Emerald Ash Borer: A Threat to a Valuable Natural Resource

This post was written by staff member Jennifer Parker.

When thinking of natural resources today, issues surrounding coal and other fossil fuels are often the first things to come to mind. Despite so much emphasis on "green" living and protection of our environment, our most basic, yet perhaps most important, natural resource seems to go unnoticed – our trees. Even if the focus turns to trees and their protection, problems surrounding deforestation are those that typically arise. However, in Kentucky and other nearby states, a new problem is threatening our trees, and thus an invaluable natural resource. That threat is the Emerald Ash Borer ("EAB"), a beetle native to Asia.

The larvae of EAB, which "feed on the inner bark of ash trees," resulting in the trees' inability to "transport water and nutrients," are the source of the problem. Emerald Ash Borer, http://www.emeraldashborer.info (last visited Oct. 6, 2009). The problem in Kentucky appears to be in its early stages, with the first infestations having been confirmed just four months ago in May 2009. Emerald Ash Borer (EAB) FAQs for Kentuckians, http://www.ca.uky.edu/entomology/entfacts/ef453.asp (last visited Oct. 6, 2009). However, the impact in other states illustrates how severe these infestations can become and the significance of their presence in a state. For example, just in the area of southeastern Michigan, tens of millions of ash trees have been killed since discovery of EAB there in 2002. Emerald Ash Borer, http://www.emeraldashborer.info (last visited Oct. 6, 2009).

As might be expected, legal steps have been taken to protect our trees and prevent the spread of EAB and subsequent destruction it causes. A recent 2009 Industry Note explains that twenty counties in Kentucky have been placed under a state quarantine in hopes of halting the spread of infestation. B. Ammerman, et al., Forestry Emerald Ash Borer – Industry Note August 2009: Shipping Ash Lumber and Other Ash Products, http://pest.ca.uky.edu/EXT/EAB/EABsawmil.pdf (last visited Oct. 6, 2009). With quarantines in place in other states with an EAB problem, the Kentucky EAB quarantine appears to be an appropriate and necessary step. However, there are restrictions underlying this quarantine that should be noted by Kentuckians. Specifically, the Industry Note states, "Once a quarantine has been issued it becomes a state violation to move ash wood products out of the quarantine zone without entering into an EAB Compliance Agreement with the Kentucky State Entomologist's Office." Id.

With the beginning of autumn upon us and cold weather approaching, this quarantine and attached restrictions may impact Kentuckians purchasing, selling, and using firewood. Because there is little information made widely known without searching for it, it is important for Kentuckians (and residents of other states under EAB quarantine) to understand the legal restrictions on the movement of certain types of wood before finding themselves in violation of such. Even though not mentioned in the Industry Note, with a legal restriction, there is bound to be a penalty for its violation. Aside from the potential legal ramifications, those living in states under quarantine will hopefully recognize what a devastating impact the EAB infestation has had and will continue to have on one of our most valuable natural resources, and thus be provided with an incentive to abide by the restrictions in place and educate themselves as to the issues involved.

Ohio and Kentucky both debating the issue of racetrack gambling

This post was written by staff member Katie Huddleston.

The issue of allowing additional gambling at racetracks, usually in the form of slot machines, has been a hot topic in the equine industry since the recession that began last fall has lead to dramatic decreases in betting and earnings at such tracks. Janet Patton, Drop in wagering eats into Ky. Coffers, LEXINGTON HERALD LEADER, Sep. 22, 2009, available at http://www.kentucky.com/news/state/story/944936.html. Kentucky, home to the world's most renowned horse race, the Kentucky Derby, has yet to approve such racetrack gambling. Governor Steve Beshear called a special legislative session in June in an attempt to pass legislation that would allow slot machines to be added to the Kentucky racetracks: Churchill Downs (home of the Kentucky Derby), Keeneland Race Course and Turfway Park. However, the measure was unsuccessful. Now, neighboring Ohio is facing its own challenges in its attempt to institute video lottery terminals at equine racetracks.

Monday, September 21, 2009, the Ohio Supreme Court put a freeze on the implementation of slots at the state racetracks after Gov. Ted Strickland had "authorized the machines by executive order" and the legislature had included the expected revenue in its budget. Julie Carr Smyth, Ohio high court ruling puts racetrack slots on hold, LEXINGTON HERALD LEADER, Sep. 22, 2009, available at http://www.kentucky.com/101/story/944935.html. This measure was the result of a suit brought by the developers of LetOhioVote.org. The group sued the Ohio Secretary of State for ignoring submitted petitions asking for the issue of racetrack slots to be included on the ballot in November of 2010. While the state argued that the slots revenue was "shielded from the referendum process" by reason of being an appropriation, the court disagreed. Id. The court ordered Secretary of State Jennifer Brunner to accept the petitions submitted by LetOhioVote.org, which requires the Secretary to put the question of racetrack slots on the ballot next year. According to the court's ruling, until such vote is held, the slots plan cannot be implemented. The Ohio Lottery Commission, the Governor and legislators were disappointed with the result, which they claim will result in a "nearly $1 billion shortfall" in the state budget. Id.

The Supreme Court's decision could have wide-reaching implications on the issue of racetrack gambling across the country. In Kentucky, the decision may offer a reprieve. With betting at Kentucky racetracks falling as much as 17 percent last season, the added pressure of competing with Ohio tracks may be diminished by this delay in slot implementation. Janet Patton, Drop in wagering eats into Ky. Coffers, LEXINGTON HERALD LEADER, Sep. 22, 2009, available at http://www.kentucky.com/news/state/story/944936.html. The decision may also provide incentives for racetrack gambling opponents and proponents to consider seeking a referendum to finally decide the issue. In the meantime, Indiana tracks will fill the void temporarily left by Ohio and Kentucky by implementing racetrack slot gambling this year, monopolizing the market for such gambling in the region, at least for the time being. Id.

A Question of Ownership: Governmental Liability under CERCLA in U.S. v. Newmont USA Ltd.

Former staff member Charles Thomas wrote this comment appearing in JNREL Vol. 22 No. 2. This abstract was written by Addison Schreck.

In US v. Newmont the US District Court for the Eastern District of Washington created a circuit split on what criteria is required to determine ownership under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). "A Question of Ownership: Governmental Liability under CERCLA in US v. Newmont USA Ltd." follows the court as it navigates the tricky determination of ownership under CERCLA.

Citing precedent in the Ninth Circuit, the court recognizes that though the government's fee simple interest in the facility makes them it's possible owner, additional indicia of ownership to legal title must be present in order to assign ownership and its liabilities under CERCLA. In analyzing the ownership of the subject facility, an open-pit uranium mine located on the Spokane Native American Reservation in Washington, the court categorizes the property interests allotted by the Dawes Act as well as the Indian Mineral Leasing Act as further indicia of ownership. Also cited by the court as evidence of CERCLA ownership was the government's dominion over lease agreements regarding the property and decisions which it made with regard to them despite the dissent of the Spokane Indian government. Congress' continued ability to extinguish the Indian title to the property also weighed heavily in the court's decision that the United States qualified for ownership under CERCLA and would therefore be liable for the damages.

The court made a similar decision with regard to a second parcel of land, with a more complex chain of custody, including a somewhat incomplete transfer to a private citizen by the name of Edward Boyd. While the fee simple to the land lies with Boyd's descendants the court stipulates that there are circumstances, as here, where a party aside from the fee simple owner may be considered the "owner" within the bounds of CERCLA.

US v. Newmont joins numerous other decisions assigning liability for environmental damages to the United States, these decisions are indicative of the waiver of sovereign immunity contained in CERCLA. The United States is currently the largest property owner in the country and the liability stemming from environmental incidents promises to be an important factor in their future land use decisions.

"Environmental Law and Application in Bankruptcy Law as used in In Re Fv Steel And Wire Co."

Appearing in JNREL Vol. 22 No. 2 this comment was written by former staff member Marlene Bennett. Staff member Bryan Henley wrote this abstract.

In the United States, bankruptcy laws allow discharge of most debts in exchange for liquidating of most of the debtor's assets in an attempt to repay as much of the debt is possible. By definition, the claims sought by creditors to a bankrupt debtor exceed, in aggregate, the debtor's available assets. Often, the purpose of bankruptcy proceedings is to mete out the available assets. As one might imagine, excluding a claim has a profound effect for all other creditors. Reduction in any one debt necessarily increases the assets available for all other debts. Such a situation provides a strong incentive for creditors to bicker over debts, often so much so that the bankruptcy estate is devoured by the legal process as opposed to paying the actual debts. Accordingly, efficiency is a strong motivation for bankruptcy procedures, like estimation of debts. Parties often submit arguments praying that the court follow one method or another for estimating the amount owed under a given debt. Such was exactly the salient issue for In re Steel and Wire Co., a bankruptcy case involving environmental cleanup debt. 372 B.R. 446 (Bankr. E.D. Wis. 2007).

In 1989, the Environmental Protection Agency ("EPA") identified the Sherman Wire Company as one of the parties responsible for the environmental harm caused to the Chemical Recycling, Inc. site. This dubious distinction bound the Sherman Wire Company to bear a share of the cleanup costs of this site, which operated as a debt. In 2004, Sherman Wire Co. declared bankruptcy. The committee in charge of the site cleanup (CRI committee) urged the court to estimate the debt at nearly two-million dollars due, among other costs, the expense of hauling away mass amounts of soil. The debtor, Sherman Wire Company, contested the need to remove the soil and argued that other proposed actions by the committee could cause more harm than good. The debtor submitted an estimate of seventy-five thousand dollars. The bankruptcy court is afforded great discretion in determining the proper method to estimate a given debt, and here the court used that discretion. It chose, as a bankruptcy court, to find that the soil removal and other expensive processes proposed by the committee were not necessary.

This interaction between bankruptcy law and environmental is not uncommon. Business entities that have breached environmental regulation are unlikely to be able to predict the cleanup costs that the EPA might bring to bear. These costs can be surprisingly burdensome, as this case exemplifies. The bankruptcy court must act quickly to preserve assets. Environmental law also encourages swift action to handle compromised sites, as faster cleanup abates the risks of harm to the surrounding environment and human life. In her comment titled "Environmental Law and Application in Bankruptcy Law", Marlene Bennett thoroughly analyzes one court's synthesis of environmental law and bankruptcy. If history serves as a model for the future, this will not be the last time that these questions arise and we would all be well served in maintaining a familiarity with these issues.

Addressing Fraud in Organic Farming

This post was written by staff member Adrianne Crow.

Almost everyone has heard of the supposed benefits of organic foods. However, recent problems surfacing in the organic food industry suggest that consumers may not always be getting what they pay for.

A recent article in the Lexington Herald-Leader explained that in the past year, several fertilizer makers, some of which are leaders in the California organic market, have come under fire for using substances in their fertilizers that are banned from organic farms. Jim Downing, California moves to curb organic fraud, LEXINGTON HERALD LEADER, available at http://www.kentucky.com/greenspot/story/939041.html (last visited Sept. 22, 2009). In January, Port Organic Products was raided by federal agents who found a stock of aqua ammonia. Jim Downing, Organic crop fraud targeted, THE SACRAMENTO BEE, available at http://www.sacbee.com/business/story/2188480.html (last visited Sept. 22, 2009). Aqua ammonia is a common source of synthetic nitrogen. Additionally, an investigation by The Sacramento Bee discovered that the Department of Food and Agriculture discovered the company California Liquid Fertilizer adding synthetic nitrogen to its fertilizer. Id. This particular company sold its produce to organic food leaders Earthbound Farm and Driscoll's, as well as other organic farming leaders. Id.

While synthetic fertilizers do not necessarily present health risks to consumers, they are disfavored by organic farmers because of the negative environmental impacts they can cause. Id. These fertilizers utilize increased energy in production, lower the natural fertility of soil and increase water pollution. Id. Furthermore, consumers of organic produce are willing to pay a higher price for the goods because of the promise that they were grown without these types of chemicals. Id.

Despite the controversy caused by these dishonest business practices, the only penalty handed down to California Liquid Fertilizer was to stop selling the product on the market. Id. Reacting to this situation, the state of California, which leads the nation in the organic farming, also plans to be the leader in combating fraud in the industry. Id. Assembly Bill 856, which was authored by Assemblywoman Anna Caballero, addresses these problems in the area of organic fertilizer. Id. A copy of the bill in its current state can be found on Cabballero's website: http://democrats.assembly.ca.gov/members/a28/Legislation/default.aspx. The bill, which should arrive on the desk of California Governor Arnold Schwarzenegger soon, increases penalties for violations of organic fertilizer standards. Id. In addition, it increases the authority that state regulators have over inspections and raises approximately $416,000 per year for enforcement due to new fees imposed on fertilizer makers. Id.

What it means to “maintain” a waste site in Kentucky: A Case Comment on Astro, Inc. v. Environmental and Public Protection Cabinet

Former Articles Editor Rebekah Frazier wrote this comment appearing in JNREL Vol. 22 No. 2. This abstract was written by staff member Tara Hester.

Illegal dumping is a serious problem, and many states, including Kentucky, have enacted legislation to promote the cleanup of hazardous waste sites. KRS §§224.40-305 requires a person to obtain a permit in order to "establish, construct, operate [or] maintain a waste site." In Astro, Inc. v. Environmental and Public Protection Cabinet, the Kentucky Court of Appeals addressed what it means to "maintain" a waste site within the meaning of the statute. Astro, Inc. bought the property in question knowing that it contained a large amount of construction/demolition debris (waste), and then added it's own waste to the existing pile Astro did not have a permit as required by KRS §§224.40-305 to add additional waste to the pre-existing pile and was served with several violations pursuant to the statute.

The Secretary of the Environmental and Public Protection Cabinet (EEPC) found that Astro had maintained a waste site without a permit, and stated that Astro did not have a defense because Astro failed to remove the waste it added to the pile, and thus maintained the site. Astro's main contention on appeal was that although they may be liable for the items they added to the pile, they are not responsible for the pre-existing debris. The court found that Astro maintained a waste site on its' property because Astro placed more debris in the waste site and failed to prevent others from doing the same.

The Astro decision is in line with other state court's interpretations of similar statutes. In Vermont, a defendant stacked piles of chicken manure on his farm to harass his neighbors, under the guise that he was using the manure as fertilizer. In Vermont, as in Kentucky, a permit is required to store solid waste such as chicken manure, and the defendant was found to be in violation of the statute. The Kentucky decision is in line with the Vermont decision because both courts upheld the requirement of a permit for waste disposal sites. In addition to Vermont, Maryland courts have also interpreted waste disposal statutes to reflect the need for permits. In a Maryland case, the defendants were held to be in violation of a Maryland statute for operating a landfill on their property without a permit. Even though the defendants stated they were only accepting the waste to create additional flatland that they could use as pasture land, the Maryland court, much like the Vermont and Kentucky courts, held that because the defendants did not have a permit, they were in violation of the Maryland law.

Although the court in Astro limited it's holding to a specific fact pattern, the Astro decision could be applied to determine how a Kentucky court would rule in a situation where a defendant purchased a piece of property with pre-existing waste but did not contribute any additional waste to the site and prevented others from doing so as well. A Massachusetts case ruled that a landowner is liable for maintaining a waste site if they "keep or sustain" the facility. This suggests that Kentucky landowners must take measures to get rid of the waste site to avoid liability. Additionally, a New York case held that landowners, who allow pre-existing waste to remain on their property, even though they have not contributed any additional waste, are liable for a "continuous" violation. It seems the Kentucky courts would be unsympathetic to landowners who buy property with pre-existing waste. However, because KRS §§224.43-020 provides a defense landowners if they are not the generators of the waste and are not disposing or letting others dispose of waste on their property, landowners with pre-existing waste sites may be able to avoid liability in limited circumstances. Ultimately, it is important to remember when buying property in Kentucky with pre-existing waste, one should be careful not to add to the waste or let others add to the waste to prevent liability.

Fire in the Hole: Aluminum Dross in Landfills

This Note appeared in JNREL Vol. 22. No 2. and was written by staff member Thomas Szcsygielski. Staff member Sunni Harris wrote the following abstract.

Every year there are approximately 8,300 fires that occur in landfills. Landfill fires frequently emit harmful dioxins that can cause cancer, liver damage, skin rashes, and reproductive disorders. A growing subset of these fires is caused when aluminum dross reacts with water.

Aluminum dross is the material that is left behind when aluminum ore is melted or processed. Five million tons of aluminum dross is produced per year as aluminum is often used for such commercial products as pistons, engine and body parts for cars, beverage cans, doors, siding and aluminum foil. Aluminum dross can become dangerous when it is improperly stored in landfills because it is highly combustible when mixed with water.

While aluminum dross storage can be easily regulated by legislation, it currently is not. CERCLA (The Comprehensive Environmental Response, Compensation, and Liability Act) is the primary source of federal jurisdiction over hazardous material dump sites. CERCLA allows the EPA to undertake direct removal or remedial action to protect the public health or the environment when it determines that release of a hazardous substance poses an imminent and substantial danger; however, the EPA has not used CERCLA to regulate aluminum dross because it does not consider aluminum dross a hazardous material. It is interesting that while the EPA does not officially recognize the production of aluminum dross as hazardous, it recognizes the need for its regulation.

Barmet Aluminum Corp v. Reilly illustrates this point well. In Barmet, the plaintiff operated an aluminum recycling plant that produced aluminum dross as a by-product. The plaintiff stored the dross in landfills; however, the EPA placed these landfills on a list of high priority hazardous sites under CERCLA and threatened to hold the plaintiff liable for damage to a nearby stream that originated in the waste. The plaintiff sued for injunctive relief arguing that the EPA forced them to expend resources for expensive, remedial feasibility studies before they were deemed responsible for the damage to the nearby river. The court rejected the plaintiff's argument. Barmet is a demonstration that while the U.S. EPA does not deem aluminum dross as legally hazardous, they recognize the importance of its regulation.

Going forward, there are three main suggestions to decrease the amount of fires that are started because of the improper disposal of aluminum dross: (1) continue to allow landfills to be responsible for their own dross, (2) encourage or mandate companies that produce dross as a by-product to recycle it, or (3) have the EPA classify aluminum dross as hazardous substance. The most effective solution will most likely be a combination of the aforementioned approaches.

Challenging the Government’s Management of Wild Horses in our Western States in The Fund for Animals v. U.S. Bureau of Land Management

Appearing in JNREL Vol. 22 No. 2 this comment was written by staff member Melanie Price. The abstract was written by staff member Derek Leslie.

This Comment analyzes the legal avenues available to activist individuals or groups who seek to prevent a government agency from implementing an environmental plan. The Fund for Animals v. U.S. Bureau of Land Management, 460 F.3d 13 (D.C. Cir. 2006), provides an instructive lesson for potential plaintiffs in this area.

The Plaintiff in this case, The Fund for Animals, attempted to stop the U.S. Bureau of Land Management (hereinafter "BLM") from implementing a plan that would reduce the population of wild horses and burros. The BLM's plan was promulgated in order to address increasing concerns about overpopulation of wild horses and its effect on the ecological balance. In fact, the BLM was specifically tasked with maintaining appropriate management levels of these populations in order to achieve this balance under the Wild and Free-Roaming Horses and Burros Act (hereinafter "WHBA") enacted by Congress. The challenged plan was proposed to Congress pursuant to the Act, passed, and BLM field offices had begun implementing the plan at the time of litigation.

The Fund sought to enjoin the BLM from implementing this plan. They argued that the BLM violated the National Environmental Policy Act (hereinafter "NEPA"), because it did not prepare an environmental impact statement before implementing the plan. Recognizing that 5 U.S.C. §702 mandates that the federal courts are not to review agency policy in the abstract and that the WHBA and NEPA both lacked provisions providing standing, the Fund's claim was based on a cause of action under the Administrative Procedure Act (hereinafter "APA"). Under the APA there is a cause of action to "a person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action." Importantly, the APA states that courts may only intervene when a specific final agency action has an actual or immediately threatened effect.

The district court dismissed the parts of the Fund's injunction request concerning the removal strategy because the BLM's plan, in their view, was not a final agency action. The Fund's objections to specific gathers, where the plan had already been implemented, the court suggested were moot. The Court of Appeals, affirmed suggesting that a Budget Request to Congress was too tenuous to the removal of the animals to constitute reviewable specific implementation of a broader agency policy. Moreover, they found that an expired internal memorandum to BLM field offices with guidance on implementing the plan within the allotted time did not represent "final agency action" and because of its expiration date, it was moot. As to the seven gathers where the plan had already been implemented, the Court of Appeals, agreed with the district court that this part of the claim was also moot.

This case demonstrates the narrow way courts will approach review of agency action under the APA. Potential plaintiffs have only a minute actionable window in which to bring a claim satisfying justiciability without raising issues of mootness. Plaintiffs must be keenly aware of this narrow opportunity if they have any hope of getting an injunction against agency action. Groups like The Fund for Animals, would do well to be vigilant as budget proposals come to Congress, in hopes of finding politicians, and votes, sympathetic to their point of view. Sympathy, as this case shows, is not the courts main concern when asked to intervene in agency action.

THE JURY’S ROLE IN EMINENT DOMAIN COMPENSATION AS EXPLAINED IN METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA v. CAMPUS CRUSADE FOR CHRIST, INC.

Appearing in JNREL Vol. 22 No. 2, this comment was written by former Comments Editor Ashley Owens. This abstract was written by staff member Tanner James.

Few legal terms elicit an impassioned response comparable to that inspired by "eminent domain." When discussing the governmental power to take possession of private, real property, the reactions are as varied and intense as one might imagine. Given this volatility, courts are faced with a delicate balancing act when defining the terms and limits of this power and its interpretation.

In Metropolitan Water District v. Campus Crusade for Christ, Inc., 161 P.3d 1175 (Cal. 2007), the California Supreme Court undertook the task of defining the role of judge and jury in determining damages (i.e., compensation) in eminent domain actions. At issue was the question of who should decide what constitutes "the highest and most profitable use to which the property might be put in the reasonably near future." Specifically, when property would require rezoning in order to achieve its "highest and most profitable use," who is to decide whether the possibility of rezoning is sufficient to justify damages based on the planned use of the property?

In a reversal of the lower court, the California Supreme Court held that the jury must be presented any evidence that would show a "reasonable probability" of rezoning. Furthermore, the court held that the question of rezoning-probability should be submitted to the fact-finders if a reasonable juror could find that rezoning is likely. This holding effectively establishes the judge as a gatekeeper, while also granting substantial power to the jury to determine the extent of damages.

The implications of this case are, appropriately, subject to criticism from both poles. While the damages awarded may increase as a result of jury control, the judge still retains the power to exclude certain damages as the ultimate gatekeeper.