Streamlining shellfish aquaculture permits in the state of Maryland: Solving the problem, or just another delay?

By: Collier Marsh, Staff Member

Oysters are a valuable resource to our nation’s coastal waterways. In addition to their economic value, they actively filter the water. Historically, oyster populations in the Chesapeake Bay could filter the entire bay in less than a week, and potentially in as little as three days.[1] According to a recent study by the University of Maryland, oyster populations in the Chesapeake Bay are now at 0.3% of their historic levels.[2] With this decline in oyster populations, it now takes the remaining population more than a year to filter the Chesapeake Bay, thereby decreasing their effectiveness.[3]

The oyster aquaculture industry is a viable way to revive the oyster in the Chesapeake Bay region. However, in the state of Maryland, there are significant barriers that inhibit the industry’s growth. A primary deterrent has been the lengthy and ineffective permitting process to receive the right to grow oysters. On August 15, 2011, Maryland Governor Martin O’Malley announced a new streamlined permitting process.[4] The new plan combines the state and federal permitting systems into one process.[5]

Governor O’Malley announced his intentions to streamline the process in 2009,[6] yet the modifications to the system were not officially announced until August of 2011.[7] Such delays are common in Maryland’s aquaculture industry, and have been hindering the industry’s growth. Despite the value of oysters, aquaculture has faced tough resistance from various interest groups and the existing permitting regime has supported the resistance. Before the announced changes, interested applicants had to deal with at least six different federal and state agencies to get their permits approved.[8] Despite following the guidelines, many applicants find themselves stuck in the process for years.[9]

It now appears that Maryland is ready to take steps to grow the industry. Will the new system bring any real changes? If history is any indication, barriers will remain. Combining the state and federal permitting systems, in theory, will bring about a more rapid response. However, applicants may face the same obstacles that were present in the previous regime. For example, a common response to an applicant after submitting an application was that, instead of approving or denying an application, an agency would request more information. Once the new information was received by the agency, the review would start over again.[10] Will the new system prevent this?

If the new permit process is effective, the state of Maryland should see rapid growth in the aquaculture industry. The growth will face resistance by the same groups that have historically fought the industry. Groups in opposition to the oyster industry may then have to resort to the courts to further their cause. As a consequence, the aquaculture industry can expect a surge of litigation to hinder any progress made by the new permitting system.

The new permitting process seems to be a step in the right direction for Maryland’s oyster industry, but obstacles remain. State and federal agencies must ensure that permit applications proceed as intended. The state must also be prepared to handle the response from opposition groups that is certain to ensue. More action will be necessary to successfully develop the oyster industry in Maryland.

[1] Oyster Fact Sheet, Chesapeake Bay Foundation, http://www.cbf.org/page.aspx?pid=511 (last visited September 26, 2011).

[2] Timothy B. Wheeler, Maryland's oysters more depleted than thought, study says; Scientists call for ban on all commercial harvest, The Baltimore Sun, (Aug. 31, 2011),http://www.baltimoresun.com/features/green/bs-gr-oysters-0110831,0,1580941.story.

[3] Oyster Fact Sheet, Chesapeake Bay Foundation, http://www.cbf.org/page.aspx?pid=511 (last visited September 26, 2011).

[4] Governor Martin O'Malley Announces Streamlined Aquaculture Permitting, Maryland Department of Natural Resources, (Aug. 15, 2011), http://www.dnr.state.md.us/fisheries/news/story.asp?story_id=181.

[5] Id.

[6] Liz Holland, Maryland promotes Aquaculture to boost oyster numbers, The Daily Times of Salisbury, (Sept. 12, 2011), http://thedailyrecord.com/2011/09/12/maryland-promotes-aquaculture-to-boost-oyster-numbers/.

[7] Governor Martin O'Malley Announces Streamlined Aquaculture Permitting, Maryland Department of Natural Resources, (Aug. 15, 2011), http://www.dnr.state.md.us/fisheries/news/story.asp?story_id=181.

[8] Rona Kobell, Would-be MD oyster farmers drowning in permit paperwork, Chesapeake Bay Journal, (January 2011), http://www.bayjournal.com/article.cfm?article=4009.

[9] Id.

[10] Id.

The Energy Independence and Security Act of 2007

By: Breck Norment, Staff Member

A law passed four years ago will soon make an impact on American consumers.[1] The Energy Independence and Security Act of 2007 will begin prohibiting the manufacture of higher wattage light bulbs on January 1, 2012.[2] The Act first requires manufacturers to replace 100 watt incandescent bulbs with a maximum of 72 watt bulbs.[3] Although the Act does not eliminate the manufacture of incandescent bulbs, it does “require bulbs to be 25 to 30 percent more efficient by 2014, and at least 60 percent more efficient by 2020, effectively eliminating the most popular bulbs.”[4] The bill passed in the house with 95 Republican votes and was signed into law by President George W. Bush.[5]

After an apparent change of heart, House Republicans failed in their attempts to repeal the law in July 2011.[6] Republican Presidential candidate Michelle Bachmann has advocated for repealing the light bulb requirements in her campaign.[7] She stated that if she were elected President, Americans would be able to buy any type of light bulb.[8]

While light bulbs may seem like a trifling issue on the surface, consumers have strong opinions and it has already made waves in the political landscape.[9] Consumers often complain that energy efficient bulbs are not bright enough and are too expensive.[10] Many consumers have even begun to stock up on old incandescent bulbs.[11]

When evaluating the Energy Independence and Security Act of 2007, we must compare the effect of the law on our environment with its effects on the American consumer. In one respect, the energy efficient bulbs use considerably less energy and last much longer than traditional high wattage incandescent bulbs. One energy efficient option called a compact fluorescent bulb (CFL), however, contains mercury and requires recycling.[12] Careless disposal could take a toll on the environment.

There are both benefits and drawbacks for consumers as a result of the law. They benefit from a lower electricity bill at the end of each month, but they pay more for each bulb on the front end. CFLs cost approximately three dollars and LEDs can cost up to 40 dollars.[13] Meanwhile, traditional incandescent bulbs cost around 40 cents.[14] While the energy efficient bulbs are supposed to last longer than an incandescent bulb, consumers can lose money quickly if those expensive bulbs are blown.

The effects of the Energy Independence and Security Act of 2007 may upset consumers, but it is an inevitable step our nation must take. Eventually, manufacturers will come up with cheaper production methods and more reliable energy efficient bulbs. Like them or not, energy efficient bulbs are probably here to stay, and our nation will reap the benefits in future years.

[1] The Energy Independence and Security Act of 2007, Pub. L. No. 110-140.

[2] Id.

[3] Id.

[4] Jennifer Palmer, Not All Consumers Think Light Bulb Law is a Bright Idea, NewsOK (September 20, 2011), http://newsok.com/not-all-consumers-think-light-bulb-law-is-a-bright-idea/article/3605736

[5] Margaret Carlson, Light Bulb Saga Illuminates New Republicans, Bloomberg Businessweek (Sept. 20, 2011, 8:27 PM), http://www.businessweek.com/news/2011-09-20/light-bulb-saga-illuminates-new-republicans-margaret-carlson.html

[6] See Palmer, supra note 4.

[7] See Carlson, supra note 5.

[8] Id.

[9] Id.

[10] See Palmer, supra note 4.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

v\:* {behavior:url(#default#VML);} o\:* {behavior:url(#default#VML);} w\:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);}

Lawsuit May Impact FDA Food Recall Authority

By: Colby Khoshreza, Staff Member

A recent legal action by a major fruit company against the Food and Drug Administration (“FDA”) could have a significant impact on regulators’ efforts to monitor and recall unsafe foods. A lawsuit filed by the Florida-based Del Monte Fresh Produce challenges an FDA alert regarding imported cantaloupes from Guatemala.[1] This suit comes on the heels of recent legislation that increased FDA authority in the area of food regulation.

Prior to the litigation, the FDA linked Del Monte cantaloupes to at least 12 cases of salmonella poisoning.[2] Del Monte issued a voluntarily recall; however, the FDA moved forward with an import alert that halted imports of the cantaloupes from Guatemala.[3] In their lawsuit, Del Monte claims that FDA officials based their decision on an “erroneous speculative assumption, unsupported by evidence.”[4] Del Monte has also cited failures by the local department of health in gathering evidence.[5] The company claims that the farm targeted by the alert produces nearly one-third of the cantaloupes that Del Monte imports.

This dispute is especially interesting in light of recent legislation that provides the FDA with increased regulatory authority over food. In January, President Obama signed the Food Safety and Modernization Act (FSMA S.510), which provides the Food and Drug Administration with increased authority over food monitoring.[6] The FSMA gives the FDA, for the first time in its history, the authority to issue mandatory recalls as well as a host of other powers including the ability to refuse food imports when a foreign facility refuses to submit to an inspection. [7]

While the impact that this lawsuit may have on overall FDA food regulation is still unknown, it is likely to cause regulators to become more relaxed in their issuance of recalls and warnings. Lawsuits are seen as having a chilling impact on regulation in general; in regards to the FDA, the result is likely to be more cautious regulation. While unhappy food producers may not like the FDA’s increased authority over food monitoring, it is the responsibility of the agency to keep consumers safe. Lawsuits are inevitable but the focus must remain on consumer health.

Prior to the passage of FSMA S.510, the FDA had been widely criticized for not taking strong enough action to protect consumers. However, it is likely that much of the criticism aimed towards the FDA occurred as a result of its limited powers - such as not having the authority to implement mandatory food recalls. The new legislation is aimed to give the FDA the necessary regulatory strength to keep the public safe.

In light of the new legislation, this lawsuit could potentially have two distinct outcomes on the FDA’s regulatory authority. On one hand, the FDA may step up its regulatory reach as a result of being given more authority to combat uncooperative companies and ensure higher levels of safety. The other and more likely outcome is that the FDA will be more cautious in its regulatory efforts. While it is not unreasonable for the FDA to proceed with caution in its regulation - there is much at stake when they issue recalls and warnings - the agency should remain focused on protecting consumers. In expanding its powers, Congress clearly wanted the FDA to stand firm and to provide stronger public protection in the areas of food production and consumption. Lawsuits will come and go; the public’s expectation to be protected will not.

[1] Mary Clare Jalonick, Lawsuit Could Chill Government Efforts to Keep Food Safe, KGW(Sept. 1, 2011, 8:52 AM), http://www.kgw.com/lifestyle/health/Suit-could-chill-govt-efforts-to-keep-food-safe-128886048.html.

[2] Marion Nestle, Don’t Like Bothering Food Safety Rules? Sue the FDA!, FOOD POLITICS(Aug 30, 2011), http://www.foodpolitics.com/2011/08/don’t-like-bothering-with-food-safety-rules-sue-the-fda/.

[3] Mary Clare Jalonick, Lawsuit Could Chill Government Efforts to Keep Food Safe, KGW(Sept. 1, 2011, 8:52 AM), http://www.kgw.com/lifestyle/health/Suit-could-chill-govt-efforts-to-keep-food-safe-128886048.html.

[4]Id.

[5]Id.

[6] Food Safety and Modernization Act, 21 U.S.C. § 2201 (2011).

[7]Id.

Instant Racing: a Possible Trifecta for Kentucky

By: Taryn DeVeau, Staff Member

Instant Racing has the potential to provide economic benefits for the Kentucky horse industry, surrounding racetrack communities, and the state at large.[1] In Instant Racing, gamblers bet on historical races without knowing the identity of the race.[2] Kentucky Downs is the first horse track in Kentucky to offer Instant Racing, and revenue from Instant Racing will help Kentucky horse tracks compete with tracks in other states that use casino revenue to fund purse take-outs. [3]

Despite the obvious benefits, Instant racing has proved controversial. In a recent lawsuit, the Kentucky Horse Racing Commission, the Department of Revenue, and a group of Kentucky horse racing organizations argued that Instant Racing is within the Kentucky Horse Racing Commission’s regulatory authority and sought declaratory judgment to that effect.[4] The Franklin Circuit Court held that Instant Racing is within the Commission’s regulatory authority so long as it involves “pari-mutuel wagering” on horse races.[5] The court then explained that a wagering system is pari-mutuel if the association does not have an “interest in the outcome of the bet, beyond the uniform deduction allowed by law.”[6] In Instant Racing, gamblers are wagering amongst themselves in wagering pools; therefore, the court was satisfied that the Instant Racing is a form of pari-mutuel wagering.[7] The Family Foundation of Kentucky has appealed the Franklin Circuit Court’s decision and sought an injunction to stop Instant Racing at Kentucky Downs.[8] The Foundation claims that Instant Racing devices are essentially slot machines, which are illegal in Kentucky.[9] The Foundation’s emergency injunction was declined, but the Foundation’s non-emergency injunction will still be reviewed.[10]

The ultimate legality of Instant Racing will depend on whether it is truly a form of pari-mutuel wagering.[11] The Kentucky Attorney General has opined that Instant Racing is not pari-mutuel wagering under Kentucky’s administrative regulations because gamblers in Instant Racing bet on completed races, do not share a betting pool, and rely on seed pools.[12] However, the Commission has drafted new regulations that purport to legalize Instant Racing.[13] These new regulations rely on the Attorney General’s opinion and are currently under review.[14]

Even if the Kentucky Court of Appeals decides on the legality of instant racing before the new regulations are approved, it is unlikely that Instant Racing will be declared illegal due to the potential impact such a ruling would have on the horse industry, which is a very important sector of the Kentucky economy. The profit potential of Instant Racing is hard to ignore, but, because it has not yet been widely adopted elsewhere, it is difficult to predict what type of experience Kentucky might have with instant racing. One Arkansas horse track credits its multi-million dollar purse distributions to a successful Instant Gaming program and electronic gaming facilities.[15] However, because electronic gaming facilities are illegal in Kentucky, Instant Gaming success in Arkansas may not be a reliable predictor of success in Kentucky.[16]

At the present juncture, the future of Instant Racing and the impact it may have on the Kentucky economy remains uncertain. Despite Kentucky Down’s $3 million dollar initial investment in Instant Racing, which could boost the economy by creating jobs and attracting people to the horse track[17], other prominent horse tracks in Kentucky have been reluctant to follow suit. The impending Kentucky Court of Appeals’ decision on the legality of Instant Racing has chilled further investment.[18]

[1] Janet Patton, State approves Instant Racing at Kentucky Downs, Lexington Herald Leader, July 15, 2011, http://www.kentucky.com/2011/07/15/1811479/approval-expected-for-instant.html.

[2] Janet Patton, State approves Instant Racing at Kentucky Downs, Lexington Herald Leader, July 15, 2011, http://www.kentucky.com/2011/07/15/1811479/approval-expected-for-instant.html.

[3] Gregory A. Hall, Kentucky Downs is looking for instant success, The Courier- Journal, August 30, 2011, http://www.courier-journal.com/article/20110830/BUSINESS/308280032/Kentucky-Downs-looking-instant-success.

[4] The Horse Racing Comm’n v. The Family Foundation, No. 10-CI-01154, 8 (Franklin Cir. Ct. Dec. 29, 2010).

[5] Id.

[6] Id. at 12.

[7] Id. at 13-15.

[8] Jack Brammer, Family Foundation seeks injunction to stop instant racing at Kentucky Downs,Lexington Herald Leader, September 3, 2011, http://www.kentucky.com/2011/09/03/1867383/family-foundation-seeks-injunction.html.

[9] Id.

[10] Gregory A. Hall, Judge allows Instant Racing game to continue, The Courier- Journal, September 8, 2011, http://www.courier-journal.com/article/20110908/BUSINESS/309080053/Judge-allows-Instant-Racing-game-continue

[11] The Horse Racing Comm’n v. The Family Foundation, No. 10-CI-01154, 14 (Franklin Cir. Ct. Dec. 29, 2010).

[12] Instant Racing, 10-001 Op. Att’y Gen. 7-9 (2010).

[13] The Horse Racing Comm’n v. The Family Foundation, No. 10-CI-01154, 3 (Franklin Cir. Ct. Dec. 29, 2010).

[14] Id.

[15] Oaklawn to Offer 32 Stakes Races, $4.6 Million in 2001, Oaklawn.com,http://www.oaklawn.com/news/2010/aug/20/oaklawns-2011-stakes-schedule-announced/ (last visited September 13, 2011); Ark. Code Ann. §23-113-101 thru §23-113-604 (2005).

[16] See Ky. Rev. Stat. Ann. § 247.155 (2011).

[17] Janet Patton, On eve of instant racing’s debut, Ky. Downs hopes for big payoff, Lexington Herald Leader, September 1, 2011, http://www.kentucky.com/2011/09/01/1864295/on-eve-of-instant-racings-debut.html.

Congress’ approval of the 2012 Agriculture Appropriations Bill cuts much-needed funding of Farm Bill Mandatory Conservation Programs

By: Alison Marcotte, Staff Member

Roughly every five years, the legislature reviews and renews what is known as the farm bill. Each farm bill normally encompasses titles such as “commodity price and income supports, farm credit, trade, agricultural conservation, research, rural development, energy, and foreign and domestic food programs such as food stamps and other nutrition programs, among other programs.”[1] It also usually provides for the mandatory funding for several of these programs. Mandatory funding means that the amount of funding authorized by Congress is available unless limited to smaller amounts in the appropriations process.[2] After the approval of the House of Representatives’ and Senates’ version of the Agricultural Appropriations Bill of 2012, many conservationists worry that much of the funding that has been provided to mandatory conservation programs will be cut to levels below the authorized amounts in order to increase spending on food and nutrition programs.

On September 7, 2011, the United States Senate passed its fiscal year 2012 Agriculture Appropriations Bill. The result was a total provision of $19.78 billion to the Agriculture Appropriations Subcommittee for spending for fiscal year 2012, which is about a $141 million reduction from the amount enacted in fiscal year 2011.[3] While this allocation of funds was more generous than the mere $17.08 billion approved by the House of Representatives in June of this year, it still cuts important and much-needed funding to a number of Conservation Programs nationwide.[4]

Specifically, some of the conservation cuts to be made by the Senate-approved version of the bill include $350 million from the Environmental Quality Incentives Program, $35 million from the Conservation Stewardship Program, $50 million from the Farm and Ranch Lands Protection Program, and $35 million from the Wildlife Habitat Incentives Program. Additionally, the Wetlands Reserve Program and the Grasslands Reserve Program would be cut by $180 million and $46 million respectively.[5] In all, the spending bill cuts mandatory conservation programs by 12%, or $726 million, from levels authorized by the farm bill. These cuts are being made on top of the reductions made from the 2011 appropriation levels.[6]

The problem with the potential enactment of the Agricultural Appropriations Bill as approved by the Senate is that the mandatory conservation programs will be taking a large monetary hit in order to compensate for the money needed to fund other farm bill programs. On top of this, Congress made the decision to cut the level of agricultural spending knowing that the Agricultural Appropriations Committee must increase spending on food and nutrition safety programs and, as a result, would be forced to spend less on conservation. [7] This could result in negative environmental effects due to the fact that the conservation programs offer incentives to farmers to consider ecological factors in making farming decisions to avoid land abuse and overuse. [8] Congress’ approval of slashing the funds of these programs is more than questionable. Ferd Hoffner, Policy Director at the National Sustainable Agricultural Coalition stated it best: “Shortchanging the Agriculture appropriations allocation such that the funding of important items like feeding programs and food safety requires raiding farm bill direct spending to make up for shortfalls is the type of gaming and double dealing that gives Congress a bad name." [9]

[1] Renee Johnson and Jim Monke, What is the “Farm Bill”?, Congressional Research Service, 1 (Dec. 10, 2010), http://www.nationalaglawcenter.org/assets/crs/RS22131.pdf.

[2] Jeffery A.Zinn, Mandatory Funding for Agriculture Conservation Programs, CRS Report for Congress, 1 (Jan. 9, 2007), http://lugar.senate.gov/services/pdf_crs/ag/11.pdf.

[3] Senate Appropriations Committee Approves FY 2012 Spending Caps, Rural Housing FundingBill, National Council of State Housing Agencies Blog, (Sept. 19, 2011 11:10 PM),http://www.ncsha.org/blog/senate-appropriations-committee-approves-fy-2012-spending-caps-rural-housing-funding-bill

[4] Jerry Hagstrom, Ag Appropriation bill Approved, Agweek.com (Sept. 13, 2011 5:41 AM)http://www.agweek.com/event/article/id/19069/.

[5] Senate Agricultural Spending Bill Unveiled, National Sustainable Agricultural Coalition, (Sept. 9, 2011), http://sustainableagriculture.net/blog/senate-ag-spending-bill-2/.

[6] Id.

[7]Daniel Looker, CHIMPING away at conservation, agriculture.com (Sept. 9, 2011 4:37 PM),http://www.agriculture.com/news/policy/chimping-away-at-conservation_4-ar19070?print.

[8] Tom Philpott, Budget fight threatens to turn Farm Bill into Industrial Ag Bill, Grist.com (Apr. 4, 2011 8:50 PM), http://www.grist.org/farm-bill/2011-04-04-budget-fight-threatens-turn-farm-bill-into-industrial-ag.

[9] Looker, CHIMPING away at conservation, Agriculture.com,http://www.agriculture.com/news/policy/chimping-away-at-conservation_4-ar19070.

Should BP Face Criminal Liability for the Gulf of Mexico Oil Spill?

By: Neal Manor, Staff Member

On the first anniversary of the permanent sealing of the Macondo Prospect well in the Gulf of Mexico, more questions than answers remain concerning BP’s criminal liability for the damage its 206 million gallon oil spill caused. Last week, the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) published a report[1] examining the explosion on the Deepwater Horizon rig that killed 11 people and led to the largest unintentional oil spill in history.[2]

A BOEMRE panel of investigators concluded that BP and its contractors Halliburton and Transocean violated seven federal regulations.[3] Among these violations were a failure to protect health, safety, property, and the environment, failure to take necessary precautions to keep the well under control at all times, and failure to conduct inspections of major rig components.

Louisiana’s wetlands, thought by many to be damaged irrevocably by the spill, seem poised for a dramatic recovery. Ed Overton, a professor emeritus at Louisiana State University’s Department of Environmental Sciences, collected water samples from an affected area and saw “remarkably normal” results.[4] His research on the condition of the wetlands has shown no sheen on the water from the spill, marshes teeming with new growth, and a relatively healthy fish population.[5] There is an emerging consensus that the spill’s ecological effects could have been worse.[6]

BP, Halliburton, and Transocean, the three corporations principally responsible for operating theDeepwater Horizon rig, might not be so fortunate. Two months after the explosion, with oil still inundating the Gulf of Mexico, President Obama confirmed that a criminal investigation had been launched and that “[i]f our laws were broken…we will bring those responsible to justice….”[7] Some experts believe that the criminal investigation by the Department of Justice will result in indictments and historic criminal fines for BP and its contractors, who were deemed directly responsible for the spill by the BOEMRE panel of investigators.[8] A civil suit has already been filed and will not likely impact whether criminal charges are ultimately pursued.[9]

The averted environmental apocalypse should not preclude the Department of Justice from issuing criminal charges against those responsible for the largest unintentional oil spill in history. With the moratorium on deep-water drilling imposed by President Obama after the spill now lifted, substantial disaster prevention methods other than new rules and regulations are necessary. Criminal prosecution of BP, Halliburton, and Transocean will serve retributive purposes in a way that civil penalties simply cannot. Most importantly, the potential punishment these three corporations receive would deter other major corporations involved in similar offshore drilling operations from taking economic shortcuts and putting the bottom line before safety.

[1] Bureau of Ocean Energy Management, Regulation, and Enforcement, Report Regarding the Causes of the April 20, 2010 Macondo Well Blowout, Volume II (2011), available athttp://www.boemre.gov/ooc/press/2011/press0914.htm.

[2] Joel Achenbach and David A. Fahrenthold, Oil Spill Dumped 4.9 Million Barrels into Gulf of Mexico, Latest Measure Shows, The Washington Post (Aug. 3, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/08/02/AR2010080204695.html.

[3] See 30 C.F.R. § 250.107; 30 C.F.R. § 250.300; 30 C.F.R. § 250.401; 30 C.F.R. § 250.420(a)(1) ; 30 C.F.R. § 250.427(a); 30 C.F.R. § 250.446(a); 30 C.F.R. § 250.1721(a).

[4] Neal Conan, Checking in on Gulf on Heels of BP Spill Report, National Public Radio (Sept. 15, 2011),http://www.npr.org/2011/09/15/140508713/checking-in-on-gulf-on-heels-of-bp-spill-report.

[5] Id.

[6] Bryan Walsh, The BP Oil Spill, One Year Later: How Healthy is the Gulf Now? Time Science (Apr. 19, 2011),http://www.time.com/time/health/article/0,8599,2066031,00.html.

[7] Brian Montopoli, Obama Vows “Justice” for Oil Spill Crimes, CBS News (June 1, 2010),http://www.cbsnews.com/8301-503544_162-20006435-503544.html.

[8] David M. Uhlmann, After the Spill is Gone: The Gulf of Mexico, Environmental Crime, and the Criminal Law, 109 Mich. L. Rev. 1413 (2011).

[9] Id. at 1435.

A legislator's proposal to aid the declining U.S. dairy industry.

By: Whitney Jones, Staff Member

On July 13, 2011, ranking House Agriculture Committee member Collin Peterson of Minnesota released a draft proposal for the 2012 dairy reform bill stating that “if we have another dairy crisis like we had in 2009, we could lose half our dairies.”[1] The Representative’s proposal came in response to what has been called the “Great Dairy Recession,” a period in 2009 where a weakened economy led to a collapse in milk prices, the export market went bad, and the cost of feed skyrocketed.[2] This proposal, however, comes at a time when our country is focused on coming out of a recession of its own and cutting billions in federal programs.[3]

The discussion draft of the bill states its purpose as the following: “A bill to replace current dairy product price support and milk income loss contract programs with a program to protect dairy producer income when the difference between milk prices and feed costs is less than a specified amount, to establish a dairy market stabilization program, to amend Federal milk marketing orders, and for other purposes.”[4]

Like any other legislation, the proposal does not come without disagreements among affected parties. Since its release, many organizations have voiced their support and also their concerns. The National Milk Producers Federation President and CEO Jerry Kozak described this legislation as long-anticipated, while the International Dairy Foods Association CEO Connie Tipton feels that this program will negatively impact the ability of the U.S. dairy industry to compete globally.[5] One aspect of the proposal that has proven to be especially controversial is the program setting limits on milk production in an attempt to regulate oversupply and price fluctuations.[6]

Whether you agree or disagree with Representative Peterson’s proposal of the dairy reform bill, it is an unavoidable reality that thousands of farmers across the country are exiting the dairy industry and the amount of dairy farms is decreasing rapidly.[7] Representative Peterson has responded to this and hopes that others in Congress will find that “this proposal addresses these challenges. The proposal creates a strong safety net that will provide the support all sectors of the diverse industry need during tough times.”[8]

“Got milk?” may be a phrase of the past because without dairy farms, there may not be enough milk for consumers “to get.”

[1] Jerry Hagstrom, Peterson releases dairy reform draft, Agweek, July 18, 2011,http://www.agweek.com/event/article/id/18780/.

[2] Eric Brown, Dairy experts: Leprino Foods plant won’t completely save regional industry, but it will help, The Tribune, Aug. 27, 2011,http://www.greeleytribune.com/article/20110827/BUSINESS/708279980.

[3]Id.

[4]First discussion draft Dairy Reform Bill, dated July 13, 2011, available athttp://democrats.agriculture.house.gov/inside/Legislation/PETEMN_001_xml_071111.pdf; Representative Collin Peterson (D-MI) drafted this legislation.

[5] Hagstrom, supra note 1.

[6] Curtis Tate & John Holland, U.S. dairy farmers are in ‘a pretty big hole’, Merced Sun-Star, Aug. 20, 2011, http://www.mercedsunstar.com/2011/08/20/2011268/us-dair-farmers-are-in-a-pretty.html.

[7] Brown, supra note 2.

[8] Hagstrom, supra note 1.

Nay I Say: The Negative Implications of Horse Cloning in Competitive Horse Racing

By: Sam Jones, Staff Member

While most of the world stands in awe of recent developments in cloning technology, entrepreneurs and investors are catching hold of the financial promise that such a field holds. The process by which an unfertilized egg is implanted in another’s female body has opened the floodgates for new medical and genetic research as well as marketable capitalization.[1]

The equine industry and international breeding organizations are only a few of the many groups to mold this new option to their commercial desires and endeavors. Particularly, those in champion racehorse breeding circles saw nothing but promise in the possibility of preserving the excelled genetic materials from past racing giants like Secretariat, Jon Henry, Desert Orchid, or even the savior of modern horse racing, the Great Man o’ War, and funneling it into a new super-class of modern track stars. By cloning a champion racehorse, owners are investing in a business that could yield detrimental results, but also unfathomable returns. Still, even as scientific developments are speeding out of the gates, equine federations are quickly drawing the reins to slow the rush of the commercial investors who are eager to line the pockets of nuclear and genetic marketing firms.

No stranger to Kentucky, the International Equine Federation has firmly stated its commitment to the preservation of fairness and sportsmanship for both participants of its sport, rider and horse, on an international level.[2] It remains open and supportive of advancements and developments related to the interbreeding of champion horse lines and even cross-breeding through artificial insemination (AI). However, it remains opposed to the idea of permitting cloned horses to compete in any sanctioned international event. It states: "The competitive equestrian couple of horse and rider are both acknowledged as athletes by the FEI. The cloning of either with a view to competing at international level would be unacceptable to the FEI."[3] Some American equine organizations, such as the American Quarter Horse Association and the Jockey Club, which controls the registration of thoroughbred racehorses, do not allow cloning either.[4] This position is has merit and should be supported by Kentucky legislature.

Racehorse breeders are a strange breed of their own, favoring the scientific selection of excellent bloodlines and parentage over the lackluster competitive methodology of pure training and race experience.[5] They are, however, missing the essence of competition by trying to better their odds through science and cents. Although there is no guarantee that a sire’s superior racing heritage will be inherited by the newly created foal, the financial risk is well worth the investment. In 2006, the price of the first commercially cloned foal was roughly $150,000[6], which is pocket change compared to the $60-million sales tag on the Kentucky Derby winner Fusiachi Pegasus six years before the first cloning.[7] With such a high risk payout, investors select bloodlines very carefully and only interbreed with the best, most prestigious lineages possible. Unfortunately, this leads to genetic overlapping and inbreeding, which spurs a whole range of developments issues for horses, both prenatally and on into adolescent maturation.[8]

Additionally, this genetic commercialism of racehorses” forces out breeders, trainers, and owners who are not financially able to compete with those who can afford to resurrect past racehorse legends, let alone those who already breed champion horse lines with other accomplished lineages. To some, using science and genetic modification takes the “sport” out of the sport. It becomes nothing more than a forced exploitation of animals, bundled with all the harmful health risks that accompany cloning.

Kentucky’s horse racing industry rakes in $4 billion in state funds annually, but it is failing because it has been forced to cope with losses of wagers, investors migrating towards other tracks and breeding incentives, and even shortages of horse technicians and veterinarians.[9] By permitting the inclusion of genetically modified horses that are projected to have the physical superiority literally “in their blood,” the field of competition will be sharply one-sided and ruled by those with the deepest pockets, which would create additional challenges for the already wavering equine industry in Kentucky. Permitting genetically cloned horses to compete in high-stakes races eliminates the competitive preparation and training invested in so many steeds and prevents those outside the upper class from participating in one of the most prized aspects of Kentucky’s identity.

[1] Lexa W. Lee, Pros and Cons of Horse Cloning, eHow: Biology Sciences: Stem Cells,http://www.ehow.com/info_8536886_pros-cons-horse-cloning.html (updated June 3, 2011).

[2] Who We Are & What We Stand For, International Equine Federation, http://www.fei.org/about-us/profile (last visited Sept. 17, 2001).

[3] Fran Cleland, Cloning Controversy, Weekly Times Now (Sept. 19, 2011)http://www.weeklytimesnow.com.au/article/2011/09/19/380881_horses.html. See Tom Reed, Pink Flamingos or ink Horses- The Cloning Crux, Eurodressage(Sept. 9, 2011),http://www.eurodressage.com/equestrian/2011/09/09/tom-reed-pink-flamingos-or-pink-horses-cloning-crux (last visited Sept. 19, 2011).

[4] Lee, supra note 1.

[5] Is Anyone Against Cloning Racehorses?, Curiosity.com, http://curiosity.discovery.com/question/is-anyone-against-cloning-racehorses (last visited Sept. 18, 2011).

[6]Maryann Mott, Champion Horse Cloned by Texas Breeder, National Geographic News (Apr. 4, 2006), http://news.nationalgeographic.com/news/2006/04/0404_060404_horse_clone.html (last visited Sept. 19, 2011).

[7] Mott, supra note 6.

[8] Lee, supra note 1.

My Guitar Gently Weeps… My Hands Hurt

By: Sam Jones, Staff Member

While most of the world stands in awe of recent developments in cloning technology, entrepreneurs and investors are catching hold of the financial promise that such a field holds. The process by which an unfertilized egg is implanted in another’s female body has opened the floodgates for new medical and genetic research as well as marketable capitalization.[1]

The equine industry and international breeding organizations are only a few of the many groups to mold this new option to their commercial desires and endeavors. Particularly, those in champion racehorse breeding circles saw nothing but promise in the possibility of preserving the excelled genetic materials from past racing giants like Secretariat, Jon Henry, Desert Orchid, or even the savior of modern horse racing, the Great Man o’ War, and funneling it into a new super-class of modern track stars. By cloning a champion racehorse, owners are investing in a business that could yield detrimental results, but also unfathomable returns. Still, even as scientific developments are speeding out of the gates, equine federations are quickly drawing the reins to slow the rush of the commercial investors who are eager to line the pockets of nuclear and genetic marketing firms.

No stranger to Kentucky, the International Equine Federation has firmly stated its commitment to the preservation of fairness and sportsmanship for both participants of its sport, rider and horse, on an international level.[2] It remains open and supportive of advancements and developments related to the interbreeding of champion horse lines and even cross-breeding through artificial insemination (AI). However, it remains opposed to the idea of permitting cloned horses to compete in any sanctioned international event. It states: "The competitive equestrian couple of horse and rider are both acknowledged as athletes by the FEI. The cloning of either with a view to competing at international level would be unacceptable to the FEI."[3] Some American equine organizations, such as the American Quarter Horse Association and the Jockey Club, which controls the registration of thoroughbred racehorses, do not allow cloning either.[4] This position is has merit and should be supported by Kentucky legislature.

Racehorse breeders are a strange breed of their own, favoring the scientific selection of excellent bloodlines and parentage over the lackluster competitive methodology of pure training and race experience.[5] They are, however, missing the essence of competition by trying to better their odds through science and cents. Although there is no guarantee that a sire’s superior racing heritage will be inherited by the newly created foal, the financial risk is well worth the investment. In 2006, the price of the first commercially cloned foal was roughly $150,000[6], which is pocket change compared to the $60-million sales tag on the Kentucky Derby winner Fusiachi Pegasus six years before the first cloning.[7] With such a high risk payout, investors select bloodlines very carefully and only interbreed with the best, most prestigious lineages possible. Unfortunately, this leads to genetic overlapping and inbreeding, which spurs a whole range of developments issues for horses, both prenatally and on into adolescent maturation.[8]

Additionally, this genetic commercialism of racehorses” forces out breeders, trainers, and owners who are not financially able to compete with those who can afford to resurrect past racehorse legends, let alone those who already breed champion horse lines with other accomplished lineages. To some, using science and genetic modification takes the “sport” out of the sport. It becomes nothing more than a forced exploitation of animals, bundled with all the harmful health risks that accompany cloning.

Kentucky’s horse racing industry rakes in $4 billion in state funds annually, but it is failing because it has been forced to cope with losses of wagers, investors migrating towards other tracks and breeding incentives, and even shortages of horse technicians and veterinarians.[9] By permitting the inclusion of genetically modified horses that are projected to have the physical superiority literally “in their blood,” the field of competition will be sharply one-sided and ruled by those with the deepest pockets, which would create additional challenges for the already wavering equine industry in Kentucky. Permitting genetically cloned horses to compete in high-stakes races eliminates the competitive preparation and training invested in so many steeds and prevents those outside the upper class from participating in one of the most prized aspects of Kentucky’s identity.

[1] Lexa W. Lee, Pros and Cons of Horse Cloning, eHow: Biology Sciences: Stem Cells,http://www.ehow.com/info_8536886_pros-cons-horse-cloning.html (updated June 3, 2011).

[2] Who We Are & What We Stand For, International Equine Federation, http://www.fei.org/about-us/profile (last visited Sept. 17, 2001).

[3] Fran Cleland, Cloning Controversy, Weekly Times Now (Sept. 19, 2011)http://www.weeklytimesnow.com.au/article/2011/09/19/380881_horses.html. See Tom Reed, Pink Flamingos or ink Horses- The Cloning Crux, Eurodressage(Sept. 9, 2011),http://www.eurodressage.com/equestrian/2011/09/09/tom-reed-pink-flamingos-or-pink-horses-cloning-crux (last visited Sept. 19, 2011).

[4] Lee, supra note 1.

[5] Is Anyone Against Cloning Racehorses?, Curiosity.com, http://curiosity.discovery.com/question/is-anyone-against-cloning-racehorses (last visited Sept. 18, 2011).

[6]Maryann Mott, Champion Horse Cloned by Texas Breeder, National Geographic News (Apr. 4, 2006), http://news.nationalgeographic.com/news/2006/04/0404_060404_horse_clone.html (last visited Sept. 19, 2011).

[7] Mott, supra note 6.

[8] Lee, supra note 1.