Valid Concerns Over Environmental Tobacco Smoke or Rights Going Up in Smoke?: An Analysis of Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health

Comment by Emily Heady; originally appeared in JNREL Vol. 19, No. 2

Abstract by Mattea Carver Van Zee, Staff Member

Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health, 591 S.E.2d 744, 752 (W. Va. 2003), investigates a state's adjudication on the legitimacy of Clean Indoor Air Regulations (CIAR). While CIARs have been upheld on federal constitutional challenges, the question remains as to whether local health boards hold the authority to enact such regulations.

Foundation demonstrates the potential state application of legitimacy determinations by looking first to the state's legislative mandates. The Supreme Court of Appeals determined whether the West Virginia Legislature granted local boards of health the authority to prohibit smoking in public places. The legislation provided that environmental health protection included methods of promoting and maintaining clean and safe air, water, food, and facilities. Local boards of health may uphold these public interests where necessary and proper for the protection of the general health of the area and for the prevention of disease. The court determined that the CIAR was consistent with the Legislature's mandate maintaining that the Legislature had delegated broad power to the local boards. When regulations are promulgated by a legally enabled board of health, the regulations are to be construed as valid if the regulation is reasonably calculated to achieve the Legislature's intended result.

Constitutional challenges facing locally-promulgated CIARs include the taking of private property without just compensation and as an inappropriate exercise of eminent domain. The court concluded that a regulation does not represent an unconstitutional taking where the regulation is reasonably found to promote the health, safety, morals, or the general welfare of the public. Additionally, the regulation must not destroy all economic use of the property. Second, challengers contended that CIARs represent an unconstitutional deprivation of due process. The court distinguished that the bans were not deprivations as the regulations apply to truly public areas. Truly private areas, such as one's home, would not allow such regulations.

Third, challengers argued the regulations usurped the power of the state Legislature by creating criminal laws and penalties. Challengers failed to recognize the penal possibilities set forth by the Legislature itself. Instead of usurpation, the local boards of health were merely reciting the penalties in their own regulations. Fourth, it was argued that the local CIARs violated the equal protection clause of the state constitution. With the local CIAR, distinctions were made between differing types of facilities, such as bars, gaming facilities, and restaurants. While bars are exempted from the smoking bans, restaurants were not. However, the court reasoned that because the regulations did not differentiate between facilities of the same type, equal protection was not denied.

Aside from West Virginia, other localities have varied in upholding the constitutionality of such regulations. Like West Virginia, the states seem to focus on health issues, preemption, and property rights. In conclusion, it is unclear what other factors state courts will utilize to analyze the constitutionality of health-related regulations.

Senate Leaders Upset Over Russian Restrictions

By: Adrianne Crow, Staff Member

At the beginning of the year, the Russian government announced that it was imposing new restrictions on poultry imports. Rossella Brevetti, Senate Agriculture Leaders Blast Russian Meat Restrictions, Association of Brazilian Beef Exporters, Jan. 19, 2010, http://www.ab

iec.com/.br/eng/news_view.

asp?id={16946861-6B9C-457A-BBF6-0E6E27242A93}. Despite the fact that poultry processed with chlorine rinses has been found to be perfectly safe worldwide, Russia has decided that it will no longer accept poultry that has been processed using this technique. Id. Because most of the poultry plants in the United States employ this technique, Russia's ban effectively closes its market to the United States. Id.

In response to this action, the leaders of the Senate Agriculture Committee recently wrote to President Obama requesting that his administration work to open access to the Russian market for American producers. Id. The senators claim that Russia's "attempts to manage the flow or imports raises questions regarding Russia's willingness and readiness to become a member of the World Trade Organization." Id.

In addition to restrictions on poultry, there is also some indication that Russia may begin to impose more stringent restrictions on U.S. beef as well. Id. Speculations suggest that Russia would only allow imports of U.S. products that have been inspected according to Russian standards, a restriction that would have a significant impact on U.S. exports of pork, poultry and beef. Id. Due to the economic difficulties that many livestock and poultry producers are currently facing, U.S. senators are very concerned about the effect that the loss of the Russian market could have on this industry and worried that these new restrictions could make a struggling industry even worse off.

Sustainable Development and the Regulation of the Coal Bed Methane Industry in the United States

Article by: Allan Ingelson; Originally published in JNREL Vol. 20, No. 1

Abstract by: Derek Leslie, Staff Member

This article critiques the regulatory regime in place to facilitate Coal Bed Methane (CBM) development and production in the United States. Applying the principles underlying the concept of sustainable development, Professor Ingelson suggests that the regulations affecting CBM development are to a large degree a mixed bag and are far from being considered an example of regulation that would successfully promote sustainable development.

The article begins by considering both the theoretical underpinnings of sustainable development as well as the CBM regulatory process as it exists under the current framework. The President's Council on Sustainable Development (PCSD), established in 1993 by President Clinton, proposed ten draft sustainability goals that incorporated five widely recognized sustainability principles that provide the necessary metric for reviewing the CBM regulatory regime. These five baseline principles suggest that Sustainable Development 1) respects ecological integrity, 2) is based on an efficient use of natural, manufactured, and social capital, 3) promotes equity, 4) relies on participatory approaches, and 5) requires environmental stewardship by all levels of decision-makers.

The CBM regulatory system advances these principles to varying degrees. The system is only partially successful at respecting ecological integrity. Regulation advancing this principle includes the scheme's incorporation of the Endangered Species Act, an ecosystem management planning approach for federal lands, and environmental impact assessments under the National Environmental Protection Act (NEPA). However, due to constitutional constraints, much of the process is truncated with respect to development on private lands, where significant development is likely to occur. The principle of the efficient use of resources reveals a system that is to some points sustainable. However, it does not seem to provide for an efficient use of capital as neither full-cost accounting, a polluter pays principle, nor the precautionary approach have been fully incorporated. As to the promotion of equity, the regulatory scheme also fails. This sustainability principle suggests costs and benefits should be distributed equally among the current and future generations. However, the legal system now in place does not require CBM developers to compensate owners for "reasonable use" damage caused by CBM operations. Landowners may not receive compensation for loss of crops, soil damage, decreased land values, et cetera. Inter-generational equity is also challenged by the current regime, because of the nature of the development and current consumption of CBM, depriving future generations of this finite resource. The fourth sustainability principle of public participation is largely addressed by the framework in place. The environmental impact assessment process, as well as citizen lawsuit provisions, provides stakeholders with a reasonable opportunity to participate in the decision-making process. The fifth principle, stewardship, suggests the government must promote and advocate the idea of sustainability both to the public and industry. While the EPA's attempt to incorporate some sustainability concepts in the CBM regulatory framework represents to some degree this principle, the Bureau of Land Management, as well as the various state agencies, have shown no effort to provide leadership in pursuing sustainable CBM development.

Looking at these concepts in detail, Professor Ingelson concludes that the CBM regulatory system does not effectively promote CBM sustainability. While aspects of the system certainly aim towards the goal of CBM sustainability, other features of the regime clearly prioritize other policy goals such as economic growth and use of CBM as an energy resource.

PROPOSALS TO EXPAND KENTUCKY GAMBLING MET WITH LITTLE ENTHUSIASM FROM LEGISLATURE OR INDUSTRY

By: Cara Houlehan, Staff Member

The Kentucky legislature is considering several proposals concerning the addition of slots at racetracks. Janet Patton, Beshear Slots Plan Gets Tepid Reception, Lexington Herald-Leader, Jan. 21, 2010, available at http://www.kentucky.com/

/horse_racing/story/

1104634.html. Governor Steve Beshear's bill would place electronic slot machines at racetracks in accordance with Kentucky's present lottery statutes. Id. Beshear says his proposal would generate $295 million in tax revenue within its first 18 months. Id. Keeneland spokesman Jay Blanton said of the plan, "We appreciate the governor's strong and continued support for the state's signature industry, which is facing significant competitive challenges."Id. However, a recent House democratic caucus revealed little enthusiasm for the bill; it was described as "delusional" by State Rep. Mary Lou Marzian. Id.

House Speaker Greg Stumbo, who asserted that there is "no sentiment" for Beshear's proposal, is pushing his own competing plan. Id. Stumbo claims that his proposal would generate $400-$500 million in revenue within two years, which would then be spent on a school construction project in an effort to boost Kentucky's budget by creating jobs. Id.

While both bills suppose that gambling can be expanded under current lottery laws, a third plan, approved Jan. 20 by a Senate committee, demands an amendment to Kentucky's constitution to allow gambling to be expanded. Id. As a proponent of this approach, Senate President David Williams is skeptical that bills like Beshear's, operating under present lottery statutes, could pass in either the House or the Senate. Id.

Ultimately, though, Williams' proposal has not quelled the concerns of the horse industry. Id. Blanton remarked, "…our concern about a proposed amendment remains the same: our challenges require immediate relief; any proposed amendment that we've seen thus far would, at least, take years to afford any assistance to the industry. That hasn't changed." Id.

Book 2-1 to be published soon!!!

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Congrats to UK Mock Trial Team @ Regional Competition

KJEANRL would like to congratulate the team of Josh Hicks and Paco Villalobos, two talented 2L's who will be representing UK at the national tournament at Dallas in March! They defeated a team from Michigan State to win their region in Columbus this past weekend.

Also, a shout out goes out to Nick Mudd, 3L and Adam Bowling, 2L their teammates for their hard work and dedication!

And, none of this success would be possible without Professor Allison Connelly who has successfully had a team win the regional tournament to move onto nationals 4 years in a row, last year coming in 2nd in the nation! Keep up the great work!

Good luck in March everybody!

Inclement Weather slows Production Schedule

Due to inclement weather our posting schedule will be a little off this week. We hope to have some new pieces available by tomorrow. Thank you for understanding!

Sincerely,
Mark Rouse, Production Editor

University of Kentucky researchers explore alternative to filling surface mining sites in Appalachia

By: Donald Smith, Staff Member

There is a new stream at Guy Cove in Kentucky's Robinson Forest, and it could have a significant impact on the future of environmental law with regard to surface-mining. Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www/.
kentucky.com/latest_news/
story/1118658.html#. When coal companies remove rock for surface mining, the "spoil" (extra rock and dirt) that cannot be placed back in the mined area because it swells, is placed into fills in hollows around the site and compacted for stability. Id. This process often results in covering up parts of streams, to the extent that a 2003 federal study found that an estimated 730 miles of streams in Eastern Kentucky were wiped out by surface-mining activities. Id. This is likely an underestimate, as Greg Pond, formerly a biologist with the Kentucky Division of Water who is currently employed at the Environmental Protection Agency ("EPA"), explains in a 2004 research paper that the estimate in the federal study addressed only a particular class of stream, and it is likely that surface-mining has in fact buried hundreds more miles of headwater areas in Kentucky. Gregory Pond, Effects of Surface Mining and Residential Land Use on headwater Stream Biotic Integrity in the Eastern Kentucky Coalfield Region, http://www.water.ky.gov/NR/rdonlyres/ED76CE4E-F46A-4509-8937-1A5DA40F3838/0/coal_mining1.pdf (last visited Feb. 2, 2010). The coal industry has taken a different approach entirely as to what constitutes a stream. As explained in the Lexington Herald-Leader, "[the coal industry says it would be impossible to mine coal without creating fills. To many associated with the industry, the areas high on the side of a hill where water begins to collect are not streams at all, but merely drainage ditches that only flow with water when it rains or when snow melts." Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www.kentucky.com/latest_news/
story/1118658.html#.

University of Kentucky researchers built a new stream atop the fill at Guy Cove, and planted vegetation and trees. Id. The result is a promising alternative to the current method of filling that, while in its early stages, appears, to have provided for high quality water in a stable stream as a method of reclaiming watersheds. Id. The new research development is particularly interesting against the backdrop of the current legal climate with regard to stream reclamation. The EPA has stalled dozens of permit applications in Appalachia, including Eastern Kentucky, for further review, for concerns including restoration of stream functions after mining. Id.

Yellowstone, Snowmobiles, and Confusion: What Has the NPS Done For You Lately? The Ongoing Battle Over Fund for Animals v. Norton

Comment by Kimberly Ratliff, Former Staff Member; originally appeared in JNREL Vol. 19 No. 2

Abstract by: Matt Cocanougher, Staff Member

A war has been waged in the western United States between the snowmobile industry and conservation groups regarding the use of snowmobiles in national parks, specifically Yellowstone National Park. Interestingly, by handing down opposing decisions, two federal courts have allowed battles to be won by both sides. This has created a great amount of confusion for the conservation groups as well as the snowmobile industry. Additionally, the party charged with putting an end to the confusion, the National Parks Service ("NPS"), played an important role in causing the uncertainty in the first place.

Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003), was a suit brought by numerous environmental organizations in the Washington D.C. circuit court to challenge the NPS's decision to allow snowmobile use at Yellowstone National Park. The events leading up to this case began in 1997 after some environmental problems arose because of the use of snowmobiles. The NPS responded to a suit by environmental groups which addressed these problems by completing an Environmental Impact Statement in 1998 and issuing a Finding of No Significant Impact, while vowing to continue studying the environmental impacts. Later, in 2001, the NPS decided on the Snowcoach Rule, which would phase out snowmobiles by the 2003-2004 seasons and replace them with mass transit snowcoaches. However, two years after the Snowcoach Rule was decided upon, the NPS completely changed its mind and decided to allow 950 snowmobiles to access Yellowstone daily, mandating that the snowmobiles conform with the best available technology standards.

After the NPS decision reversing its earlier Snowcoach Rule, Fund for Animals and other environmental organizations sued in the D.C. court based on the argument that the 2003 change of the rule was arbitrary and capricious, which violated the Administrative Procedure Act ("APA"). The D.C. court agreed that the 2003 rule was arbitrary and capricious and issued an order reinstating the 2001 decision and allowing the NPS to promulgate new rules to address the matter.

While it seems as though this should be the end of the story, it is not. After the D.C. decision, the International Snowmobile Manufacturers Association and the state of Wyoming brought suit to reopen their pending case challenging the 2001 Snowcoach Rule in Int'l Snowmobile Mfr. Ass'n v. Norton, 304 F. Supp. 2d 1278 (D. Wyo. 2004). Because the Wyoming District Court found that the NPS had not spent an adequate amount of time reviewing the environmental consequences of the Snowcoach Rule, it found that the Rule was invalid. This decision, therefore, ordered the NPS to restore the status quo of no restrictions on snowmobiles.

As a result of both of these cases, the environmental groups involved in the first D.C. case went back to the D.C. court to ask to resolve these inconsistent decisions. The D.C. court ruled that the NPS now has to create a new "rule making process in a manner consistent with, and addressing the concerns" of the Wyoming District Court. Funds for Animals v. Norton, 323 F. Supp. 2d 7, 10 (D.D.C. 2004). Therefore, the NPS has a very difficult task ahead of it of addressing the issues of both the snowmobile industry and environmental groups while keeping in mind the decisions issued in these two cases.