A Jack of All Trades: The King of Silicon Valley Weighs in on International Agriculture

By: Alex Crawley, Staff Member

Although Bill Gates is probably most famous for being the self-made billionaire who created the powerhouse Microsoft, he has recently made headlines for issues far removed from software.[1] Lately, he has been speaking out about the funding for agricultural research, or rather, the lack thereof.[2] In addition to speaking out on BBC’S Today,[3] he recently devoted nearly his entire annual letter on behalf of the Bill and Melinda Gates Foundation, which was twenty-four pages long, to the issue of world hunger and to encouraging investment into agricultural research.[4]

Gates’ letter focuses mainly on the “15% of the world [just over 1 billion people] in extreme poverty.” [5] He is urging more people to “mak[e] the choice to keep on helping extremely poor people build self-sufficiency,” and emphasizing that, while farming is integral to poor countries, rich countries have largely turned their backs on agriculture.[6] Considering that only $3 billion per year is spent globally on agricultural research, he has a valid point.[7]

The Gates Foundation has spent about $2 billion dollars over the past five years to supplement research that would help to alleviate the global food crisis.[8] Gates is especially focused on the research into genetically modified foods, and has specifically praised the work of Norman Bourlaug, a Nobel Prize winner who helped create new strains of wheat that were resistant to wheat stem rust, a fungus that had previously plagued wheat crops.[9] He is advocating for more innovations like this one, especially considering that new forms of wheat rust have since developed and moved from Uganda to Iran and Yemen.[10]

Gates’ position on agricultural research has created some otherwise unlikely allies and piqued the interest of many. The Crop Protection Association Society has endorsed his view internationally, and has agreed that “high-tech food production systems” are an integral part of the answer to “the food poverty crisis.”[11] Meanwhile, U.S. groups, like the U.S. Farmers & Ranchers Alliance, have also taken an interest.[12]

Gates’ plea comes at a crucial time. The EU’s policies are currently inhibiting innovative agricultural research,[13] and the USDA has recently decreased its research centers in response to congressional budget cuts.[14] The Gates Foundation, however, has given grants to the Food and Agriculture Organization of the United Nations[15] and the International Food Policy Research Institute.[16] Hopefully, the Gate’s Foundation good-will initiative will inspire other organizations to invest in this area “where there is less profit opportunity but where the impact for those in need is very high.”[17] Otherwise, “one in seven people will continue living needlessly on the edge of starvation.”[18]

[1] Logan Hawkes, GMO Crops Get Big Backer in Bill Gates, Western Farm Press, 1 (Feb. 1, 2012, 11:21 AM), http://westernfarmpress.com/government/gmo-crops-get-big-backer-bill-gates?page=1.

[2]Gates Foundation Calls for More Ag Research Funding, The United States Agricultural & Food Law and Policy Blog, http://www.agandfoodlaw.com/2012/02/gates-foundation-calls-for-more-ag.html.

[3]Dan Colombini & Mike Stones, Bill Gates and CPA Urge Support for GM Techniques, Foodmanufacture.co.uk (Jan. 25, 2012), http://www.foodmanufacture.co.uk/World-News/Bill-Gates-and-CPA-urge-support-for-GM-techniques.

[4]Hawkes, supra note 1.

[5]2012 Annual Letter From Bill Gates, Bill & Melinda Gates Foundation, 1 (Jan. 2012), http://www.gatesfoundation.org/annual-letter/2012/Documents/2012-annual-letter-english.pdf.

[6]2012 Annual Letter From Bill Gates, supra note 5 at.

[7]2012 Annual Letter From Bill Gates, supra note 5at 3.

[8] Hawkes, supra note 1.

[9]2012 Annual Letter From Bill Gates, supra note 5 at 5.

[10]2012 Annual Letter From Bill Gates, supra note 5 at 5.

[11] Colombini & Stones, supra note 3.

[12]Bill Gates and CPA Urge Support for GM Techniques, U.S. Farmers & Ranchers Alliance (Jan. 25, 2012) http://usfraonline.org/2012/01/bill-gates-and-cpa-urge-support-for-gm-techniques/.

[13] Colombini & Stones, supra note 3.

[14] Hawkes, supra note 1 at 2.

[15]Food and Agriculture Organization of the United Nations, Bill & Melinda Gates Foundation (Nov. 2011), http://www.gatesfoundation.org/Grants-2011/Pages/Food-and-Agriculture-Organization-of-the-United-Nations-OPP1029955.aspx.

[16]International Food Policy Research Institute, Bill & Melinda Gates Foundation (Nov. 2011), http://www.gatesfoundation.org/Grants-2011/Pages/International-Food-Policy-Research-Institute-OPPGD1451.aspx.

[17]2012 Annual Letter From Bill Gates, supra note 5.

[18]2012 Annual Letter From Bill Gates, supra note 5.

Citrus Canker Compensation

By: Catherine Barrett, Staff Member

Owners of residential trees destroyed during a failed attempt to eradicate citrus canker are still awaiting compensation. The story of citrus canker highlights the sad fact that legal compensation is often slow and inadequate.

Citrus canker is a highly infectious bacterial disease that affects all types of citrus.[1] The condition causes oily brown lesions on leaves and fruit.[2] A serious attempt to eradicate the disease started in 1994.[3] More than 16.5 million trees were destroyed during the campaign.[4] State workers entered private backyards and felled established fruit-bearing trees as distraught owners watched.[5] Feelings against the “canker gestapo” ran high among some Florida residents.[6]

This is not the first time that a battle with citrus canker has outraged tree owners. The first major outbreak of the disease occurred in 1913.[7] A law was passed requiring the destruction of infected trees, and inspectors searched orchards for signs of canker, burning entire groves if any tree showed signs of the illness.[8] Farmers, facing financial ruin if their trees were burned, tried to keep the burn crews off of their lands with shotguns and lawsuits; neither approach was successful.[9] The destruction of orange trees affected by citrus canker was upheld by state courts in 1917.[10]

Destruction of trees in order to halt the spread of arboreal diseases has historically been upheld as constitutional. Courts have reasoned that “the destruction of a tree affected by a disease… is as fully within the police power of a state as the destruction of a house threatened by a spreading conflagration,” even if the destruction is against the owner’s will and no compensation is provided.[11] Stated differently, because the trees were doomed to die, they were worthless. Consequently, no constitutional taking occurs when they are destroyed. This is still the position argued by the Florida Department of Agriculture: trees exposed to citrus canker have no value.[12]

Between 2000 and 2006, the state of Florida destroyed every citrus tree within 1,900 feet of an infected tree, even if the trees appeared healthy.[13] Citrus canker externally disfigures fruit, but does not harm humans, so the fruit can still be consumed.[14] In an apparent change of course, Florida courts have held in class-action lawsuits by tree owners that the trees did have some value and that destroying them was a taking.[15]

Sadly, the only real winner of this legal battle is the canker. A series of hurricanes spread the bacteria so widely that eradication is no longer possible, and efforts to do so have been abandoned within the state.[16] Despite their victories in court, owners have not yet received compensation for the trees that died in vain.[17]

[1] Citrus Canker Fact Sheet, Florida Department of Agriculture & Consumer Services Division of Plant Industry, http://www.freshfromflorida.com/pi/canker/faqs.html.

[2]Id.

[3]State Refusing To Citrus Canker Pay Outs, CBS Miami (September 25, 2011, 12:16 PM) http://miami.cbslocal.com/2011/09/25/state-refusing-to-citrus-canker-pay-outs/.

[4] Susan Salisbury, Citrus canker trial continues for Boca couple seeking compensation, The Palm Beach Post (Nov. 28, 2011, 7:49 PM) http://www.palmbeachpost.com/money/citrus-canker-trial-continues-for-boca-couple-seeking-1274647.html?printArticle=y

[5]Id.

[6]Citrus Canker: A Corporate Love Story, Or Of The Press (Sept. 5, 2011) http://orofthepress.wordpress.com/2011/09/05/citrus-canker-a-corporate-love-story/.

[7] Jean C. Taylor, The Citrus Canker, History Miami http://www.hmsf.org/history/citrus-canker.htm.

[8]Id.

[9]Id.

[10]Louisiana State Board of Agriculture and Immigration v. Tanzmann, 140 La. 756 (1917).

[11]State v. Main, 69 Conn. 123, 84 (1897).

[12] Salisbury, supra note 4.

[13] CBS Miami, supra note 3.

[14]Id.

[15]Department of Agriculture & Consumer Services v. Bogorff, 35 So.3d 84 (2010).

[16] Fact Sheet, supra note 1.

[17] CBS Miami, supra note 3.

Considering the Implications of a New Bourbon Tax

By: Arthur Cook, Staff Member

Any person that has toured (or tasted from) one of Kentucky’s premium Bourbon whiskey distilleries can tell you, no drink would be the same without a water source of superior quality. Kentucky’s abundant supply of limestone, which provides a natural water filter, allows much of the world’s top Bourbon to be produced there.[1] A recent study of Kentucky’s economy revealed that the Bourbon industry contributed $2 billion in gross state product each year for the last decade.[2] Governor Steve Beshear has observed that the industry accounts for 43% of the distilling jobs in the nation.

With a lagging national economy and Kentucky behind the national recovery rate, citizens of the Commonwealth are very interested in maximizing tax revenue from the Bourbon industry. One proposed solution is re-examination of the state’s “barrel tax.[3]” By way of example, the citizens of Moore County, Tennessee recently sought to impose a barrel tax on Lynchburg’s most famous resident, Jack Daniels.[4] The “barrel tax” is an annual ad valorem tax of $.05 per $100 of value for goods “held for sale in the regular course of business, which includes . . . distilled spirits and distilled spirits inventory, and in-process materials, which includes distilled spirits and distilled spirits inventory, held for incorporation in finished goods held for sale in the regular course of business.”[5]

A Kentucky barrel tax would be cumbersome for the distilling industry. Many spirits, such as Bourbon, can take up to 12 years to age in barrels, increasing in value per year. Rep. Linda Belcher of the Kentucky General Assembly has proposed House Bill 418 to take an income tax credit to offset the cost of the tax.[6]

A recent op-ed by industry leaders concedes that the ad valorem tax supports critical needs in multiple fields, but also attempts to undermine concern that the tax credit envisioned by House Bill 418 would denigrate tax coffers by arguing the tax credit would be “reinvested in the commonwealth.”[7]

Kentucky’s natural resources - the climate and limestone bedrock - are ideal for the production of premium spirits like Bourbon. However, without a clearer statement of the “reinvestment” which would offset the loss in tax revenue from the tax credit, forgoing taxes on an industry that has boomed in the last few years would be a stiff drink to swallow.

[1] Buffalo Trace Distillery, Whisky.com, http://www.whisky.com/distilleries/buffalo_trace_distillery.html (last visited Feb. 6, 2012); Woodford Reserve Kentucky Straight Bourbon Whisky, Whisky.com, http://www.whisky.com/brands/woodford_reserve_brand.html (last visited Feb. 6, 2012) Maker's Mark Kentucky Straight Bourbon Whisky, Whisky.com, http://www.whisky.com/brands/makers_mark_brand.html (last visited Feb. 6, 2012).

[2] Kevin Wheatley, State-Journal.com - Bourbon industry booming, study reveals, http://www.state-journal.com/news/article/5153644 (last visited Feb. 6, 2012).

[3]Id.

[4] Tim Ghianni, Jack Daniel's wins battle over whiskey barrel tax, Reuters, http://www.reuters.com/article/2011/11/22/us-tennessee-whiskey-idUSTRE7AL1OR20111122 (last visited Feb. 6, 2012).

[5] Ky. Rev. Stat. §132.020(1)(n)

[6] Barrel tax hobbles bourbon industry, Kentucky.com, http://www.kentucky.com/2011/03/08/1661958/barrel-tax-hobbles-bourbon-industry.html (last visited Feb. 6, 2012).

[7]Id.

Challenging the GMO Giants: OSGATA v. Monsanto Co.

By: Kelly Calder, Staff Member

Transgenic crops[1] have been a point of contention since their introduction, spurring lawsuits, boycotts, and leading numerous groups to publically advocate mandatory labeling of transgenic foods.[2] On March 29, 2011, the Organic Seed Growers and Trade Association (“OSGATA”), spearheaded a lawsuit in the Southern District of New York against transgenic seed giant Monsanto, Inc.[3] OSGATA, along with eighty-two other plaintiffs,[4] have sought a declaratory judgment to prevent Monsanto from bringing suit against them for patent infringement for inadvertently utilizing transgenic seeds.[5] Additionally, the plaintiffs are asking the court to declare that Monsanto’s numerous seed patents are invalid.[6]

It remains to be seen whether the plaintiffs will ever get to argue the merits of the case.[7] Monsanto filed a motion to dismiss in mid-July of last year, stating that the plaintiffs lacked subject matter jurisdiction to maintain their action.[8] The plaintiffs filed a brief in opposition to the motion,[9] which was accompanied by an amici brief further supporting the plaintiffs’ position.[10] Oral argument on the issue was granted, and the case was heard January 31, 2012.[11] As of the time of this post, a decision has not been reached.[12]

The OSGATA plaintiffs, who are mostly organic farmers, should be able to satisfy the relevant criteria for maintaining a declaratory judgment action. The threat of cross-contamination between transgenic and non-transgenic crops is a very real one for farmers. This was acknowledged by the United States Supreme Court in Monsanto Co. v. Geertson Seed Farms.[13] According to the OSGATA complaint, “if an organic farmer wants to determine whether Monsanto’s patented gene is present in her crop, she must conduct genetic testing, which can be extremely expensive.”[14]

The actions that farmers have to take in order to ensure the purity of their crops increases the costs of operation, and due to the fact that Monsanto has sued several farmers for patent infringement, can influence the types of crops that farmers choose to grow, e.g. causing them to be averse to growing crops that may subject them to liability for patent infringement.[15] The fact that the plaintiffs have taken steps to prevent contamination in order to prevent a Monsanto-initiated lawsuit should do nothing to inhibit their cause of action.[16] Additionally, success at this stage could encourage similar suits and would present vehicle for challenging Monsanto’s patents in cases that could ultimately reach the Supreme Court.

[1] Transgenic: “of, pertaining to, or containing a gene or genes transferred from another species.” Dictionary.com, http://dictionary.reference.com/browse/transgenic (last visited February 6, 2012).

[2] One of these groups is the Center for Food Safety, which actively campaigns for the labeling of transgenic foods. Center for Food Safety, http://gefoodlabels.org/ (last visited February 6, 2012).

[3] First Amended Complaint at 2, OSGATA v. Monsanto Co., No. 11-cv-2163-NRB (S.D.N.Y. June 1, 2011), available at http://www.pubpat.org/assets/files/seed/OSGATA-v-Monsanto-Complaint.pdf.

[4]Family Farmers Amplify Complaint Against Monsanto’s GMOs, Reinforcing Their Arguments with Additional Plaintiffs, Public Patent Foundation (June 1, 2011), http://www.pubpat.org/osgatavmonsantoamended.htm.

[5] First Amended Complaint, supra, note 3.

[6]Id.

[7]Farmers and Seed Distributors Defend Right to Protect Themselves from Monsanto Patents, Public Patent Foundation (August 11, 2011), http://www.pubpat.org/mtdoppfiled.htm.

[8]Id.

[9] Brief in Opposition to Defendants’ Motion to Dismiss, OSGATA v. Monsanto Co., No. 11-cv-2163-NRB (S.D.N.Y. August 11, 2011), available athttp://www.pubpat.org/assets/files/seed/OrganicSeedMTDOppositionBrief.pdf.

[10] Brief for Farm & Ranch Freedom Alliance, et al. as Amici Curiae Supporting Plaintiffs, OSGATA v. Monsanto Co., No. 11-cv-2163-NRB (S.D.N.Y. August 10, 2011), available at http://www.pubpat.org/assets/files/seed/OrganicSeedMTDAmiciBrief.pdf.

[11]OSGATA v. Monsanto: Will Farmers Receive Justice?, OSGATA (February 2, 2012), http://archive.constantcontact.com/fs074/1104248386985/archive/1109213017423.html.

[12]Id.

[13]Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743, 2754-55 (2010)(“Respondents also allege that the risk of gene flow will cause them to take certain measures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically engineered alfalfa. . . . [s]uch harms, which the respondents will suffer even if their crops are not actually infected with the Roundup Ready gene, are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis.”).

[14] First Amended Complaint, supra, note 3, at 38.

[15]Id. at 50-51.

[16]See supra, note 9; see also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 130 (2007).

APHIS Announces New Procedures to Regulate Contagious Equine Metritis

By: Jocelyn Arlinghaus, Staff Member

The beginning of 2012 has heralded new developments in the fight to eliminate contagious equine metritis (CEM) in the United States. CEM is a venereal disease common to horses caused by the bacterium Taylorella equigenitalis.[1] It is considered extremely dangerous due to its highly contagious nature.[2] The disease is typically transmitted via sexual intercourse during the mating process, but it may also be transmitted through artificial insemination or contact with hands or instruments that have been contaminated.[3] Common symptoms include vaginal discharge, uterine inflammation, and temporary infertility.[4] Stallions show no physical signs of CEM, which makes detecting and controlling the disease before it spreads extremely difficult.[5] During breeding season, a stallion often infects several mares before the presence of the disease is discovered.[6]

CEM was first diagnosed in England in 1977, but had spread to the United States by 1978 with reports documented in central Kentucky and Missouri.[7] The disease was treated and thought to be eliminated from the United States prior to 2006, when two imported stallions in Wisconsin tested positive for the CEM bacteria.[8] Another outbreak was confirmed in December 2008, when five mares and 23 stallions in eight states tested positive for the CEM bacterium.[9] Although the 28 initially discovered horses were cured of the disease, another 977 horses were exposed to Taylorella equigenitalis in the outbreak, which spanned 48 states.[10] CEM was subsequently discovered in Arabian stallions in May 2010 in California and in July 2011 in Arizona.[11] The USDA’s National Veterinary Service (NVSL) has confirmed that in all cases the infected stallions were contaminated prior to arrival in the United States.[12] Interestingly, the strain of the isolated bacterium in these new cases did not match any strains previously found in the United States, which indicated that the multiple outbreaks were unrelated and therefore developed as a result of separate equine imports from foreign countries.[13] Efforts to eradicate the recent string of outbreaks in the United States continue. Because mares can only be bred during certain times of the year, CEM can substantially impact equine reproductive efficiency.[14] If the disease continues to stabilize in the United States, the equine industry will face great economic losses.[15]

The United States Department of Agriculture Animal and Plant Inspection Service (APHIS) has been taking steps to provide additional safeguards against spreading CEM to horses in United States through importation of infected horses. In 2011, APHIS amended the regulations concerning the importation of horses from countries affected with CEM. The new standards require test mares and imported stallions above a certain age to undergo an additional CEM test to improve the chances of detecting the disease.[16] APHIS has also imposed stricter certification requirements for imported horses 731 days old or less and added new test measures for imported horses more than 731 days old. [17] Yearlings and weanlings require proof that they have not been bread to other horses through artificial insemination in order to be imported.[18]

On January 10, 2012, APHIS announced that it will post lists of states approved to receive imported horses from high-CEM foreign regions to its website rather than including them in the Code of Federal Regulations.[19] This change will not affect the criteria that APHIS uses to determine whether a foreign region should be added or removed from the list or criteria used to approve states to receive horses imported from high-CEM foreign countries.[20] Because these lists will not continue to appear in the Code of Federal Regulations, updates are no longer required to be legislated. [21] This new procedure will enable APHIS to more quickly identify changes in the CEM status of foreign regions and approve states to receive horses from foreign regions where CEM is known to exist.[22] Additionally, this will simplify the process of informing the equine community and the public of any concerns of possible CEM exposure to horses in certain areas of the country. APHIS considers this change to be another step toward eliminating the string of CEM outbreaks and improving the welfare of horses and the equine industry.

[1]Contagious Equine Metritis, United States Department of Agriculture Animal and Plant Health Inspection Service (Mar. 2009), http://www.aphis.usda.gov/publications/animal_health/content/printable_version/fs_CEMrev09.pdf

[2]Id.

[3]Id.

[4]Id.

[5]Id.

[6] United States Department of Agriculture Animal and Plant Health Inspection Service, supra note 1.

[7]Id.

[8]Id.

[9]Contagious Equine Metritis Cases, United States Department of Agriculture Animal and Plant Health Inspection Service, http://www.aphis.usda.gov/newsroom/hot_issues/cem/cem_cases.shtml#december (last modified Jan. 26, 2012).

[10]Id.

[11]Id.

[12]Id.

[13]Id.

[14] United States Department of Agriculture Animal and Plant Health Inspection Service, supra note 1.

[15]Id.

[16]USDA Announces Interim Rule Regarding the Importation of Horses from Contagious Equine Metritis - Affected Countries, United States Department of Agriculture Animal and Plant Health Inspection Service (Mar. 25, 2011), http://www.aphis.usda.gov/newsroom/2011/03/importhorse_cemacountr.shtml

[17] Importation of Horses From Contagious Equine Metritis-Affected Countries, 76 Fed. Reg. 58 (proposed Mar. 25, 2011) (to be codified at 9 C.F.R. pt. 93).

[18] United States Department of Agriculture Animal and Plant Health Inspection Service, supra note 16.

[19] Lists of Regions Classified With Respect to Certain Animal Diseases and States Approved To Receive Certain Imported Horses, 77 Fed. Reg. 1388 (proposed Jan. 10, 2012), (to be codified at 9 C.F.R. pts. 92, 93, 94, 96, 98).

[20]Id.

[21]Id.

[22]Id.

Efficient Compensation of Class Members Suffering from the BP Oil Spill

By: Ashley Addo, Staff Member

On April20, 2010, our country experienced a devastating tragedy, the BP oil spill. This catastrophic event affected thousands of fishermen, business owners, real estate workers, property owners, shareholders, and more. The spill was a result of an explosion and fire at the Deepwater Horizon oil rig, which was located 130 miles southeast of New Orleans and approximately 50 miles from the Mississippi Delta.[1]The burning lasted for approximately two days before the oil rig tipped into the sea. The leak was finally capped on July 15, 2010, but the overwhelming damages remained.[2]Eleven platform workers were killed during the drilling process, and aquatic life was substantially affected. Consequently, these damages induced hundreds of class action lawsuits against BP and Transocean, the company that owned the oil rig.[3]

While the various classes assert different claims against BP and Transocean, one common claim exists amongst the class action complaints: BP was negligent in the design, maintenance, manufacture, and operation of the oil rig.[4]Accordingly, the plaintiffs in these classes desire recovery from the aforementioned defendants. The question is: with hundreds of class action suits pending against these companies, how quickly will these class members be compensated?

Rule 23of the Federal Rules of Civil Procedure governs the different ways in which a class can be certified.[5]One reason a class can be certified is if predominant issues preside amongst the class as a whole.[6]Once a class is certified, Rule 23(a)(5) permits the creation of subclasses amongst a larger class if needed.[7]In the recent Randleman v. Fidelity National Title Insurance Co. case, the court addressed a circuit split regarding bifurcation and the creation of subclasses in order to remedy a lack of predominance amongst a class.[8]The 4th, 5th, and 11th circuit’s state that a class should not be certified with subclasses if predominant issues do not exist amongst the class.[9]Conversely, the 2nd and 9th Circuits hold that subclasses are permissible, despite a lack of predominant issues amongst the class.[10]

If all of the circuits accepted the minority viewpoint towards class certification,the lawsuits against BP could be substantially expedited. There are hundreds of class action lawsuits pending against BP and Transocean and, although the classes are pleading distinct issues, the overarching commonality is BP’s negligence.[11]Several of these classes could be joined together, and multiple subclasses could be created amongst the class. For example, a class of BP shareholders,property owners, and real estate owners could be certified as one class, with multiple subclasses created amongst the class for the disparate claims.

In response to the oil spill, BP implemented many programs to avoid reoccurrence of the oil spill. Specifically, BP has acknowledged that they“ regret the damage caused to the environment and the livelihood of those in the communities affected” and that they are “putting in place measures to help ensure it does not happen again.”[12] While these strides are critical, BP’s ultimate goal should be compensation of the thousands of injured parties. The livelihood of these class members was radically altered by the oil spill; these individuals relied on the preservation of the Gulf of Mexico as a means of survival. BP has discussed its efforts in compensating individual claims,however, the Company has not publicly addressed how it will handle the hundreds of class action suits.[13]Consolidation of classes and the use of subclasses could reduce the amount of pleadings, hearings, discovery review, and trials that would accompany each suit. Additionally, this approach could reduce potential inconsistent judgments and appeals.

[1] Complaint at §2, Cajun Maid, LLC v. B.P., No.1:10-CV-176 HS0-JMR, (S.D.Miss. May 6, 2010).

[2]Id.

[3]Id.

[4]Id.

[5] fed. r.civ. 23.

[6] fed.r. civ. 23(b)(3).

[7] fed. r.civ. 23(a)(5).

[8]Randlemanv. Fidelty, 646 F.3d 347 (6th Cir. 2011).

[9]Id.at 356

[10] Id.

[11] Complaint, supra note 1, at §73

[12] Deepwater Horizon Accident, bp, http://www.bp.com/sectiongenericarticle800.do?categoryId=9036575&contentId=7067541

[13] Compensating the people and communitiesaffected, bp, http://www.bp.com/sectiongenericarticle800.do?categoryId=9036584&contentId=7067605

Climate Change is Heating Up in Courts

By: Peter Rottgers, Senior Staff Member

Climate change is a hot topic that is apparently getting steamier. The big questions posed by the issue of climate change still loom large. What is the cause, what is going to happen, and what should we do? The Environmental Protection Agency (EPA) states that the global temperature increased somewhere between 1.0 and 1.7 degrees Fahrenheit last century.[1] Depending on which reputable scientist you ask, this is either no big deal[2], or a prelude to the worst parts of the Bible.[3]

In addition to the fact that climate change might threaten the welfare of the entire human race, a lot of money is at stake. When a lot of money is at stake, people litigate. While the economic impacts of climate change are broad, two of the parties that seem to be most directly affected are the industries that produce greenhouse gases (GHGs) and climate change scientists. Industries that extract and combust fossil fuels are one of the primary producers of GHGs.[4] Of the GHGs produced by fossil fuel combustion, coal accounts for approximately 25% of all emissions.[5] Because the coal industry will be affected, Kentucky will be too.

The coal industry employs over 17,000 Kentuckians directly, and claims to have created over 53,000 total jobs.[6] The latter number represents about 2.5% of the state’s workforce.[7] Kentucky coal is sold to 30 states and four foreign countries, bringing in billions of dollars and generating millions in tax revenue.[8] If coal remains a viable energy resource, Kentucky will remain a major player in the energy industry because only 17% of the state’s coal supply has been extracted.[9] Coal means a lot to the people of this state.

Climate change might mean as much to the scientists that research it. Government grants awarded to scientists specializing in climate research have risen significantly in recent years.[10] Some scientists saw up to 600% increases in grants received last decade compared to those received in the 1990s.[11] Additionally, some have alleged that the scientific community has behaved in an uncharacteristically uncivil manor in regards to these grants.[12] Accusations of dissenting scientists being blackballed by the scientific community are far from uncommon.[13] Because there is large monetary incentive for scientists and green science supporting organizations to achieve certain results in the field of climate change, some have called the conclusions reached into question.[14] The issue has found its way into courts.

The Supreme Court of Virginia has recently taken such a case.[15] Attorney General Ken Cuccinelli, a climate change skeptic, filed a request under the state’s Fraud Against Tax Payers Act for the research documents of climate scientist Michael Mann, who was employed by the University of Virginia.[16] Similar requests have been made of other climate scientists through the use of the Freedom of Information Act.[17] Cuccinelli suspects that the climate science produced by Mann is baseless, and therefore Mann has defrauded the Commonwealth of Virginia by using public money to produce junk science in an effort to secure grant money .[18] The University of Virginia claims it is immune from such requests because it is an agent of the Commonwealth and not an individual.[19]

Some argue that if Cuccinelli’s request were granted, it would set a precedent that could hinder academic freedom.[20] It could also be a tool for opponents of green science to harass their adversaries.

Litigation can be a powerful weapon, and its use could have significant impact on the climate change debate. The prospect of being dragged into court might deter researchers from generating junk science to get bigger paychecks, but litigation against climate scientists might also be used to bully honest researchers out of doing important work on an issue that affects every living and unborn person. Fortunately, the green community has stepped up to the plate. In an effort to ensure a fair fight, the Climate Science Legal Defense Fund (CSLDF) has recently affiliated with Public Employees for Environmental Responsibility.[21] The CSLDF provides funding for legal representation to climate scientists facing the prospect of litigation.[22]

Hopefully, initiatives like the CSLDF will ensure that questions regarding the validity of climate research are properly answered when they are litigated. The future policies on climate change need to be based on the best information possible because so much is at stake. If good science suggests that further regulation and downsizing of industries like Kentucky coal is necessary for the welfare of the human race, then those actions should be taken, but the people of Kentucky should not have to endure further regulation, or even an eventual moratorium, on their most valuable natural resource based on faulty theories.

[1] U.S. Environmental Protection Agency (EPA), http://www.epa.gov/climatechange/ (last visited Feb. 1, 2012).

[2]See U.S. Senate Minority Report: More Than 700 International Scientists Dissent Over Man-Made Global Warming Claims, Scientists Continue to Debunk “Consensus” in 2008 & 2009 (2009), available at http://www.epa.gov/climatechange/.

[3] EPA, supra note 1.

[4] World Coal Association, http://www.worldcoal.org/coal-the-environment/climate-change/ (last visited Feb. 1, 2012).

[5]Id.

[6] Kentucky Office of Energy Policy & Kentucky Coal Association, Kentucky Coal Facts I (10th ed. 2008) available at http://www.kentuckycoal.org/documents/CoalFacts08.pdf.

[7]See Press Release, Bureau of Labor Statistics, Regional and State Employment and Unemployment Summary (Jan. 24, 2012) available at http://www.bls.gov/news.release/laus.nr0.htm.

[8] Kentucky Office of Energy Policy, supra note 6, at i.

[9]Id.

[10] Bret Stephens, Climategate:Follow the Money, Climate change researchers must believe in the reality of global warming just as a priest must believe in the existence of God. Wall St. J. L. Blog (Dec. 1, 2009, 10:40 AM), http://online.wsj.com/article/SB10001424052748703939404574566124250205490.html.

[11]Id.

[12]Id.

[13]Id.

[14]Id.

[15] Jim Nolan, Va. Supreme Court Takes Up Climate Case, Richmond Times-Dispatch, Jan. 13, 2012, available at http://www2.timesdispatch.com/news/virginia-politics/2012/jan/13/tdmet02-va-supreme-court-takes-up-cuccinelli-uva-c-ar-1607802.

[16]Id.

[17]Id.

[18]Id.

[19]Id.

[20] Nolan, supra note 15.

[21] Andrew C. Revkin, A Legal Defense Fund for Climate Scientists, Dot Earth N.Y. Times Blog (Jan. 15, 2012, 6:46 AM), http://dotearth.blogs.nytimes.com/2012/01/25/a-legal-defense-fund-for-climate-scientists.

[22]Id.

Coal’s Negative Impact on Kentuckians Calls for New Energy Solutions

By: Ena Viteskic, Senior Staff Member

According to the Kentucky Environmental Foundation, coal poses severe health risks to Kentuckians. Elizabeth Crowe, Execute Director of an environmental group based in Berea, Kentucky states that “[c]oal as we know it takes a toll on the health of Kentuckians; it’s a fact that many health professionals and researchers know well.”[1]Furthermore, a report by the Kentucky Environmental Foundation titled, “Health Impacts of Coal and Clean Energy Options in Kentucky,” has opined that Kentucky should generate electricity from alternative sources such as solar, wind, and hydroelectric power in order to eliminate the negative health effects of coal.[2] Based on the report, coal extraction at surface and underground mines, washing, transportation, burning, and disposing of coal waste contributes to various health problems.[3] The report also suggest that breathing polluted air and consuming water tainted with mercury and other toxic metals leads to severe respiratory and nervous system complications.[4]

Although coal poses health risk to Kentuckians, it is not easy to find a practical solution to this problem. There has been a nationwide trend to move towards the development and implementation of alternative energy sources; however, the dynamics of Kentucky must be considered before one can conclude that alternatives are appropriate. The Kentucky Coal Association estimates that about “92 percent of Kentucky’s electric power comes from coal-fired power”, and the state prides itself on very low electric rates - probably the lowest in the nation.[5] Some KY legislators are not overly concerned about the negative health impacts of coal. For example, Rep. Keith Hall, a Democrat from Pikeville that owns coal reserves in eastern Kentucky, maintains that coal is burned cleaner now than ever before and that Kentucky’s low electric rates “give it an advantage in attracting new business.”[6]

Because coal brings many benefits to Kentucky, legislators who want to implement measures advocating alternative energy sources face an uphill battle.  Rep. Mary Lou Marzian, a Louisville Democrat, has sponsored House Bill 167, which “would require utilities to generate a portion of their power from renewable sources.”[7] Supporters of HB 167, known as the Clean Energy Opportunity Act, strongly argue that this bill will not only reduce the negative health impact of coal production but will also increase revenue and employment for the state.[8]According to supporters of this new proposal, HB 167 will achieve the following: (1) curb energy costs for families, farms, and businesses; (2) use resources and put people to work to get the economy back on track; and (3) improve the health and well-being of Kentuckians.[9]

Kentucky is definitely the “coal state” of the nation; however, does that mean that new energy ideas should not be implemented? Assessing whether coal production should decrease while the state expands renewable energy sources is a difficult question to answer. Opponents of HB 167 are concerned with the potential decrease in employment if coal production ceases. However, this concern is not that great when the benefits of alternative energy sources are taken into account.  Research shows that “clean energy is one of Kentucky’s fastest growing job markets” with thousands of people being employed across the state.[10]As a result, it seems to me that the Clean Energy Opportunity Act serves the interests of the opponents and supporters of alternate energy solutions.  HB 167 is a plausible solution in order for maximizing employment opportunities while also minimizing adverse health effects in Kentucky.

[1] Dylan Lovan, Study: Reduce KY coal dependency for better health, CBS News (Jan. 24, 2011, 3:20PM), http://www.cbsnews.com/8301-505245_162-57365052/study-reduce-ky-coal-dependency-for-better-health/.

[2]Id.

[3]Id.

[4]Id.

[5]Id.

[6]Id.

[7] John Cheves, Environmental groups ask Kentucky lawmakers to consider coal’s health impact, The Lexington Herald-Leader(Jan. 25, 2011), http://www.miamiherald.com/2012/01/25/2607048/environmental-groups-ask-kentucky.html#storylink=cpy.

[8]The Clean Energy Opportunity Act – HB 167, Kentuckians For the Commonwealth, http://www.kftc.org/our-work/general-assembly/energy.

[9]Id.

[10]Id.

New Mercury Rules—Benefit or Bust?

By: Ashley Payne, Senior Staff Member

According to the Environmental Protection Agency (EPA), “mercury is a naturally occurring element found in air, water and soil.”[1] Mercury is also found in many rocks, including coal.[2] Mercury is released into the environment when coal is burned.[3] In fact, “coal-burning power plants are the largest human-caused source of mercury emissions in the United States.”[4] This becomes a problem once the mercury from the air settles in water, resulting in mercury build-up in fish, shellfish, and animals that eat fish.[5] While exposure to mercury at high levels may cause harm to the brain, heart, kidney, lungs and immune system, research indicates most people’s fish consumption is not a health concern.[6] However, such mercury levels may cause harm to unborn babies and young children’s nervous system, causing potential learning disabilities.[7]

In response to these potential health risks, congress enacted the Clean Air Act. Specifically, section 112 addresses emissions of hazardous air pollutants.[8] “Section 112 requires that EPA establish emissions standards that require the maximum degree of reduction in emissions of hazardous air pollutions.”[9]  On December 21, 2011, the EPA finally demanded that coal-fired power plants reduce their emissions by 90 percent as the 1990 Clean Air Act demanded.[10] These regulations are in response to a Consent Decree of the D.C. Court of Appeals requiring a proposal by March 16, 2011, and a final rule by December 16, 2011.[11]

These rules ultimately establish a limit for emissions for qualifying facilities that must be met within four years.[12] There are currently about 1,100 coal-fired burners being used at 600 power plants nationwide.[13] The EPA estimates that the implementation of this statute will cost approximately $9.6 billion.[14] However, the EPA also estimates that the health benefits will equal somewhere between $37 billion to $90 billion.[15] Ultimately, these regulations may not be as beneficial as the EPA foresees. According to the executive director of the Partnership for Affordable Clean Energy, “numerous studies have shown it will result in the loss of more than one million jobs in the next decade.”[16] The American Coalition for Clean Coal Electricity indicated that the rules could cost an average of 183,000 jobs every year from 2012-2020.[17] An associated press analysis “estimated that of the nation’s 600 coal-fired power plants, more than thirty-two would likely close because they would not be cost-effective to run under the new rules.”[18]

While it is hard to tell at this juncture how the new mercury rules will ultimately affect the coal-fired power plants, one thing is certain: the $9.6 billion dollar burden placed upon such facilities will not be easy to face. If, as is predicted, there are plant closings and a loss of jobs, the effects will be felt most harshly in those regions with the majority of coal-fired power plants—the mid-east. However, if the benefits are as the EPA describes them—avoiding premature deaths, heart attacks, respiratory problems, etc.—the temporary economic hardship may well be worth the cost.

[1] Environmental Protection Agency, Mercury: Basic Information http://www.epa.gov/mercury/about.htm (last updated October 01, 2010).

[2]Id.

[3]Id.

[4]Id.

[5]Id.

[6]Id.

[7] Environmental Protection Agency, Mercury: Basic Information http://www.epa.gov/mercury/about.htm (last updated October 01, 2010).

[8] Environmental Protection Agency, Summary of the Clean Air Act http://www.epa.gov/lawsregs/laws/caa.html (last updated Aug. 11, 2011).

[9]Id.

[10] Ken Silverstein, Obama Showers Coal With Mercury Rule, http://www.energybiz.com/article/12/01/obama-showers-coal-mercury-rule

[11] Environmental Protection Agency, Mercurry and Air Toxics Standards: Basic Information, http://www.epa.gov/airquality/powerplanttoxics/basic.html (last updated Jan. 17, 2012).

[12]Id.

[13] Environmental Protection Agency, EPA Issues First National Standards for Mercury Pollution from Power Plants / Historic ‘mercury and air toxics standards’ meet 20-year old requirement to cut dangerous smokestack emissions, http://yosemite.epa.gov/opa/admpress.nsf/bd4379a92ceceeac8525735900400c27/bd8b3f37edf5716d8525796d005dd086!OpenDocument.

[14]Environmental Protection Agency, Mercury and Air Toxics Standards: Regulatory Actions, http://www.epa.gov/airquality/powerplanttoxics/actions.html, (last updated Jan. 30, 2012).

[15]Id.

[16] Elizabeth Weise, EPA rules target mercury pollution, toxics from power plants, http://www.usatoday.com/money/industries/energy/story/2011-12-19/power-plants-mercury-rule/52142516/1 (Jan. 21, 2011).

[17]Id.

[18]Id.