Brazilian judge cites environmental concerns in halting Amazon dam construction.

By Roger Battiston, Senior Staff Member

Recent construction on what is to be the world’s third largest hydroelectric dam has been halted by a Brazilian judge. The 17 billion dollar Belo Monte dam was planned to be built in the Amazon rain forest, along the Xingu River, and has been in the works for about 30 years.[1]

As a result of stiff opposition by indigenous tribes and environmental conservatives, the project was shelved until recently, when construction was approved in early 2010 by Brazil’s environment agency.[2] Opponents’ main opposition to the construction of the 11 gigawatt-producing dam was the amount of land that will flood by damming the Xingu River, roughly 500 square kilometers, which would displace thousands of indigenous people.[3] In addition, the dam would wreak environmental havoc on portions of the Amazon by partially drying up a 62 mile stretch of the Xingu River, thereby devastating local wildlife.[4] The Brazilian government argued that the massive dam is needed to meet the explosive demand in energy that has resulted from Brazil’s expansive economy and that the effect of the dam would be directly felt by indigenous people.[5] To counter opposition, the Brazilian government required the company slated to run the dam, Norte Energia, to spend about 800 million dollars off-setting environmental consequences from the project.[6]

Construction of the 3.75 mile long dam has faced legal hurtles since its approval.[7]Construction was first halted when a Brazilian judge found that a number of environmental conditions of the approval of construction had not been met.[8] That decision was subsequently overturned.[9]The most recent injunction halting the project was issued by Judge Carlos Eduardo Martins, who cited concerns that the dam would harm the fishing stocks of the Xingu River.[10]

Environmental concerns will always be an issue when infrastructure projects on the scale of the Belo Monte dam are implemented. However, the Brazilian government has recognized the potential for damage and laid out conditions to ameliorate the consequences. In order to provide for Brazil’s burgeoning economy, dam construction should be allowed to continue.

[1] Reuters, Brazil approves Belo Monte hydroelectric dam, The Guardian, June 1, 2011,http://www.guardian.co.uk/environment/2011/jun/01/brazil-belo-monte-dam.

[2] Id.

[3] Tom Phillips, Brazil to build controversial Belo Monte hydroelectric dam in Amazon rain forest, The Guardian, Feb. 2, 2010,http://www.guardian.co.uk/environment/2010/feb/02/brazil-amazon-rainforest-hydroelectric-dam.

[4] Reuters, supra note 1.

[5] Phillips, supra note 3.

[6] Id.

[7] Reuters, supra note 1.

[8] Associated Press, Judge suspends construction of huge dam in Brazil’s Amazon region,The Washington Post, Sept. 29, 2011, http://www.washingtonpost.com/world/americas/judge-suspends-construction-of-huge-dam-in-brazils-amazon-region/2011/09/29/gIQAbXnW7K_story.html.

[9] Id.

[10] Id.

Bureau of Land Management Comes Under Fire Over Efforts to Reign in Wild Horse Heards

By Roy York, Staff Member

On June 13, 2011, the Federal Bureau of Land Management (BLM) announced a decision to capture all 800 wild horses in two designated preserves in Southern Wyoming, surgically sterilize them, and release only a small number back into the wild, effectively dooming the herd.[1] After significant public outrage, the BLM revised the plan on June 22, 2010, to gather only 90 percent of the horses, spay no mares, and return gelded wild horses to the preserves.[2] The BLM maintained that the number of wild horses in the area was “in excess and subject to gathering and removal.”[3]

After a year of frustration with Secretary of the Interior Ken Salazar,[4] the Western Watersheds Project, a leading environmental organization, and the American Wild Horse Preservation Campaign filed suit in the U.S. District Court for the District of Columbia seeking to block the BLM from carrying out the plan. In response, on August 5, 2011, the BLM changed its stance yet again and planned to remove 90 percent of the horses, skew the ratio in favor of stallions, and inject the mares with birth control to slow population growth.[5] The gathering was completed on August, 31, 2011.[6]

The actions of the BLM sparked a federal complaint in this instance, but gathering, relocation, and population control efforts have been a hot-button issue for years. In 2006, wild horse activists filed a complaint in federal court to enjoin the BLM from herd management citing the BLM’s track record of mistreating horses.[7] The BLM came under fire again in 2010 after horse population control efforts went awry in Nevada.[8] The resulting deaths, castrations, and abuse of captured wild horses led to protests from animal rights groups and other activists.[9] Currently the BLM is considering public input on a proposal to eliminate federal reserves for wild horses in favor of grazing land for livestock over the next 15 to 20 years.[10]

The BLM argues that the measures are essential to controlling the growing wild horse population and marinating the viability of herds and horse habitats. Salazar’s revised plan to deal with the overpopulation may end up costing the federal government more money than it is saving by controlling horse population on public land if the BLM continues to come under fire for its practices. Expect this to continue to be an issue in the future as the BLM continues to aggressively fight the overpopulation of wild horses.

[1] Lance C. Porter, White Mountain – Little Colorado Herd Management Areas Wild Horse Gather,Bureau of Land Management Rock Springs Field Office Decision Record (June 13, 2011), available athttp://www.blm.gov/pgdata/etc/medialib/blm/wy/information/NEPA/rsfodocs/whitemtn-wind/rev-ea.Par.54148.File.dat/DR.pdf.

[2] Lance C. Porter, White Mountain – Little Colorado Herd Management Areas Wild Horse Gather,Bureau of Land Management Rock Springs Field Office Decision Record (June 22, 2011), available athttp://www.blm.gov/pgdata/etc/medialib/blm/wy/information/NEPA/rsfodocs/whitemtn_littlecolo.Par.28805.File.dat/2011_modifiedDR.pdf.

[3] Id. at 1.

[4] Alan Prendergast, Ken Salazar: Frustration riding high over his wild horse plan, Denver Westword(June 14, 2010, 4:45 PM),http://blogs.westword.com/latestword/2010/06/ken_salazar_frustration_riding.php.

[5] White Mountain/Little Colorado Wild Horse Gather Decision, Bureau of Land Management Rock Springs Field Office Decision Record (August 15, 2011), available athttp://www.blm.gov/wy/st/en/info/news_room/2011/august/05rsfo-wmlc.html.

[6] Daily Gather Reports, Bureau of Land Management (September 1, 2011),http://www.blm.gov/wy/st/en/programs/Wild_Horses/2011wmlc-gather/gath-reports.html.

[7] George Knapp, Wild Horse Advocates File Injunction Against BLM, 8NewsNow.com,http://www.8newsnow.com/story/5860063/wild-horse-advocates-file-injunction-against-blm.

[8] Alan Prendergast, Wild Horse Debacle: BLM under fire over roundup deaths, castrations, Denver Westword (April 26, 2010, 3:56 PM),http://blogs.westword.com/latestword/2010/04/wild_horse_debacle_blm_under_f.php.

[9] Id.

[10] Alicia G., Days Left to Help Save Wyoming’s Wild Horses,Care2.com (September 4, 2011, 7:59 PM),http://www.care2.com/causes/days-left-to-help-save-wyomings-wild-horses.html.

Environmental Groups Score Victory in Selenium Lawsuit

By: Raabia Wazir, Staff Member

On October 3, 2011, a coalition of conservation and environmental groups completed a two million dollar settlement with Arch Coal and its subsidiaries over continued and repeated selenium violations at six coal mining sites in southern West Virginia.[1] Selenium is a natural occurring element that poses no threat to humans when present in low levels, but when it exceeds Safe Drinking Water Act threshold levels of 0.05 parts per million, selenium exposure can cause damage to the liver, the kidneys, and to the nervous and circulatory systems.[2] In fish and other wildlife, ingestion of toxic amounts of selenium can cause total reproductive failure, birth defects and damage to gills and internal organs.[3]

The settlement is the most recent of a series of legal victories for groups trying to force the coal industry to clean up runoff pollution from mines into surrounding streams and ground water. The fight over selenium began in 2003, when the EPA released the Draft Programmatic Environmental Impact Statement on Mountaintop Mining/Valley Fills in Appalachia, a broad federal report that turned up repeated violations of selenium water quality standards. [4] In 2004, a U.S. Fish and Wildlife Service reported further selenium problems downstream from major mining operations.[5]

Most significantly, last year, U.S. District Judge Robert Chambers cracked down on the coal industry for failure to meet compliance deadlines for selenium cleanup in Ohio Valley Environmental Coalition, Inc. v. Hobet Min., LLC[6] and Ohio Valley Environmental Coalition, Inc. v. Apogee Coal Co., LLC[7] for violations of the Clean Water Act (CWA) and the Surface Mine Control and Reclamation Act (SMCRA). Judge Chambers ordered the Patriot Coal subsidiaries to install a “fluidized bed reactor" to biologically treat water discharge from the mine, the corporate-wide cost of which was disclosed by Patriot to be nearly 400 million dollars over 30 years.[8] Lawyers for the citizens groups involved in the suits argued that these costs indicate that selenium-contaminated sites should not be permitted at all because “treatment becomes a long-term responsibility that could outlive the coal companies and then fall on the public.”[9] However, despite continued legal victories by environmental activists, currently no such restrictions have been enforced.

[1] Press Release, Ohio Valley Environmental Coalition, Groups Secure Agreement from Arch Coal to Treat Pollution from Coal Mines (October 3, 2011),http://www.ohvec.org/press_room/press_releases/2011/10_03.html.

[2] Sierra Club, Toxic Selenium: How Mountaintop Removal Coal Mining Threatens People & Streams (April 2009), available athttp://www.sierraclub.org/coal/downloads/Seleniumfactsheet.pdf.

[3] Id.

[4] Ken Ward Jr., Selenium showdown: Key hearing over coal’s water pollution begins today before Judge Chambers, The Coal Tattoo (August 9, 2010),http://blogs.wvgazette.com/coaltattoo/2010/08/09/selenium-showdown-key-hearing-over-coals-water-pollution-begins-today-before-judge-chambers/

[5] Id.

[6] Ohio Valley Envtl. Coal., Inc. v. Hobet Min., LLC, 723 F. Supp. 2d 886 (S.D.W. Va. 2010).

[7] Ohio Valley Envtl. Coal., Inc. v. Apogee Coal Co., LLC, 744 F. Supp. 2d 561 (S.D.W. Va. 2010).

[8] Ken Ward Jr., Environmental groups hail selenium ruling as 'game changer', West Virginia Gazette. September 1, 2010, http://wvgazette.com/News/MiningtheMountains/201009010983.

[9] Id.

Oil and Gas Industry Resisting New Regulations

By: Elizabeth Watson, Staff Member

There is ongoing disagreement between American oil companies and the federal government in regard to oil and natural gas exploration and production in the United States. But which side is more convincing? Are the oil industry’s hands unnecessarily tied by the federal government, or are increasing regulations justified?

The National Petroleum Council estimates that oil and natural gas production in North America has the capacity to double by 2035, if the federal government will untie the industry’s hands.[1] The industry looks to the new rules for onshore production, the de facto moratorium recently lifted in the Gulf of Mexico, and the postponing of scheduled lease sales on the outer continental shelf as examples of the federal government’s recent restrictions on operations.[2]

To support the assertion that untied hands leads to greater production, the industry cites the states’ experiences who, by loosening restrictions on the “hydraulic fracturing technique used in shale gas production,” to extract oil, saw much economic gain.[3] In considering production success, the pattern, according to oil companies, is clear—“[r]egulatory and environmental reviews were largely the responsibilities of state and local governments, and disagreements could often be resolved at the local level.”[4] Oil companies worry if the federal government does not lessen restrictions that foreign companies will avoid working here because it is too costly, time consuming, and often involves government challenges played out in administrative reviews and federal court.[5] This in turn will decrease American jobs, decrease the amount of revenue the federal government receives from oil leases, and increase American dependence on foreign energy.[6]

The Obama Administration opposes these claims and points to the “use it or lose it” policy of federal oil and gas leases and the industry practice of “lease squatting” as the reasoning behind oil industry complaints.[7] The Interior Department, the regulatory body that assigns federal leases, provides a five to ten year exploratory period for a company to find oil and natural gas.[8] The federal government claims this period fully allows oil companies to assess a lease and determine its viability. The oil industry itself acknowledges that the “use it or lose it” doctrine is not a new development, but argues the doctrine has always restrained the oil and gas industry because, from the time a lease is issued, “the clock starts ticking.”[9] Enforcing this policy provides no greater obstacle than it did in the past. Additionally, in an effort to discourage the practice of “lease squatting,” where oil companies hold onto large tracts of land for many years without development, the administration proposes to almost triple prices at this year’s offshore lease sale (December 14, 2011), to “ensure areas with the greatest resource potential are developed.”[10] And, to further appease those holding leases affected by the six-month moratorium following the BP oil spill, Obama has extended leases for another year. [11]

The problem with this debate is that both sides are persuasive according to where one sits and what one seeks to protect. Consider this fact: the Department of Energy’s Energy Information Administration found that from 2005 to 2010, 34 percent of all exploration wells drilled dry, and eight percent of all development wells drilled dry, with oil companies paying the federal government for leases regardless of success.[12] The argument supporting loosened regulations on oil companies looks to the amount of risk and money involved in the oil production process, and advocates freedom and time to make wise development choices. After all, the companies are the industry experts. Furthermore, the federal government receives great revenues from the oil industry. With more leases and production, the government makes more money.

However, looking at the same facts listed above, those supporting greater regulation of oil companies also look to the success rate and risk involved, but through a different lens. They argue that drilling, with such potential devastating effects, necessitates strict oversight from Congress and regulatory agencies. One need only recall the recent BP oil spill to find support for this argument. Furthermore, many reject that increased production in itself is a positive, as opposed to looking for alternative fuel sources.

So, what happens next, and who is right? We will have to watch the upcoming lease sales and pending court cases, such as ExxonMobil v. Salazar, to see. It is hard to believe that this debate will ever be fully resolved because it concerns deeply held political beliefs.

[1] Lucian Pugliaresi, The Lessons of the Shale Gas Revolution, The Wall Street Journal, September 30, 2011, at A13.

[2] House Natural Resources Committee, Democrats Attempt to Resurrect Old “Use It or Lose It” Myth (March 24, 2011), http://naturalresources.house.gov/News/DocumentSingle.aspx?DocumentID=230630.

[3] Lucian Pugliaresi, The Lessons of the Shale Gas Revolution, The Wall Street Journal, September 30, 2011, at A13.

[4] Id.

[5] Id.

[6] House Natural Resources Committee, Democrats Attempt to Resurrect Old “Use It or Lose It” Myth (March 24, 2011), http://naturalresources.house.gov/News/DocumentSingle.aspx?DocumentID=230630.

[7] Deborah Solomon, U.S . News: U.S. to Resume Lease Sales For Oil Drilling in the Gulf, The Wall Street Journal, August 20, 2011, at A3.

[8] House Natural Resources Committee, Democrats Attempt to Resurrect Old “Use It or Lose It” Myth (March 24, 2011), http://naturalresources.house.gov/News/DocumentSingle.aspx?DocumentID=230630.

[9] Id.

[10] Deborah Solomon, U.S. News: U.S. to Resume Lease Sales For Oil Drilling in the Gulf, The Wall Street Journal, August 20, 2011, at A3.

[11] Id.

[12] House Natural Resources Committee, Democrats Attempt to Resurrect Old “Use It or Lose It” Myth (March 24, 2011), http://naturalresources.house.gov/News/DocumentSingle.aspx?DocumentID=230630

ExxonMobil, Russia, and the “Reset” of Relations

By: John Wathen, Staff member

In late August, American oil giant Exxon-Mobil announced an agreement with Russia’s state-owned oil company, Rosneft.[1] The deal grants Exxon, America’s largest corporation, access to the oil fields underneath the Arctic Ocean, which the United States Geological Survey estimates holds one-fifth of the world’s undiscovered oil and natural gas.[2] In exchange, Rosneft, who has long wished to break into the international oil market, will acquire oil fields in Texas and the Gulf of Mexico.[3] Russian Prime Minister Vladimir Putin, who exhibited his enthusiasm for the deal by personally presiding, has stated that the eventual total combined investment could be as large 500 billion dollars, a boon to the Russian oil industry.[4] This deal comes on the heels of an announcement in March by the Obama administration that US/Russian relations must undergo “reset”, as tensions between the two nominal allies have become increasingly strained in the last few years.[5]

The Obama administration should do all it can to facilitate this deal, including easing restrictions on offshore drilling in Alaska and the Gulf of Mexico. Demonstrating a willingness to allow American private companies to partner with Russian business interests will prove America’s commitment to the “reset” of relations. Additionally, long term agreements such as this will ensure a steady supply of oil to the United States. The energy potential of the Arctic Circle, which up until now has been largely untapped, is enormous.[6] The United States cannot afford to hesitate in developing these fields to ensure an adequate share in the benefits. As the partnership is presented to American regulators for approval, long term energy security considerations coupled with a new urgency in US/Russian relations should supersede environmental concerns. A healthy political and economic relationship with Russia, which currently produces more oil than Saudi Arabia,[7] is important to American security and prosperity. This partnership, which is hopefully indicative of future Russo-American business agreements, will go a long way in developing that relationship.

[1] Andrew E. Kramer, Exxon Wins Arctic Oil Deal with Russians, N.Y. Times, Aug. 30, 2011,http://www.nytimes.com/2011/08/31/business/global/exxon-and-rosneft-partner-in-russian-oil-deal.html?pagewanted=1

[2] Id.

[3] Id.

[4] Id.

[5] Desmond Butler, Obama: US has ‘Reset’ Relations with Russia, Associated Press, June 24, 2010,http://www.msnbc.msn.com/id/37892671/ns/politics-white_house/t/obama-us-has-reset-relations-russia/#.ToptO-yTNPw

[6] Steve Levine, Horse Trading with Russia Wins Exxon the Arctic Goal, Foreign Policy (Aug. 30, 2011, 11:19 AM),http://oilandglory.foreignpolicy.com/posts/2011/08/30/horse_trading_with_russia_wins_exxon_the_arctic_gold

[7] Id.

China’s New Restrictions on Rare Earth Metals and the Implications for US Policy

By: Travis Van Ort, Staff Member

China’s Ministry of Land and Resources announced last week that it would be tightening controls on rare earth metals by cracking down on unauthorized exploration and production of these elements.[1] China has also indicated that “it is restricting exports of [these metals] to conserve scarce supplies and curb environmental damage caused by mining,” but foreign governments have complained that similar limits have not been placed on domestic consumers of rare earths.[2]

Rare earth metals are a group of 17 elements that are key components for high tech and clean tech goods. These elements are used in flat screen TVs, cell phones, wind turbines, electric car batteries,[3] and even military technology, such as missiles.[1][4] China currently produces approximately 97 percent of the world’s supply of these metals, but has only around 30 percent of the world’s reserves.[5] The U.S., Australia, Canada,[6] and Russia[7] also have varying amounts of reserves of these metals. These elements are vital to the modern high tech economy, and China’s actions during its reign as essentially a monopoly producer require quick policy responses from the U.S. government. China’s largest rare earths producing company has indicated that the short supply of rare earths is an irreversible trend, that China does not want to remain the world’s major supplier of rare earths, and will slowly shift its focus to supplying domestic demand.[8] China has reduced exports in recent years, cutting the export quota significantly last year,[9] as it has tried to build up its own industry, which has caused the U.S. and Europe to pressure China to treat all buyers equally.[10]

There are three possible policies the U.S. can pursue to address Chinese actions on rare earths: bring a case in the World Trade Organization, direct government assistance, such as loan guarantees and subsidies, to growing domestic production capacity for rare earths, and encourage research into alternative technologies or materials that lessen the need for rare earths. Action in the WTO is probably the least desirable option. While the U.S. may be able to make out a case under certain provisions of the WTO agreements, depending on the specifics of the regulations and how they are implemented, China would likely have an arguable defense.[11] Since a WTO case takes time to resolve and would not change China’s status of monopoly producer of rare earths, U.S. government action to encourage rare earth production or the creation of alternatives is preferable. The U.S. could encourage domestic production by offering subsidies or loan guarantees to assist in financing mining projects and in implementing the necessary environmental protections, and could also help expedite the licensing process, since it takes seven to ten years to get a permit to open a new mine.[12] Congress introduced bills in both houses last year to help on some of these issues,[13] but more can and should be done. Investment in new mines is needed sooner rather than later because it can take three to five years for a mine to reach full production.[14] The government can also encourage research into alternatives to rare earths for their high tech and clean tech applications. The Department of Energy has encouraged this by offering $30 million to fund such research,[15] but as the demand for both clean tech and high tech increases, more research will be necessary to provide alternatives for all of the current and future applications that use rare earths. These alternatives could be even more necessary since some estimates indicate that there may be shortages of at least two of the rare earth metals in the next five to ten years.[16]

A U.S. policy response that both incentivizes domestic production and encourages research into rare earth alternatives is necessary to allow the high tech and clean tech uses of rare earths to expand without facing shortages or even greater price increases with these materials.

[1] Elaine Kurtenbach, China Orders Tighter Controls on Rare Earths, Associated Press, Sept. 26, 2011,http://news.yahoo.com/china-orders-tighter-controls-rare-earths-030235815.html.

[2] Id.

[3] Id.

[4] China Steps Up Regulation of Rare Earth Industry, China Daily, Sept. 27, 2011,http://www.chinadaily.com.cn/usa/business/2011-09/27/content_13801484.htm.

[5] Kurtenbach, supra note 1.

[6] Id.

[7] Maria Gallucci, $30 Million in DOE Grants for Green Technologies Free of Rare Earth Elements, Reuters, April 29, 2011, http://www.reuters.com/article/2011/04/29/idUS86627191420110429.

[8] Zhou Yan, Limited Rare Earths the New Norm, China Daily, Sept. 16, 2011,http://www.chinadaily.com.cn/usa/2011-09/16/content_13716809.htm.

[9] Keith Bradsher, China Said to Widen Its Embargo of Minerals, N.Y. Times, Oct. 19, 2010,http://www.nytimes.com/2010/10/20/business/global/20rare.html?src=mv&ref=homepage.

[10] Kurtenbach, supra note 1.

[11] General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 (Articles III and X I are provisions under which the action could be brought and Article XX offers general exceptions to GATT’s applicability).

[12] Gallucci, supra note 7.

[13] James T. Areddy, U.S. Congress Spurs Rare Earth Race, Wall St. J., Oct. 1, 2010,http://blogs.wsj.com/chinarealtime/2010/10/01/us-congress-spurs-rare-earth-race.

[14] Bradsher, supra note 9.

[15] Gallucci, supra note 7.

[16] Id.

What New USDA Regulations Mean for the Hops Industry

By: Joe Schuler, Staff Member

Under a regulation finalized in late 2010 and set to take effect in 2013, brewers who label beer as organic must use organic hops.[1] The requirement is a result of an amendment adopted by the USDA.[2] The National List of Allowed and Prohibited Substances details substances that may be used in products marketed as organic.[3] The National Organic Standards Board recommends changes to the list, with the USDA giving final approval.[4] Currently, inorganic hops may be used because it consists of less than five percent of the product, but that will no longer be the case once the regulation takes effect in 2013.

This is a welcome change for growers of organic hops. Many lobbied for the change because they had difficulty selling their product.[5] Brewers were more likely to use the inorganic variety simply because it tends to be cheaper to produce.[6] Of course, the new regulation should mean increased demand for the organic variety.

According to the American Organic Hop Growers Association, there are approximately 100 acres of organic hops currently grown in the U.S., with a capacity to double in one year.[7] It seems likely that this will become a reality. In fact, it seems that organic farmers will see a complete reversal of fortunes – going from struggling to find a market to struggling to meet demand. This in part stems from the fact that it usually takes two years to produce a full hops crop, and because of uncertainty about the varieties of organic hops that brewers will desire.[8]

It is however a clear win for organic growers. For consumers, it may be a mixed bag. Organic beer prices may rise, at least in the short term. However, for consumers who choose to buy beer labeled as organic, they will now get a product that better fits that label. It is hard to see that as anything other than a win.

[1] Rule Change May Prompt Increase in Organic Hops, More Variety of Organic Beers to Choose From, Wash Post Sep. 30, 2011, http://www.washingtonpost.com/business/technology/rule-change-may-prompt-increase-in-organic-hops-more-variety-of-organic-beers-to-choose-from/2011/09/30/gIQA4WP98K_story.html

[2] Id.

[3] National Organic Program, http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateJ&navID=NationalListLinkNOPNationalOrganicProgramHome&rightNav1=NationalListLinkNOPNationalOrganicProgramHome&topNav=&leftNav=NationalOrganicProgram&page=NOPNationalList&resultType=&acct=nopgeninfo (last visited October 3, 2011)

[4] Id.

[5] Abram Goldman-Armstrong, New Rules for Organic Hops, THE NEW BREWER, March/April 2011, 67, 68.

[6] Id.

[7] Id.

[8] Id.

The Politics of Hemp Production in Kentucky

By: Vanessa Rogers, Staff Member

Much controversy has steamed from the production and cultivation of hemp in Kentucky.Proponents support hemp production by turning to Kentucky’s successful past in the industrial production of hemp. In the 1800s, when the production of hemp was legal, Kentucky accounted for half of the industrial hemp production in the United States.[1] Critics advocate against hemp production because hemp contains THC and could be used as a recreational drug.[2] The issue of hemp has been introduced on several occasions to the Kentucky Legislature.[3]

Just this year Senate Bill 30 was introduced in Kentucky. The bill proposed to define industrial hemp and THC in a way so as to exclude industrial hemp production from the definition of marijuana, thereby making its industrial production legal. In addition, the bill gave the Department of Agriculture the authority to regulate and oversee hemp production. Such provisions would have required the Department of Agriculture to license industrial hemp producers. The Sheriff would have been required to monitor and randomly test industrial hemp fields. Licensees were to provide the Department of Agriculture with names and addresses of any grower or buyer of industrial hemp, and copies of any contracts the licensee may have entered into relating to industrial hemp.[4] Senate Bill 30, like many other similar bills introduced in the Kentucky Legislature, did not become law. It was introduced to the Senate and then referred to the Agriculture committee where it died.[5]

The question then becomes, why do bills like Senate Bill 30 die before becoming law? One of the reasons may be due to federal efforts to reduce the cultivation of marijuana.[6] Hemp and marijuana physically look similar[7]thereby making it harder for law enforcement to distinguish between the cultivation of hemp and the cultivation of marijuana. It is not an easy political move for a representative to open the door to hemp as long as the issue of marijuana exists in society.[8] In fact, the United States Congress “has displayed much more interest in eradicating anything that resembles drugs than in drawing lines between legitimate and illegitimate substances.”[9] Thus it may be a political faux pas to challenge the federal government’s strong belief in this. For now, any production of hemp is illegal in the state. If another hemp bill is introduced in the Kentucky Legislature, it is likely that it too will fail like numerous other Kentucky bills.

[1] Economic Impact of Industrial Hemp in Kentucky, By Dr. Eric C. Thompson, Dr. Mark C. Berger & Steven N. Allen, Center for Business and Economic Research at the University of Kentucky, (July 1998), http://www.votehemp.com/PDF/hempstudy.pdf.

[2] Susan D. Dwyer, The Hemp Controversy: Can Industrial Hemp Save Kentucky?, 86 Ky. L.J. 1143,1168-69 (1998).

[3] S.B. 30, 2011 Leg., Reg. Sess. (Ky. 2011); S.B. 14, 2010 Leg., Reg. Sess. (Ky. 2010); S.B. 131, 2009 Leg., Reg. Sess. (Ky. 2009); H.B. 100, 2001 Leg., Reg. Sess. (Ky. 2001); H.B. 855, 2000 Leg., Reg. Sess. (Ky. 2000).

[4] S.B. 30, 2011 Leg., Reg. Sess. (Ky. 2011).

[5] Id.

[6] Thompson, supra note 1,

[7] Syzygyastro, Hemp and Marijuana, Hubs.com,http://syzygyastro.hubpages.com/hub/hemp-and-marijuana, (Last visited Oct. 2, 2011).

[8] Dwyer, supra note 2, at 1169.

[9] Id.

Measurement Extension May Skew Greenhouse Gas Emission Data

By: Phillip Robinette, Staff Member

In an attempt to better understand the quantity and origin of our country's greenhouse gas emissions, Congress enacted a mandatory reporting requirement for the oil and natural gas industry.[1] Oil and gas facilities emitting at least 25,000 metric tons are required to report their yearly Methane and Carbon Dioxide emissions from equipment leaks and venting and several other types of previously unreported emissions.[2] This reporting seemed crucial because the data on greenhouse gas emissions from the natural gas industry has been called into question in recent years. While some statistics show that natural gas only produces about half as much emissions as coal fired plants, that number may be significantly reduced if emissions were measured during the entire process of gas production.[3] Because natural gas is seen by many as a possibility in cleaner burning energy, largely due to the new extraction method known as fracturing, this data collection seemed critical. The accuracy of this data could help determine the future of America's energy production and its effect on American's health. However, the implementation by the Environmental Protection Agency (EPA) has been criticized by the industry and generated a lawsuit.

The dispute arose in large part due to the fact the industry claimed it needed more time “in order to complete initial equipment inventories and to secure internal resources to report data to EPA in accordance with the rule requirements.”[4] In response to the exhortations of the oil and natural gas industry, the EPA has altered the rules of its reporting and will grant an extension for the industry to use what is currently used in the industry, the “best available monitoring methods” (BAMM) until June 20, 2012.[5] The BAMM allows calculations from supplier data, engineering calculations, and even company records.[6]

The Environmental Defense Fund (EDF) has criticized the BAMM as a less reliable methodology that may hamper and skew data collection.[7] The EDF and the Sierra Club have also challenged the assertion that the oil and gas industry were not capable of complying with the new reporting methods in the time required.[8] They base this challenge on the fact that the EPA was largely relying on three industry letters which they allege provide no empirical data for why implementation would not be possible in the time required. There was also concern over the possibility of indefinite extension of the BAMM because of a change in the language of the regulation from allowing extensions only under “extreme circumstances”, typically classified as safety threats or technical impossibilities, to “unique or unusual circumstances”.[9] The criticism of the quality of the BAMM data may be apt but due to the brevity of the extension it seems that the concern of bad data will largely be circumvented when the more accurate method is implemented. However, this concern does seem more worrisome when compared to the lax standards used by the EPA to grant the current extensions and is only exacerbated by the change to looser language in the regulation.

[1] See generally 40 C.F.R. 98.

[2] Id.

[3] Natural gas, electronics groups sue EPA over emission-reporting rules, EENEWS(February 1, 2011), htttp://www.eenews.net/public/Greenwire/2011/02/01/2.

[4] 76 Fed. Reg. 37303.

[5] 76 Fed. Reg. 37300.

[6] Mandatory Reporting of Greenhouse Gases ‐ Petroleum and Natural Gas Systems, Revisions to Best Available Monitoring Method Provisions: EPA’s Response to Public Comments, EPA.gov, http://www.epa.gov/climatechange/emissions/downloads11/documents/Subpart-W-response-to-comments.pdf.

[7] Id.

[8] Id.

[9] Id.