Kentucky Horse Owners Should Seriously Consider West Nile Virus Vaccination

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By: Megan Crenshaw, Staff Member

With the fall season approaching, several horse owners are beginning to seriously consider West Nile virus (WNV) vaccinations.[i] The number of WNV cases confirmed in U.S. horses continues to rise slowly.[ii] As of September 5, 2013, the United States Department of Agriculture Animal Health Monitoring and Surveillance confirmed 64 cases of WNV in 23 states.[iii] The United States Department of Agriculture Animal and Plant Health reported 627 cases of WNV in U.S. horses in 2012.[iv] Thirteen of those cases were reported in Kentucky.[v] Since 1999, over 25,000 cases of WNV have been reported in U.S. horses.[vi]

The viral disease is transmitted to horses by infected mosquitoes.[vii] A mosquito that bites a bird carrying WNV becomes infected.[viii] The infected mosquito can then feed on horses thereby spreading WNV to the horse.[ix] WNV can cause encephalitis, which is characterized by inflammation of the spinal chord and brain.[x] Signs of WNV in horses includes, changes in mentality, flulike signs, hypersensitivity to touch and sound, twitching, when horses look like they are daydreaming or “just not with it,” drowsiness, propulsive walking (driving or pushing forward, often without control), and spinal signs (including asymmetrical weakness).[xi] It is important to remember WNV does not always result in signs of illness. Some horses that become infected can suffer a loss of appetite and depression.[xii]

As of September 12, 2013, three horses tested positive for WNV in Kentucky.[xiii] Most recently, a 6-year old Standardbred gelding from Todd County tested positive for WNV on September 11.[xiv] None of the three horses affected by the virus in Kentucky were reportedly not properly immunized.[xv] The amount of horses affected by the virus could continue to rise, specifically in Kentucky, if more horses do not receive the WNV vaccination.

WNV remains a concern but with the right vaccine and preventative measures, horse owners can help protect their horses against this life threatening disease.[xvi] Vaccination is the most effective way to protect horses against WNV. In conjunction with the vaccination, good techniques for managing mosquitoes should be used, such as, destroying any mosquito breeding habitats by removing all potential sources of stagnant water and cleaning and emptying any water-holding containers, including buckets, water troughs, and plastic containers, on a weekly basis.[xvii]

It would be very beneficial for Kentucky horse owners to obtain the vaccine for their horses as well as adhere to preventative measures in order to protect their equine. 
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[i] West Nile Virus Reported in Horses Nationwide, FARMS.COM (Sept. 6, 2013) http://www.farms.com/news/west-nile-virus-reported-in-horses-nationwide-66956.aspx.
[ii] Id.
[iii] Id.
[iv] Erica Larson, Kentucky Confirms Second Equine WNV, THEHORSE.COM (Sept. 3, 2013), http://www.thehorse.com/articles/32488/kentucky-confirms-second-equine-wnv-case-of-2013.
[v] Id.
[vi] West Nile Virus, AAEP.ORG, http://www.aaep.org/wnv.htm (last visited Sept. 13, 2013).
[vii] Larson, supra note 4.
[viii] West Nile Vaccine: What is West Nile virus?, Allivet (Feb. 21, 2013), http://allivet.blogspot.com/2013/02/west-nile-vaccine.html.
[ix] Id.
[x] Id.
[xi] Larson, supra note 4.
[xii] West Nile: First Equine Cases Reported In 2013, THEHORSE.COM (July 17, 2013), http://www.thehorse.com/articles/32210/west-nile-first-equine-cases-reported-in-2013.
[xiii] Erica Larson, Virginia, Kentucky Confirm New Equine WNV Cases (Sept. 12, 2013), http://www.thehorse.com/articles/32538/virginia-kentucky-confirm-new-equine-wnv-cases.
[xiv] Id.
[xv] Id.
[xvi] West Nile: First Equine Cases Reported In 2013, supra note 11.
[xvii] Id.

Lasix and the Betting Public

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By: Wes Bright, staff member

One of the main arguments for the prohibition of Lasix is that it makes the sport fair to the betting public. The Governor of Kentucky, Steve Beshear, has adopted this view.[i] Beshear says that it is great for the betting public’s perception that the best horses are running on their own abilities, something that the public has wanted to happen.[ii] Yet, the opposite may be true.

Todd Pletcher and Bill Mott are well known trainers that support Lasix. They both rely on the fairness involved when the drug is used.[iii] It is fair to the horse, industry and the betting public. The use of Lasix is known to the public so there is no chance of foul play when it comes to betting on these horses. Lasix tends to be associated with cheating, but these trainers dispel that idea. If everyone knows which horses are given Lasix before every race, the idea of getting inside information is eliminated.[iv] Thomas Tobin, a professor of veterinary Science at the Gluck Equine Research Center on the University of Kentucky, goes as far as to say that it would be much harder for the betting public to evaluate how non-Lasix horses will perform.[v] The chance of bleeding will occur with every race and bettors will have to blindly guess on whether this will be the race that the horse bleeds. If Lasix is banned, trainers may result to other methods such as “drawing” a horse by taking away its water for a day before the race.[vi] Handicappers will have no way of knowing whether or not the trainer has used these methods.[vii] The more information we can give the betting public, the better off they are.

It is true that since Lasix was introduced, the number of favorites to win has gone down.[viii] This is good for the sport. In other sports we praise the thought that anybody can win on a given day. Fans love to see upsets during March Madness and there is a loud cry for a salary cap in baseball so that the little guys can have a chance to win.[ix] This also advantages the bettor because there is more money to be made.
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[i] Janet Patton, Kentucky Racing Commission approves lasix ban in upper level contests, Kentucky.com (Jun. 13, 2012) http://www.kentucky.com/2012/06/13/2223154/kentucky-racing-commission-passes.html.
[ii] Id.
[iii] Jerry Bossert, Trainers disagree with newly-approved ban on Lasix, which is used to control horse bleeding, DailyNews.com (Aug. 12, 2011) http://www.nydailynews.com/sports/more-sports/trainers-disagree-newly-approved-ban-lasix-control-horse-bleeding-article-1.950488.
[iv] Id.
[v] Dr. Thomas Tobin & Kimberly Brewer, Medication Committee Corner: Lasix and Bleeders – A Classic American Horsemen’s Story, KYHBPA.org (May 16, 2012) http://www.kyhbpa.org/NewsDisplay.asp.
[vi] Bleeders and Lasix, ThinkyThings.org, http://www.thinkythings.org/horseracing/lasixinfo.html (last updated Feb. 4, 2006).
[vii] Id.
[viii] Id.
[ix] Kenny Ducy, A Salary Cap in Baseball?, BleacherReport.com (Jan. 23, 2009) http://bleacherreport.com/ articles/114861-a-salary-cap-in-baseball.

How Will the Federal Decision Not to Prosecute Recreational Marijuana Use Affect Kentucky?

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By: Ted Walter, Staff Member

Recreational marijuana initiatives passed in elections last fall in the states of Washington and Colorado.[i] These state laws are contradictory to the federal laws that place marijuana in the controlled substances act.[ii] Until recently it was unknown how the federal justice administration would respond to those laws. However, U.S. Attorney General Eric Holder has announced that new guidelines will be applied to marijuana prosecution at the federal level. Those guidelines aim to prevent:

“the distribution of marijuana to minors; revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; the diversion of marijuana from states where it is legal under state law in some form to other states; state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; violence and the use of firearms in the cultivation and distribution of marijuana; drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; preventing marijuana possession or use on federal property.”[iii]

These events trigger the bigger question of what effect the federal decision to not prosecute recreational marijuana use in Washington and Colorado will have on other state’s laws. Many states have already seen a movement to follow in the footsteps of Washington and Colorado: Maine, Rhode Island, Massachusetts, Vermont, California, and Oregon.[iv] Undoubtedly, other states will follow suit because of the expected tax revenue from marijuana sales. One author notes that it is likely that marijuana will be “taxed at each stage of its growth, processing, and sale.”[v]

This is of particular interest for the state of Kentucky because of recently enacted legislation that legalizes hemp production. James Comer, the Kentucky Commissioner of Agriculture, is of the belief that the recent change in federal prosecution of marijuana might also translate to hemp.[vi] Comer believes this will allow Kentucky to move ahead with industrial hemp farming.[vii] So strong is this belief, Comer is already “courting hemp processing companies in hopes that they will do business in the state.”[viii] Further, Kentucky Sen. Rand Paul promised his support at the federal level.[ix] If Comer’s beliefs are true, and other states follow the paths of Washington and Colorado, it is possible that very soon in the state of Kentucky, both marijuana and hemp production will provide much needed tax revenue for the state.
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[i] Ryan J. Reilly and Ryan Grim, Eric Holder Says DOJ Will Let Washington, Colorado Marijuana Laws Go Into Effect, The Huffington Post, Aug. 29 2013, http://www.huffingtonpost.com/2013/08/29/eric-holder-marijuana-washington-colorado-doj_n_3837034.html.
[ii] Id.
[iii] Id.
[iv] Id.
[v] Colleen Curry, Marijuana Ruling Could Signal End of Prohibition on Pot, Yahoo! News, Aug. 31, 2013, http://gma.yahoo.com/marijuana-ruling-could-signal-end-prohibition-pot-151612677--abc-news-topstories.html.
[vi] David Ferguson, Kentucky agriculture commissioner: State to grow hemp and we’ll see what Justice Department does, The Raw Story, Sept. 4, 2013, http://www.rawstory.com/rs/2013/09/04/kentucky-agriculture-commissioner-state-to-grow-hemp-and-well-see-what-justice-department-does/.
[vii] Id.
[viii] Id.
[ix] Id.

Tis’ The Season to Discuss the Subsidy

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By: Rebekah McKinney, Staff Member

This time of year for rural Americans is corn-harvesting season, and this year is sure to be a big harvest. After last year’s historically bad drought across the Midwest, this year has been remarkably pleasant, especially for corn farmers.[1] With droughts wreaking havoc on last year’s corn crop, corn prices steadily rose, with prices closing at $8.49 per bushel last August.[2] The hopes of witnessing a repeat of the 2012 corn prices is evident as we draw closer to harvest time, with every spare parcel of land planted with the popular crop.

These hopes and dreams are not likely to come to fruition since this summer’s temperate climate coupled with the high expectations of last year’s corn prices resulted in an overabundance of the popular crop, with a forecasted yield of around 14 billion bushels.[3] Currently, the United States Department of Agriculture estimates the average price per bushel will range from $4.50 to $5.30 per bushel, a far cry from last season’s prices.[4] The corn supply over the last two years demonstrates the high risk and uncertainty involved in the corn market.

With many House Representatives voting for an increase in farm subsidies in the 2013 Farm Bill and the obvious uncertainty regarding crop yields, many commentators argue these subsidies actually cause overproduction of subsidized crops.[5] Furthermore, agricultural subsidies may also cause the unintended effect of increased erosion, pollution of waterways due to increased use of fertilizers and pesticides, and release of greenhouse gases.[6] Finally, tax dollars do not go to the poor farmer as we imagine, but in fact go to the “wealthy” farmers who can shoulder the potential economic loss of a bad year.[7] With $84.4 billion tax dollars spent on corn subsidies between 1995 and 2012, which does not include money spent on remedial measures aimed at addressing the unintended negative effects of corn subsidies, a thorough examination and understanding of the entire picture is necessary. [8]
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[1] NOAA, An Interpretation of the Origins of the 2012 Central Great Plains Drought 1. http://cpo.noaa.gov/sites/cpo/Reports/MAPP/drought/2012%20drought%20report/DTF_Interpretation_of_2012_Drought_FINAL_2-pager.pdf (March 20, 2013).
[2] USDA, U.S. Drought 2012: Farm and Food Impacts, Economic Research Service http://www.ers.usda.gov/topics/in-the-news/us-drought-2012-farm-and-food-impacts.aspx#.UiZ4aI7pZUQ, (July 26, 2013); Jeff Wilson, Corn Future Jump Most Since June on Unexpected U.S. Supply Drop, Bloomberg News, http://www.bloomberg.com/news/2012-09-28/u-s-corn-stockpile-unexpectedly-drops-sparks-price-rebound-1-.html, (Sept. 28, 2012).
[3] Gil Gullickson, No Surprise: Expected Lower Corn and Soy Bean Prices for 2013-2014, Agriculture, Market Analysis http://www.agriculture.com/markets/analysis/corn/no-surprise-expect-lower-cn-soybe_9-ar32512, (July 15, 2013).
[4] USDA, World Agriculture Supply and Demand Estimates 2, http://www.usda.gov/oce/commodity/wasde/latest.pdf (August 12, 2013).
[5] See James B. Stewart, Richer Farmers, Bigger Subsidies, The N.Y. Times, http://www.nytimes.com/2013/07/20/business/richer-farmers-bigger-subsidies.html?pagewanted=all&_r=0 (July 19, 2013); Jordan Ballor & Ray Nothstine, Farm Subsidies: Sustaining Dependency, Acton Institute, http://www.acton.org/pub/commentary/2007/12/05/farm-subsidies-sustaining-dependency (Dec. 5, 2007); Chris Edwards, Agricultural Subsidies, http://www.downsizinggovernment.org/sites/downsizinggovernment.org/files/pdf/agriculture-subsidies_0.pdf (June 2009). http://www.downsizinggovernment.org/agriculture/subsidies#_edn2
[6]Norman Myers & Jennifer Kent, Perverse Subsidies: How Tax Dollars Can Undercut the Environment and the Economy 4 (Island Press, 2001), available at http://books.google.com/books?hl=en&lr=&id=mA-t1xAJDDUC&oi=fnd&pg=PR13&dq=farm+subsidies+and+economy+&ots=AUrcbbIEXC&sig=EtXgW5EawxYxLeKGajY__QRjevA#v=onepage&q=farm%20subsidies%20and%20economy&f=false.
[7] Id.
[8] Environmental Working Group, Corn Subsidies (last visited Sept.4, 2013) http://farm.ewg.org/progdetail.php?fips=00000&progcode=corn.

How Do You Like Them Apples?

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By: Shannon Lawson, Staff Member

The world loves apples! No, I’m not talking about our beloved gadgets made by that mega corporation (although we love those too). I’m talking about the forbidden fruit. The one Adam and Eve couldn’t keep their hands off. What was true then, is true now. The world loves apples! In fact, apples are one of the world’s top five most popular fruits with approximately 75 million tons produced in 2011.[1]

What exactly is it that we love about apples? Is it their sweet taste or snappy crunch? Whatever it is, we can thank climate change for the effect it is having on their sweetness and their crunch. Thank you climate change!

According to a recent study, apples have become sweeter, but have also lost some of their crunch as a result of climate change.[2] The study focused on Fuji and Tsugaru apples grown at two orchards in Japan from 1970 to 2010.[3] According to the study, Fuji apples are the most cultivated apples in the world and Tsugaru apples are the second most common in Japan.[4]

The research team published their results in the journal of Scientific Reports and noted there was “evidence that the taste and textural attributes of apples have changed as a result of recent global warming.”[5] The team also observed “all such changes may have resulted from earlier blooming and higher temperatures during the maturation period.” [6]

Because non-climate factors such as technological improvements and breeding make it difficult to assess the effects of climate change in a long-term observation, the orchards used in the study were selected because “there [had] been no alterations in cultivars and management practices for extended periods.”[7] According to the study, “[i]f global warming continues to progress, the changes in the taste and textural attributes of apples could be more striking as blooming dates become even earlier and temperatures increase during the fruit maturation period.”[8]

But this could be a good thing, right? Perhaps, if you are a baby or have no teeth. Besides, apples are already sweet enough. Don’t believe me, put down the green and try a red. If we could only pause global warming as it stands, then our apples would be just fine. Plus, who doesn't like their apples to “snap” when they take a bite? This study and countless others provide another reason to despise global warming.
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[1] Food and Agriculture Organization of the United Nations, FAO, FAOSTAT http://faostat.fao.org/.
[2] See Toshihiko Sugiura et al., Changes in the Taste and Textural Attributes of Apples in Response to Climate Change, 3 Scientific Reports 2418, 1, (Aug. 15, 2013)
http://www.nature.com/srep/2013/130815/srep02418/pdf/srep02418.pdf.
[3] Id. at 6.
[4] Id. at 2.
[5] Id. at 1.
[6] Id.
[7] Id.
[8] Id. at 6.

Lather Up…Or Not: The Dangers of Body Wash

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By: Lauren Hart, Staff Member

We live in a society where we fluff and buff ourselves within an inch of our lives. Although I may like to think I’m immune to advertising, I am no exception to this rule: I enjoy a good body scrub as much as the next person. What hadn’t occurred to me, however, was the effect I was having on the environment and our natural resources.

Many home-care products have “exfoliating” properties. These are designed to help rid our bodies of excess and dead skin. These exfoliating products vary from natural sources to tiny microbeads of plastic, small pieces of plastic designed to scrub and then easily wash away.[1] These microbeads are a small subset of the broader term, “microplastics.”[2]

These seemingly harmless beads of plastic are wreaking havoc on our natural water resources. The beads themselves are able to “absorb and retain” chemical contaminates, which makes them more frightening.[3] Runoff of these toxic little plastics can directly reach our oceans[4] and lakes.[5] The beads make their way through the water filtration systems and then eventually out into our open water sources.[6] There “are no prospects” to get microbeads and plastics out of our water resources.[7] Microbeads may be hard to detect, and there is no way to filter them, but fish are eating them.[8] We drink this water and eat these fish, and these microplastics become part of our systems as well.[9]
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[1] Lisa Maria Garza, Tiny Plastic Beads are Latest Pollution Threat to the Great Lakes, The Huffington Post, Jul. 30, 2013, http://www.huffingtonpost.com/2013/07/30/tiny-plastic-beads-great-lakes-pollution_n_3680070.html.
[2] Woods End Laboratories, Microbead plastic added to list of harmful water pollution, (Feb. 8, 2013) available at http://woodsend.org/2013/02/consumer-microbead-plastics-added-list-oceanlake-contaminants/.
[3] Editorial, Good For Your Face, Bad for the Fish: Facial soaps can contain plastic scrubbing beads that end up in the Great Lakes, Chicago Tribune, Aug. 11, 2013, http://articles.chicagotribune.com/2013-08-11/opinion/ct-edit-plastic-0811-jm-20130811_1_great-lakes-lakes-michigan-and-ontario-water-samples.
[4] Anthony L. Andrady, Microplastics in the marine environment, Marine Pollution Bull. (Elsevier LTD) 2011, at 1600.
[5] Press Release, The 5 Gyres Institute, The 5 Gyres Institute Sets Sail For First Ever Plastic Pollution Study Of Lake Michigan (Aug. 1, 2013) (on file with author).
[6] Supra, note 3.
[7] Margaret Badore, 3 companies commit to removing plastic beads from their products, treehugger, Jul. 2, 2013, http://www.treehugger.com/clean-water/3-companies-commit-removing-plastic-beads-their-body-products.html.
[8] Supra, note 1.
[9] Supra, note 5.

Horse Slaughter in America: Cruel or Necessary?

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By: Megan Pigman, Staff Member

Debate surrounding horse slaughter in America may currently be at its pinnacle with two companies on the brink of opening the first slaughterhouses in the United States in seven years.[i] The congressional ban on the horse slaughtering for meat was lifted in 2011, but companies have not come close to opening facilities utilized for such purposes until now. Valley Meat Co. of Roswell, New Mexico and Responsible Transportation of Sigourney, Iowa received USDA permits in June to begin horse-slaughtering operations in their respective states.[ii] Valley Meat was prepared to open its doors this week, but was forced to wait when U.S. District Judge Christina Armijo issued a restraining order temporarily preventing both companies from opening their doors.[iii] The restraining order was issued as part of a case initiated by the Humane Society of the United States and other groups in opposition.[iv]

Those supporting horse slaughtering largely build their arguments by looking at the number of horses transported each year to Canada or Mexico to be slaughtered. In 2012, the total number of horses being sent to these countries for slaughter was estimated to be 123,807.[v] Slaughter supporters point to the cruel treatment horses experience in these border countries where there are no guidelines regarding how these horses lives come to an end, as well as the great cost incurred in shipping horses these long distances for them to ultimately meet the same fate.[vi]

Those opposed to horse slaughtering point out that not only is it an inherently inhumane and cruel practice, but also an expensive operation. They suggest millions of tax dollars would be necessary for the FDA to conduct horse slaughter inspections and such money would be diverted away from food safety programs currently in place to protect Americans, to enable a practice that 80% of the American public opposes.[vii] Those in opposition find hope in a bill being considered in the House, the Safeguard American Food Exports (“SAFE”) Act, which would prohibit the slaughter of horses for human consumption in the U.S. and their export for that purpose abroad.[viii] This bill, sponsored by Representative Patrick Meehan (PA), was assigned to the House Agriculture committee on March 12, 2013, which will consider it before possibly sending it on to the House or Senate as a whole.[ix]

Individuals passionate about this issue are anxious about the case brought by the Humane Society progresses and whether horse slaughtering will begin in America once again. An answer will likely come soon, as another hearing in the case took place on Monday, August 5th.[x]
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[i] Judge Blocks Planned Horse Slaughter at Two Plants, WashingtonTimes.com (Aug. 2, 2013), http://www.washingtontimes.com/news/2013/aug/2/judge-blocks-planned-horse-slaughter-2-plants/ (last visited Aug. 5, 2013).
[ii] Id.
[iii] Id.
[iv] Id.
[v] Horse Slaughter Statistics, Animal Welfare Institute, https://awionline.org/content/horse-slaughter-statistics(last visited Aug. 5, 2013).
[vi] AVMA Position on Safe Act, AVMA.org, https://www.avma.org/Advocacy/National/Documents/IB_Horse_Slaughter_17April2013.pdf (last visited Aug. 5, 2013).
[vii] The Facts on Horse Slaughter, The Humane Society of the United States, http://www.humanesociety.org/issues/horse_slaughter/facts/facts_horse_slaughter.html#owner (last visited Aug. 5, 2013).
[viii] Banning the Slaughter of Horses for Human Consumption, Popvox.com, https://www.popvox.com/bills/us/113/hr1094 (last visited Aug. 5, 2013).
[ix] Id.
[x] Judge Blocks Planned Horse Slaughter at Two Plants, WashingtonTimes.com (Aug. 2, 2013), http://www.washingtontimes.com/news/2013/aug/2/judge-blocks-planned-horse-slaughter-2-plants/ (last visited Aug. 5, 2013).

Pesticides Blamed for Declining Bee Populations

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By: Maegan Pirtle, Staff Member

It is difficult to exaggerate the importance of bees to our agricultural system. One-third of the food consumed by Americans benefit from bee pollination, and their efforts are responsible for $15 billion in added crop value each year.[1] It is no surprise then that much concern surrounds the not yet fully understood phenomenon in which entire colonies of bees suddenly die off. The occurrence is known as Colony Collapse Disorder, and it has pushed environmentalists and beekeepers to sue the EPA for approving pesticides that have been linked to decimated bee populations.[2]

Scientists have not conclusively determined the cause of CCD, but some point to a group of pesticides known as neonicotinoids as the culprit.[3] Citing numerous scientific studies that suggest a link between the pesticide and CCD, the European Union recently banned the use of neonicotinoids.[4] Proponents of the ban hailed the decision as a significant victory for declining bee populations.[5] Critics, on the other hand, found the solution overly simplistic and argued that the ban was based on faulty science.[6]

With concerns about CCD continuing to grow, a similar debate is happening in the United States. And while an EPA ban on neonicotinoids might be a good place to start, it is important to remember that much is still unknown about the exact causes of CCD. The ban will do little for other potential causes such as pathogens, viruses, and other environmental factors. Regardless of what the EPA ultimately decides to do about the use of these pesticides, we should be wary of myopic solutions that only address pieces of a complicated problem.
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[1] Honey Bees and Colony Collapse Disorder, U.S. Department of Agriculture, http://www.ars.usda.gov/News/docs.htm?docid=15572
[2] James Gerken, Bee Death From Colony Collapse Disorder On The Rise As Researchers Point to Pesticides, The Huffington Post (March 29, 2013), http://www.huffingtonpost.com/2013/03/29/bee-deaths-colony-collapse_n_2979959.html.
[3] U.S. Department of Agriculture, supra note at 1.
[4] Charlotte McDonald-Gibson, 'Victory for bees' as European Union bans neonicotinoid pesticides blamed for destroying bee population, The Independent (April 29, 2013), http://www.independent.co.uk/environment/nature/victory-for-bees-as-european-union-bans-neonicotinoid-pesticides-blamed-for-destroying-bee-population-8595408.html.
[5] Id.
[6] Id.

A Legal Mechanism for Nationalizing the Coal Industry

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By: Will Emmons, Staff Member

In my last blog post I argued the coal industry should be nationalized because it's too hard to regulate.[i] This step could be beneficial as part of a Green New Deal economic public works program. To pull the economy of Central Appalachia up, UK Law alum Harry Caudill argued for a Southern Mountain Authority, which would encompass nationalized coal and gas reserves.[ii] He believed that a democratic and planned economy was necessary to save the region from poverty and ecological destruction.[iii]

The name Caudill chose for this entity was obviously meant to evoke the Tennessee Valley Authority.[iv] However, where the TVA was conceived as a massive public works to bring employment and infrastructure to a region with no industry, the Southern Mountain Authority would require the wholesale absorption of a private industry into the public sector.[v] His plan meant literally seizing the mineral assets and mining equipment of the great oil and gas companies.[vi]

The Fifth Amendment, of course, prevents the whole sale expropriation of such assets without “just compensation.” This cannot stand in the way of the Southern Mountain Authority.

There are examples of how to practice nationalization within our Anglo-American common law system. In twentieth century Britain, the need to martial resources during two world wars and bitter industrial struggles ensured that the coal industry would be nationalized.[vii] In 1947, the Labour government, backed by the militant miners' union, brought the coal industry into the public sector.[viii]

In Britain, “the procedure by which the transfer [of private property into public control] was effected was a vesting provision in the nationalization act which provided that on the appointed day certain assets should vest in the corporation created by the act.”[ix] This took either the direct form of vesting a public entity with real and personal property or the indirect form of vesting a public entity with the shares of a private corporation.[x]

While the Labour government and the National Union of Miners both espoused an agenda of socialism on the installment plan at that time, scholars and British courts have juxtaposed this kind of nationalization to that practiced in the old Eastern bloc.[xi] The difference overcomes the Fifth Amendment problem:

The right to compensation is one of the features which distinguish the nationalization of basic industries in Britain from the expropriation of property carried out in communist countries....

[T]here is another fundamental distinction between nationalization and expropriation. The latter usually contains a discriminatory element which is absent from the former. In Great Britain, no discrimination has been practiced on account of the nationality, domicile, or other personal criteria of the companies or persons owning the assets acquired by the state.[xii]

Without prejudice, we can take the coal companies. Barring a social revolution that amends the Constitution, we will compensate the shareholders.

Some critics will note that “the era of big government is over” and that, under a very different Labour government, what's left of the British coal industry re-entered the private sector in 1994.[xiii] While at least the latter is true, recent labor problems have caused some to rethink this decision. Government ministers are considering renationalizing troubled private coal operations in Nottinghamshire to protect the pensions of the workers.[xiv] Perhaps the United Mine Workers should be calling for the nationalization of Patriot, Peabody, and Arch?[xv]
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[i] Will Emmons, Nationalize The Coal Industry To Overcome Regulatory Difficulty, KJEANRL Blog (May 15, 2013), http://www.kjeanrl.com/2013/05/nationalize-coal-industry-to-overcome.html.
[ii] See Harry Caudill, Night Comes To The Cumberlands, 365-394 (1st ed., 1963).
[iii] Id.
[iv] Id.
[v] Id.
[vi] Id.
[vii] 'NC Bloody B': The National Coal Board in South Wales, National Museum Wales, http://www.museumwales.ac.uk/en/rhagor/article/2046/ (last visited July 22, 2013).
[viii] Tom Hansell and Patricia Beaver, Life After Coal: Does Wales Point The Way?, Daily Yonder (Mar. 4, 2013), http://www.dailyyonder.com/life-after-coal-does-wales-point-way/2013/03/04/5665.
[ix] Cliv M. Schmirhoff, The Nationalization of Basic Industries in Great Britain. 16 LCP 557, 564 (Fall 1954).
[x] Id. at 565.
[xi] See Id. at 566-67.
[xii] Id.
[xiii] Overview, UK Coal, http://www.ukcoal.com/about-us/at-a-glance/overview-aag (last visited July 22, 2013).
[xiv] Simon Bowers and Simon Neville, Parts of UK Coal may be nationalised after colliery fire closes pit, The Guardian (May 12, 2013, 3:50 PM), http://www.guardian.co.uk/business/2013/may/12/uk-coal-nationalised-ministers-fire-pensions.
[xv] See Fairness at Patriot, http://www.fairnessatpatriot.org/ (last visited July 22, 2013).