Budget Cuts Causing State Park Closures

By: Clay Duncan, Staff Member

The recreational and environmental value provided by state parks across the U.S. is soon to be diminished due to lack of funding.  State budget cuts are resulting in closures of many parks nationwide, as well as a reduction in operations in many that will remain open.

[1]

  Despite their perception as mere places of leisure, state parks are important national attractions whose continued maintenance is important to the preservation of America’s emphasis on environmental upkeep.  With funds scarce and expenses rising, states must become creative with ways to get the necessary money to keep these parks alive.

California closed a whopping 70 parks, while Arizona cut funding to parks completely.

[2]

  Other states have made multimillion dollar cuts to funding previously allocated to state park maintenance.

[3]

  The necessity of these closures is not for lack of attendance nationally, as U.S. state parks saw a 14 million visitor increase from 2009 to 2010.

[4]

  What’s more, state parks are fairly large employers in a country troubled with unemployment, providing some 270,000 jobs across the country.

[5]

A likely reason for these budget cuts to state parks is that states do not receive matching funds from the federal government for the funds it spends on them,

[6]

thus such spending equates to a dollar for dollar reduction in money that could be used elsewhere.  Even those federal programs that have provided funding for state parks are at risk of being eliminated.

[7]

  One such program is the Recreational Trails Program, which “provides funds to the States to develop and maintain recreational trails and trail-related facilities for both nonmotorized and motorized recreational trail uses.”

[8]

To make up for the loss in funding once provided by the budgets, some states have resorted to raising fees in exchange for unlimited parks access,

[9]

and seeking corporate and nonprofit partnerships by offering them advertising opportunities and control over operations.

[10]

  In Ohio and Pennsylvania, legislation has been introduced which proposes leasing state park land to oil and gas drillers.

[11]

  Proponents of the legislation see it as a necessary measure to raise the requisite funds for much needed park projects, while skeptics see such a move exposing parks to corporate greed.

[12]

State funding is scarce in most areas of the country, so budgetary cutbacks rarely come as a surprise.  But if an effective replacement for this source of money is not found and state park closures proceed as projected, Americans will soon be deprived of great opportunities to see this country’s natural landscape.

[i]

Douglas Shinkle,

Parks in Peril

, National Conference of State Legislatures (Jan. 2012),

http://www.ncsl.org/issues-research/env-res/parks-in-peril.aspx

.

[ii]

Id

.

[iii]

Id

.

[iv]

Id

.

[v]

Id

.

[vi]

Shinkle,

supra

note 1.

[vii]

Id

.

[viii]

Recreational Trails Program

, U.S. Department of Transportation Federal Highway Administration,

http://www.fhwa.dot.gov/environment/recreational_trails/index.cfm

(last updated Apr. 27, 2012). 

[ix]

Shinkle,

supra

note 1.

[x]

Id

.

[xi]

Id

.

[xii]

Id

. 

“Frog Juice” Has Legislators Hopping Mad

By: Catherine Barrett, Staff Member

The most talked about drug in horse racing this summer has been “frog juice,” also known as dermorphin, which is a synthesized version of a substance secreted by the waxy monkey tree frog (

Phyllomedusa sauvagei

), a native of South America.

[1]

More than 30 horses in four states have tested positive for the drug, but the drug’s use may be even more widespread, because many states cannot test for dermorphin.

[2]

Dermorphin is a painkiller, 40 times more powerful than morphine, which the frogs secrete to protect their sensitive skin.

[3]

It joins a long list of powerful painkillers that have been used in racehorses (an imaginative list which also includes cobra venom).

[4]

When racehorses have been given painkillers – whether the painkillers originated in reptiles, amphibians, or laboratories – the horses do not feel the pain that is supposed to be a natural warning against injury.

[5]

  The risk that a horse will break down during a race, causing serious injury to the horse and rider, is thus increased.

[6]

Even a minor injury may disqualify a thoroughbred from a post-racing career if it is exacerbated by running a heavily medicated horse in one last race.

[7]

Although federal law regulates other aspects of interstate racing, there are no federal laws or regulations addressing the use of race day medications like “frog juice.”

[8]

In May of 2011, Congressman Ed Whitfield of Kentucky and Senator Tom Udall of New Mexico introduced the “Interstate Horseracing Improvement Act of 2011” to address the use of medication in horseracing.

[9]

If enacted, the bill would ban the use of race day drugs, require that winning horses be tested by accredited labs, and provide stern sanctions for trainers caught violating drug rules.

[10]

Trainers caught in multiple drug violations would be disqualified from the sport.

[11]

The Interstate Horse Racing Improvement Act of 2011 has been referred to the House Subcommittee on Commerce, Manufacturing, and Trade.

[12]

No hearings have been conducted on the legislation, but as of this spring, Congressman Whitfield is still gathering support for its passage.

[13]

He can be contacted through his website,

http://whitfield.house.gov/

.

[1]

Jeanna Bryner,

What is Frog Juice?

,

LiveScience

(June 20, 2012),

http://www.livescience.com/21064-frog-juice-racehorse-drugs.html

.

[2]

Id

.

[3]

Id

.

[4]

Walt Bogdanich and Rebecca R. Ruiz,

Turning to Frogs for Illegal Aid in Horse Races

,

The New York Times

(June 19, 2012),

http://www.nytimes.com/2012/06/20/sports/horse-racing-discovers-new-drug-problem-one-linked-to-frogs.html

.

[5]

Whitfield, Udall Introduce Legislation to End Doping of Racehorses

, (May 1, 2011),

http://whitfield.house.gov/press-release/whitfield-udall-introduce-legislation-end-doping-race-horses

.

[6]

Id.

[7]

Esther Marr,

Protecting Race

horses for Second Careers

,

The Bloodhorse

(June 28, 2010),

http://www.bloodhorse.com/horse-racing/articles/57661/protecting-racehorses-for-second-careers

.

[8]

Laura Allen,

Fact v. Fiction: Ending Race Horse Doping

,

Animal Law Coalition

(April 7, 2012), 

http://www.animallawcoalition.com/horse-slaughter/article/1987

[9]

Whitfield, Udall Introduce Legislation to End Doping of Racehorses

, (May 1, 2011),

http://whitfield.house.gov/press-release/whitfield-udall-introduce-legislation-end-doping-race-horses

.

[10]

Id.

[11]

Id.

[12]

Bill Summary and Status, 112

th

Congress (2011 – 2012) H.R.1733, The Library of Congress: Thomas (last accessed June 25, 2012)

http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.1733:

.

[13]

Ray Paulick,

Whitfield: Will Work To Pass Horseracing Improvement Act

,

Paulick Report

(March 28, 2012)

http://www.paulickreport.com/news/ray-s-paddock/whitfield-will-work-to-pass-horseracing-improvement-act/

.

Think Twice Before Using Roundup on Your Garden This Summer

By: Arthur Cook, Staff Member

Summer means family barbeques, celebrations surrounding flags, our fathers, and at least a dozen weddings.  Summer also means lawn care. Committing herbicide against the ever-encroaching weed terror sends many to their local lawn and garden centers. Glyphosate, the most widely used herbicide in the United States, is featured in many popular weed killing products like Roundup.

[1]

Roundup is particularly popular with farmers. Glyphosate is non-selective in that it kills all vegetation except genetically modified plants marketed as "Roundup Ready."

[2]

Roundup is manufactured by everybody's favorite shady conglomerate, Monsanto.

[3]

What most people do not consider when purchasing and applying Roundup is the relationship between the Environmental Protection Agency (EPA) and their lawns. As you read this, the EPA is in the process of finishing its data-gathering for the first comprehensive review of Roundup in thirty years.

[4]

Some studies indicate levels of Glyphosate have risen in food sources over the last few years.

[5]

  This is particularly concerning because Glyphosate has low, but not the lowest, level of toxicity.

[6]

Additionally, a surfactant non-active ingredient in Roundup, polyethoxylated tallowamine (POEA), has recently come under fire for posing greater dangers to humans than Glyphosate. In one study from the University of Caen, researchers determined the chemical was more deadly to human embryonic, placental, and umbilical cord cells than the herbicide itself.

[7]

  Additionally, POEA is not subject to EPA regulation.

[8]

Some governments have already moved to curb the influence of Roundup. For example, the province of Ontario in Canada has a comprehensive ban on all non-essential weed killers, including Roundup.

[9]

Ontario defines "non-essential" as uses for purposes that include a concern for public safety.[10

]

Other locales, such as Boulder, Colorado, have entirely moved away from using Roundup in public places.

[11]

As the EPA concludes its study, the effects of Roundup will be more closely scrutinized for the potential for danger to humans. In the meantime, consider pulling those pesky weeds yourself.

[1]

Glpyhosate Technical Fact Sheet

, 

National Pesticide Information,

http://water.epa.gov/drink/contaminants/basicinformation/historical/upload/Archived-Technical-Fact-Sheet-on-Glyphosate.pdf.

[2]

Herbicide Tolerance and GM Crops

,

Greenpeace International

,  (June 30, 2011), http://www.greenpeace.org/international/en/publications/reports/Herbicide-tolerance-and-GM-crops/.

[3]

Id.

[4]

Carey Gillam,

Cancer Cause or Crop Aid? Herbicide Faces Big Test

,

Reuters,  (

Apr. 8, 2011, 12:14 PM), http://www.reuters.com/article/2011/04/08/us-glyphosate-epa-idUSTRE7374WX20110408..

[5]

Agronomic and Enviromental Impacts of the Commercial Cultivation of Glpyhosate Tolerant Soybean in the USA

,

Centrum Voor Landbouw en Milieu,

http://www.sbcbiotech.nl/page/downloads/Agronomic_and_environmental_impacts_GT_soybean_SBC___CLM_July_2001.pdf.

[6]

R.E.D. FACTS: Glyphosate

, EPA, http://www.epa.gov/oppsrrd1/REDs/factsheets/0178fact.pdf.

[7]

Crystal Gammon and

Environmental Health News

,

Weed-Whacking Herbicide Proves Deadly to Human Cells,

Scientific American

, (June 23, 2009), http://www.scientificamerican.com/article.cfm?id=weed-whacking-herbicide-p.

[8] 

Id.

[9]

Mary Agnes Welch,

Province's Chemical Dependency

,

Winnipeg Free Press

, (May 22, 2012), (http://www.winnipegfreepress.com/local/provinces-chemical-dependency-152469985.html.

[10]

Id

.

[11] 

Heather Urie,

Boulder City Manager Pulls Roundup Weedkiller in Public Places

, D

aily Camera,

(May 1, 2011), http://www.dailycamera.com/ci_17960073.

EPA Plan May End New Coal Power Plants

By: 

Roy York, Staff Member

On March, 27, 2012, the Environmental Protection Agency (EPA) released a 257-page rule that forces new coal-fired power plants to emit the same amount of greenhouse gasses as power plants that burn natural gas.

[1] 

Some are saying these regulations will end the use of coal as a source of energy in the United States.

[2]

The proposed regulations would require new fossil fuel-fired power plants that produce more than 25 megawatts to meet an output-based standard of 1,000 pounds of CO2 per megawatt-hour. This standard is based on the performance of natural gas technology.

[3]

The EPA stressed that these regulations only apply to new plants and would not affect existing plants.

[4]

Further, the regulations would not apply to plants that will begin construction in the next 12 months.

[5]

The EPA said new natural gas electric plants would have no trouble meeting the new guidelines with existing technology, but coal-fired plants would need to implement new technology such as carbon capture to reduce their emissions below the threshold.

[6]

This news has garnered reactions from environmental activists and coal supporters.

[7]

Some have been critical of the political implications of the move, and have accused President Obama of wanting to end the use of coal in the United States.

[8]

Feedback on the document is requested within 60 days of the publication of the proposed rule, and the EPA will hold public hearings on the proposal within 60 days of the publication of the proposed rules.

[9]

The EPA will make a final decision on the regulations later this year.

______________________________________

[1] Environmental Protection Agency,

Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units

, 1-2, available at http://epa.gov/carbonpollutionstandards/pdfs/20120327proposal.pdf.

[2] Debra McCown,

Southwest Virginia coal proponents critical of EPA's proposed new power plant regulations

, TRICITIES.COM, April 2, 2012, available at http://www2.tricities.com/news/2012/apr/02/southwest-virginia-coal-proponents-critical-epas-p-ar-1810907/. 

[3] 

Environmental Protection Agency, 

Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units 2

, available at http://epa.gov/carbonpollutionstandards/pdfs/20120327proposal.pdf.

[4]

Id. 

[5]

Id. 

[6] Andrew Restuccia and Ben Geman,

EPA proposes first-ever greenhouse gas regulations for new power plants,

THE HILL, March 27, 2012, available at http://thehill.com/blogs/e2-wire/e2-wire/218411-epa-unveils-long-awaited-climate-rules-for-new-power-plants.

[7]

See Id. 

[8] 

Debra McCown,

Southwest Virginia coal proponents critical of EPA's proposed new power plant regulations.

,

TriCities.com

, April 2, 2012, available at http://www2.tricities.com/news/2012/apr/02/southwest-virginia-coal-proponents-critical-epas-p-ar-1810907/.

[9] 

Environmental Protection Agency,

Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units

, 7-8, available at

http://epa.gov/carbonpollutionstandard/pdfs/20120327proposal.pdf.

EPA Exceeds Its Authority By Revoking Mountaintop Removal Permit

By: Raabia Wazir, Staff Member

Environmentalist cheered in January 2011 when the U.S. Environmental Protection Agency (EPA) revoked one of the largest mountaintop removal permits ever authorized in Appalachia on grounds that the mine would result in unacceptable damage to streams and wildlife and violate the Clean Water Act.[1] The US Army Corps of Engineers originally issued the §404 permit for the Spruce No. 1 mine project in Logan County, W.V., in January 2007 and the Mingo Logan Coal Company (a subsidiary of Arch Coal, Inc.) began construction shortly thereafter.[2] The permit covered 2,278 acres and allowed for the burial of approximately 7.48 miles of streams beneath 110 million cubic yards of excess spoil.[3]

The revocation of the permit by the EPA marked the first crackdown by the Obama administration to limit mountaintop removal mining by retroactively vetoing old permits. It is also only the second time that the agency has canceled a water permit for a project of any kind after it was issued since the Clean Water Act was passed by Congress in 1972.[4] The decision led to an uproar from the industry and its supporters, many expressing fear that all mine sites were now vulnerable to losing their permits.[5]

In March 2012, the Federal District Court of District of Columbia ruled that the agency exceeded its authority under the Clean Water Act by revoking the permit. Judge Amy Bergman Jackson wrote in her opinion, “The EPA resorts to magical thinking. It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and

consideration. Poof!”[6] She further argued that permit revocation is unreasonable because it “[sows] a lack of certainty into a system that was expressly intended to provide finality." The Judge continued, "Every construction project involving waterways could be subject to an open-ended risk of cancellation.”[7]

The agency has yet to announce whether they plan to appeal the ruling.

_______________________________________________

[1] Kate Sheppard,

EPA Halts "Destructive and Unsustainable" Mining Operation

, Blue Marble, Jan. 13, 2011, http://motherjones.com/blue-marble/2011/01/epa-rejects-spruce-no-1-permit.

[2]

Spruce No. 1 Mine

, U.S. Environmental Protection Agency

. (April 2, 2012, 5:00 PM), http://www.epa.gov/region03/mtntop/spruce1.html

[3] Final Determination of the U.S. Environmental Protection Agency Pursuant to § 404(c) of the Clean Water Act  Concerning the Spruce No. 1 Mine, Logan County, West Virginia (2011),

available at:

http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/upload/Spruce_No-_1_Mine_Final_Determination_011311_signed.pdf

[4] Stephen Power & Kris Maher,

EPA Blasted as It Revokes Mine's Permit

,

Wall Street Journal

, Jan. 14, 2011,

available at

:

http://online.wsj.com/article/SB10001424052748703583404576079792048919286.html

.

[5] Erik Eckholm,

Project’s Fate May Predict the Future of Mining

,

N.Y. Times

, July 14, 2010,

available at

:  http://www.nytimes.com/2010/07/15/us/15mining.html.

[6] Mingo Logan Coal Co. Inc. v. U.S. E.P.A., No. 10–0541, 2012 WL 975880 (D.D.C. March 23, 2012),

available at

: http://wvgazette.com/static/coal%20tattoo/SpruceMineRuling.pdf

[7]

Id.

Federal Government Initiates Commenting Period for Potential OCS Lease Sale in Cook Inlet, Alaska

By: Elizabeth Watson, Staff Member

On March 27, 2012, the Bureau of Ocean Energy Management (BOEM), the bureau within the Department of the Interior that “

manages the exploration and development of the nation's offshore resources,”[1] with an eye toward environmental concerns, published in the Federal Register a request for interest (RFI) regarding oil and gas exploration and drilling in the Cook Inlet Planning Area of Alaska.[2]  The request initiates a 45 day comment period in which any individual, including private citizens and oil and gas corporations, may submit comments about “geologic and economic information,” “environmental, biological, archaeological, and socioeconomic conditions,” and any other impact that may occur if a proposed federal lease Sale 244 in 2013 were to occur in the Cook Inlet.[3]  While industry interest is a main goal of the request for information, BOEM also voices particular interest in comments from “tribal, local, and state governments, Federal agencies, and the general public,” concerning the best ways to proceed in evaluating applicable laws, including: The Outer Continental Shelf Lands Act (OCSLA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA).[4]  

While Alaska’s state leasing program sees much success in this region, with the most recent sale in 2011 covering 575,202 acres, “there are currently no active Federal OCS leases in Cook Inlet.”[5]

Thus, through commenting, BOEM seeks to gauge the “renewed interest in exploring for and developing additional hydrocarbon resources . . . both offshore and onshore.”[6]

All comments must be received by May 11, 2012, and the Federal Register outlines different commenting and disclosure requirements for individuals versus interested corporations.[7]

In the Federal Register, BOEM emphasizes that after the commenting period and review of environmental impact considerations, the bureau will “then decide on whether to proceed with further evaluation of this special interest sale.

This RFI does not indicate a decision to include Sale 244 in the Proposed Final OCS Oil and Gas Leasing Program for 2012-2017 (Final Program) or to lease in the Cook Inlet Planning Area.”[8]

And, without sufficient industry interest, evidenced through commenting, the sale will not proceed.[9]

With renewed industry interest, one expects to see many more comments received from the industry during this time than the meager three comments received in a past federal lease sale of this area in 2008, which had no industry nominations.[10]

Additionally, expect more push back from those representing environmental concerns, such as the protection of the Beluga Whale population in the Cook Inlet.[11]

[1] 

Bureau of Ocean Energy Management,

http://www.boem.gov/ (last visited April 1, 2012).

[2] 77 Fed. Reg. 18,260, 18,260.

[3] 

Id.

at 18,261.

[4] 

Id.

at 18,260.

[5] 

Id.

at 18,261.

[6] 

Id.

at 18,260.

[7] 

See id.

at 18261-62.

[8] 

Id.

at 18260.

[9] 

Id.

at 18261.

[10] 

Id.

[11] 

See

Patti Epler,

New drilling operation begins in Alaska’s Cook Inlet

,

Alaska Dispatch

(Aug. 22, 2011), http://www.alaskadispatch.com/article/new-drilling-operation-begins-alaskas-cook-inlet?page=0,0. 

A Gamble on Gambling: Let Kentuckians Decide to Pull the Lever or Not

By: John Wathen, Staff Member

On February 23, 2012, the Kentucky Senate, in a 21-16 vote, rejected Senate Bill 151 regarding a constitutional amendment legalizing gambling in the Commonwealth.

[1]

  This was well short of the 23 votes required for passage of the amendment, as required by the Kentucky State Constitution.

[2]

  The amendment would allow no more than seven casinos in the state, require that casinos be at least 60 miles from any licensed horse track, and included a statement requiring tax revenues produced from gambling be used for “

purposes including job creation, education, human services, health care, veterans programs, local governments, public safety, and the support of the horse industry.”

[3]

  If the bill had passed the Senate, it would then have been proposed to the public at large through referendum, requiring a majority vote for passage, as required by the Kentucky Constitution.

[4]

Those in opposition to the amendment have argued that tax revenues from casinos are essentially regressive in nature, coming mainly from those individuals with less disposable income and thus with more to lose from a bad day at the tables.

[5]

  Additionally, they reference economists who have looked to other casino states, claiming that casinos are not reliable revenue streams and every dollar lost at a casino is a dollar that could have been spent on other products and services.

[6]

  They argue that a dollar spent at a casino is not really revenue generated, but simply a reapportionment of revenue from other, more productive industries.

[7]

  There is also a general concern for the high number of “at-risk” gamblers in the state, and social conservatives have expressed a belief that a number of negative collateral effects, such as poverty and increased crime, will accompany expanded gambling.

[8]

Proponents of the amendment, including Kevin Flanery, president of Churchill Downs, have long argued that the legalization of gambling is essential to Kentucky’s flagship horse-racing industry.

[9]

  They point to decreased track attendance and smaller purses as a sign that horseracing in Kentucky is in decline, and claim that tracks here simply cannot compete with less-regulated horse parks in other states.

[10]

  Supporters also argue that, much like the lottery, casino gambling would lead to increased state revenues for education, job creation, and other beneficial programs facing cutbacks in the face of the economic downturn.

[11]

Across the state, the issue of expanded gambling has long been a front-page contentious issue, with no clear consensus emerging. However, Kentuckians seem united on at least one issue; let the people decide with a referendum. According to two major polls, 80 percent of Kentuckians want a direct vote on gambling regulation.

[12]

 With such overwhelming numbers, the General Assembly should pass the amendment and let the people decide once and for all the future of gambling in the Commonwealth.

[1]

Gregory A. Hall,

Senate Rejects Casino Gambling Amendment,

Courier Journal, Feb. 23, 2012, http://pqasb.pqarchiver.com/courier_journal/access/2593895571.html?FMT=FT&FMTS=ABS:FT&type=current&fmac=e01bcbebf2d68207b328bf3f9076617f&date=Feb+23%2C+2012&author=&pub=&desc=Senate+rejects+casino+gambling+amendment.

[2]

Id

.

[3]

S.B. 151, Reg. Sess. (Ky. 2012).

[4]

Id

.

[5]

Time to Oppose Senate Bill 151, Bad Bet for Kentucky,

Catholic Conference of Ky. Blog (Feb. 19, 2012),

http://ccky.org/2012/02/time-to-oppose-senate-bill-151-bad-bet-for-kentucky/.

[6]

John Cheves,

Casinos No Cure-all for State Budgets, Economists Say,

Jan. 16, 2012, http://www.kentucky.com/2012/01/16/2030235/casinos-no-cure-all-for-state.html#storylink=misearch

[7]

Id

.

[8]

Supra

note 5.

[9]

Hall,

supra

note 1.

[10]

Id

.

[11]

Cheves,

supra

note 6.

[12]

Bradford Cummins,

The Winners and Losers of SB 151,

The Paulick Report, Feb. 24, 2012, http://www.paulickreport.com:8080/news/ray-s-paddock/the-winners-and-losers-of-sb-151/.

New Developments in Local Regulation of Hydrofracking

By: Travis Van Ort, Staff Member

There is a new twist in the debate over hydraulic fracturing (hydrofracking) and how to regulate the process.  In February, two courts in New York issued opinions that upheld local regulation of hydrofracking.

[1]

  A state Supreme Court judge in Ostego County ruled that the local municipality was “legally able to ban hydrofracking through its zoning law,” and another state Supreme Court judge, in Tompkins County, “found that state mining laws do not prevent local governments from enacting fracking bans under zoning laws.”

[2]

  This likely will not be the last word on the issue, as the New York rulings are expected to be appealed.

[3]

This is not the first attempt by a municipality to regulate or ban the use of hydrofracking within city or town limits.  For instance, in August, a court in West Virginia overturned the Morgantown city ordinance that prohibited hydrofracking within city limits; in the ruling, the judge indicated that the West Virginia Department of Environmental Protection has “exclusive control over [that] area of law.”

[4]

The rulings in New York raise three important concerns:  the first two are practical concerns and the third is a policy concern.  First, the banning of hydrofracking in areas where natural gas companies have already bought land or acquired leases for the purposes of drilling may expose the regulating municipality to liability.  A company that is a party to the Tompkins County case indicated that it may “pursue a ‘takings’ claim against the town” for taking private property without just compensation.

[5]

  The company claims it has spent over $5 million to secure land leases in the area.

[6]

The second concern is the potential chilling effect local regulation could have on drilling for natural gas, at least in New York.  New York overlies three important shale gas plays – the Marcellus, the Utica, and the Devonian shales

[7]

– and if these Supreme Court decisions are upheld on appeal, local regulation could inject a significant level of uncertainty into natural gas drilling in New York.  One of the attorneys in the aforementioned cases suggested that “[n]o company will invest in leases if they can just be abrogated by a town board vote,” and “[t]hese decisions could be the kiss of death for the drilling industry coming [to New York State].”

[8]

  While the complications from local regulation may not be as dire as has been suggested, it seems likely that increased local regulation or banning of hydrofracking will lead to a decrease in interest in exploiting the gas under New York State and a decrease in drilling.  Since more than 20 local governments have already banned or limited hydrofracking

[9]

and others are attempting to implement a ban,[10] this is no small concern.

The last concern is a policy concern.  Given the importance of natural gas, especially shale gas (which requires hydrofracking to be commercially viable), to meeting US energy needs now and in the future,

[11]

these types of local level restrictions have the potential to severely complicate the extraction of gas in some of the key shale gas plays.  The US Energy Information Agency (EIA) suggests that in the future the US could produce more natural gas than it consumes.

[12]

  If the US is unable to produce as much gas as the EIA predicts because of local level bans or restrictions on hydrofracking, any shortfall between domestic production and consumption will have to be made up either through conservation and efficiency programs, the substitution of domestically produced sources of energy like coal, or energy imports.

[1]

Brian Nearing,

Local Drill Ban Wins 2

nd

Victory

,

Times Union

, Feb. 24, 2012, http://www.timesunion.com/default/article/Local-drill-ban-wins-2nd-victory-3360224.php.

[2]

Id.

[3]

See id.

[4]

Charles Young,

Judge Denies Injunction to Uphold Fracking Ban

,

The Daily Anthenaeum

, Aug. 23, 2011, http://www.thedaonline.com/news/judge-denies-injunction-to-uphold-fracking-ban-1.2550997#.T1Gc93meqRd.

[5]

Mireya Navarro,

New York Judge Rules Town Can Ban Gas Hydrofracking

,

N.Y. Times

, Feb. 21, 2012, http://www.nytimes.com/2012/02/22/nyregion/town-can-ban-hydrofracking-ny-judge-rules.html.

[6]

Id.

[7]

See What is Shale Gas and Why is it Important?

, U.S.

Energy Info. Agency

,  Feb. 14, 2012, http://www.eia.gov/energy_in_brief/about_shale_gas.cfm.

[8]

Nearing,

supra

note 1.

[9]

Glenn Coin,

Central New York Municipalities Take Steps to Control Hydrofracking

,

The Post-Standard

, Aug. 21, 2011, http://www.syracuse.com/news/index.ssf/2011/08/central_new_york_municipalitie.html.

[10]

Jordan Carleo-Evangelist,

Albany Gas Drill Foes See Veto-proof Vote

, Times Union, Feb. 24, 2012, http://www.timesunion.com/default/article/Albany-gas-drill-foes-see-veto-proof-vote-3359000.php.

[11]

See What is Shale Gas and Why is it Important?

,

supra

note 7.

[12]

Id.

Should Tobacco be Included in Free Trade Agreement?

By: Joe Schuler, Staff Member

In November 2011, leaders from nine countries reached an agreement on a broad outline for a Trans-Pacific Partnership.

[1]

The announced purpose of the agreement was to enhance trade between the partner countries, promote innovation, economic growth, and retain and create jobs.

[2]

The countries involved are Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States.

[3]

Because the agreement was in the form of a broad outline, it necessarily left details open to further negotiation. One such detail is the scope of the agreement, namely whether tobacco will be covered or excluded. This issue has led to a sharp debate among tobacco farmers and manufacturers, and public health advocates. 

Organizations like the Campaign for Tobacco-Free Kids and the American Medical Association argue that tobacco should not be included in the ban, meaning member nations would remain free to impose tariffs on tobacco imports.

[4]

They argue that exclusion would support the worldwide campaign to reduce smoking.

[5]

  On the other hand are tobacco farmers who fear the economic consequences of being left out.

[6]

Today’s tobacco farmers rely more heavily on exports than ever before, selling the majority of their crop overseas.

[7]

More than 80% of Kentucky’s tobacco crop is exported to other countries, which the U.S. Department of Agriculture estimates amounted to more than $238 million in 2010.

[8]

It seems clear that growers and manufacturers alike are fearful that, as tobacco use continues to decline domestically, they must increasingly rely on exports.

The issue has received the attention of more than 50 U.S. Senators and Representatives of tobacco-producing states, who signed letters expressing their concerns to U.S. Trade Representative Ron Kirk.

[9]

Senate Minority Leader Mitch McConnell, R-Ky., urged Kirk to consider the economic impact an exclusion would have on the state and national economies, citing Kentucky’s 9.5 percent unemployment rate.

[10]

The Kentucky General Assembly has also weighed in, with both the Republican led Senate and Democrat led House approving a resolution supporting the inclusion of tobacco and tobacco products.

[11]

The General Assembly, and others, argue that the U.S. should abide by its long-held policy of comprehensive trade agreements, and that no agricultural products or commodities should be removed due to public policy.

[12]

Health groups have countered that the U.S. has signed onto an international treaty to reduce tobacco use.

[13]

That means that this debate is likely to continue to heat up until the full terms of the agreement are announced, and when that happens it is sure to have major policy implications.

[1]

Press Release, Office of the US Trade Representative, Trans-Pacific Partnership Agreement (November, 2011),

available at

http://www.ustr.gov/about-us/press-office/press-releases/2011/november/trans-pacific-partnership-leaders-statement

.

[2]

Id.

[3]

Id.

[4]

James R. Carroll,

Tobacco

’

s status in trade deal contested; Kentucky growers urge crop

’

s inclusion,

Courier-Journal, March 14, 2012,

available at

http://www.courier-journal.com/article/20120313/NEWS01/303090146/Tobacco-s-status-in-trade-deal-contested-Kentucky-growers-urge-crop-s-inclusion?odyssey=tab%7Cmostpopular%7Ctext%7CFRONTPAGE

[5]

Id.

[6]

Franco Ordonez,

Tobacco Growers fear trade deal will harm exports,

Sacramento Bee, Feb 28, 2012,

available at

http://www.sacbee.com/2012/02/28/4297695/tobacco-growers-fear-trade-deal.html

.

[7]

Id.

[8]

Id.

[9]

Id.

[10]

Id.

[11]

Supra,

note 4.

[12]

Id.

[13]

Id.