The Costa Concordia disaster and what it means for the environment and surrounding marine life

By: Whitney Jones, Staff Member

Costa Concordia, an Italian cruise ship, struck a reef near the Tuscan island of Giglio on January 13, 2012, causing the ship to capsize.[1] Giglio is an island that lies within the “Santuario dei Cetacei,” an area declared in 1999 as a “sanctuary for marine mammals such as dolphins and whales.”[2] On the day the cruise liner made its final stop in Giglio, more than 4,200 people were aboard the ship, and the current death toll stands at 17 people with more than 15 people still missing.[3] Also aboard the Costa Concordia was around 500,000 gallons of fuel, immediately causing concerns of potential fuel leaks into the water surrounding the wreckage.[4] In fact, the potential leak was threatening “Europe’s biggest marine park.”[5]

Fuel extraction through underwater pumping operations began on February 12, 2012 to remove some of the fuel on board.[6] As of Sunday, February 19th, the first phase of fuel removal from the capsized cruise liner had been completed.[7] Prior to the fuel extraction, however, a thick film of oil had spread from the ship due to weather conditions: “Floating barriers placed around the ship to protect the water were lifted by winds, allowing the oily film from the ship to spread throughout the bay… The Italian Port Authority said the leak consisted of a thin sheen of hydrocarbons.”[8] Civil Protection director Franco Gabrielli, however, told the Italian Senate that “although they [the parameters of the water surrounding the wreckage] are not those of crystalline water, [they] are within the legal limits and at the moment there are no dangers for the environment.”[9] The water may be within the “legal limit,” but is it too late for those animals and our environment that may depend on water above this arbitrary “legal limit”?

Although clean up and fuel extraction continues, it is uncertain if the cleanup has occurred in time to avoid any damage to our environment. “Time is critical to removing the more than 500,000 gallons of fuel as deteriorating weather and shifts in the boat’s position increase the risk of a spill.”[10] As search and rescue operations have to be continuously suspended for various lengths of time due to weather conditions, anxiety arises as to whether our environment will ultimately suffer. As Giuseppe Notarbartolo, regional coordinator for the Mediterranean for the International Union for Conservation of Nature, correctly concluded: “This is a particularly sensitive area of great environmental value and it just makes you wonder why on earth such large ships are allowed to go through there. Fuel spills can cause decade-long damage on local animal and plant populations and must be avoided.”[11]

Perhaps that avoidance should come from greater regulations regarding navigation through certain protected areas of water, such as this marine park in Europe. In the meantime, however, we must cross our fingers and hope that Mother Nature cooperates as the remaining fuel is removed from the Costa Concordia wreckage.

[1]Two-thirds of Costa Concordia Fuel Removed, CBS News (Feb. 19, 2012), http://www.cbsnews.com/8301-202_162-57381083/two-thirds-of-cosa-concordia-fuel-removed/.

[2] Alessandra Migliaccio & Marco Bertacche, Costa Rushes to Remove Fuel, Avoid Spill From Stricken Ship, Bloomberg (Jan. 17, 2012, 7:53 AM), http://www.bloomberg.com/news/2012-01-16/carnival-races-to-prevent-fuel-spill-from-stricken-liner-into-marine-park.html.

[3]Costa Concordia Death Toll Hits 17, The Sydney Morning Herald (Jan. 29, 2012), http://www.smh.com.au/world/costa-concordia-death-toll-hits-17-20120129-1qnng.html.

[4]Two-thirds of Costa Concordia Fuel Removed, supra note 1.

[5] Migliaccio & Bertacche, supra note 2.

[6]Fuel Removal Under Way at Costa Concordia Site, USA Today (Feb. 12, 2012, 1:05 PM), http://travel.usatoday.com/cruises/story/2012-02-12/Italy-president-demands-justice-for-cruise-ship-victims/53059544/1.

[7]Two-thirds of Costa Concordia Fuel Removal, supra note 1.

[8] Fulvio Paolocci & Vanessa Gera, Oil Spreads from Wreck of Ship Off Italy Coast, SeattlePI (Feb. 1, 2012, 11:43 AM), http://www.seattlepi.com/default/article/Oil-spreads-from-wreck-of-ship-off-Italy-coast-2911393.php.

[9]Waters Around Wrecked Costa Concordia OK, UPI (Feb. 7, 2012, 10:22 AM), http://www.upi.com/Top_News/World-News/2012/02/07/Waters-around-wrecked-Costa-Concordia-OK/UPI-20201328628141/.

[10] Migliaccio & Bertacche, supra note 2.

[11]Id.

Paving the Way for Better Highways By Samuel Jones

By: Sam Jones, Staff Member

Recently, agents of the Chesapeake Bay Trust and the Environmental Protection Agency (EPA) met collectively to discuss different ways to incorporate environmental conservation techniques with common activities and services.[1] One issue concerned the development of “green streets,” or ways to create more environmentally friendly paved roadways and reduce the amount of pollutant runoff that seeps into water wells and streams that sustain human and animal life.[2] As a key natural resource, water supply and quality deserve federal and state attention alike, as well as heavy investment.

Certain types of paving that water cannot seep through, like asphalt, are known to cause massive water overflows with heavy rains or simple sewage drainage. Since the water, which picks up pollutants and foreign substances from anthropogenic sources, cannot adequately drain into the ground, it spills these unnatural substances into streams, lakes, and waterways, creating cesspools of filth and pollutants and affecting the plant and animal life that are sustained by it.[3] Storm water transports a multitude of substances including “motor oil, engine coolant, brake linings, rust, nutrients, litter, animal waste, sand, salt, and other materials found on roads, parking lots, and sidewalks.[4] This diversion of water also prevents water from collecting in underground reservoirs or aquifers that are relied upon by thousands.[5] Agents from the EPA, Chesapeake Bay Trust, and other related organizations, have begun to advocate for reduced use of asphalt, impenetrable paving, and more for porous, pervious types of pavement that can act as road material and filters simultaneously.

While the cost of renovating current highways and installing pervious pavement will not be cheap, the environmental impact and increase of retained, usable water will certainly improve the quality of life and reduce the litigation over the limited supply of water, especially in the western U.S. Pervious pavement use will also reduce the amount of money invested in protecting and maintaining water runoff systems and flood controls, shifting those controls back to the natural ground runoff systems and soil filters.

Currently, the state of Kentucky is debating the adoption of the 2012 Recommended Highway Plan and the allocation of over $4 billion towards four major state road projects including bridge and pavement repair.[6] It is quite obvious that the repairing of Kentucky’s highways is being heavily considered by the Legislature, but there is no evidence that such repairs will be different from the impervious asphalt technology used today that causes many of the problems sought to be remedied by this budget allocation. With adequate research and planned implementation of innovative paving technology, such an investment would net a positive impact, both environmentally and socially, for many more decades down the road.

[1] Jana Davis, Green Streets: Using One Approach to Tackle Multiple Environmental, Social, and Economic Goals, ENERGY, CLIMATE CHANGE, AND OUR ENVIRONMENT (Feb. 15, 2012, 1:30 PM), http://www.whitehouse.gov/blog/2012/02/15/green-streets-using-one-approach-tackle-multiple-environmental-social-and-economic-g.

[2]Mary Logan Barmeyer, The Promise of Permeable Paving, NATIONAL RESOURCES DEFENSE COUNCIL (July 29, 2010), http://smartercities.nrdc.org/articles/promise-permeable-paving.

[3] Id.

[4]Symposium, Impervious Surfaces in the New York City Watershed, 12 Fordham Envtl. L. Rev. 489, 496-497 (2001).

[5] Barmeyer, supra note 2.

[6]Kentucky Transportation Cabinet, Appendix CL FY 2012-2018 Recommended Highway Plan (2012), http://transportation.ky.gov/Program-Management/Pages/2012-Recommended-Highway-Plan.aspx.

You’re Out! Oversight of Jockey Exclusion

By: Matt Hassen, Staff Member

There is something exciting about ejections in sports. It is amusing to watch a referee or umpire give the dramatic heave-ho — crowds get riled up and it gives the fans something to talk about.[1] Ejections or exclusions in horse racing may be less visible than in other sports, but they do have an interesting legal history dating back to a Supreme Court decision in 1913, which was authored by none other than Justice Oliver Wendell Holmes. The case established a principle of total management discretion in excluding racetrack patrons.[2] Recently, the West Virginia Supreme Court considered an extension of that rule when it took up the question of “whether a West Virginia horse racetrack has an unrestricted common law right to eject a jockey from its premises.”[3]

In what the Jockeys’ Guild called a “major victory for jockeys,”[4] The West Virginia court found a property interest in the permit issued by the state’s Racing Commission and also a statutory right to appeal ejections to the Racing Commission (subject to judicial review).[5] The West Virginia statute was read as necessarily restricting the right of a racing association to exclude permit holders because “if the Legislature intended for a racing association to have an unfettered right to eject the permit holder there would have been no reason for the Legislature to add the language” granting a right of appeal to the Racing Commission.[6] There is a certain undertone, as well, that the “greater includes the lesser” because horse racing cannot occur at all unless licensed by the Racing Commission.[7]

While it is clear that the legislature may abolish the common law right of a private entity to exclude whoever it wishes, courts are split on whether the common law rule should apply to jockeys at all. Federal courts in New Jersey and Florida, as well as the Ohio Supreme Court, have extended the common law exclusion right to allow racetracks to exclude permit holders such as jockeys.[8] However, courts in Illinois and New York have refused to do so.[9]

The best justification for not extending the right of exclusion to jockeys appears in the Illinois case, which explains that with “the benefit of receiving a quasi-monopoly comes corresponding obligations one of which is not to arbitrarily exclude a jockey.”[10] Horse racing is different from the traditional business and industrial setting. Thus, while it may make sense for a department store to be free to transact with whomever it wants, there are only a limited number of race tracks operating at one time.[11] Because the potential deprivation to a jockey as a result of exclusion is so great, that decision should be reviewable.[12] On the other hand, in the West Virginia case, the jockey allegedly committed fraud in the weigh out process.[13] If anything, shouldn’t the law err on the side of exclusion in order to maintain the appearance and fact of integrity in races?

[1] See, e.g., Aaron Smith, UK wins 85-60, Calipari ejected, Kentucky Kernel (Dec. 18, 2010), http://kykernel.com/2010/12/18/uk-wins-85-60/ (“John Calipari’s two technical fouls and ejection from the game that dominated talk after the game... [t]he ejection overshadowed the rest of the game”).

[2] Bennett Liebman, The Supreme Court and Exclusions by Racetracks, 17 Vill. Sports & Ent. L.J. 421 (2010) (citing Marrone v. Washington Jockey Club, 227 U.S. 633, 636 (1913)).

[3] PNGI Charles Town Gaming, LLC v. Reynolds, 2011 W. Va. LEXIS 323 (Nov. 18, 2011).

[4] Press Release, Jockeys’ Guild, West Virginia Supreme Court Decision Upholds Jockeys Rights to Racing Commission Review Following Racetrack Decision (November 21, 2011) http://www.jockeysguild.com/pressreleases.html

[5] PNGI Charles Town Gaming, 2011 W. Va. LEXIS 323 at 27-28.

[6] Id. at 30.

[7] Id. at 20.

[8] Id. at 24 n.23 (citing Calder Race Course v. Gaitan, 393 So. 2d 15 (Fla. Dist. Ct. App. 1980); Martin v Monmouth Park Jockey Club, 145 F. Supp. 439 (D.N.J. 1956); Bresnik v. Beulah Park Ltd. Partnership, Inc., 617 N.E.2d 1096 (Ohio 1993)).

[9] Id. at 24 n.23 (citing Cox v. National Jockey Club, 323 N.E.2d 104 (Ill. App. Ct. 1974); Jacobson v. New York Racing Asso., 305 N.E.2d 765 (N.Y. 1973)).

[10] Cox v. National Jockey Club, 323 N.E.2d 104, 111 (Ill. App. Ct.. 1974).

[11] Id. at 12 (citing Greenberg v. Hollywood Turf Club, 7 Cal.App.3d 968, 976 (1970)).

[12] Id.

[13] PNGI Charles Town Gaming, 2011 W. Va. LEXIS 323 at 4.

Fracking’s Dynamic Impact on the Energy Economy: Winners and Losers

By: Jessica Durden, Staff Member

As hydraulic fracturing (“fracking”) gains traction in the American energy economy, the supply of American natural gas has skyrocketed, triggering a downshift of the price of gas.[1] Fracking has opened up vast stores of previously inaccessible gas trapped in shale rock more than a mile underground, particularly in gas-rich areas like the Marcellus Shale.[2] This technological boon has benefited natural gas producers, and in the current competitive economy, the new kid on the block (fracking) is edging in on the old standby’s financial territory (coal).[3] For the short term, that power shift has put the coal industry on its heels, as coal prices out of central Appalachia have tanked 15.4% in the last year.[4] In roughly the same time frame, natural gas producers and drillers have invested more than $4 billion dollars into the Marcellus Shale—which spans the Appalachian Basin.[5]

However, this dynamic swing of interest, which has prompted coal companies like Alpha Natural Resources to back off production in much of central Appalachia,[6] may not be a long-term economic event. Fracking has problems of its own, primarily in the form of intense Environmental Protection Agency (EPA) scrutiny. Hydraulic fracturing is currently state-regulated, but the EPA and the environmental lobby have teamed up to close the loophole that exempts fracking from federal regulation under the Safe Drinking Water Act.[7] If legislation like the FRAC Act (HR 1084) passes in the near future, the entire fracking industry could be subject to much harsher federal regulations that could stymie or even temporarily stop active fracking operations.[8] The EPA’s first section of its forthcoming 2014 study on fracking’s environmental impact has garnered mixed reviews.[9] However, the initial report emerged from Wyoming, while the major players in fracking are eastward in Texas and the Appalachian Basin, and the EPA has indicated Wyoming is not indicative of the rest of the country.[10] So while coal has felt the blow of a burgeoning natural gas industry, the natural gas companies face a tough road ahead to remain state regulated: coal has lost the battle, but not the war, and the long term economic effects of the fracking boom remain unclear. In an unexpected twist, an environmental crackdown could actually salvage the struggling coal industry.

[1]See Liam Denning, Coalface Cracks Under Pressure from Cheap Gas, Wall St. J., Feb. 7, 2012, http://online.wsj.com/article/SB10001424052970203315804577206860331660388.html?mod=WSJ_Energy_leftHeadlines.

[2]See America’s Natural Gas Alliance, Safe & Responsible Development: How We Produce America’s New Natural Gas, anga.us, http://anga.us/media/206825/hydraulic%20fracturing%20101.pdf.

[3]See Denning, supra note 1.

[4]Id.

[5]See Marcellus Shale Coalition, Production Processes, MarcellusCoalition.org, 2011, http://marcelluscoalition.org/marcellus-shale/production-processes/.

[6]See Ian Thomson & Maya Pope-Chappell, MarketBeat: Stocks to Watch: Micron Technology, Hasbro, Alpha Natural Resources and More, Wall St. J., Feb. 6, 2012, http://blogs.wsj.com/marketbeat/2012/02/06/stocks-to-watch-micron-technology-hasbro-alpha-natural-resources-and-more/?mod=WSJ_qtnews_wsjlatest.

[7]See Adam Orford, Hydraulic Fracturing: Legislative and Regulatory Trends, Marten Law, Oct. 4, 2011, http://www.martenlaw.com/newsletter/20111004-fracking-roundup.

[8]Id.

[9]See Mead Gruver, Reps. scrutinize EPA frack-pollution link in Wyo., Washington times/Associated Press, Feb. 1, 2012, http://www.washingtontimes.com/news/2012/feb/1/reps-scrutinize-epa-frack-pollution-link-wyoming/#.TymnOB8wHms.email.

[10]Id.

PROMOTION OF URBAN AGRICULTURE IS IMPORTANT TO THE AMERICAN FOOD SUPPLY

By: Clay Duncan, Staff Member

Typically, the mention of agriculture conjures up images of cornfields and sprawling farms in distant, rural areas. It therefore may come as a surprise to hear that a crucial, yet overlooked, segment of the American agricultural industry exists within and adjacent to metropolitan areas. This “urban agriculture” is “[t]he growing, processing, and distributing of food and other products through intensive plant cultivation and animal husbandry in and around cities.”[1] Despite the smaller scale on which its growers operate, it is a meaningful tool for combatting hunger and achieving food security on a national scale.[2]

As a result of our highly industrialized and “corporate-controlled food system”, the United States suffers from harmful side effects in the form of environmental damage and health costs to the end consumer.[3] Additionally, many poor Americans are food insecure in that they suffer from “hunger in the midst of plenty.”[4] Through the creation of sustainable farms with affordable produce near poverty-ridden cities, the poor are given greater access to the food they need.

In order for urban agricultural activities to endure, they must be resistant to the constant pressures to convert land to commercial uses. A recent study looked at 15 metro-area counties from the Pacific to the Atlantic coasts in an effort to see what can be done to preserve urban farmland and farming.[5] Based upon the research, farmers are more likely to develop and maintain their land if they feel that the local government will side with them on disputes that may arise with non-farmers.[6] In terms of land use, farmers were shown to respond favorably to farm-friendly zoning regulations and the promotion of land transfers to their descendants.[7] Also, it was found that labor shortages in urban agriculture suggest a need to reform worker programs in an effort to increase the labor supply and allow farmers to maintain their operations profitably.[8]

Urban agriculture will never produce the same quantity of food that our current, nationalized system provides. However, it is still very important as it allows for food to reach those suffering from poverty and hunger in a more cost-effective way. Local city governments should make an effort to promote urban farms and prevent their conversion to other commercial uses.

[1]Urban Agriculture and Community Food Security in the United States: Farming from the City Center to the Urban Fringe, Urban Agriculture Committee of the Community Food Security Coalition (Feb. 2002), at 5, available athttp://www.foodsecurity.org/urbanagpaper.pdf.

[2]Id. at 4.

[3]Id. at 6.

[4]Id.

[5] Dick Esseks, Lydia Oberholtzer, Kate Clancy, Mark Lapping, Anita Zurbrugg, Sustaining Agriculture in Urbanizing Counties: Insights from 15 Coordinated Case Studies (Jan. 16, 2009), at 5, available athttp://www.farmland.org/resources/sustaining-agriculture-in-urbanizing-counties/documents/Sustaining-agriculture-in-urbanizing-counties.pdf.

[6]Id. at 179.

[7]Id.

[8]Id. at 181.

Naturally Confusing Consumers: Implied Federal Preemption of State Claims Regarding False and Misleading Food Product Labels

By: Taryn DeVeau, Staff Member

Consumers have become increasingly conscious of eating nutritious food, and food product manufacturers have profited from consumers that confuse foods labeled “Natural” with those labeled “Organic.”[1] “Organic” foods have specific USDA certifying criteria, whereas “Natural” foods do not.[2] Consumers’ health conscience craze has created a $22.3 billion market niche for foods labeled “Natural,” resulting in an increase in class action lawsuits claiming such food labeling is false and misleading.[3]

According to Stephen Gardner, litigation director for the Center for Science in the Public Interest, “Natural” food labeling claims comprise the largest litigation area of food labeling claims, and this trend has been influenced by the failure of courts to find state claims preempted.[4] The failure to find preemption is largely a consequence of the FDA’s refusal to define the term “Natural.”[5] Currently, the FDA’s informal policy is still in place, which allows use of the term unless the food contains added color, artificial flavors, or synthetic substances.[6]

Some foods whose “Natural” status has been questioned include Snapple, Healthy Choice pasta sauce, Skinnygirl Margarita, Ben and Jerry’s, and Wesson cooking oils.[7] A recent lawsuit filed against Kashi claims the labels are intentionally misleading because they contain synthetic and unnaturally processed ingredients.[8] The alleged synthetic substances include “prescription drugs, irradiated substances, pesticides, and federally declared hazardous substances.”[9]

The Nutrition Labeling and Education Act (“NLEA”) of 1990 was added to ensure consistency with a national standard and to preclude states from adopting inconsistent requirements.[10] The NLEA contains an express preemption provision, 21 U.S.C. §343-1, providing that states must not have food labeling requirements that are not “identical” to the FDCA.[11]

“The NLEA states that it ‘shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [21 U.S.C. §343-1(a)] of the [FDCA].”[12] Courts have analyzed this section in different ways. Some courts have found the statement to mean that only express preemption is possible. The California Supreme Court stated that the “preemptive scope” of §343-1 was only intended to cover “the plain language of the statute itself.”[13] The court in Holk found that it is possible to find implied preemption based on “provisions of federal law other than the NLEA.”[14]

In Holk, the court found the claims against Snapple that its products were not “Natural” because they contained High Fructose Corn Syrup were not impliedly preempted because the FDA has not officially defined the term.[15] However, in Thomas Mason v. Coca-Cola Co., the plaintiff claimed that “Diet Coke Plus” is misleading because “Plus” indicates an added amount of vitamins and minerals.[16] The term “Plus” has been precisely defined in FDA regulations.[17] The court found that in order to find implied conflict preemption, more than just a regulation defining the term is necessary.[18] Here, even if the FDA defined the term “Natural,” it is not guaranteed courts would analyze the issue consistently. It is necessary for courts to resolve the uncertainty regarding implied preemption analysis of food labeling claims in order to benefit both food manufacturers and consumers.

[1] Bruce Silverglade and Ilene Ringel Heller, Food Labeling Chaos, The Case for Reform, Center for Science in the Public Interest, http://cspinet.org/new/pdf/food_labeling_chaos_report.pdfhttp://cspinet.org/new/pdf/food_labeling_chaos_report.pdf (last visited Dec. 29, 2011). Major Agribusiness Competing with Organics on the Cheap,“Natural” Food Products with Toxic Chemicals and GMOs Deceiving Consumers, The Cornucopia Institute, October 12, 2011, http://www.cornucopia.org/2011/10/cerealcrimes-pressrelease/ (last visited Dec. 28, 2011).

[2] Major Agribusiness Competing with Organics on the Cheap supra note 4.

[3]“Natural” Beats Organic in Food Sales According to Nielsen’s Healthy Eating Report, Nielsen Wire, http://blog.nielsen.com/nielsenwire/consumer/“natural”-beats-“organic”-in-food-sales-according-to-nielsen’s-healthy-eating-report/ (January 21, 2009); Ashby Jones, Is Your Dinner ‘All Natural’? Wall Street Journal, http://online.wsj.com/article/SB10001424053111903374004576580671156407598.html. (September 20, 2011).

[4] Julie A. Steinberg, Food Label Lawsuits: Manufactured Litigation or Consumer Protection?, Boomberg BNA, 40 PSLR 83, http://news.bna.com/psln/display/batch_print_display.adp.

[5] Ashby Jones, Is Your Dinner ‘All Natural’?, Wall Street Journal, http://online.wsj.com/article/SB10001424053111903374004576580671156407598.html. See Holk v. Snapple Bev. Corp., 575 F.3d 329, 333(U. S. App. 2009); See also 65 Food Drug L.J. 403 (2010).

[6]What is the meaning of ‘natural’ on the label of food?, U.S. Food and Drug Administration, http://www.fda.gov/AboutFDA/Transparency/Basics/ucm214868.htm (last visited Dec. 27, 2011).

[7]See Holk v. Snapple Bev. Corp., 575 F.3d 329, 333(U. S. App. 2009); See also Lockwood v. Conagra Foods, 597 F. Supp. 2d 1028, 1031 (N.D. Cal. 2009); Ashby Jones, Is Your Dinner ‘All Natural’?, Wall Street Journal, http://online.wsj.com/article/SB10001424053111903374004576580671156407598.html.

[8]Michael Bates v. Kashi, 2011 WL 3821651 at 1 (S.D. Cal. August 24, 2011).

[9]Id. at 2.

[10]Farm Raised Salmon Cases, 175 P.3d 1170, 1175 (Sup. Ct. Cal. 2008).

[11] 21 U.S.C. §343-1(a).

[12] In re FERRERO at 9.

[13] Farm Raised Salmon Cases at 1091.

[14] Holk at 336.

[15]Id. at 339.

[16] Thomas Mason v. Coca-Cola Co., 2010 U.S. Dist. LEXIS 65107, *1.

[17] Thomas Mason v. Coca-Cola Co., 2010 U.S. Dist. LEXIS 65107, *6 (citing 21 C.F.R. §101.54(e)).

[18]Id. at *10.

A Jack of All Trades: The King of Silicon Valley Weighs in on International Agriculture

By: Alex Crawley, Staff Member

Although Bill Gates is probably most famous for being the self-made billionaire who created the powerhouse Microsoft, he has recently made headlines for issues far removed from software.[1] Lately, he has been speaking out about the funding for agricultural research, or rather, the lack thereof.[2] In addition to speaking out on BBC’S Today,[3] he recently devoted nearly his entire annual letter on behalf of the Bill and Melinda Gates Foundation, which was twenty-four pages long, to the issue of world hunger and to encouraging investment into agricultural research.[4]

Gates’ letter focuses mainly on the “15% of the world [just over 1 billion people] in extreme poverty.” [5] He is urging more people to “mak[e] the choice to keep on helping extremely poor people build self-sufficiency,” and emphasizing that, while farming is integral to poor countries, rich countries have largely turned their backs on agriculture.[6] Considering that only $3 billion per year is spent globally on agricultural research, he has a valid point.[7]

The Gates Foundation has spent about $2 billion dollars over the past five years to supplement research that would help to alleviate the global food crisis.[8] Gates is especially focused on the research into genetically modified foods, and has specifically praised the work of Norman Bourlaug, a Nobel Prize winner who helped create new strains of wheat that were resistant to wheat stem rust, a fungus that had previously plagued wheat crops.[9] He is advocating for more innovations like this one, especially considering that new forms of wheat rust have since developed and moved from Uganda to Iran and Yemen.[10]

Gates’ position on agricultural research has created some otherwise unlikely allies and piqued the interest of many. The Crop Protection Association Society has endorsed his view internationally, and has agreed that “high-tech food production systems” are an integral part of the answer to “the food poverty crisis.”[11] Meanwhile, U.S. groups, like the U.S. Farmers & Ranchers Alliance, have also taken an interest.[12]

Gates’ plea comes at a crucial time. The EU’s policies are currently inhibiting innovative agricultural research,[13] and the USDA has recently decreased its research centers in response to congressional budget cuts.[14] The Gates Foundation, however, has given grants to the Food and Agriculture Organization of the United Nations[15] and the International Food Policy Research Institute.[16] Hopefully, the Gate’s Foundation good-will initiative will inspire other organizations to invest in this area “where there is less profit opportunity but where the impact for those in need is very high.”[17] Otherwise, “one in seven people will continue living needlessly on the edge of starvation.”[18]

[1] Logan Hawkes, GMO Crops Get Big Backer in Bill Gates, Western Farm Press, 1 (Feb. 1, 2012, 11:21 AM), http://westernfarmpress.com/government/gmo-crops-get-big-backer-bill-gates?page=1.

[2]Gates Foundation Calls for More Ag Research Funding, The United States Agricultural & Food Law and Policy Blog, http://www.agandfoodlaw.com/2012/02/gates-foundation-calls-for-more-ag.html.

[3]Dan Colombini & Mike Stones, Bill Gates and CPA Urge Support for GM Techniques, Foodmanufacture.co.uk (Jan. 25, 2012), http://www.foodmanufacture.co.uk/World-News/Bill-Gates-and-CPA-urge-support-for-GM-techniques.

[4]Hawkes, supra note 1.

[5]2012 Annual Letter From Bill Gates, Bill & Melinda Gates Foundation, 1 (Jan. 2012), http://www.gatesfoundation.org/annual-letter/2012/Documents/2012-annual-letter-english.pdf.

[6]2012 Annual Letter From Bill Gates, supra note 5 at.

[7]2012 Annual Letter From Bill Gates, supra note 5at 3.

[8] Hawkes, supra note 1.

[9]2012 Annual Letter From Bill Gates, supra note 5 at 5.

[10]2012 Annual Letter From Bill Gates, supra note 5 at 5.

[11] Colombini & Stones, supra note 3.

[12]Bill Gates and CPA Urge Support for GM Techniques, U.S. Farmers & Ranchers Alliance (Jan. 25, 2012) http://usfraonline.org/2012/01/bill-gates-and-cpa-urge-support-for-gm-techniques/.

[13] Colombini & Stones, supra note 3.

[14] Hawkes, supra note 1 at 2.

[15]Food and Agriculture Organization of the United Nations, Bill & Melinda Gates Foundation (Nov. 2011), http://www.gatesfoundation.org/Grants-2011/Pages/Food-and-Agriculture-Organization-of-the-United-Nations-OPP1029955.aspx.

[16]International Food Policy Research Institute, Bill & Melinda Gates Foundation (Nov. 2011), http://www.gatesfoundation.org/Grants-2011/Pages/International-Food-Policy-Research-Institute-OPPGD1451.aspx.

[17]2012 Annual Letter From Bill Gates, supra note 5.

[18]2012 Annual Letter From Bill Gates, supra note 5.

Citrus Canker Compensation

By: Catherine Barrett, Staff Member

Owners of residential trees destroyed during a failed attempt to eradicate citrus canker are still awaiting compensation. The story of citrus canker highlights the sad fact that legal compensation is often slow and inadequate.

Citrus canker is a highly infectious bacterial disease that affects all types of citrus.[1] The condition causes oily brown lesions on leaves and fruit.[2] A serious attempt to eradicate the disease started in 1994.[3] More than 16.5 million trees were destroyed during the campaign.[4] State workers entered private backyards and felled established fruit-bearing trees as distraught owners watched.[5] Feelings against the “canker gestapo” ran high among some Florida residents.[6]

This is not the first time that a battle with citrus canker has outraged tree owners. The first major outbreak of the disease occurred in 1913.[7] A law was passed requiring the destruction of infected trees, and inspectors searched orchards for signs of canker, burning entire groves if any tree showed signs of the illness.[8] Farmers, facing financial ruin if their trees were burned, tried to keep the burn crews off of their lands with shotguns and lawsuits; neither approach was successful.[9] The destruction of orange trees affected by citrus canker was upheld by state courts in 1917.[10]

Destruction of trees in order to halt the spread of arboreal diseases has historically been upheld as constitutional. Courts have reasoned that “the destruction of a tree affected by a disease… is as fully within the police power of a state as the destruction of a house threatened by a spreading conflagration,” even if the destruction is against the owner’s will and no compensation is provided.[11] Stated differently, because the trees were doomed to die, they were worthless. Consequently, no constitutional taking occurs when they are destroyed. This is still the position argued by the Florida Department of Agriculture: trees exposed to citrus canker have no value.[12]

Between 2000 and 2006, the state of Florida destroyed every citrus tree within 1,900 feet of an infected tree, even if the trees appeared healthy.[13] Citrus canker externally disfigures fruit, but does not harm humans, so the fruit can still be consumed.[14] In an apparent change of course, Florida courts have held in class-action lawsuits by tree owners that the trees did have some value and that destroying them was a taking.[15]

Sadly, the only real winner of this legal battle is the canker. A series of hurricanes spread the bacteria so widely that eradication is no longer possible, and efforts to do so have been abandoned within the state.[16] Despite their victories in court, owners have not yet received compensation for the trees that died in vain.[17]

[1] Citrus Canker Fact Sheet, Florida Department of Agriculture & Consumer Services Division of Plant Industry, http://www.freshfromflorida.com/pi/canker/faqs.html.

[2]Id.

[3]State Refusing To Citrus Canker Pay Outs, CBS Miami (September 25, 2011, 12:16 PM) http://miami.cbslocal.com/2011/09/25/state-refusing-to-citrus-canker-pay-outs/.

[4] Susan Salisbury, Citrus canker trial continues for Boca couple seeking compensation, The Palm Beach Post (Nov. 28, 2011, 7:49 PM) http://www.palmbeachpost.com/money/citrus-canker-trial-continues-for-boca-couple-seeking-1274647.html?printArticle=y

[5]Id.

[6]Citrus Canker: A Corporate Love Story, Or Of The Press (Sept. 5, 2011) http://orofthepress.wordpress.com/2011/09/05/citrus-canker-a-corporate-love-story/.

[7] Jean C. Taylor, The Citrus Canker, History Miami http://www.hmsf.org/history/citrus-canker.htm.

[8]Id.

[9]Id.

[10]Louisiana State Board of Agriculture and Immigration v. Tanzmann, 140 La. 756 (1917).

[11]State v. Main, 69 Conn. 123, 84 (1897).

[12] Salisbury, supra note 4.

[13] CBS Miami, supra note 3.

[14]Id.

[15]Department of Agriculture & Consumer Services v. Bogorff, 35 So.3d 84 (2010).

[16] Fact Sheet, supra note 1.

[17] CBS Miami, supra note 3.

Considering the Implications of a New Bourbon Tax

By: Arthur Cook, Staff Member

Any person that has toured (or tasted from) one of Kentucky’s premium Bourbon whiskey distilleries can tell you, no drink would be the same without a water source of superior quality. Kentucky’s abundant supply of limestone, which provides a natural water filter, allows much of the world’s top Bourbon to be produced there.[1] A recent study of Kentucky’s economy revealed that the Bourbon industry contributed $2 billion in gross state product each year for the last decade.[2] Governor Steve Beshear has observed that the industry accounts for 43% of the distilling jobs in the nation.

With a lagging national economy and Kentucky behind the national recovery rate, citizens of the Commonwealth are very interested in maximizing tax revenue from the Bourbon industry. One proposed solution is re-examination of the state’s “barrel tax.[3]” By way of example, the citizens of Moore County, Tennessee recently sought to impose a barrel tax on Lynchburg’s most famous resident, Jack Daniels.[4] The “barrel tax” is an annual ad valorem tax of $.05 per $100 of value for goods “held for sale in the regular course of business, which includes . . . distilled spirits and distilled spirits inventory, and in-process materials, which includes distilled spirits and distilled spirits inventory, held for incorporation in finished goods held for sale in the regular course of business.”[5]

A Kentucky barrel tax would be cumbersome for the distilling industry. Many spirits, such as Bourbon, can take up to 12 years to age in barrels, increasing in value per year. Rep. Linda Belcher of the Kentucky General Assembly has proposed House Bill 418 to take an income tax credit to offset the cost of the tax.[6]

A recent op-ed by industry leaders concedes that the ad valorem tax supports critical needs in multiple fields, but also attempts to undermine concern that the tax credit envisioned by House Bill 418 would denigrate tax coffers by arguing the tax credit would be “reinvested in the commonwealth.”[7]

Kentucky’s natural resources - the climate and limestone bedrock - are ideal for the production of premium spirits like Bourbon. However, without a clearer statement of the “reinvestment” which would offset the loss in tax revenue from the tax credit, forgoing taxes on an industry that has boomed in the last few years would be a stiff drink to swallow.

[1] Buffalo Trace Distillery, Whisky.com, http://www.whisky.com/distilleries/buffalo_trace_distillery.html (last visited Feb. 6, 2012); Woodford Reserve Kentucky Straight Bourbon Whisky, Whisky.com, http://www.whisky.com/brands/woodford_reserve_brand.html (last visited Feb. 6, 2012) Maker's Mark Kentucky Straight Bourbon Whisky, Whisky.com, http://www.whisky.com/brands/makers_mark_brand.html (last visited Feb. 6, 2012).

[2] Kevin Wheatley, State-Journal.com - Bourbon industry booming, study reveals, http://www.state-journal.com/news/article/5153644 (last visited Feb. 6, 2012).

[3]Id.

[4] Tim Ghianni, Jack Daniel's wins battle over whiskey barrel tax, Reuters, http://www.reuters.com/article/2011/11/22/us-tennessee-whiskey-idUSTRE7AL1OR20111122 (last visited Feb. 6, 2012).

[5] Ky. Rev. Stat. §132.020(1)(n)

[6] Barrel tax hobbles bourbon industry, Kentucky.com, http://www.kentucky.com/2011/03/08/1661958/barrel-tax-hobbles-bourbon-industry.html (last visited Feb. 6, 2012).

[7]Id.