

.

The Coalition for Sustainable Egg Supply (“CSES”) leads a cooperative effort toward understanding egg supply, and boasts large and diverse constituent members including Bob Evans Farms Inc., McDonald’s Corp., and United Egg Producers. Rod Smith,

Group Begins Hen Housing Study

,

Feedstuffs

, April 9, 2010,

available at

http://www.feedstuffsfoodlink.com

. One of the primary objects of CSES concern is to evaluate the extent that different housing systems for egg-laying hens can provide both “hen well-being and egg supply that is affordable and sustainable.”

Id

. The Coalition’s mission is to evaluate the sustainability impact of three different types of egg laying systems: cage-free aviary housing systems, enriched housing including perches and nests, and caged housing environments. Coalition for Sustainable Egg Supply,

http://www.sustainableeggcoalition.org/prod/

(last visited Jan. 28, 2010). The project has yet to yield published results.

Id

.

There seems to be no right answer in this ongoing matter. It is inhumane to keep hens in such close quarters. However, if you allow the hens to roam freely in open pens serious injury could occur. Hopefully, the CSES will discover the best solution through ongoing research, but the answer may not come soon enough.

Hack Job: Security breach causes the European Commission to halt carbon trading

by Whitney Waters, Staff Member

Last month the European Commission shut down Europe’s carbon trading market after computer hackers exposed a glitch in the Emissions Trading System. James Kanter,

E.U. Closes Emissions Trading System After Thefts

, N.Y. TIMES, (Jan. 19, 2011),

available at

http://www.nytimes.com/2011/01/20/business/global/20iht-carbon20.html.

According to Bloomberg, the hackers stole approximately 2 million permits worth €29.5 million, or $41.1 million, in carbon allowances from the system. Ewa Krukowska and Mathew Carr,

Carbon Permit Trading Halt Entering Second Week; EU Registers Still Closed

, BLOOMBERG, (Jan. 26, 2011), http://www.bloomber.com/news/2011-01-26/carbon-permit-trading-entering-second-week-eu-registers-still-closed.html. The countries involved in the hacking scheme were Austria, Greece, the Czech Republic, Poland and Estonia, with the permits from the Czech Republic registry worth €7 million, or $9.3 million, alone.

Id

.

The European Commission initially stated the Emissions Trading System (hereinafter, “ETS”) would re-open on Jan. 26, however, this has been pushed back because of the continuing investigation by the European Commission, and until all the European Union (hereinafter, “EU”) member states involved in the carbon trading market can show they have adequate security measures in place.

See

James Kanter,

E.U. Closes Emissions Trading System After Thefts

, N.Y. TIMES, (Jan. 19, 2011),

available at

http://www.nytimes.com/2011/01/20/business/global/20iht-carbon20.html.

The European Commission regulates the carbon trading market, which is the largest emissions market in the world.

Id.

The EU ETS is based on the “cap and trade” principle. European Commission Climate Action,

Emissions Trading System (EU ETS)

,

available at

http://ec.europa.eu/clima/policies/ets/index_en.htm (last visited Jan. 26, 2011). Despite the on-going security problems with the system, the “cap and trade” principle is a beneficial way to combat and lower greenhouse gas emissions. Under this principle, there is a limit, a “cap,” on the amount of gases that can be released by each member country.

Id.

Currently, the companies in these countries are allotted a certain amount of greenhouse gases, which is shown in their permits.

Id

. The amount of gas allowed is determined by each individual EU member state; however, this amount will change in 2013 when the EU will set the limit on greenhouse gas emission for each state.

Id

. The companies are allowed to trade the permits with other companies for profit to fit their needs depending on the amount of gasses they will release.

Id

. At any given years end, the companies must show permits to cover every tonne of greenhouse gas they emit, or face significant fines. European Commission Climate Action,

Emissions Trading System (EU ETS), available at

http://ec.europa.eu/clima/policies/ets/index_en.htm (last visited Jan. 26, 2011).

Overall, this trading system encourages companies to decrease their amount of greenhouse gas because if they exceed their limit, they must buy highly priced permits from other countries. The system already has shown to be viable because by 2020, it is projected that the amount of gas released will be 21% lower than in 2005.

Id

. With increased security measures to prevent fraud and cyber attacks, other countries should consider the beneficial nature of the “cap and trade” system for the environment, and the potential to reduce the world’s total greenhouse gas emissions.

Mayor supports expanded gambling

by Tara Hester, Staff Member

Last month, Lexington Mayor Jim Gray said Kentucky horse farms are in need of expanded gambling in the state if they are going to survive. Janet Patton,

Gray Supports Expanded Gambling for Good of Bluegrass

, Lexington Herald-Leader, Jan. 8, 2011,

available at

http://www.kentucky.com/2011/01/08/1590354/gray-supports-expanded-gambling.html#more. Gray says there are clear signs of distress at horse farms around Kentucky, and that revenue from expanded gaming would help to alleviate the problem.

Id

. “ If a Constitutional Amendment is timely, I can support it, if not. . .we all need understand that while we are waiting, the industry is leaving,” Gray stated.

Id

. While Gray acknowledged that the ultimate decision to draft legislation was up to the Kentucky Legislature, he plans to take whatever steps he can as Mayor of Lexington to help.

Id

. After meeting with several members of the horse industry from across the state, Gray is convinced that immediate action is needed, and plans to start by having key lawmakers at his house for a reception later this month in an effort to re-push the gambling issue.

Id

.

Gray is not alone on his quest to expand gambling in Kentucky. Horse owners, trainers, breeders, and racetracks have stated that Kentucky tracks need alternative forms of gambling such as slot machines or casinos in order to compete with other states that allow this form of gambling.

Id

. And in November, Senate President David Williams said that if the democratic- controlled House passed a constitutional amendment concerning expanded gambling in Kentucky, the Republican Senate might consider it. Associated Press,

Ahead for 2011: Expanded Racetrack Gambling?

, Nov. 4, 2010,

available at

http://cincinnati.com/blogs/nkypolitics/2010/11/04/ahead-for-2011-expanded-racetrack-gambling/. However, he did not say if a Constitutional Amendment would ultimately pass, stating only that he thought there “might be some folks in the Senate that may be supportive of that (an amendment).”

Id

.

However, Gray’s campaign for expanded gambling will not be an easy job to tackle with Kentucky’s lawmakers. Governor Steve Beshear campaigned on the promise of expanding gambling in Kentucky, but his efforts, and a bill sponsored by House Speaker Greg Stumbo, failed last year. Janet Patton,

Gray Supports Expanded Gambling for Good of Bluegrass

, Lexington Herald-Leader, Jan. 8, 2011,

available at

http://www.kentucky.com/2011/01/08/1590354/gray-supports-expanded-gambling.html#more. Gray is not discouraged, however, and continues to push the legislature to re-consider the issue, at a time when Kentucky horse sales are down and tracks have been forced to cut racing this year.

Id

. While expanded gambling does seem like a quick and simple solution to the problem of a failing horse industry, it also presents its own set of challenges, including an increase in casinos and gambling sites around the state. However, when faced with the possibility of a reduced or extinct horse industry in Kentucky, a few slot machines seems like a small price to pay.

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.