Instant Racing: a Possible Trifecta for Kentucky

By: Taryn DeVeau, Staff Member

Instant Racing has the potential to provide economic benefits for the Kentucky horse industry, surrounding racetrack communities, and the state at large.[1] In Instant Racing, gamblers bet on historical races without knowing the identity of the race.[2] Kentucky Downs is the first horse track in Kentucky to offer Instant Racing, and revenue from Instant Racing will help Kentucky horse tracks compete with tracks in other states that use casino revenue to fund purse take-outs. [3]

Despite the obvious benefits, Instant racing has proved controversial. In a recent lawsuit, the Kentucky Horse Racing Commission, the Department of Revenue, and a group of Kentucky horse racing organizations argued that Instant Racing is within the Kentucky Horse Racing Commission’s regulatory authority and sought declaratory judgment to that effect.[4] The Franklin Circuit Court held that Instant Racing is within the Commission’s regulatory authority so long as it involves “pari-mutuel wagering” on horse races.[5] The court then explained that a wagering system is pari-mutuel if the association does not have an “interest in the outcome of the bet, beyond the uniform deduction allowed by law.”[6] In Instant Racing, gamblers are wagering amongst themselves in wagering pools; therefore, the court was satisfied that the Instant Racing is a form of pari-mutuel wagering.[7] The Family Foundation of Kentucky has appealed the Franklin Circuit Court’s decision and sought an injunction to stop Instant Racing at Kentucky Downs.[8] The Foundation claims that Instant Racing devices are essentially slot machines, which are illegal in Kentucky.[9] The Foundation’s emergency injunction was declined, but the Foundation’s non-emergency injunction will still be reviewed.[10]

The ultimate legality of Instant Racing will depend on whether it is truly a form of pari-mutuel wagering.[11] The Kentucky Attorney General has opined that Instant Racing is not pari-mutuel wagering under Kentucky’s administrative regulations because gamblers in Instant Racing bet on completed races, do not share a betting pool, and rely on seed pools.[12] However, the Commission has drafted new regulations that purport to legalize Instant Racing.[13] These new regulations rely on the Attorney General’s opinion and are currently under review.[14]

Even if the Kentucky Court of Appeals decides on the legality of instant racing before the new regulations are approved, it is unlikely that Instant Racing will be declared illegal due to the potential impact such a ruling would have on the horse industry, which is a very important sector of the Kentucky economy. The profit potential of Instant Racing is hard to ignore, but, because it has not yet been widely adopted elsewhere, it is difficult to predict what type of experience Kentucky might have with instant racing. One Arkansas horse track credits its multi-million dollar purse distributions to a successful Instant Gaming program and electronic gaming facilities.[15] However, because electronic gaming facilities are illegal in Kentucky, Instant Gaming success in Arkansas may not be a reliable predictor of success in Kentucky.[16]

At the present juncture, the future of Instant Racing and the impact it may have on the Kentucky economy remains uncertain. Despite Kentucky Down’s $3 million dollar initial investment in Instant Racing, which could boost the economy by creating jobs and attracting people to the horse track[17], other prominent horse tracks in Kentucky have been reluctant to follow suit. The impending Kentucky Court of Appeals’ decision on the legality of Instant Racing has chilled further investment.[18]

[1] Janet Patton, State approves Instant Racing at Kentucky Downs, Lexington Herald Leader, July 15, 2011, http://www.kentucky.com/2011/07/15/1811479/approval-expected-for-instant.html.

[2] Janet Patton, State approves Instant Racing at Kentucky Downs, Lexington Herald Leader, July 15, 2011, http://www.kentucky.com/2011/07/15/1811479/approval-expected-for-instant.html.

[3] Gregory A. Hall, Kentucky Downs is looking for instant success, The Courier- Journal, August 30, 2011, http://www.courier-journal.com/article/20110830/BUSINESS/308280032/Kentucky-Downs-looking-instant-success.

[4] The Horse Racing Comm’n v. The Family Foundation, No. 10-CI-01154, 8 (Franklin Cir. Ct. Dec. 29, 2010).

[5] Id.

[6] Id. at 12.

[7] Id. at 13-15.

[8] Jack Brammer, Family Foundation seeks injunction to stop instant racing at Kentucky Downs,Lexington Herald Leader, September 3, 2011, http://www.kentucky.com/2011/09/03/1867383/family-foundation-seeks-injunction.html.

[9] Id.

[10] Gregory A. Hall, Judge allows Instant Racing game to continue, The Courier- Journal, September 8, 2011, http://www.courier-journal.com/article/20110908/BUSINESS/309080053/Judge-allows-Instant-Racing-game-continue

[11] The Horse Racing Comm’n v. The Family Foundation, No. 10-CI-01154, 14 (Franklin Cir. Ct. Dec. 29, 2010).

[12] Instant Racing, 10-001 Op. Att’y Gen. 7-9 (2010).

[13] The Horse Racing Comm’n v. The Family Foundation, No. 10-CI-01154, 3 (Franklin Cir. Ct. Dec. 29, 2010).

[14] Id.

[15] Oaklawn to Offer 32 Stakes Races, $4.6 Million in 2001, Oaklawn.com,http://www.oaklawn.com/news/2010/aug/20/oaklawns-2011-stakes-schedule-announced/ (last visited September 13, 2011); Ark. Code Ann. §23-113-101 thru §23-113-604 (2005).

[16] See Ky. Rev. Stat. Ann. § 247.155 (2011).

[17] Janet Patton, On eve of instant racing’s debut, Ky. Downs hopes for big payoff, Lexington Herald Leader, September 1, 2011, http://www.kentucky.com/2011/09/01/1864295/on-eve-of-instant-racings-debut.html.

Congress’ approval of the 2012 Agriculture Appropriations Bill cuts much-needed funding of Farm Bill Mandatory Conservation Programs

By: Alison Marcotte, Staff Member

Roughly every five years, the legislature reviews and renews what is known as the farm bill. Each farm bill normally encompasses titles such as “commodity price and income supports, farm credit, trade, agricultural conservation, research, rural development, energy, and foreign and domestic food programs such as food stamps and other nutrition programs, among other programs.”[1] It also usually provides for the mandatory funding for several of these programs. Mandatory funding means that the amount of funding authorized by Congress is available unless limited to smaller amounts in the appropriations process.[2] After the approval of the House of Representatives’ and Senates’ version of the Agricultural Appropriations Bill of 2012, many conservationists worry that much of the funding that has been provided to mandatory conservation programs will be cut to levels below the authorized amounts in order to increase spending on food and nutrition programs.

On September 7, 2011, the United States Senate passed its fiscal year 2012 Agriculture Appropriations Bill. The result was a total provision of $19.78 billion to the Agriculture Appropriations Subcommittee for spending for fiscal year 2012, which is about a $141 million reduction from the amount enacted in fiscal year 2011.[3] While this allocation of funds was more generous than the mere $17.08 billion approved by the House of Representatives in June of this year, it still cuts important and much-needed funding to a number of Conservation Programs nationwide.[4]

Specifically, some of the conservation cuts to be made by the Senate-approved version of the bill include $350 million from the Environmental Quality Incentives Program, $35 million from the Conservation Stewardship Program, $50 million from the Farm and Ranch Lands Protection Program, and $35 million from the Wildlife Habitat Incentives Program. Additionally, the Wetlands Reserve Program and the Grasslands Reserve Program would be cut by $180 million and $46 million respectively.[5] In all, the spending bill cuts mandatory conservation programs by 12%, or $726 million, from levels authorized by the farm bill. These cuts are being made on top of the reductions made from the 2011 appropriation levels.[6]

The problem with the potential enactment of the Agricultural Appropriations Bill as approved by the Senate is that the mandatory conservation programs will be taking a large monetary hit in order to compensate for the money needed to fund other farm bill programs. On top of this, Congress made the decision to cut the level of agricultural spending knowing that the Agricultural Appropriations Committee must increase spending on food and nutrition safety programs and, as a result, would be forced to spend less on conservation. [7] This could result in negative environmental effects due to the fact that the conservation programs offer incentives to farmers to consider ecological factors in making farming decisions to avoid land abuse and overuse. [8] Congress’ approval of slashing the funds of these programs is more than questionable. Ferd Hoffner, Policy Director at the National Sustainable Agricultural Coalition stated it best: “Shortchanging the Agriculture appropriations allocation such that the funding of important items like feeding programs and food safety requires raiding farm bill direct spending to make up for shortfalls is the type of gaming and double dealing that gives Congress a bad name." [9]

[1] Renee Johnson and Jim Monke, What is the “Farm Bill”?, Congressional Research Service, 1 (Dec. 10, 2010), http://www.nationalaglawcenter.org/assets/crs/RS22131.pdf.

[2] Jeffery A.Zinn, Mandatory Funding for Agriculture Conservation Programs, CRS Report for Congress, 1 (Jan. 9, 2007), http://lugar.senate.gov/services/pdf_crs/ag/11.pdf.

[3] Senate Appropriations Committee Approves FY 2012 Spending Caps, Rural Housing FundingBill, National Council of State Housing Agencies Blog, (Sept. 19, 2011 11:10 PM),http://www.ncsha.org/blog/senate-appropriations-committee-approves-fy-2012-spending-caps-rural-housing-funding-bill

[4] Jerry Hagstrom, Ag Appropriation bill Approved, Agweek.com (Sept. 13, 2011 5:41 AM)http://www.agweek.com/event/article/id/19069/.

[5] Senate Agricultural Spending Bill Unveiled, National Sustainable Agricultural Coalition, (Sept. 9, 2011), http://sustainableagriculture.net/blog/senate-ag-spending-bill-2/.

[6] Id.

[7]Daniel Looker, CHIMPING away at conservation, agriculture.com (Sept. 9, 2011 4:37 PM),http://www.agriculture.com/news/policy/chimping-away-at-conservation_4-ar19070?print.

[8] Tom Philpott, Budget fight threatens to turn Farm Bill into Industrial Ag Bill, Grist.com (Apr. 4, 2011 8:50 PM), http://www.grist.org/farm-bill/2011-04-04-budget-fight-threatens-turn-farm-bill-into-industrial-ag.

[9] Looker, CHIMPING away at conservation, Agriculture.com,http://www.agriculture.com/news/policy/chimping-away-at-conservation_4-ar19070.

Should BP Face Criminal Liability for the Gulf of Mexico Oil Spill?

By: Neal Manor, Staff Member

On the first anniversary of the permanent sealing of the Macondo Prospect well in the Gulf of Mexico, more questions than answers remain concerning BP’s criminal liability for the damage its 206 million gallon oil spill caused. Last week, the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) published a report[1] examining the explosion on the Deepwater Horizon rig that killed 11 people and led to the largest unintentional oil spill in history.[2]

A BOEMRE panel of investigators concluded that BP and its contractors Halliburton and Transocean violated seven federal regulations.[3] Among these violations were a failure to protect health, safety, property, and the environment, failure to take necessary precautions to keep the well under control at all times, and failure to conduct inspections of major rig components.

Louisiana’s wetlands, thought by many to be damaged irrevocably by the spill, seem poised for a dramatic recovery. Ed Overton, a professor emeritus at Louisiana State University’s Department of Environmental Sciences, collected water samples from an affected area and saw “remarkably normal” results.[4] His research on the condition of the wetlands has shown no sheen on the water from the spill, marshes teeming with new growth, and a relatively healthy fish population.[5] There is an emerging consensus that the spill’s ecological effects could have been worse.[6]

BP, Halliburton, and Transocean, the three corporations principally responsible for operating theDeepwater Horizon rig, might not be so fortunate. Two months after the explosion, with oil still inundating the Gulf of Mexico, President Obama confirmed that a criminal investigation had been launched and that “[i]f our laws were broken…we will bring those responsible to justice….”[7] Some experts believe that the criminal investigation by the Department of Justice will result in indictments and historic criminal fines for BP and its contractors, who were deemed directly responsible for the spill by the BOEMRE panel of investigators.[8] A civil suit has already been filed and will not likely impact whether criminal charges are ultimately pursued.[9]

The averted environmental apocalypse should not preclude the Department of Justice from issuing criminal charges against those responsible for the largest unintentional oil spill in history. With the moratorium on deep-water drilling imposed by President Obama after the spill now lifted, substantial disaster prevention methods other than new rules and regulations are necessary. Criminal prosecution of BP, Halliburton, and Transocean will serve retributive purposes in a way that civil penalties simply cannot. Most importantly, the potential punishment these three corporations receive would deter other major corporations involved in similar offshore drilling operations from taking economic shortcuts and putting the bottom line before safety.

[1] Bureau of Ocean Energy Management, Regulation, and Enforcement, Report Regarding the Causes of the April 20, 2010 Macondo Well Blowout, Volume II (2011), available athttp://www.boemre.gov/ooc/press/2011/press0914.htm.

[2] Joel Achenbach and David A. Fahrenthold, Oil Spill Dumped 4.9 Million Barrels into Gulf of Mexico, Latest Measure Shows, The Washington Post (Aug. 3, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/08/02/AR2010080204695.html.

[3] See 30 C.F.R. § 250.107; 30 C.F.R. § 250.300; 30 C.F.R. § 250.401; 30 C.F.R. § 250.420(a)(1) ; 30 C.F.R. § 250.427(a); 30 C.F.R. § 250.446(a); 30 C.F.R. § 250.1721(a).

[4] Neal Conan, Checking in on Gulf on Heels of BP Spill Report, National Public Radio (Sept. 15, 2011),http://www.npr.org/2011/09/15/140508713/checking-in-on-gulf-on-heels-of-bp-spill-report.

[5] Id.

[6] Bryan Walsh, The BP Oil Spill, One Year Later: How Healthy is the Gulf Now? Time Science (Apr. 19, 2011),http://www.time.com/time/health/article/0,8599,2066031,00.html.

[7] Brian Montopoli, Obama Vows “Justice” for Oil Spill Crimes, CBS News (June 1, 2010),http://www.cbsnews.com/8301-503544_162-20006435-503544.html.

[8] David M. Uhlmann, After the Spill is Gone: The Gulf of Mexico, Environmental Crime, and the Criminal Law, 109 Mich. L. Rev. 1413 (2011).

[9] Id. at 1435.

A legislator's proposal to aid the declining U.S. dairy industry.

By: Whitney Jones, Staff Member

On July 13, 2011, ranking House Agriculture Committee member Collin Peterson of Minnesota released a draft proposal for the 2012 dairy reform bill stating that “if we have another dairy crisis like we had in 2009, we could lose half our dairies.”[1] The Representative’s proposal came in response to what has been called the “Great Dairy Recession,” a period in 2009 where a weakened economy led to a collapse in milk prices, the export market went bad, and the cost of feed skyrocketed.[2] This proposal, however, comes at a time when our country is focused on coming out of a recession of its own and cutting billions in federal programs.[3]

The discussion draft of the bill states its purpose as the following: “A bill to replace current dairy product price support and milk income loss contract programs with a program to protect dairy producer income when the difference between milk prices and feed costs is less than a specified amount, to establish a dairy market stabilization program, to amend Federal milk marketing orders, and for other purposes.”[4]

Like any other legislation, the proposal does not come without disagreements among affected parties. Since its release, many organizations have voiced their support and also their concerns. The National Milk Producers Federation President and CEO Jerry Kozak described this legislation as long-anticipated, while the International Dairy Foods Association CEO Connie Tipton feels that this program will negatively impact the ability of the U.S. dairy industry to compete globally.[5] One aspect of the proposal that has proven to be especially controversial is the program setting limits on milk production in an attempt to regulate oversupply and price fluctuations.[6]

Whether you agree or disagree with Representative Peterson’s proposal of the dairy reform bill, it is an unavoidable reality that thousands of farmers across the country are exiting the dairy industry and the amount of dairy farms is decreasing rapidly.[7] Representative Peterson has responded to this and hopes that others in Congress will find that “this proposal addresses these challenges. The proposal creates a strong safety net that will provide the support all sectors of the diverse industry need during tough times.”[8]

“Got milk?” may be a phrase of the past because without dairy farms, there may not be enough milk for consumers “to get.”

[1] Jerry Hagstrom, Peterson releases dairy reform draft, Agweek, July 18, 2011,http://www.agweek.com/event/article/id/18780/.

[2] Eric Brown, Dairy experts: Leprino Foods plant won’t completely save regional industry, but it will help, The Tribune, Aug. 27, 2011,http://www.greeleytribune.com/article/20110827/BUSINESS/708279980.

[3]Id.

[4]First discussion draft Dairy Reform Bill, dated July 13, 2011, available athttp://democrats.agriculture.house.gov/inside/Legislation/PETEMN_001_xml_071111.pdf; Representative Collin Peterson (D-MI) drafted this legislation.

[5] Hagstrom, supra note 1.

[6] Curtis Tate & John Holland, U.S. dairy farmers are in ‘a pretty big hole’, Merced Sun-Star, Aug. 20, 2011, http://www.mercedsunstar.com/2011/08/20/2011268/us-dair-farmers-are-in-a-pretty.html.

[7] Brown, supra note 2.

[8] Hagstrom, supra note 1.

Nay I Say: The Negative Implications of Horse Cloning in Competitive Horse Racing

By: Sam Jones, Staff Member

While most of the world stands in awe of recent developments in cloning technology, entrepreneurs and investors are catching hold of the financial promise that such a field holds. The process by which an unfertilized egg is implanted in another’s female body has opened the floodgates for new medical and genetic research as well as marketable capitalization.[1]

The equine industry and international breeding organizations are only a few of the many groups to mold this new option to their commercial desires and endeavors. Particularly, those in champion racehorse breeding circles saw nothing but promise in the possibility of preserving the excelled genetic materials from past racing giants like Secretariat, Jon Henry, Desert Orchid, or even the savior of modern horse racing, the Great Man o’ War, and funneling it into a new super-class of modern track stars. By cloning a champion racehorse, owners are investing in a business that could yield detrimental results, but also unfathomable returns. Still, even as scientific developments are speeding out of the gates, equine federations are quickly drawing the reins to slow the rush of the commercial investors who are eager to line the pockets of nuclear and genetic marketing firms.

No stranger to Kentucky, the International Equine Federation has firmly stated its commitment to the preservation of fairness and sportsmanship for both participants of its sport, rider and horse, on an international level.[2] It remains open and supportive of advancements and developments related to the interbreeding of champion horse lines and even cross-breeding through artificial insemination (AI). However, it remains opposed to the idea of permitting cloned horses to compete in any sanctioned international event. It states: "The competitive equestrian couple of horse and rider are both acknowledged as athletes by the FEI. The cloning of either with a view to competing at international level would be unacceptable to the FEI."[3] Some American equine organizations, such as the American Quarter Horse Association and the Jockey Club, which controls the registration of thoroughbred racehorses, do not allow cloning either.[4] This position is has merit and should be supported by Kentucky legislature.

Racehorse breeders are a strange breed of their own, favoring the scientific selection of excellent bloodlines and parentage over the lackluster competitive methodology of pure training and race experience.[5] They are, however, missing the essence of competition by trying to better their odds through science and cents. Although there is no guarantee that a sire’s superior racing heritage will be inherited by the newly created foal, the financial risk is well worth the investment. In 2006, the price of the first commercially cloned foal was roughly $150,000[6], which is pocket change compared to the $60-million sales tag on the Kentucky Derby winner Fusiachi Pegasus six years before the first cloning.[7] With such a high risk payout, investors select bloodlines very carefully and only interbreed with the best, most prestigious lineages possible. Unfortunately, this leads to genetic overlapping and inbreeding, which spurs a whole range of developments issues for horses, both prenatally and on into adolescent maturation.[8]

Additionally, this genetic commercialism of racehorses” forces out breeders, trainers, and owners who are not financially able to compete with those who can afford to resurrect past racehorse legends, let alone those who already breed champion horse lines with other accomplished lineages. To some, using science and genetic modification takes the “sport” out of the sport. It becomes nothing more than a forced exploitation of animals, bundled with all the harmful health risks that accompany cloning.

Kentucky’s horse racing industry rakes in $4 billion in state funds annually, but it is failing because it has been forced to cope with losses of wagers, investors migrating towards other tracks and breeding incentives, and even shortages of horse technicians and veterinarians.[9] By permitting the inclusion of genetically modified horses that are projected to have the physical superiority literally “in their blood,” the field of competition will be sharply one-sided and ruled by those with the deepest pockets, which would create additional challenges for the already wavering equine industry in Kentucky. Permitting genetically cloned horses to compete in high-stakes races eliminates the competitive preparation and training invested in so many steeds and prevents those outside the upper class from participating in one of the most prized aspects of Kentucky’s identity.

[1] Lexa W. Lee, Pros and Cons of Horse Cloning, eHow: Biology Sciences: Stem Cells,http://www.ehow.com/info_8536886_pros-cons-horse-cloning.html (updated June 3, 2011).

[2] Who We Are & What We Stand For, International Equine Federation, http://www.fei.org/about-us/profile (last visited Sept. 17, 2001).

[3] Fran Cleland, Cloning Controversy, Weekly Times Now (Sept. 19, 2011)http://www.weeklytimesnow.com.au/article/2011/09/19/380881_horses.html. See Tom Reed, Pink Flamingos or ink Horses- The Cloning Crux, Eurodressage(Sept. 9, 2011),http://www.eurodressage.com/equestrian/2011/09/09/tom-reed-pink-flamingos-or-pink-horses-cloning-crux (last visited Sept. 19, 2011).

[4] Lee, supra note 1.

[5] Is Anyone Against Cloning Racehorses?, Curiosity.com, http://curiosity.discovery.com/question/is-anyone-against-cloning-racehorses (last visited Sept. 18, 2011).

[6]Maryann Mott, Champion Horse Cloned by Texas Breeder, National Geographic News (Apr. 4, 2006), http://news.nationalgeographic.com/news/2006/04/0404_060404_horse_clone.html (last visited Sept. 19, 2011).

[7] Mott, supra note 6.

[8] Lee, supra note 1.

My Guitar Gently Weeps… My Hands Hurt

By: Sam Jones, Staff Member

While most of the world stands in awe of recent developments in cloning technology, entrepreneurs and investors are catching hold of the financial promise that such a field holds. The process by which an unfertilized egg is implanted in another’s female body has opened the floodgates for new medical and genetic research as well as marketable capitalization.[1]

The equine industry and international breeding organizations are only a few of the many groups to mold this new option to their commercial desires and endeavors. Particularly, those in champion racehorse breeding circles saw nothing but promise in the possibility of preserving the excelled genetic materials from past racing giants like Secretariat, Jon Henry, Desert Orchid, or even the savior of modern horse racing, the Great Man o’ War, and funneling it into a new super-class of modern track stars. By cloning a champion racehorse, owners are investing in a business that could yield detrimental results, but also unfathomable returns. Still, even as scientific developments are speeding out of the gates, equine federations are quickly drawing the reins to slow the rush of the commercial investors who are eager to line the pockets of nuclear and genetic marketing firms.

No stranger to Kentucky, the International Equine Federation has firmly stated its commitment to the preservation of fairness and sportsmanship for both participants of its sport, rider and horse, on an international level.[2] It remains open and supportive of advancements and developments related to the interbreeding of champion horse lines and even cross-breeding through artificial insemination (AI). However, it remains opposed to the idea of permitting cloned horses to compete in any sanctioned international event. It states: "The competitive equestrian couple of horse and rider are both acknowledged as athletes by the FEI. The cloning of either with a view to competing at international level would be unacceptable to the FEI."[3] Some American equine organizations, such as the American Quarter Horse Association and the Jockey Club, which controls the registration of thoroughbred racehorses, do not allow cloning either.[4] This position is has merit and should be supported by Kentucky legislature.

Racehorse breeders are a strange breed of their own, favoring the scientific selection of excellent bloodlines and parentage over the lackluster competitive methodology of pure training and race experience.[5] They are, however, missing the essence of competition by trying to better their odds through science and cents. Although there is no guarantee that a sire’s superior racing heritage will be inherited by the newly created foal, the financial risk is well worth the investment. In 2006, the price of the first commercially cloned foal was roughly $150,000[6], which is pocket change compared to the $60-million sales tag on the Kentucky Derby winner Fusiachi Pegasus six years before the first cloning.[7] With such a high risk payout, investors select bloodlines very carefully and only interbreed with the best, most prestigious lineages possible. Unfortunately, this leads to genetic overlapping and inbreeding, which spurs a whole range of developments issues for horses, both prenatally and on into adolescent maturation.[8]

Additionally, this genetic commercialism of racehorses” forces out breeders, trainers, and owners who are not financially able to compete with those who can afford to resurrect past racehorse legends, let alone those who already breed champion horse lines with other accomplished lineages. To some, using science and genetic modification takes the “sport” out of the sport. It becomes nothing more than a forced exploitation of animals, bundled with all the harmful health risks that accompany cloning.

Kentucky’s horse racing industry rakes in $4 billion in state funds annually, but it is failing because it has been forced to cope with losses of wagers, investors migrating towards other tracks and breeding incentives, and even shortages of horse technicians and veterinarians.[9] By permitting the inclusion of genetically modified horses that are projected to have the physical superiority literally “in their blood,” the field of competition will be sharply one-sided and ruled by those with the deepest pockets, which would create additional challenges for the already wavering equine industry in Kentucky. Permitting genetically cloned horses to compete in high-stakes races eliminates the competitive preparation and training invested in so many steeds and prevents those outside the upper class from participating in one of the most prized aspects of Kentucky’s identity.

[1] Lexa W. Lee, Pros and Cons of Horse Cloning, eHow: Biology Sciences: Stem Cells,http://www.ehow.com/info_8536886_pros-cons-horse-cloning.html (updated June 3, 2011).

[2] Who We Are & What We Stand For, International Equine Federation, http://www.fei.org/about-us/profile (last visited Sept. 17, 2001).

[3] Fran Cleland, Cloning Controversy, Weekly Times Now (Sept. 19, 2011)http://www.weeklytimesnow.com.au/article/2011/09/19/380881_horses.html. See Tom Reed, Pink Flamingos or ink Horses- The Cloning Crux, Eurodressage(Sept. 9, 2011),http://www.eurodressage.com/equestrian/2011/09/09/tom-reed-pink-flamingos-or-pink-horses-cloning-crux (last visited Sept. 19, 2011).

[4] Lee, supra note 1.

[5] Is Anyone Against Cloning Racehorses?, Curiosity.com, http://curiosity.discovery.com/question/is-anyone-against-cloning-racehorses (last visited Sept. 18, 2011).

[6]Maryann Mott, Champion Horse Cloned by Texas Breeder, National Geographic News (Apr. 4, 2006), http://news.nationalgeographic.com/news/2006/04/0404_060404_horse_clone.html (last visited Sept. 19, 2011).

[7] Mott, supra note 6.

[8] Lee, supra note 1.

The Legal Workforce Act: Where Would Nationwide E-Verify Leave the Agricultural Industry?

By: Jessica Durden, Staff Member

H.R. 2164, the Legal Workforce Act, mandates a nationwide “E-Verify” system. This law would require employers to approve new hires through the E-Verify database, which reports on immigration status. In the wake of Supreme Court decisions green-lighting state mandate schemes, the business community has moved toward backing E-Verify.[1] Arizona’s hardline opposition to illegal immigration found support from the Supreme Court earlier this year, paving the way for bills like H.R. 2164.[2] However, the agriculture lobby has engineered a powerful push-back, alleging that an E-Verify system would cripple farmers nationwide and lead to mass foreign outsourcing to supply the American public with food.[3]

Farm groups have brought a legitimate grievance to the attention of Congress and in doing so have conceded the agriculture industry’s reliance on foreign workers. Labor research has shown that American-born workers either shy away from agricultural work or quit after a short stint; therefore, the farm groups’ complaints do look legitimate.[4] The bill does make allowances to assist the farm groups in adjusting to the bill after its passage. For example, the bill proposes a three-year phase-in period for agriculture, returning seasonal workers would not have to undergo E-Verify scrutiny each year, and only newemployees have to undergo screening. Taken together, these allowances lift what would otherwise be a very heavy burden off of farm employers.[5]

Unfortunately, the plight of the American farmer would likely worsen in the three year grace period. After Georgia and Alabama passed state mandates akin to Arizona’s, undocumented workers fled the state and left harvesting farmers in the lurch.[6] Republican Representatives have started to yield slightly toward the view that agriculture demands allowances to bend the rules regarding immigration. Quashing the flow of undocumented workers doing the manual labor on America’s farms could feasibly lead to outsourcing or toward further disobedience of such laws. The law cannot play favorites, but it also cannot ignore the troubling reality that American farms are stocked with undocumented workers and will lose functionality with stricter laws precluding such employment.

A complete collapse of the American agricultural industry is unlikely even if the bill does pass. However, if lawmakers provide farm-friendly loopholes, beyond those already built in to the bill, then other industries that employ illegals, e.g. hotels, restaurants, and construction, will beg for relief as well. The engineered softening of the bill for agriculture, at least up front, looks like a smart move, but it may also result in a real-life illustration of the slippery slope argument. Farm groups are rightfully concerned by the bill, but lawmakers should carefully consider whether opening Pandora’s Box for an entire industry to skirt the law is advisable. At this juncture, perhaps it is time for both lawmakers and employers to step back and reconsider tactics that recognize reality but also demonstrate a commitment toward reaching a solution to the illegal immigration issue instead of putting a finger in the dam temporarily.

[1] Mark Krikorian, This Year’s Most Important Jobs Bill, National Review Online (June 16, 2011, 4:00 AM), http://www.nationalreview.com/articles/269662/years-most-important-jobs-bill-mark-krikorian.

[2]Supreme Court Approves E-Verify Mandate, The Shapiro Law Group (June 6, 2011)http://business-immigration-lawyer.com/2011/06/06/supreme-court-approves-e-verify-mandate/.

[3] Miriam Jordan, Farmers Press GOP on Hiring, The Wall Street Journal Online (Sept. 7, 2011),http://online.wsj.com/article/SB10001424053111903648204576554830735887802.html?mod=WSJ_hp_LEFTTopStories.

[4]Id.

[5] Kirkorian, supra note 1.

[6] Jordan, supra note 3.

Obama Cites Economic Consequences as Reason for Declining New EPA Standards

By: Clay Duncan, Staff Member

Among other things, the Clean Air Act is intended “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.”[1] President Barack Obama has recently made clear that this objective must yield to other concerns by rejecting heightened smog standards proposed by the Environmental Protection Agency (“EPA”) earlier this month.[2] As Americans, we must realize that placing emphasis on job creation and economic sustainability may come at the expense of our most valuable asset of all: the health of the people.

In July, the EPA released its final draft of stricter smog standards whose intended effect would be to reduce exhaust emissions from America’s power plants and provide healthier breathing air.[3] The agency said that the implementation of these standards could soon “prevent as many as 34,000 premature deaths each year.”[4] The National Ambient Air Quality Standards would reduce ground-level ozone to 60 to 70 parts per billion.[5]

Despite these valid public health interests, President Obama has cited the economic recovery and need for job growth as justifications for rejecting the standards.[6] Obama stated that “reducing regulatory burdens and regulatory uncertainty” was crucial to an economic rebound.[7] The implication seems to be that manufacturers will be less willing to hire in the face of rising regulatory compliance costs.

Environmental advocates are skeptical that these economic concerns are strong enough to override those underlying the EPA regulations. Rather, they feel that this decision by Obama is the result of industry lobbyists getting exactly what they want.[8] Environmentalists say that health care costs will keep rising and Americans will keep dying unnecessarily if our smog problem is not addressed by appropriate regulations.[9]

It is without question that the interests of the manufacturing industry and that of environmental groups will never align. But can we not grow our economy without polluting our air and infecting our citizens? If not, which interest prevails? On this occasion, it seems that big industry has persuaded the powers that be to hold off on the enhancement of emission standards. Going forward, hopefully the President will defer to the EPA in hopes of maintaining the health of the American people, even if it comes at the expense of the American economy.

[1] 42 U.S.C.A. §7401(b)(1) (West 2011).

[2] Cheryl Kaften, Obama Sacks New EPA Smog Standards, Green Technology World (Sept. 6, 2011),http://green.tmcnet.com/topics/green/articles/215244-obama-sacks-new-epa-smog-standards.htm.

[3] Elizabeth Shogren, EPA Issues New Standards For Coal-Burning Plants, npr (July 7, 2011),http://www.npr.org/2011/07/07/137681222/epa-issues-new-standards-for-coal-burning-plants.

[4]Id.

[5] Kaften, supra note 2.

[6]Id.

[7]Industry Victory: Obama Withdraws EPA’s Stricter Smog Standards, Environment News Service(Sept. 2, 2011), http://www.ens-newswire.com/ens/sep2011/2011-09-02-01.html.

[8]Id.

[9]Id.

Fenamiphos: What it is and Why it Should Not Be In Your Food

By: Alexandria M. Crawley, Staff Member

Chemically and genetically enhanced foods are becoming increasingly more common. However, with this increase in biotechnology also comes an increase in public awareness and concern. Perhaps it is this heightened public concern that has prompted the EPA to request data on fenamiphos, an organophosphate pesticide that the EPA currently tolerates in residual amounts on imported foods.[1]

The EPA first evaluated the risk of fenamiphos in 2002, when it decided to phase out the amount tolerated in water but to allow its presence in food.[2] However, the Food Quality Protection Act allows the EPA to continue to monitor the risk and adjust tolerance levels as research and technology advance.[3]The EPA considered revoking the tolerance of fenamiphos in food in 2008, but ultimately rejected the idea because the proposal, which was brought by the American Birds Conservatory, was not related to food safety. [4]

Though there are certainly benefits to the use of pesticides, the circumstances surrounding fenamiphos should make the EPA very reluctant to continue tolerating it on food imports. First, the decision to phase out the toxin in water sources came as a result of its sole producer, Bayer Corporation, withdrawing its registration with the EPA rather than continuing research.[5] Though it is perhaps possible that Bayer simply did not have the resources to pursue this research, it seems more likely that it anticipated that the research would be either futile or unfavorable.

Another questionable fact is that in 2008 the EPA considered phasing out fenamiphos residue on domestic food.[6] It seems that if the EPA distinguished between domestic and imported foods, then the EPA was sacrificing health for economics. This is tantamount to a decision that the relationship between the United States and its importers was more important than the physical health of Americans. Otherwise, it would seem that if the substance was banned on domestic food, it would be banned on imported food as well.

Finally, there is plenty of research that suggests that no amount of fenamiphos should be tolerated. The EPA itself states that limited exposure can cause “nausea, dizziness, and confusion,” while greater exposure could potentially cause death.[7] However, other research suggests that organophosphates in foods are linked to even more conditions, such as ADHD in children.[8] If fenamiphos is indeed linked to such conditions, it seems rather irresponsible to promote the consumption of fresh produce as long as fenamiphos residue is being allowed.

The EPA plans to take data and comments on fenamiphos through October 31, 2011, with an additional 90 day window to follow.[9] Environmental researchers and other individuals and groups should take advantage of this period to make the EPA aware of new research that will enable it to consider and reevaluate its toleration of fenamiphos in light of its harmful effects.

[1] Avery Fellow, EPA to Request Data to Support Allowing Import of Foods with Residues of Fenamiphos, 35 Chem. Reg. Rep. Online (BNA) 870 (Sept. 12, 2011), available athttp://news.bna.com/chln/CHLNWB/split_display.adp?fedfid=22687919&vname=chenotallissues&fn=22687919&jd=crr_35_870&split=0; Fenamiphos; Proposed Data Call-In Order for Pesticide Tolerance, 76 Fed. Reg. 54,185 (proposed Aug. 31, 2011) (to be codified at 40 C.F.R. pt. 180.

[2]Fenamiphos Facts, U.S. Envtl. Prot. Agency,http://www.epa.gov/oppsrrd1/REDs/factsheets/fenamiphos_ired_fs.htm (last updated Sept. 12, 2011).

[3] Food Quality Protection Act of 1996, Pub. L. No. 104-170, 110 Stat. 1513 (1996).

[4] Alan Kovski, EPA Refuses to Revoke Tolerances for Pesticide Residues on Imported Foods, 35 Chem. Reg. Rep. Online (BNA) 803 (Aug. 15, 2011), available athttp://news.bna.com/chln/CHLNWB/split_display.adp?fedfid=21765723&vname=chenotallissues&fn=21765723&jd=crr_35_803&split=0; 2, 4-D Bensulide, DCPA, Desmedipham, Dimethoate, Fenamiphos, Phorate, Sethoxydim, Terbufos, and Tetrachlorvinphos; Proposed Tolerance Actions 73 Fed. Reg. 6867 (proposed Feb. 6, 2008) (to be codified at 40 C.F.R. 180).

[5]Fenamiphos Facts,supra note 2.

[6]Fenamiphos Facts,supra note 2.

[7]Fenamiphos Facts,supra note 2.

[8] Leah Zerbe, Pesticides in Food Linked to ADHD in Kids MSNBC (Sept. 11, 2011 9:53 AM),http://www.msnbc.msn.com/id/44260583/s/health-nchildrens_health/?gt1=43001.

[9] Avery, supra note 1