Environmental Law Institute Releases Report Regarding School Indoor Air Quality

The following post was written by staff member Meghan Jackson Tyson.

In an effort to keep up with the No Child Left Behind Act, school officials are constantly reevaluating their curriculums and contemplating new and innovative ways to encourage learning and improve performance on standardized tests. In the era of the almighty test score, it is easy for school officials to stray away from the basics. However, in a recent report released by the Environmental Law Institute, getting back to the basics might be just the answer for which school officials are looking. Tobie Bernstein, Environmental Law Institute, School Indoor Air Quality: State Policy Strategies for Maintaining Healthy Learning Environments (2009), available at http://www.elistore.org/reports_detail.asp?ID=11357.

The report, released in September, states that there is a direct correlation between school indoor air quality and student productivity. Id. at 1-2. Specifically, the report identified three major areas of concern, which include "ventilation, moisture control and the control of other pollutant sources." Id. at 3. In an effort to improve air quality in school districts nationwide, the report explores four different strategies for state policymakers to consider.

First, the report suggests tackling the problem of poor air quality through state health laws. Id. at 6. Specifically, the report recommends the adoption of inspection laws to identify and correct the following problems in public schools: roofs and gutters, water intrusion, water damage/moisture control, HVAC systems, pest infestation control, animals in classrooms, chemicals, carpeting and temperature/humidity control. Id. at 9.

Second, the report discusses the use of state labor laws to regulate air quality in schools. Id. at 13. The report suggests the implementation of an OSHA-type law at the state level to ensure the safety of public workplaces, including public schools. Id. at 13.

The benefit of this strategy, as pointed out in the report, is that the state will qualify for federal funding so long as the state's standards meet basic federal requirements. Id. at 13.

Third, the report focuses on state education laws as a source for addressing air quality problems. Id. at 20. This strategy also involves a rigorous inspection process; however, unlike state health laws, education laws will require school districts to perform their own inspections. Id. at 20. The inspections will focus on roofing, building structural elements, plumbing, heating and cooling, and ventilation. Id. at 22.

Finally, the report suggests that local school districts should "develop and implement their own Indoor Air Quality Management Program." Id. at 28. This strategy is similar to the previous policy approach, and it also includes the development of an internal reporting system to oversee inspections and entertain complaints and suggestions from parents. Id. at 30.

As the report indicates, implementing these policies at the state level will improve air quality in school buildings, thereby improving the health of students and staff. This, in turn, will undoubtedly increase productivity and enhance student performance across the board.

“What’s Up Doc?: A Critique of Veterinarian Experts Addressing Toxic Torts in the Environment Under the Daubert Threshold Inquiry”

This note appearing in JNREL Vol. 21 No.2 was written by former staff member Michael Marsch and confronts the Daubert threshold inquiry in the context of toxic torts that affect farmers' livestock. Staff member Derek Leslie wrote the following abstract.

The Daubert threshold inquiry acts as the vehicle through which many courts address the principles behind the Federal Rule of Evidence 702, which requires that for expert testimony to be admitted, (1) the testimony must assist the trier of fact, and (2) the expert must be qualified to offer such testimony. The U.S. Supreme Court elaborated upon these principles by developing what is now known as the Daubert threshold inquiry. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The inquiry takes the shape of pre-trial motions in limine, where one party attempts to discredit and thus exclude the testimony of the other side's expert witness. The court, when considering whether scientific evidence is to be admitted, considers "(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community." Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert, 509 U.S. at 592-94).

Unfortunately, the Daubert threshold inquiry actually heightens the standard required by FRE 702. Where FRE 702 essentially required that the expert be qualified and that her methodology be reliable, the Daubert threshold inquiry's fourth prong, general acceptance, requires more: that the science behind the testimony has wider acceptance in the scientific community. While it may sound innocent enough, it runs contrary to the evolving nature of science, and effectively closes the door on innovative and novel scientific techniques and evidence, despite its use by a qualified expert using a reliable methodology. Moreover, the inquiry relies upon the judge, who is in no better position than the jury to weigh the merits of competing scientific assessments, to sort out these difficult scientific questions.

In the cases involving toxic torts affecting farmers' livestock, the Daubert threshold inquiry often invites the exclusion of veterinarian testimony, effectively precluding the plaintiff-farmer from making his case to the jury. In these cases, courts often apply the Daubert threshold inquiry with respect to the conclusions rather than the methodology of the expert witness. The central premise of the plaintiff-farmer's case, causation, is left unsupported without an expert witness to expound that theory.

Because the Daubert inquiry invites misapplication, and tempts judges to decide factual questions about causation, it should be abandoned. The alternative, obviously, is to rely on FRE 702 itself. If a qualified witness' testimony will assist the trier of fact in coming to a determination, the witness should be allowed to testify in front of a jury. Of course, this also permits the other party to present their own qualified expert witnesses with their own conclusions, leaving the jury to resolve the problem of which parties' expert came to the sounder scientific conclusion. Here, in the case of toxic torts affecting livestock, the plaintiff-farmer would at least be able to present his argument with respect to causation. This approach simplifies the issues surrounding expert testimony, and results, ultimately, in a fairer trial.

Do the United States’ Food Labeling Laws, specifically those regarding Pork, violate International Law?

The following post was written by staff member Erin Boggs.

Although the United States and Canada share a border, that border has lately been characterized by a number of trade disputes. In addition to struggles over lumber, the United States recently began full-time enactment of a 2002 law that requires all pork processed in the United States to carry a label identifying its country of origin. See Country of Origin Labeling for Fish and Shellfish, 7 C.F.R § 60 ( 2009); Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Macadamia Nuts, Pecans, Peanuts, and Ginseng, 7 C.F.R. § 65 (2009). The law also requires this labeling for a number of other foods, with a few exceptions but the exceptions are an issue for another day. Today we focus on the effect this labeling has on the trade of meat between the United States and other countries, specifically pork, which can be traced to a single country of origin and is ineligible for a "mixed label." Country of Origin Labeling, or "COOL", also requires producers to separate the animals before processing. See id. Many U.S. pork producers ship young animals into the country and raise them in the U.S. for local slaughtering and processing. See

Bob Burgdorfer, New Label Law Shakes Up U.S. Meat Industry, REUTERS, Apr. 8, 2009, available at http://www.reuters.com/article/rbssFoodProcessing/idUSN0148935020090408?pageNumber=1&virtualBrandChannel=0. Canada claims that the regulation has severely harmed its hog farming trade, and in protest of the new labeling laws has taken the dispute to the World Trade Organization for settlement. Barbie McKenna, Canada Turns to WTO Over U.S. Labeling Law, THE GLOBE AND MAIL, Oct. 9, 2009, available at http://www.theglobeandmail.com/report-on-business/canada-turns-to-wto-over-us-label-law/article1316325/. The United States, on the other hand, argues that food labeling laws exist to protect consumers and it is a well-settled point of international law that such labels are permissible. See id.

The legality of the U.S. statute is, of course, in question. Advocates claim it will allow consumers to make more informed decisions as they purchase food, and will encourage them to buy food from the United States. Many others, however, see the law as entirely protectionist and claim it violates the North American Free Trade Agreement or "NAFTA". The World Trade Organization or 'WTO", in its arbitration, allows countries to enact measures to ensure food safety. These regulations are judged under the Sanitary and Phytosanitary Measures Agreement, or "SPS." Other regulations are measured against the Technical Barriers to Trade Agreement, or "TBT." The regulations at issue most likely fall under the TBT agreement, as SPS does not cover regulations designed to protect consumer interests, such as labeling. See World Trade Organization, Technical Barriers to Trade – Technical Information, http://www.wto.org/english/tratop_e/tbt_e/tbt_info_e.htm (last visited Oct. 22, 2009). The standards set by countries under TBT must be fair and equitable. Additionally, the standards discourage any measure that gives domestic products any unfair advantage. See id. In addition, TBT also prohibits the existence of measures disguised as protection of the consumer interest but whose purpose is actually protection of domestic products. See id. For a regulation to be invalid, the regulation can be more restrictive than necessary for the objective or when the regulation does not achieve a legitimate objective. See id. The U.S. might have a difficult time upholding its regulations under the second prong. The deleterious effect on Canadian pork is severe, and the USDA itself admits that the benefits from the regulation will be small and impact only that small section of consumers who care about the origin of their food. Such facts could lead to an inference of intentional protection of the domestic hog market. While this effect may be counterbalanced by the enormous trade deficit in other affected areas, for now this measure looks suspiciously protectionist.

The implications for the continuation of this law are striking. Canada's pork producers have already seen their exports to the United States fall by 60% as major U.S. pork manufacturers find it prohibitively expensive to import Canadian pork for processing in the United States. McKenna, supra. To comply with the labeling laws, the animals must be segregated by country of origin, which will both increase the price of the meat at market to consumers and cause changes in how the plants operate. See id. The more packers must segregate the meat, the more facility space they will need to keep up, and the more land will be eaten up by large-scale agriculture. The USDA estimates that the new law will require companies to spend $2.5 billion over the next year in initial costs, while maintenance will cost an additional $499 million annually. Ching Lee, Country-of-Origin Food-labeling Rules About to Take Effect, California Farm Bureau Federation, Sept. 24, 2008,available at http://cfbf.com/agalert/AgAlertStory.cfm?ID=1144&ck=4588E674D3F0FAF985047D4C3F13ED0D#. U.S. farmers, while relieved of domestic pressure, are concerned about competing with Canadian farmers on an international level. They fear that any decrease in international exports of U.S. pork because of cheaper Canadian pork will not be offset by the reduced imports into the United States. Clifford Krauss, NEW YORK TIMES, Oct. 12, 2009, Canadian Hog Industry Seeks Redress on U.S. Food-labeling Law, Oct. 12, 2009, available at http://www.nytimes.com/2009/10/13/business/global/13pigs.html. A number of U.S. farms also raise Canadian or Mexican animals only, and as the top processors phase out their purchases of pork these farms will struggle to compete. Burgdorfer,

supra. Additionally, if the WTO allows the U.S. law to stand, other countries could follow the United State's lead and force producers to segregate the animals coming into their countries. Id. The United States then risks the same problems befalling the Canadian farmers currently, in tandem with rising feed prices and low domestic and export sales. Krauss, supra. Granted, if all other countries engage in this segregation and labeling, these actions will level the international playing field. It does so, however, potentially at the expense of consumers, and the question of consumer safety versus consumer happiness is one that each individual legislature must answer. Mexico and Canada already predict a trade war in a market that had been stable, and is now in turmoil. A final question these nations must address is the effectiveness of such food labeling laws, in addition to what actually increases the cost to consumers. Does the segregation cause the problem, or the labeling?

Interestingly, the story seems to change with regard to beef. On Friday, October 17, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America or "R-CALF USA" sent a letter to the USDA vehemently protesting the actions of Canada in challenging the U.S. regulation before the WTO. R-CALF USA claims that Canada has been riding on an extraordinary U.S. trade deficit in which the U.S. imports more than $1 billion more than it exports. OpEdNews, Canada, Mexico $1.3 Billion Short of Claiming COOL Harm Group Tells USDA, USTR, Oct. 21, 2009, http://www.opednews.com/articles/Canada-Mexico-1-3-Billio-by-R-CALF-USA-091019-746.html (last visited Oct. 22, 2009). It seems that even within the U.S. cattlemen and pork producers may be at odds over the new regulations.

Ultimately, regardless of the WTO resolution, the dispute's most costly effects may be those on trade relations in general. Canada and the United States have historically had a notoriously friendly relationship, and continued actions that Canada can label "protectionist" may soon lead to retaliatory action. The larger question may well be whether the United States wants to remain committed to free trade in the food industry. If so, public relations on this issue may not be worth the benefit gained from the food labeling and segregation requirements.

“International Pollution: Can We Really Just Blame Canada?”

This comment was written by former Comments Editor Jamie Wilhite appearing in JNREL Vol. 21 No. 2. Staff member Andrew Leung wrote the following abstract.

In deciding Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9^th Cir. 2006), the Ninth Circuit extended liability under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") to a foreign corporation when the disposal at issue occurred outside of the United States. "International Pollution: Can We Really Just Blame Canada?" explains the court's analysis and logic in making this revolutionary step for the environment.

The alleged polluting party in Pakootas is Teck Cominco Metals ("Cominco"), also a party to the infamous Trail Smelter Arbitration, a landmark case of international environmental law. Between 1906 and 1995, Cominco dumped smelting waste product ("slag") into the Canadian portion of the Columbia River. River currents then carried the slag and associated pollutants downstream into American territory, where the harm is alleged to have occurred. After investigation, the Environmental Protection Agency ("EPA") ordered Cominco to perform a remedial investigation/feasibility study of the area. When Cominco refused and the EPA failed to compel action, two members of the Colville Indian Tribes brought suit, seeking damages and injunctive relief.

CERCLA was enacted in 1980 by Congress as a remedial statute. "CERCLA promotes the cleanup of polluted areas and attaches strict liability for clean-up costs to those responsible for the pollution." The United States District Court for the Western District of Washington found that Cominco could be held liable either as a "generator" or an "arranger" potentially responsible party ("PRP"). The Ninth Circuit found that CERCLA liability could be extended to Cominco only if three conditions were satisfied: (1) a "facility" where the release or threatened release of hazardous waste occurred; (2) a "release" or "threatened release" of waste at aforementioned facility; and (3) a defendant that falls within one of the enumerated PRP categories.

The requirement of a "facility" is met when plaintiff demonstrates that defendant has a site where CERCLA hazardous materials are disposed of. The court found that Cominco's "facility" qualified because of the "extent of contamination in the United States associated with the Upper Columbia River." Although it in undisputed that Cominco released mining waste and byproduct into the Canadian portion of the Columbia River, courts have held that CERCLA liability only arises when there is a domestic release. To meet that requirement the Ninth Circuit found that an adequate domestic "release" occurred within American territory when chemicals and hazardous substances leached out of the slag after it had traveled downstream.

"Arranger" PRP liability applies only to "any person who by contract, agreement, or otherwise arranged for disposal or treatment, of hazardous substances owned or possessed by such party, by any other party or entity." Cominco argued that the act of disposing of one's own hazardous material falls without the scope of CERCLA "arranger" liability because it does not involve "any other party or entity." The Ninth Circuit rejected this interpretation, holding that it would seriously restrict CERCLA's reach and provide environmental agencies without recourse against companies that disposed of their own waste illicitly.

Pakootas v. Teck Cominco Metals, Ltd. is groundbreaking in that it is the first application of CERCLA to a foreign entity when the disposal of waste occurs outside of the United States. However, as a practical matter, CERCLA will not soon be extended to foreign entities across the globe whose activities will eventually have an effect on American soil.

“2006 Eminent Domain Ballot Initiatives: Citizens’ Voice or Crying Wolf?”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Ryan Daugherty. The following abstract was written by staff member Kyle Hermanson.

Citizens of the United States view the right to own and use land as a fundamental right. While strong property rights are a valued ideal, too strong a grip on this view could be injurious to society as a whole. In 2006, a handful of states passed, or nearly passed, radical reactionary ballot initiatives in response to the United States Supreme Court decision in Kelo v. New London, 545 U.S. 469 (2005). Citizens voted for these initiatives aiming to prevent their state courts from applying the broad definition "public use" used by the U.S. Supreme Court in Kelo in their states. In Kelo, the Supreme Court held that the promotion of economic development qualified as a "public use" under the Just Compensation Clause of the U.S. Constitution. However, the ballot measures passed in response to Kelo are far more potent then they appear, challenging the concept of land use planning as a whole.

Ballot initiatives can be a powerful tool for citizens. Measures authorizing direct popular participation in law-making are liberally construed, often cannot be vetoed by the governor, and allow the measure's sponsors to construct the initiative as they wish, so long as it complies with state conditions and procedures. The 2006 eminent domain ballot initiatives include either one or both of two components: a provision outlawing "Kelo- style eminent domain," and a provision that introduces a "pay-or-waive scheme." Outlawing "Kelo-style eminent domain" means banning the taking of private property or residences for use by a private or quasi-private entity and a "pay-or-waive" scheme requires the government to waive any newly enacted regulations on the use of land or pay just compensation to the land owner. These kinds of ballot initiatives were passed in Oregon and Arizona and defeated in Washington and California.

The consequences of these measures are beginning to be felt in the states that passed them. In Oregon, where the measure required that certain listed takings be construed in favor of compensation, there were over six billion dollars worth of unpaid claims against the state as of November 2006. In Arizona, the measure did not include an exception allowing takings for conservation purposes without required compensation. This forces the state government to compensate landowners for conservation-based restrictions on the use of their land. As a result, government officials will be fiscally unable to enforce new conservation regulations.

In Kentucky, state legislators have redefined eminent domain in response to Kelo as "the right of the Commonwealth to take for a public use." "Public use" in Kentucky means "ownership, possession, occupation or enjoyment of the property by a local government entity; removal of blighted properties; or for use by a public utility," and "[p]rohibits the transfer of private property to another private entity for economic development purposes." This clarification makes a ballot initiative clearly unnecessary, as state statute prevents a "Kelo-style" invasion in Kentucky. However, property protections in Kentucky could use further reform, as the definition of "blighted area" is too broad, including such subjective features as inadequate street layout or improper subdivision. Furthermore, the legislature has not clearly delineated allowable or prohibited public uses of property subject to eminent domain. Kentucky's responded with moderation to Kelo, but the people may still want stronger provisions.

“Save Our Mountains: The Impact of Save Our Cumberland Mountains v. Kempthorne in Encouraging NEPA Efficiency”

Former staff member Lindsay Yeakel wrote this comment appearing in JNREL Vol. 21, No. 2. The following abstract was written by staff member Nick Kloiber.

On January 1, 1970, Congress enacted the National Environmental Policy Act ("NEPA"), requiring that any proposed action involving federal funds or permits must be approved by the proper federal agency, which may require an environmental assessment (EA) or a published environmental impact statement (EIS). The overall effect of this law has required agencies to consider environmental concerns in their decision making process.

In Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (6th Cir. 2006), the question was raised about how far agencies must go to be in compliance with NEPA. The plaintiffs challenged an agency's ruling of no significant impact in relation to a coal mining permit application, arguing that the decision was arbitrary and that EA issued by the Agency was incomplete in that it didn't consider sufficient alternatives to the proposal.

The Sixth Circuit held that the agency met the requirements of NEPA in reaching its decision of no significant impact. The agency considered environmental impact, issues of resulting damage if the permit were issued, and looked at studies of comparative mining operations to decide that the current application would have no significant impact, and thus did not abuse its discretion or reach the decision arbitrarily.

The Court did, however, side with the plaintiffs in holding that the agency failed to consider sufficient alternatives to the proposal. The agency had argued it had a binary choice between granting and denying, whereas NEPA required it to study alternatives available. The Court reasoned that the agency could limit the scope of their review to reasonable alternatives, while not limiting it to a binary choice alone.

The decision in Kempthorne provides a better understanding of just what an Agency must do to satisfy the requirements of NEPA. It encourages companies seeking permits to do environmental studies prior to submitting an application, allowing the agency to incorporate the information into an EA without having to spend time and money on a full EIS. It also requires all agencies to look at reasonable alternatives to the proposal they are evaluating, instead of just granting or denying the application. This helps to ensure EA's accomplish their goals and that agency findings of no significant impact aren't arbitrary but are backed up by not just research but by consideration of alternatives. The overall cost, time, and effort savings encouraged by Kempthorne are a win-win for agencies, the environment and industry alike.

“King Fish: Pushing the Limits of Judicial Authority in National Wildlife Federation v. National Marine Fisheries Service.”

Former staff member Stuart Lipke wrote this comment appearing in JNREL Vol. 21 No. 2. Staff member Matt Cocanougher wrote the following abstract.

The salmon industry in the Northwest United States serves many different purposes at the same time. This fish has historically been a part of Native American religion and has currently become a major source of income for the area. Unfortunately, operation of the Colombia River's hydroelectric dams has begun to kill many of the salmon, as they swim into the dam's turbines. Because of this problem, several different species of salmon have been added onto the list of endangered species protected by the Endangered Species Act ("ESA").

National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005) (per curiam) was a result of a decision by an Oregon federal district court to grant an injunction which required the dam administrators on five dams along the Snake River to increase spill over as a way to protect the salmon. The dam administrators, Federal Columbia River Power System ("FCRPS"), were forced to follow four procedures outlined in the ESA. FCRPS was first obligated to consult an agency to determine whether an action is likely to threaten an endangered species. Next, the ESA requires that the agency which is actually carrying out the consultation use the best scientific and commercial data available. After the first two steps, the consulting agency issues a biological opinion outlining the anticipated impact on the species and the future risk to the species. Finally, the consulting agency makes a jeopardy determination which looks to the potential cumulative effects of the proposed action coupled with the current status of the species or habitat.

In this case, the National Wildlife Federation (NWF), along with the State of Oregon and others brought suit in federal court alleging that the National Marine Fisheries Service ("NMFS"), the consulting agency for FCRPS, failed to conduct a proper jeopardy determination during their consultation for their biological opinion of 2004. After finding several failures on NMFS's part, the district court granted a preliminary injunction, ordering FCRPS and other agencies to increase summer spill for several dams. NMFS appealed this preliminary injunction to the Ninth Circuit Court of Appeals. The Ninth Circuit rejected NMFS's arguments on appeal. It held that when Congress passed the ESA, it decided to tip the balance in favor of the endangered species in the event of hardships between the species and other industries. Next, the court found that the district court did not abuse its discretion in this case because it reasonably found that irreparable harm would result from inaction, and its actions were in furtherance of the ESA. Lastly, the court concluded that the district court's argument was narrowly tailored to fit the circumstances at hand, especially as NMFS failed to raise this issue during the injunction hearing.

This case highlights two key issues. The first is whether the district court's proactive role in granting the preliminary injunction crosses over into the realm of the executive branch's enforcement power. The second is what would happen if the district court actually determined that breaching the dams was necessary to carry out the ESA, which has not been done by a court before. Both of these issues remain politically contested and their resolution will have a big impact on the salmon industry.

“A Tough Row to Hoe: What Partlo v. Johanns Means for the Organic Food Industry”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Karen Campion. Staff Member Natasha Camenisch wrote the following abstract.

Organic farming has become a popular sector of agriculture in the United States. Organic farmers do not use chemicals on their crops and "currently draw a premium of anywhere from 10% to 130% over the price of conventional produce" because of their farming methods. Since organic farmers are making a huge profit off their crops, the amount of cropland dedicated to growing certified organic crops, fruits, and vegetables is continually growing. As a result of the benefits of organic farming, many consumers have sought to protect the integrity of this agriculture practice.

Congress enacted the Crop Loss Disaster Assistance Program (CLDAP) to provide "emergency assistance to all farmers who lost crops due to a disaster, as soon as practicable." Partlo v. U.S., 2006 WL 1663380 at *33 (D.D.C. 2006). In 1995, the CLDAP established separate payment rates and yields were established for different end uses of the same crop. The rates were meant to reflect the differences in price that produce would have commanded on the open market but for having been ruined in a disaster.

In 1998, organic farmers suffered a serious setback. The Secretary of Agriculture issued regulations specifying that "in spite of differences in yield or values," separate rates would not be established for "crops with different cultural practices, such as organically or hydroponically grown." Id. at *4. In Partlo v. Johanns, the court determined that there was no duty on the Secretary to establish distinct rates.

Organic farming has a number of health and environmental benefits. The Partlo decision could make organic farming less attractive for farmers and consumers alike. In her comment titled, "A Tough Row to Hoe: What Partlo v. Johanns Means for the Organic Food Industry," Karen Campion analyzes the court's explanation of why the plaintiff's Equal Protection rights were not violated and how the Administrative Procedures Act was not violated.

Does the Kentucky River Authority have the power to close locks on the river?

This post was written by Production Editor Mark Rouse.

According to the Kentucky Court of Appeals the answer is "yes." Kentucky River Authority v. City of Danville, 932 S.W.2d 374 (Ky. App. 1996). As early as the 1800's the U.S. Army Corp. of Engineers started building a lock and dam system on the Kentucky River. Andy Mead, "Kentucky River: A River to Nowhere" LEXINGTON HERALD LEADER, Oct. 19, 2009 available at http://www.kentucky.com/latest_news/story/982597.html. One of the primary goals of the system was to connect the "lumber and coal rich region of eastern Kentucky" with the Ohio River to increase trade of such resources throughout the United States and the world. See Finance.Ky.Gov, "Locks and Dams" http://finance.ky.gov/ourcabinet/attached+agencies/Id.htm. Today the lock and dam system of the Kentucky River primarily serves recreational boaters. After operating for almost two hundred years the U.S. Army Corp. of Engineers started discussing closing the system in the 1980s and has transferred or is in the process of transferring all dams and locks to the Commonwealth. See Andy Mead, " Kentucky River: A River to Nowhere" and Finance.Ky.Gov, "Locks and Dams."

When visiting the Kentucky River Authority's website describing the lock and dam system on the Kentucky River a visitor is greeted with the following quote by William Ellis. " One of the largest tributaries that flows into the majestic Ohio, the Kentucky River cuts a swath through the heart of the Bluegrass. Its 255 miles have formed a living thread that binds the people and places of the state." Finance.Ky.Gov, "Locks and Dams." The dams and locks between the Ohio River and Frankfort are in need of repair and the Kentucky River Authority is considering putting up barriers across Dam 4 in Frankfort essentially turning portions of the River into lakes. See Andy Mead, "Kentucky River: A River to Nowhere." Dam 4 is still controlled by the U.S. Army Corp. of Engineers but the Kentucky River Authority is "responsible for the conservation of the Kentucky River basin waters" which suggests that the Kentucky River Authority has the power to regulate what activities occur on the Kentucky River including the activities of the dams and locks system. See 932 S.W.2d at 376. The Kentucky General Assembly in years past has appropriated money to maintain the dam and lock system but considering a cost/benefit analysis the Kentucky River Authority has decided that the system is too expensive to maintain for the minimal amount of boat traffic. See Any Mead, "Kentucky River: A River to Nowhere."

Tourism in Kentucky is expected to reach a record high next fall when the World Equestrian Games visit the Bluegrass. All across the Commonwealth new developments and tourist attractions have been prepared for this international event. What better way to celebrate the cultural diversity of the Bluegrass than by providing international visitors with a relaxing cruise down the scenic Kentucky River? The cost might be high of repairing the dam and lock system for boat travel but by doing so the world can celebrate and experience the River William Ellis spoke so fondly of.