Cutting the Calories: One Act at a Time

By: Ashley Addo, Staff Member

Envision a working mother who resorts to the McDonalds’ dollar menu to feed her children because Subway is too expensive, or a single father who feeds his kids cookies and chips for breakfast because he does not understand the value of good nutrition. This is a reality for millions of American children. Unsurprisingly, child obesity has become a pressing concern in the United States. According to the Centers for Disease Control and Prevention, 25-million children are considered obese and the health risks associated with obesity are potentially devastating.[1] To combat these issues, First Lady Michelle Obama has initiated a national program called “Lets Move” that focuses on improving the nutritional value of school lunches.[2] The First Lady collaborated and discussed her motives with the United States Department of Agriculture (USDA), parents, prominent political figures, and school officials throughout the nation.[3] As a result, Congress passed the Healthy, Hunger-Free Kids Act[4] and President Barack Obama signed it into law on December 13, 2010.[5]

This legislation coincides with Michelle Obama’s primary objectives for her Lets Move campaign. The Act received federal funding of $4.5 billion dollars and it has the potential to create great results because children consume 30-50 % of their daily calories in school.[6] The Secretary of the USDA, Tom Vilsak, has explained: "This is an historic victory for our nation's youngsters. This legislation will allow USDA, for the first time in over 30 years, the chance to make real reforms to the school lunch and breakfast programs by improving the critical nutrition and hunger safety net for millions of children.”[7]

The Healthy, Hunger-Free Act places the USDA in a position to make great strides in decreasing child obesity. The USDA will provide nutritional standards to school districts, and districts that comply will receive a six-cent increase in their school lunches.[8] Although this raise does not seem significant, it is the first reimbursement rate increase schools have received in over 30 years. These nutritional standards will also apply to foods sold in vending machines as well as school breakfasts.[9] Additionally, more students will be eligible for school meal programs based off of Medicaid data, which will help identify students in need of such food programs. Furthermore, approximately 21 million more meals will be served annually to at-risk children after school, due to funding reimbursements for the Child and Adult Care Food Program, another health initiative in all 50 states and the District of Columbia.[10] Additionally, Secretary Vilsak has encouraged schools to plant community gardens and to involve their students in the gardening process.[11] This is an interactive activity that could simultaneously entertain and educate children on the importance of fruits and vegetables.[12] Many children from lower-income homes might not be exposed to gardening outside of school.

The Healthy, Hunger-Free Kids Act has great attributes, but enforcement to ensure compliance with USDA standards will be important. As part of the process, the Act calls for school audits every three years.[13] Although these audits will be costly, there should be more frequent audits since this Act is in its beginning stages. Implementation is the first step with any legislation, but enforcement is always needed to ensure results. Moreover, future revisions to the Act should provide for direct education of families regarding the importance of good nutrition, e.g. through structured evening classes at schools for parents and guardians interested in learning about good nutrition. While the Act is focused on school meals, there could be an even greater change if children’s meals at home mirrored the standards imposed on school meals. The USDA cannot control what children eat at home, but it is unfortunate that the Act has not taken the additional step of educating willing families on the value of good nutrition. The Healthy, Hunger-Free Kids Act, coupled with stronger awareness to parents and guardians, could significantly impact the ongoing fight against child obesity.

[1] Mimi Hall & Nancy Hellmich, Michelle Obama Aims to End Child Obesity in a Generation, USA Today (Feb. 9, 2010, 6:24 PM), http://www.usatoday.com/news/health/weightloss/2010-02-09-1Afirstlady09_CV_N.htm.

[2]Id.

[3] Eddie Gehman Kohan, US Passes Historic Child Nutrition Bill Championed By First Lady Michelle Obama, Obama Foodorama (Dec. 2, 2010, 3:38 PM),http://obamafoodorama.blogspot.com/2010/12/house-passes-first-lady-michelle-obamas.html.

[4] 7 U.S.C.A. 7 § 3179 (2010), available athttp://www.whitehouse.gov/sites/default/files/Child_Nutrition_Fact_Sheet_12_10_10.pdf.

[5]Id.

[6] Hall & Hellmich, supra note 1.

[7] Kohan, supra note 3.

[8]7 U.S.C.A. 7 § 3179 (2010), available athttp://www.whitehouse.gov/sites/default/files/Child_Nutrition_Fact_Sheet_12_10_10.pdf.

[9]Id.

[10]Id.

[11] Hall & Hellmich, supra note 1.

[12] Hall & Hellmich, supra note 1.

[13] 7 U.S.C.A. 7 § 3179 (2010), available athttp://www.whitehouse.gov/sites/default/files/Child_Nutrition_Fact_Sheet_12_10_10.pdf.

[11] Hall & Hellmich, supra note 1.

[12] Hall & Hellmich, supra note 1.

[13] 7 U.S.C.A. 7 § 3179 (2010), available athttp://www.whitehouse.gov/sites/default/files/Child_Nutrition_Fact_Sheet_12_10_10.pdf.

Hydraulic Fracturing and the Search for Answers.

By: Jocelyn Arlinghaus, Staff Member

Hydraulic fracturing, also known as fracking, is a method of natural gas collection that has revitalized the U.S. natural gas industry. The process involves drilling large quantities of water and chemicals into underground rock formations to release trapped natural gas.[1] In conjunction with other advanced drilling techniques, fracking has granted access to natural gas reserves stretching from Texas to upstate New York. These reserves are estimated to meet the demand for natural gas for over a century.[2]

As a result of fracking, natural gas has become an increasingly important resource.[3] However, the technique is controversial due to environmental concerns associated with its use.[4] For example, wastewater associated with fracking can contaminate drinking water[5] and the extraction process also produces pollutants that diminish air quality.[6] On the other hand, burning natural gas produces fewer greenhouse gases than coal and many new jobs have been created as a result of efforts to tap into this valuable resource.[7] Some experts have predicted that the United States may abandon fracking completely due to the national attention its associated environmental concerns have generated.[8]However, this would be shortsighted. The negative repercussions of fracking are cause for concern, but extraction efforts should continue while ways to make the process safer and more environmentally conscious are explored.

President Obama has declared that natural gas is fundamental to the energy industry in the United States and has called for a panel to examine ways to make fracking cleaner.[9] In order to restore confidence in fracking, greater transparency between gas companies and the public is needed.[10] Activists have fought to require drilling companies to measure and record the amount of methane in water wells before and after drilling and then release the information to the public. This would mirror the standard that applies to other industries under the Community Right to Know Law.[11] The United States Department of Energy has also suggested that drillers should disclose the type of chemicals used in fracking and that stricter requirements should be placed on the industry in order to ensure that the environment is protected.[12]Id. While the industry has resisted such requirements in the past, several drilling companies have begun to cooperate with requests for disclosure.[13]

With the threat of global warming on the rise, the United States has prioritized the effort to reduce emission of carbon dioxide and other harmful pollutants.[14] Increased use of natural gas and the discovery of new and ever more efficient methods of collecting it have fueled predictions that gas will be the key source of electricity for the next 25 years.[15] Natural gas is relatively inexpensive and more environmentally friendly than both coal and the gasoline that powers our vehicles.[16] Experts should continue to search for ways to address the environmental concerns raised by the hydraulic fracturing process.

[1] Tom Kenworthy, Daniel J. Weiss, Lisbeth Kaufman, & Christina C. DiPasquale, Drilling Down on Fracking Concerns, Center for American Progress (Mar. 21, 2011), available athttp://www.americanprogress.org/issues/2011/03/fracking_concerns.html.

[2]Id.

[3]Id.

[4]Id.

[5]Id.

[6]Id.

[7]Id.

[8]Id.

[9] Jeff Brady, Energy Panel Wants Answers on Gas ‘Fracking’, National Public Radio (Aug. 11, 2011),available athttp://www.npr.org/2011/08/11/139508166/energy-panel-wants-answers-on-gas-fracking.

[10]Id.

[11]Id.

[12]Id.

[13] Tom Kenworthy, Daniel J. Weiss, Lisbeth Kaufman, & Christina C. DiPasquale, Drilling Down on Fracking Concerns, Center for American Progress (Mar. 21, 2011), available athttp://www.americanprogress.org/issues/2011/03/fracking_concerns.html.

[14]Id.

[15]Id.

[16]Id.

The Kentucky Constitution and Mineral Rights: Constitutionalizing as a Means of Settling the Debate

By: Arthur Cook, Staff Member

State constitutions, often overlooked in favor of the federal charter, provide not only a substantive body of rights, but also a historic primer outlining the major internal debates in states. As a result, state constitutions differ from the federal constitution because they are often used to settle contentious issues. Section 19(2) of the Kentucky constitution attempts to do just that.

In 1984, Kentucky’s General Assembly passed K.R.S. 381.940, which sought to provide statutory basis for interpreting mineral rights under severed deeds, also known as the Broad Form Deed Act. It stated, in pertinent: “. . .that . . .coal be extracted only by the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed… .”[1]

The purpose of the statute was clear: prevent the continued unfairness of the decimation of Appalachia through destructive processes such as surface or “strip” mining by taking advantage of impoverished persons. Historically, some owners sold their mineral rights for as little as fractions of a dollar per acre, much below the fair market value.[2] The long-term effects of surface mining make it improbable that even reclaimed land can be restored to pre-mining vitality.

K.R.S. 381.940, through its operative clause limiting the extraction methods to those “commonly known” at the time of execution, effectively terminated the use of surface mining on lands granted in the Broad Form. However, there was a significant constitutional hurdle in Kentucky that would prove fatal to K.R.S. 381.940.

In Akers v. Baldwin, Kentucky’s Supreme Court held the statute unconstitutional because the legislature violated separation of powers clauses and usurped the power the Kentucky constitution reserved for the judiciary to interpret legal effects of contracts for mineral rights.[3]

The backlash to the decision was immediate. The decision was rendered in July of 1987 and the General Assembly placed the proposed amendment (later, Kentucky Constitution Section 19(2)) on the ballot in November of 1988. The text of Section 19(2) is nearly identical to K.R.S. 381.940. The goal was plain: in the debate between coal and Kentucky’s citizens, the solution could not come from the General Assembly (as Akers held) nor was the Supreme Court willing to interpret the Broad Form Deed to limit surface mining (again, as Akers held) so it was up to the citizens of the Commonwealth to use their popular sovereignty and amend the constitution to settle the debate.

By constitutionalizing the issue, the citizens of Kentucky sought to settle the debate permanently. Because of the malleability of state constitutions, such as Kentucky's, citizens are able to structure local rights to precisely meet the challenges of today in a way the federal constitution cannot. Consequently, the Kentucky Supreme Court upheld the amendment and its’ effects in Ward v. Harding in 1993, theoretically settling the issue.[4]

[1] Ky. Rev. Stat. Ann. § 381.940 (2011).

[2] Harry M. Caudill, Night Comes to the Cumberlands, 61-72 (2nd ed., 1987).

[3]Akers v. Baldwin, 736 S.W.2d 294 at 309-310 (Ky. 1987).

[4]Ward v. Harding, 860 S.W.2d 280 at 289 (Ky. 1993)

Horses as Service Animals?

By: Catherine Barrett, Staff Member

On March 15, 2011, the definition of “service animal” under federal regulations changed from “any guide dog, signal dog, or other animal individually trained to do work or perform tasks”[1]to “any dog that is individually trained to do work or perform tasks”[2] (emphases added). The new definition excludes all other species from full legal protection, including miniature horses.

Miniature horses are a new option in the field of assistance animals. Although few are in use in the United States, horses trained to guide the blind provide a valuable alternative when a dog is unsuitable, as in the case of observant Muslims, who view dogs as unclean.[3] Guide horses are trained to perform the same tasks as guide dogs.[4] Horses appeal to those who are allergic to dogs, have a task that requires greater strength and stamina, and those who simply prefer horses.[5]

Miniature horses are the only species other than dogs mentioned in the new regulations.[6]Although horses and their owners do not get the same level of protection, their utility is at least recognized; all other nontraditional species, including trained monkeys and parrots, are excluded from being considered service animals.[7]

It is important to balance the rights of the businesses expected to accommodate service animals. Even if miniature, a horse is much more difficult to accommodate in human spaces than a dog. Horses cannot curl up compactly in vehicles or underneath tables. They require more space[8] and have more difficulty going down stairs than dogs.[9] While the new regulations segregate miniature horses from true “service animals,” public entities are required to make “reasonable modifications in policies, practices, or procedures” to permit their use.[10] When considering whether modifications are “reasonable,” the entity may consider the size of the miniature horse, whether the handler has control over it, whether it is housebroken, and whether the horse’s presence would compromise legitimate safety requirements.[11]

If guide horses are useful enough that they must be accommodated under “reasonable” circumstances, then they should be defined as “service animals.” While the regulations have separately protected their use in public, excluding horses may cause their owners other legal problems in private as landlords and state laws restrict where they may be kept.[12]

It is important to remember that America’s most iconic service animal, the Seeing Eye dog, is less than a hundred years old.[13] It would be naïve to assume that we have explored all the ways in which animals can help people to live fuller lives, and innovation cannot occur unless novel service animals can be used in public areas. Individuals need the freedom to be pioneers. Abuses should be punished,[14] but should not lead to a definition of “service animal” so narrow that it excludes domesticated animals with which humanity has had a long and successful partnership.

The clear solution is to legally define service animals by their training, not by their species. The original definition, emphasizing training to perform tasks, allowed those judging service animals to consider “function, not form.”[15] A broad definition lets each individual choose the service animal best suited to his needs, while still leaving room to protect public health and safety in its application by the courts.[16]

[1] “Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” 28 C.F.R. § 36.104 (1991).

[2] “Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.” 28 C.F.R. § 35.104 (2010)(effective March 15, 2011).

[3] Ben Leubsdorf, Seeing-eye horse guides blind Muslim woman, Health care on MSNBC.com,http://www.msnbc.msn.com/id/30155540/ns/health-health_care/ (last visited Sept. 5, 2011).

[4]Common Misconceptions about Guide Horses, The Guide Horse Foundation,http://www.guidehorse.org/misconceptions.htm (last visited Sept. 5, 2011).

[5]Frequently Asked Guide Horse Foundation Questions, The Guide Horse Foundation,http://www.guidehorse.org/faq_GHF.htm (last visited Sept. 5, 2011).

[6] 28 C.F.R. § 35.136 (2010).

[7] Rebecca Skloot, Creature Comforts, N.Y. Times, December 31, 2008,http://www.nytimes.com/2009/01/04/magazine/04Creatures-t.html?pagewanted=1

[8] Eugenia Firth, The Guide Horse Foundation: Joke or Jeopardy?, The Braille Monitor, April 2001, http://www.nfb.org/Images/nfb/Publications/bm/bm01/bm0104/bm010404.htm

[9] Lyn Jacobs, Get the real facts!, GuideHorseNo.com,http://www.guidehorseno.com/article1.html (last visited Sept. 5, 2011).

[10] 28 C.F.R. § 35.136 (2010)

[11]Id.

[12] Robert L. Adair, Note, Monkeys and Horses and Ferrets… Oh My! Non-Traditional Service Animals Under the ADA, 37 N. Ky. L. Rev. 415 (2010).

[13] The Seeing Eye has been training dogs since 1929. Our Mission & History, The Seeing Eyehttp://www.seeingeye.org/aboutUs/default.aspx?M_ID=88 (last visited Sept. 5, 2011).

[14] The appropriate response to concerns about pets being claimed as “service animals” is to punish fraud, not a species ban. Skloot, supra note vii.

[15]Id.

[16]Id.

Getting Green by Going Green: Should the Federal Government be in the Business of Subsidizing New Energy?

By Kelly Calder, Staff Member

Solyndra, a California solar panel manufacturer, recently shut down operations and expressed its intent to file Chapter 11 Bankruptcy.[1] Described as the “biggest green-tech flameout yet,” Solyndra failed despite receiving over one billion dollars from investors[2] and a 535 million dollar loan from the U.S. Department of Energy’s (“DOE”) “Loan Guarantee Program.”[3]

This is not the first solar energy company to file for bankruptcy; Solyndra joins two other American companies, Spectrawatt Inc. and Evergreen Solar Inc., which filed this past August.[4] Solyndra cited numerous reasons for its failure, including heavy competition from government subsidized Chinese manufacturers, but the primary question raised by observers is “whether [the Federal Government] should even be in the business of subsidizing new renewable energy technologies?”[5]

Solyndra’s loan guarantee was a byproduct of The American Recovery and Reinvestment Act of 2009, which amended the Loan Guarantee Program by adding Section 1705.[6] According to the Department of Energy, this temporary program “authorizes loan guarantees for certain renewable energy systems, electric power transmission systems and leading edge biofuels projects that commence construction no later than September 30, 2011.”[7] There are several criteria for receiving a loan guarantee, and the mission of the DOE’s Loan Programs Office is to “enhance American competitiveness in the global economy of the 21st century.”[8] Solyndra was the first company to receive such a loan,[9] and was considered by many to be its “poster child.”[10] Solyndra’s bankruptcy has been viewed by many as a devastating blow to the program.[11]

Despite the uncertainty engendered by Solyndra’s bankruptcy, some still staunchly defend the loan program.[12] They explain that Solyndra represented less than two percent of the total loan commitments made by the DOE and also that, “with a capitalization of just $4 billion, DOE has committed or closed $37.8 billion in loan guarantees for 36 innovative clean energy projects.”[13] The program’s overall success should not be diminished because of the failure of one of its projects.

The DOE has not allowed Solyndra’s bankruptcy to affect its loan policies. According to its website, the DOE just finalized a partial guarantee for an $852 million loan to fund a California solar power plant dubbed the Genesis Solar Project.[14] In addition, First Solar Inc., which is also funded by the DOE, has been largely successful in its solar paneling manufacturing services.[15] First Solar employs the same “thin film” technique Solyndra did, but has managed to overcome the competitive market and overall decline in solar paneling prices.[16]

Upon examination of all the facts, it is apparent that Solyndra’s financial failure is not evidence of government involvement gone wrong, but rather the product of multiple factors, including the inherent difficulties any startup faces when it fails to adapt quickly to unanticipated changes in the economy. While Solyndra’s bankruptcy has been divisive, it should not be viewed as the death kneel for the DOE’s loan program, or prevent future programs like it.

[1] Todd Woody, What Solyndra’s Bankruptcy Means for Silicon Valley Startups, Forbes (Aug. 31, 2011, 3:07 PM), http://www.forbes.com/sites/toddwoody/2011/08/31/what-solyndras-bankruptcy-means-for-silicon-valley-solar-startups/.

[2]Id.

[3] U.S. Department of Energy Loan Programs Office , https://lpo.energy.gov/?page_id=45 (last visited Sept. 5, 2011).

[4]Solyndra Files Bankruptcy, Federal Loan Guarantee Given in Vain, International Business Times New York (Sept. 1, 2011, 11:54 AM),http://newyork.ibtimes.com/articles/207188/20110901/solyndra-bankruptcy-news-solar-panel-doe-omb.htm.

[5] Woody, supra note 1.

[6] U.S. Department of Energy Loan Programs Office, https://lpo.energy.gov/?page_id=41 (last visited Sept. 5, 2011).

[7]Id.

[8] U.S. Department of Energy Loan Programs Office, https://lpo.energy.gov/?page_id=17 (last visited Sept. 5, 2011).

[9] Andrew Dodson, Solyndra Follows Evergreen Solar, Files for Bankruptcy; Stimulus Questioned, Booth Mid-Michigan (Sept. 2, 2011, 2:20 PM) http://www.mlive.com/business/mid-michigan/index.ssf/2011/09/solyndra_ follows_evergreen_sol.html.

[10] Woody, supra note 1.

[11]Supra, notes 4 and 9.

[12] Devon Swezey, Solyndra's Failure Is No Reason To Abandon Federal Energy Innovation Policy, Forbes (Sept. 2, 2011, 7:33 PM)http://www.forbes.com/sites/energysource/2011/09/02/solyndras-failure-is-no-reason-to-abandon-federal-energy-innovation-policy/.

[13]Id.

[14]DOE Finalizes Partial Guarantee for $852 Million Loan to Support California Concentrating Solar Power Plant, Department of Energy (Aug. 26, 2011),https://lpo.energy.gov/?p=5153.

[15] Swezey, supra note 12.

[16]Id.

Welcome the 2011-2012 KJEANRL 2L Staffers!

Please join us in welcoming the 2011-2012 KJEANRL 2L Staffers!

The 2011-2012 KJEANRL Senior Staff

We would like to take this opportunity to recognize our 2011-2012 Senior Staff and thank them for all of their hard work!

Paradise in a Cup of Coffee?

by Chad Riney, Staff Member

“Over the last decade, the Kona Coffee belt, a 20-mile strip of plantations along [Hawaii’s] west coast, has become the Napa Valley for coffee devotees, complete with farm tours and tastings.” Maura Egan,

Naughty by Nature

, N.Y. Times Style Magazine, March 26, 2010, http://www.nytimes.com/2010/03/28/t-magazine/28well-hawaii.html?_r=1&pagewanted=1. It is no surprise that Hawaii has regulated this valuable industry in an attempt to protect it. Hawaiian law requires that the packaging of locally grown coffee indicate both where in Hawai’i the coffee was grown and the percentage by weight of the contents of Hawaiian coffee. HRS §486-120.6. In addition, it is unlawful to label a Hawaiian region as a source of the product when the percent by weight is less than ten percent.

Id.

The laws attempt to protect and preserve the industry’s reputation. The labeling requirement is essentially a disclosure requirement; consumers will know how much Hawaiian coffee they are getting and from where it comes. The baseline requirement, ten percent, for labeling the coffee as a blend prevents dishonest coffee producers from claiming their product to be Hawaiian. But the question is whether these requirements are actually effective in preserving the prestige of Hawaiian coffee.

The Kona Coffee Famers Association makes a pretty strong argument that these laws do not effectively meet their goals. They claim that the labeling laws are used deceptively for promoting coffee by including the minimal amount of Kona coffee.

See

Kona Coffee Facts

, Kona Coffee Farmers Association, http://www.konacoffeefarmers.org/Kona_Coffee_Facts.asp (last visited Jan. 26, 2011). The Association is not opposed to the blending of coffee, they are concerned foreign coffee producers can use the Kona name to market their lower grade coffee.

See id

.

The institution of labeling requirements is undeniably a step in the right direction towards nourishing the Hawaiian coffee industry. However, changes must be made in order to prevent low-grade coffee producers from entering the market on Kona’s coattails.

The 2011-2012 KJEANRL Editorial Staff

We would like to welcome and congratulate our staff members selected to make up the 2011-2012 Editorial Board!