EPA Sues Coal- Fired Plant Owner for violating Clean Air Act: What’s Next?

This post was written by staff member Natasha Camenisch.

Chicago has struggled with poor air quality for centuries. The repercussions of being a leading industrialized city are continuing to be felt by residents and visitors alike. To this day Chicago is still battling with their ever-growing pollution problem.

The United States Environmental Protection Agency (EPA) was created in 1970 to put a limit on the amount of pollution that can be introduced in the air. EPA History,

http://www.epa.gov/history/

(last visited Aug. 31, 2009). Congress passed the Clean Air Act in order to deal with pollution problems. On Thursday, August 28, 2009 the EPA and Illinois Attorney General sued Midwest Generation of violating the Clean Air Act. Michael Hawthorne,

Air pollution lawsuit: Federal and state lawyers sue Midwest Generation over Illinois power plant emissions

, Chicago Tribune,

http://www.chicagotribune.com/health/chi-chicago-pollution-suit-28-aug28,0,2243476.story

(last visited Aug. 28, 2009).

The lawsuit cites six plants owned by Midwest Generation that violate the Act. Federal records indicate that the smoke being released from the plants makes them some of the largest contributors to air pollution in Chicago and the surrounding areas. According to a Harvard School of Public Health study two of the plants alone in 2001 were responsible for “2,800 asthma attacks, 550 emergency room visits and 41 early deaths every year.”

Id

.

What is really interesting about this lawsuit is the fact that the Illinois EPA did not join in the suit as a plaintiff. In a previous agreement, the Illinois EPA and company officials have already agreed to clean up or close the six plants by 2018.

Id

. This federal lawsuit will probably force the plants to either shut the plants or improve them on a faster pace.

The Midwest Generation is the most recent power company to face tougher inquiry from the EPA. One of the plants began operating in 1903, while others in the lawsuit date to the 1940s through the 1960s.

Id

. The EPA finally decided that older plants should conform to modern pollution standards because of their many modifications and expansions. Two questions remain. First, whether the EPA will be able to prove Midwest Generation did violate the Clean Air Act? Second, will other older power companies face similar prosecution?

Reining in the Horse Racing Industry: A Proposal for Federal Regulation of Steroid Use in Racehorses

Appearing in KJEANRL Vol. 1 No. 1, this note was written by staff member Jennifer Jabroski. The abstract was written by staff member Bryan Henley.

The use of performance enhancing drugs is a major and ongoing controversy in many professional sports involving human athletes, most notably Major League Baseball. In general, arguments surrounding these issues are invariably drawn to the effect these drugs have on the integrity sport itself, and the risk of harm that they have on the athletes. It should come as no surprise that many of the same problems permeate sports where nonhuman athletes compete, such as horse racing. Strong arguments have been put forth that improper use of anabolic steroids on racehorses both harms the endeavor of sport of racing itself and increases the risk of injury to the horse. Accordingly, many jurisdictions have “banned” use of these drugs. However, many steroids are distillations of naturally occurring chemicals found in the body, so regulation relies on setting reasonable thresholds where the occurrence of a concentration in excess of that threshold denotes a foreign supply. Furthermore, these drugs do have valid medical uses that regulation should not encourage trainers to neglect, less such regulation become an instrument of harm to the horse – a purpose in direct contrivance of its generally accepted goals.

In her KJEANRL note entitled “Reining in the Horse Racing Industry: A Proposal for Federal Regulation of Steroid Use on Racehorses,” Jennifer M. Jabroski explores the current regulatory schemes of four states with a well developed horse industry: Kentucky, California, New York, and Illinois. These schemes are then compared with each other and with the suggested standards set for by the Racing Medication Testing Consortium, which is a voluntary body composed of major stakeholders and technical experts for the horse racing industry. The result is inconsistency; inconsistency with the drugs, their therapeutic regulation, and the penalties associated with noncompliance. Such inconsistency is anathema to economic development of the sport and possibly the health and well being of the horses themselves. As it currently exists, horse racing relies heavily on the transportation of the same horse between multiple states. A diligent owner would be burdened with compliance to the multiple, and potentially contradictory, regulations of all relevant states. Alternatively, as many jurisdictions have failed to regulate at all, horses that only race in unregulated jurisdictions would be placed at greater risk.

Federal regulation is the solution that Ms. Jabroski proposes. Empowered by the commerce clause, Congress could prescribe a uniform regulation of steroid use for race horses. This uniformity would be of economic benefit to the industry by providing its participants with a clear and consistent standard of operation. Additionally, and perhaps most importantly, the integrity of the sport would be maintained both by direct fair standards of competition while simultaneously securing the safety of all racehorses within the United States.

Huber Winery v. Wilcher: The Commerce Clause, State Regulations and the Free Trade of Wine

Appearing in Vol. 1 No. 1 of KJEANRL this comment was written by Editor-In-Chief Bill Brammell, with the abstract written by staff member, Addison Schreck.

“Huber Winery v. Wilcher: The Commerce Clause, State Regulations and the Free Trade of Wine” tracks the District Court of the Western District of Kentucky as they consider the constitutionality of a collection of Kentucky State statutes which were intended to promote the state’s dwindling wine industry. All but one of the statutes was deemed invalid, each due to its violation of the commerce clause.

Prior to the decision “farm” wineries as well as “small wineries”, as defined under Kentucky law, enjoyed an exception from the three-tier distribution system utilized in Kentucky. The three-tier system prohibits the sale of wine directly to retailers, requiring the purchase to be conducted through an intermediary. The delineation of what constituted a “farm” or “small” winery was specific to Kentucky law and therefore excluded all out of state wineries, regardless of their size. As a remedy the court determined that the benefits previously enjoyed by the aforementioned group would be extended to out of state wineries as well.

Also invalidated was the In-Person Purchasing Requirement, which had previously required a Kentucky resident to personally visit any out-of-state winery from which they intended to have wine shipped directly to their home. This was found to clearly interfere with interstate commerce since the mail order business of wineries in distant states was clearly impeded by this limitation on their consumer base.

The final statute and the only one at bar to be found constitutionally permissible by the court was the Restaurant Wine Licensing Statute, which requires restaurants to purchase wines only from licensed wholesalers. The court found the statute to be permissible because it is evenhanded in its prohibition in that it does not favor in-state wineries.

The presence of this precedent makes it even more apparent that states wishing to foster cottage industries may be compelled to explore other options such as reciprocal agreements with other states, tax breaks and alternative marketing strategies. Huber Winery v. Wilcher serves as a warning to states attempting to pass legislation that would kindle in-state industries, as effective yet constitutionally permissible means of doing so are remarkably difficult to come by.

Opening the Door: Recognizing the Many Hats of Jockeys for Workers’ Compensation Coverage

This comment written by staff member, Erin. N. Malony, appears in KJEANRL Vol. 1 No. 1 and staff member, Tara Hester, wrote the abstract.

Workers compensation laws are governed almost entirely by state law, and only four states offer coverage to jockeys. In the case of Ochoa v. Department of Washington Labor and Industries, Ochoa, a jockey, was injured while being employed as an exercise rider. Workers’ Compensation Coverage is found in RCW § 51.12.010, which extends coverage to all employees within the jurisdiction of the act, but specifically exempts jockeys from coverage. If covered by the system, jockeys would be entitled to receive coverage of any medical expenses incurred as a result of an injury on the job, as well as compensation for time lost. Employers and Employees share the burden of workers compensation equally. Employers are required to deduct one half of the required contribution from the workers pay and the employer is responsible for the remaining half. Because the high rate of injury among jockeys, they are not eligible for these benefits should they become injured while on the job. However, Washington did not exclude all of those who work in the horse industry from workers’ compensation. Grooms, exercise riders, and pony riders are eligible for workers’ compensation benefits in Washington.

Ochoa v. Department of Washington Labor and Industries involves a licensed jockey, Ochoa, who was acting as an exercise rider. Ochoa was hired by trainer Steven Quionez to exercise a horse for one day. Ochoa was to exercise the horse at Playfair racetrack while races were taking place, although neither Ochoa nor the horse were involved in any races. During the exercise, the horse panicked, crushing Ochoa’s leg against a gate and leaving him unable to work. Ochoa filed a claim for workers’ compensation, and was denied. The case was appealed to the Court of Appeals, and then to the Washington Supreme Court, who granted Ochoa benefits. The Court’s ruling turned upon the nature of the activity that Ochoa was engaged in at the time of his injury. In Washington, jockeys and exercise riders were recognized as two separate occupations. The Court recognized that jockeys often engage in different types of employment depending on whether they are preparing to ride in a race or just keeping a horse in racing condition. Because jockeys also performed the function of exercise riders, they were eligible for workers’ compensation benefits when injured while acting as an exercise rider.

This case may have vast implications for those in the horse racing business. Because exercise riders can obtain workers compensation coverage, jockeys may be able to argue that because their situation is similar, they deserve the same protection. However, because of the high rate of injury for jockeys, implementing a workers’ compensation plan would be expensive for those in the horse racing business. Also, because jockeys may only be responsible for a horse for a period of one hour, developing a premium schedule may prove difficult. However, by allowing workers’ compensation coverage for exercise riders, the Ochoa decision has opened the door for jockeys around the country to eventually obtain workers compensation coverage.

The Role of Administrative Law in Regulating “Mad Cow Disease” as explained in Creekstone Farms Premium Beef, LLC v. Department of Agriculture”

This comment written by Courtney Ross appears in Vol. 1 No.1 of KJEANRL and the abstract was written by staff member Cara Houhelan.

In 1913, Congress enacted the Virus-Serum-Toxin Act (VSTA), which in part states that “any virus, serum, toxin, or analogous product manufactured within the United States and intended for use in the treatment of domestic animals” must be “prepared, under and in compliance with regulations prescribed by the Sectary of Agriculture, at an establishment holding [a] license issued by the Secretary of Agriculture. Under the authority of the Act, the United States Department of Agriculture (USDA) enacted several regulations that are at issue in Creekstone Farms Premium Beef, LLC v. Department of Agriculture.

The petitioner in this case, Creekstone Farms Premium Beef, LLC raises and slaughters Black Angus cows. As Bovine Spongiform Encephalopathy (BSE) or “mad cow disease” became an increasingly serious and deadly concern in the United States, Creekstone Farms sought to employ kits to test its animals for the disease. However, the USDA refused to authorize Creekstone’s purchase of test kits, stating that they were available only to “USDA-approve laboratories”, not private distributors, and that “distribution and use” of the kits was under USDA control.

Creekstone filed suit on three counts. First, they contended that VSTA does not authorize the USDA to make restrictions in the use of products. Second, they asserted that BSE test kits are not used in the treatment of domestic animals and are thus outside the scope of VSTA. Finally, they described the USDA’s refusal to allow use of the kits as “arbitrary and capricious” and in violation of the Administrative Procedure Act. The lower court granted summary judgment for the USDA on Count I but for Creekstone on Count II on the grounds that test kits are not used for treatment since there is no cure for the disease.

The District of Columbia Circuit Court of Appeals considered the grant of summary judgment on de novo review and decided in favor or the USDA on both counts. As to Count I, the court determined that the USDA’s authority to regulate the use of BSE test kits stems from Section 154 of the VSTA, which allows the USDA to put forth “such rules and regulations as may be necessary…otherwise to carry out this chapter.” The USDA regulations at issue were upheld on theories of congressional intent, that they have been “consistently applied”, and that they are “reasonably related to the purposes of VSTA.” On Count II, the court broadly interpreted the term “treatment” to include the test kits’ diagnostic function within its scope.

Ultimately, the discretion granted the USDA in interpreting VSTA is too broad. Despite policy arguments in favor of the Court of Appeals’ holding, it seems at odds with the USDA’s goal of safeguarding products. If private distributors such as Creekstone choose to take on added costs for the safety of the consumer, the USDA should applaud rather than quash those efforts. With the possibility of an appeal, however, hope remains that slaughterhouses will not be barred from BSE testing in the future that could potentially save human lives.

The Abstract Project

Now that the semester is underway KJEANRL is in the process of producing abstracts of all articles, notes and comments in our first issue. By next Friday, the blog will have 250-500 abstracts describing the content of our current issue. Over the next year in addition to providing updates on current legal issues in equine, agriculture & natural resources law the blog will provide abstracts from pieces in our predecessors, the Journal of Natural Resources & Environmental Law and the Journal of Mineral Law & Policy.

Why are there no horse races at the Kentucky State Fair?

The Kentucky State Fair is over 100 years old dating back to the first state fair held in 1902 at Churchill Downs in Louisville, Ky. Starting tomorrow from August 20-30 the fair will once again return to Louisville at it's new home since 1956, the Kentucky Exposition Center. Persons from around the Commonwealth come to show off livestock, crops, food, crafts, various other exhibitions. The Fair also plays host to the World's Championship Horse Show, attracting over 2,000 individuals from around the world for competitions involving, saddlebreds, roadsters, road ponies, hackney ponies, and saddle seat equitation. Kentucky State Fair, http://www.kystatefair.org/horse_shows/index.html (last visited Aug. 19, 2009). The Fair also hosts a Quarter Horse Show, a Morgan Horse Show and a Minature Horse Show. There's no question that the fair hosts an abundance of horses, but what's missing in a state noted for horse racing, is a good old fashioned horse race.

The Kentucky Supreme Court addressed the issue of whether or not a horse race on the state fair grounds is constitutionally permitted in the 1949 case of Hargett v. Ky. State Fair Bd., 216 S.W.2d 912 (Ky. 1949). Back in 1949 the Kentucky Fair Board leased a material portion of the fair grounds for a four year period with an option to renew the lease for a fourteeen year period to a private individual or leasee for the express purpose of conducting horse races. Id. at 914. A second private individual sued the Kentucky State Fair Board arguing that the lease was invalid and lost at the trial level. On appeal the private individual raised four issues:

"1. The attempted lease extends beyond the term of the Board, and is therefore void.

2. The State Fair Grounds belong to the public and may not be leased or sold without specific authority from the people, which has not been given by the General Assembly.

3. The lease authorizes private persons to operate exhibitions and attractions on State Fair Grounds for private profit, and under the control of private persons, in violation of the Statute directing 'exclusive control of such activities by the State Fair Board.'

4. The attempted lease and option is really intended to facilitate race track gambling of the State Fair Grounds, and is contrary to the express public policy of this Commonwealth.'" Id. at 913.

The Kentucky Supreme Court examined the purposes of the lease agreement and determined that the lease failed to meet the test applied at the time to a "contract authorizing the conducting of 'horse racing and related general purposes' on a part of the State Fair Grounds.'" Id. at 916. K.R.S. 230.040 only permits horse racing in the Commonwealth sanctioned by the State Racing Commission. Ky. Rev. Stat. Ann. 230.040 (repealed 1960).The authority of the Kentucky Racing Commission to regulate and license the running of horse racing was upheld in State Racing Commission v. Lationia Agricultural Ass'n, 123 S.W. 681 ( Ky. App. 1909). For failing to register for a horse racing license with the State Racing Commission the license was found to be void.

Additionally, the Kentucky Supreme Court held that as a general rule a board of public officers exercising a government function cannot make a contract extending beyond its term of office without express authority to do so. Id. at 918. The lease for horse racing in this case was to occur during the State Fair and to extend to times when the fair was not in operation as a form of generating revenue for the State. Id. The Kentucky Supreme Court found no problem with the State Fair Board's policy to authorize the use of its property for other than State Fair purposes but held that in this instance the State Fair Board went beyond its specific authority because it cannot issue horse racing licenses. Id. In the end the Supreme Court reversed the trial court's decision and held that the lease to the private individual was invalid. And the rest so they say is history.

In closing it is interesting to note that the statute granting the Kentucky Racing Commission sole authority over the licensing of horse racing in Kentucky was repealed in 1960. So now the question lingers... can horse racing return to the Kentucky State Fair? I suppose the real problem with that proposition is the lack of a suitable race track on the fair grounds. But that is a question for another day...

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