“Rules to Live By III”: How the third phase of MSHA’s initiative seeks to save lives

By: Alison Marcotte, Staff Member 

On January 31, 2012, Joseph A. Main, the Assistant Secretary of the U.S. Department of Labor's Mine Safety and Health Administration (MSHA), introduced the third phase of an outreach and enforcement initiative intended to prevent fatalities in the mining industry.

[1]

  This phase of the program is named “Rules to Live By III: Preventing Common Mining Deaths.”

[2]

As its name suggests, Rules to Live By III focuses on why mining accidents happen and provides measures to miners and mine operators as to how to prevent them from reoccurring in the future.  In the press release issued by MSHA describing the initiative, Main stated the purpose in more detail, "[t]he goal of this phase of 'Rules to Live By' is to reduce numbers of deaths and injuries from the targeted standards by having mine operators identify and correct all hazardous conditions, direct MSHA enforcement toward confirming that violations related to these conditions are not present at mines, and ensure miners are better trained to recognize and avoid these particular hazards.”

[3]

The initiative achieves this goal through its concentration on 14 safety standards that were chosen because violations related to each have been cited as contributing to at least five mining accidents and at least five deaths during the 10-year period of Jan. 1, 2001, to Dec. 31, 2010.

[4]

Among the 14 standards chosen are on-shift examinations, equipment maintenance, inspections of surface coal mines, correction of hazardous conditions, and operations of haulage equipment.

[5]

  Along with mandating these standards, MSHA is using this phase to reach out to miners and miners' representatives during inspections to ensure that mine operators have the information they need to perform these standards and eliminate workplace hazards.

[6]

Beginning April 1, 2012, MSHA will increase the frequency of inspections for violations of the standards listed above and direct mine inspectors to carefully evaluate gravity and negligence when assessing violations of the 14 standards that may cause or contribute to mining fatalities.  Also, any violations of the targeted standards will be more likely to result in special assessments and punishment.

[7]

[1]

Mine Safety and Health Association,

MSHA begins 3rd phase of 'Rules to Live By' outreach and enforcement initiative Fatality prevention program to focus on 14 safety standards

,

United States Department of Labor

(Jan. 31, 2012) http://www.msha.gov/MEDIA/PRESS/2012/NR120131.asp

[2]

Id.

[3]

Id.

[4]

Mine Safety and Health Association,

Fatality Prevention: Rules to Live By

,

United States Department of Labor

, http://www.msha.gov/focuson/rulestoliveby.asp

[5]

Benjamin M. McFarland,

MSHA Announces Third Phase Of Its “Rules To Live By” Initiative

,

Occupational Safety and Health: News

Alert (Feb. 6, 2012)

 http://safety-health.jacksonkelly.com/2012/02/msha-announces-third-phase-of-its-rules-to-live-by-initiative.html

[6]

Mine Safety and Health Association,

supra

note

4.

[7]

McFarland,

supra

note 5.

On Thin Ice: Effects of a Historically Warm Winter on Ice Fishing

By: Neal Manor, Staff Member 

Generations of young children in the northern United States are familiar with two caveats related to walking over or skating on frozen lakes in the winter: “Thick and blue, tried and true – thin and crispy, way too risky” and “when in doubt, don’t go out.”

Climate change has brought the concerns inherent in these warnings more squarely into the consciousness of those who engage in the long-held tradition of ice fishing.  Although ice fishing is not nearly as vital for harvesting biotic natural resources such as fish as other methods, it represents a “

social activity that binds the community and gives the elders and young people the rare opportunity during the year to harvest traditional foods.”

[1]

December 2011 and January 2012 temperatures in the contiguous United States were almost four degrees above average.

[2]

These warmer average temperatures have been centered in the Midwest and Great Plains.

[3]

  Minnesota, for example, had its warmest December and January since officials began keeping records in 1896, as temperatures in that state have been more than 10 degrees above average.

[4]

These warmer temperatures have put a chill on ice fishing in places where it is an important tradition for harvesting biotic natural resources such as trout, herring, and whitefish.  Last year, Minnesota’s second largest ice fishing tournament came and went without a single fish being caught.

[5]

The Minnesota Department of Natural Resources claimed that Lake Agnes was well-stocked and that there was sufficient oxygen in the water.

[6]

Officials at the tournament blamed the warm temperatures for sending over 2,000 anglers home empty-handed.  Not only are the fish not biting, but law enforcement officials have taken necessary precautions to cut down on ice fishing.  Sheriff Rick Stanek banned all driving of large vehicles (cars, trucks, and SUVs) on Hennepin County, Minnesota lakes on February 9, 2012.

[7]

The warm temperatures are causing decreased ice thickness and formation later in the season.  As a result, several mishaps have occurred which necessitated actions along the lines of those taken by Sheriff Stanek.  People or vehicles have fallen through the ice eight times on Hennepin County lakes.

[8]

  On February 8, 2012, in De Pere, WI, eight fishermen were stranded when the 100-foot chunk of ice they were fishing on broke off and floated into the Fox River near Green Bay.

[9]

  Firefighters in a rubber boat had to rescue the fishermen.

[10]

The warm temperatures and incidents where fishermen and women have fallen through the ice have caused the untimely demise of the ice fishing season in the Midwest and Great Plains. Winter anglers in Hennepin County now face a March 5

th

deadline to remove their ice houses.

[11]

  The distinct possibility of additional accidents has forced the cancellation of numerous ice fishing competitions, derbies, and demonstrations from Montana to Iowa.

[12]

  Such cancellations and limitations represent less publicized consequences of climate change and signal that warming trends endanger the important tradition of ice fishing.      

[1]

Mary Beth West,

Arctic Warming: Environmental, Human, and Security Implications

,

42 Vand. J. Transnat'l L. 1081, 1096

(2009).

[2]

Monica Davey,

The Warmth of Winter is Casting a Chill on Ice Fishing

,

The New York Times

(Feb. 18, 2012), http://www.nytimes.com/2012/02/19/us/warm-winter-is-casting-a-chill-on-ice-fishing.html?_r=1&hpw.

[3]

National Oceanic and Atmospheric Administration,

January 2012 the fourth warmest for the contiguous United States,

http://www.noaa.gov/features/02_monitoring/jan_stats.html (last visited Feb. 19, 2012).

[4]

Id.

[5]

No Fish Caught at MN’s 2nd Largest Ice Fishing Tournament,

CBS Minnesota

(Feb. 15, 2011) http://minnesota.cbslocal.com/2011/02/15/no-fish-minnesotas-2nd-largest-ice-fishing-tournament-alexandria-minnesota/.

[6]

Id.

[7]

People heeding Hennepin County ban on driving on

ice,

Minneapolis Star Tribune

(Feb. 18, 2012), http://www.startribune.com/local/west/139588663.html.

[8]

Id.

[9]

Davey,

supra

note 2.

[10]

Id.

[11]

People heeding Hennepin County ban on driving on

ice,

Minneapolis Star Tribune

(Feb. 18, 2012), http://www.startribune.com/local/west/139588663.html.

[12]

Davey,

supra

note 2.

Federal budget cuts place key USDA programs at-risk

By: Colby Khoshreza, Staff Member 

President Barack Obama’s recent budget proposal to Congress includes a variety of cuts to federal programs including substantial reductions to the United States Department of Agriculture (USDA).  The reductions include a $3 billion decrease in the USDA budget in fiscal year 2012, thus bringing total spending to approximately $145 billion.

[1]

  The changes are likely to have a significant impact on farmers and consumers as the proposed budget calls for ending direct payments to major growers regardless of commodity prices, eliminates bacteria testing of produce and decreases funding for the Supplemental Nutrition Assistance Program (SNAP).

[2]

Under the proposed budget, farmer aid would briefly rise before facing a long-term reduction as a result of Washington budget woes and increased farm profits.

[3]

  The cuts would end direct payments paid to growers of major crops regardless of commodity prices saving $22.7 billion through 2022.

[4]

  While these cuts could have long-term impact on the survival of farms, especially small and family-owned farms, the cuts are offset by record farms profits in 2011, thus lowering the need for crop subsidies.

[5]

Consumers could be impacted by the proposed budget’s decision to eliminate the agency’s only program that regularly tests fruits and vegetables for deadly pathogens.

[6]

  According to the White House, the decision to eliminate the $5 million per year program was made after “the USDA determined it had a limited impact.”

[7]

  As a result, consumers may be left without adequate protection as public health officials will have fewer tools to investigate deadly food borne illness outbreaks.  While the USDA has argued that state and local officials are better equipped to perform this function, lack of funding at the local level continues to be a problem in maintaining food safety programs.

[8]

Another major program that will face small decreases as a result of the proposed budget is the Supplemental Nutrition Assistance Program.

[9]

  The SNAP budget, typically recognized as the food stamp program, would decrease by nearly 1% in 2013, a reduction that occurs at a time when one out of six people are receiving assistance.

[10]

  SNAP is the USDA’s largest budgetary item and compromises $87.5 billion per year of the agency’s budget.  While the decrease comes at a time when a large number of Americans depend on the assistance, the USDA predicts that as the economy continues to improve fewer individuals will rely on the program.

[11]

Washington budget cuts appear to result in a large impact on the overall operation of the United States Department of Agriculture.  From food stamps to food inspection and farmer aid, the agency’s various programs all seem to be evolving and decreasing in funding and impact.  While local and state government is often expected to fill the voids left by USDA cuts, this often does not occur as municipal governments are facing budget woes of their own.  The next couple of years will be crucial in examining the impact, if any, that these financial changes will have on food safety and farm stability.    

[1]

Daniel Looker,

Obama’s USDA Budget to Shrink $3 billion in 2012,

(Feb. 14, 2012),

http://www.agriculture.com/news/policy/obamas-usda-budget-to-shrink-3-billion_4-ar14688

. 

[2]

Alan Bjerga,

USDA Budget Would Rise 2.5% Before Subsidy Cuts Would Begin,

BUSINESS WEEK (Feb. 16, 2012),

http://www.businessweek.com/news/2012-02-16/usda-budget-would-rise-2-5-before-subsidy-cuts-begin.html

.

[3]

Id. 

[4]

Id. 

[5]

Id.

[6]

Budget cuts could eliminate bacterial testing of produce,

CHRON ONLINE (Feb. 16, 2012),

http://www.chron.com/news/nation-world/article/Budget-cuts-could-eliminate-bacteria-testing-of-3337342.php

.

[7]

Id.

[8]

Id.

[9]

Alan Bjerga,

USDA Budget Would Rise 2.5% Before Subsidy Cuts Would Begin,

BUSINESS WEEK (Feb. 16, 2012),

http://www.businessweek.com/news/2012-02-16/usda-budget-would-rise-2-5-before-subsidy-cuts-begin.html

.

[10]

Id.

[11]

Id.

The Costa Concordia disaster and what it means for the environment and surrounding marine life

By: Whitney Jones, Staff Member

Costa Concordia, an Italian cruise ship, struck a reef near the Tuscan island of Giglio on January 13, 2012, causing the ship to capsize.[1] Giglio is an island that lies within the “Santuario dei Cetacei,” an area declared in 1999 as a “sanctuary for marine mammals such as dolphins and whales.”[2] On the day the cruise liner made its final stop in Giglio, more than 4,200 people were aboard the ship, and the current death toll stands at 17 people with more than 15 people still missing.[3] Also aboard the Costa Concordia was around 500,000 gallons of fuel, immediately causing concerns of potential fuel leaks into the water surrounding the wreckage.[4] In fact, the potential leak was threatening “Europe’s biggest marine park.”[5]

Fuel extraction through underwater pumping operations began on February 12, 2012 to remove some of the fuel on board.[6] As of Sunday, February 19th, the first phase of fuel removal from the capsized cruise liner had been completed.[7] Prior to the fuel extraction, however, a thick film of oil had spread from the ship due to weather conditions: “Floating barriers placed around the ship to protect the water were lifted by winds, allowing the oily film from the ship to spread throughout the bay… The Italian Port Authority said the leak consisted of a thin sheen of hydrocarbons.”[8] Civil Protection director Franco Gabrielli, however, told the Italian Senate that “although they [the parameters of the water surrounding the wreckage] are not those of crystalline water, [they] are within the legal limits and at the moment there are no dangers for the environment.”[9] The water may be within the “legal limit,” but is it too late for those animals and our environment that may depend on water above this arbitrary “legal limit”?

Although clean up and fuel extraction continues, it is uncertain if the cleanup has occurred in time to avoid any damage to our environment. “Time is critical to removing the more than 500,000 gallons of fuel as deteriorating weather and shifts in the boat’s position increase the risk of a spill.”[10] As search and rescue operations have to be continuously suspended for various lengths of time due to weather conditions, anxiety arises as to whether our environment will ultimately suffer. As Giuseppe Notarbartolo, regional coordinator for the Mediterranean for the International Union for Conservation of Nature, correctly concluded: “This is a particularly sensitive area of great environmental value and it just makes you wonder why on earth such large ships are allowed to go through there. Fuel spills can cause decade-long damage on local animal and plant populations and must be avoided.”[11]

Perhaps that avoidance should come from greater regulations regarding navigation through certain protected areas of water, such as this marine park in Europe. In the meantime, however, we must cross our fingers and hope that Mother Nature cooperates as the remaining fuel is removed from the Costa Concordia wreckage.

[1]Two-thirds of Costa Concordia Fuel Removed, CBS News (Feb. 19, 2012), http://www.cbsnews.com/8301-202_162-57381083/two-thirds-of-cosa-concordia-fuel-removed/.

[2] Alessandra Migliaccio & Marco Bertacche, Costa Rushes to Remove Fuel, Avoid Spill From Stricken Ship, Bloomberg (Jan. 17, 2012, 7:53 AM), http://www.bloomberg.com/news/2012-01-16/carnival-races-to-prevent-fuel-spill-from-stricken-liner-into-marine-park.html.

[3]Costa Concordia Death Toll Hits 17, The Sydney Morning Herald (Jan. 29, 2012), http://www.smh.com.au/world/costa-concordia-death-toll-hits-17-20120129-1qnng.html.

[4]Two-thirds of Costa Concordia Fuel Removed, supra note 1.

[5] Migliaccio & Bertacche, supra note 2.

[6]Fuel Removal Under Way at Costa Concordia Site, USA Today (Feb. 12, 2012, 1:05 PM), http://travel.usatoday.com/cruises/story/2012-02-12/Italy-president-demands-justice-for-cruise-ship-victims/53059544/1.

[7]Two-thirds of Costa Concordia Fuel Removal, supra note 1.

[8] Fulvio Paolocci & Vanessa Gera, Oil Spreads from Wreck of Ship Off Italy Coast, SeattlePI (Feb. 1, 2012, 11:43 AM), http://www.seattlepi.com/default/article/Oil-spreads-from-wreck-of-ship-off-Italy-coast-2911393.php.

[9]Waters Around Wrecked Costa Concordia OK, UPI (Feb. 7, 2012, 10:22 AM), http://www.upi.com/Top_News/World-News/2012/02/07/Waters-around-wrecked-Costa-Concordia-OK/UPI-20201328628141/.

[10] Migliaccio & Bertacche, supra note 2.

[11]Id.

Paving the Way for Better Highways By Samuel Jones

By: Sam Jones, Staff Member

Recently, agents of the Chesapeake Bay Trust and the Environmental Protection Agency (EPA) met collectively to discuss different ways to incorporate environmental conservation techniques with common activities and services.[1] One issue concerned the development of “green streets,” or ways to create more environmentally friendly paved roadways and reduce the amount of pollutant runoff that seeps into water wells and streams that sustain human and animal life.[2] As a key natural resource, water supply and quality deserve federal and state attention alike, as well as heavy investment.

Certain types of paving that water cannot seep through, like asphalt, are known to cause massive water overflows with heavy rains or simple sewage drainage. Since the water, which picks up pollutants and foreign substances from anthropogenic sources, cannot adequately drain into the ground, it spills these unnatural substances into streams, lakes, and waterways, creating cesspools of filth and pollutants and affecting the plant and animal life that are sustained by it.[3] Storm water transports a multitude of substances including “motor oil, engine coolant, brake linings, rust, nutrients, litter, animal waste, sand, salt, and other materials found on roads, parking lots, and sidewalks.[4] This diversion of water also prevents water from collecting in underground reservoirs or aquifers that are relied upon by thousands.[5] Agents from the EPA, Chesapeake Bay Trust, and other related organizations, have begun to advocate for reduced use of asphalt, impenetrable paving, and more for porous, pervious types of pavement that can act as road material and filters simultaneously.

While the cost of renovating current highways and installing pervious pavement will not be cheap, the environmental impact and increase of retained, usable water will certainly improve the quality of life and reduce the litigation over the limited supply of water, especially in the western U.S. Pervious pavement use will also reduce the amount of money invested in protecting and maintaining water runoff systems and flood controls, shifting those controls back to the natural ground runoff systems and soil filters.

Currently, the state of Kentucky is debating the adoption of the 2012 Recommended Highway Plan and the allocation of over $4 billion towards four major state road projects including bridge and pavement repair.[6] It is quite obvious that the repairing of Kentucky’s highways is being heavily considered by the Legislature, but there is no evidence that such repairs will be different from the impervious asphalt technology used today that causes many of the problems sought to be remedied by this budget allocation. With adequate research and planned implementation of innovative paving technology, such an investment would net a positive impact, both environmentally and socially, for many more decades down the road.

[1] Jana Davis, Green Streets: Using One Approach to Tackle Multiple Environmental, Social, and Economic Goals, ENERGY, CLIMATE CHANGE, AND OUR ENVIRONMENT (Feb. 15, 2012, 1:30 PM), http://www.whitehouse.gov/blog/2012/02/15/green-streets-using-one-approach-tackle-multiple-environmental-social-and-economic-g.

[2]Mary Logan Barmeyer, The Promise of Permeable Paving, NATIONAL RESOURCES DEFENSE COUNCIL (July 29, 2010), http://smartercities.nrdc.org/articles/promise-permeable-paving.

[3] Id.

[4]Symposium, Impervious Surfaces in the New York City Watershed, 12 Fordham Envtl. L. Rev. 489, 496-497 (2001).

[5] Barmeyer, supra note 2.

[6]Kentucky Transportation Cabinet, Appendix CL FY 2012-2018 Recommended Highway Plan (2012), http://transportation.ky.gov/Program-Management/Pages/2012-Recommended-Highway-Plan.aspx.

You’re Out! Oversight of Jockey Exclusion

By: Matt Hassen, Staff Member

There is something exciting about ejections in sports. It is amusing to watch a referee or umpire give the dramatic heave-ho — crowds get riled up and it gives the fans something to talk about.[1] Ejections or exclusions in horse racing may be less visible than in other sports, but they do have an interesting legal history dating back to a Supreme Court decision in 1913, which was authored by none other than Justice Oliver Wendell Holmes. The case established a principle of total management discretion in excluding racetrack patrons.[2] Recently, the West Virginia Supreme Court considered an extension of that rule when it took up the question of “whether a West Virginia horse racetrack has an unrestricted common law right to eject a jockey from its premises.”[3]

In what the Jockeys’ Guild called a “major victory for jockeys,”[4] The West Virginia court found a property interest in the permit issued by the state’s Racing Commission and also a statutory right to appeal ejections to the Racing Commission (subject to judicial review).[5] The West Virginia statute was read as necessarily restricting the right of a racing association to exclude permit holders because “if the Legislature intended for a racing association to have an unfettered right to eject the permit holder there would have been no reason for the Legislature to add the language” granting a right of appeal to the Racing Commission.[6] There is a certain undertone, as well, that the “greater includes the lesser” because horse racing cannot occur at all unless licensed by the Racing Commission.[7]

While it is clear that the legislature may abolish the common law right of a private entity to exclude whoever it wishes, courts are split on whether the common law rule should apply to jockeys at all. Federal courts in New Jersey and Florida, as well as the Ohio Supreme Court, have extended the common law exclusion right to allow racetracks to exclude permit holders such as jockeys.[8] However, courts in Illinois and New York have refused to do so.[9]

The best justification for not extending the right of exclusion to jockeys appears in the Illinois case, which explains that with “the benefit of receiving a quasi-monopoly comes corresponding obligations one of which is not to arbitrarily exclude a jockey.”[10] Horse racing is different from the traditional business and industrial setting. Thus, while it may make sense for a department store to be free to transact with whomever it wants, there are only a limited number of race tracks operating at one time.[11] Because the potential deprivation to a jockey as a result of exclusion is so great, that decision should be reviewable.[12] On the other hand, in the West Virginia case, the jockey allegedly committed fraud in the weigh out process.[13] If anything, shouldn’t the law err on the side of exclusion in order to maintain the appearance and fact of integrity in races?

[1] See, e.g., Aaron Smith, UK wins 85-60, Calipari ejected, Kentucky Kernel (Dec. 18, 2010), http://kykernel.com/2010/12/18/uk-wins-85-60/ (“John Calipari’s two technical fouls and ejection from the game that dominated talk after the game... [t]he ejection overshadowed the rest of the game”).

[2] Bennett Liebman, The Supreme Court and Exclusions by Racetracks, 17 Vill. Sports & Ent. L.J. 421 (2010) (citing Marrone v. Washington Jockey Club, 227 U.S. 633, 636 (1913)).

[3] PNGI Charles Town Gaming, LLC v. Reynolds, 2011 W. Va. LEXIS 323 (Nov. 18, 2011).

[4] Press Release, Jockeys’ Guild, West Virginia Supreme Court Decision Upholds Jockeys Rights to Racing Commission Review Following Racetrack Decision (November 21, 2011) http://www.jockeysguild.com/pressreleases.html

[5] PNGI Charles Town Gaming, 2011 W. Va. LEXIS 323 at 27-28.

[6] Id. at 30.

[7] Id. at 20.

[8] Id. at 24 n.23 (citing Calder Race Course v. Gaitan, 393 So. 2d 15 (Fla. Dist. Ct. App. 1980); Martin v Monmouth Park Jockey Club, 145 F. Supp. 439 (D.N.J. 1956); Bresnik v. Beulah Park Ltd. Partnership, Inc., 617 N.E.2d 1096 (Ohio 1993)).

[9] Id. at 24 n.23 (citing Cox v. National Jockey Club, 323 N.E.2d 104 (Ill. App. Ct. 1974); Jacobson v. New York Racing Asso., 305 N.E.2d 765 (N.Y. 1973)).

[10] Cox v. National Jockey Club, 323 N.E.2d 104, 111 (Ill. App. Ct.. 1974).

[11] Id. at 12 (citing Greenberg v. Hollywood Turf Club, 7 Cal.App.3d 968, 976 (1970)).

[12] Id.

[13] PNGI Charles Town Gaming, 2011 W. Va. LEXIS 323 at 4.

Fracking’s Dynamic Impact on the Energy Economy: Winners and Losers

By: Jessica Durden, Staff Member

As hydraulic fracturing (“fracking”) gains traction in the American energy economy, the supply of American natural gas has skyrocketed, triggering a downshift of the price of gas.[1] Fracking has opened up vast stores of previously inaccessible gas trapped in shale rock more than a mile underground, particularly in gas-rich areas like the Marcellus Shale.[2] This technological boon has benefited natural gas producers, and in the current competitive economy, the new kid on the block (fracking) is edging in on the old standby’s financial territory (coal).[3] For the short term, that power shift has put the coal industry on its heels, as coal prices out of central Appalachia have tanked 15.4% in the last year.[4] In roughly the same time frame, natural gas producers and drillers have invested more than $4 billion dollars into the Marcellus Shale—which spans the Appalachian Basin.[5]

However, this dynamic swing of interest, which has prompted coal companies like Alpha Natural Resources to back off production in much of central Appalachia,[6] may not be a long-term economic event. Fracking has problems of its own, primarily in the form of intense Environmental Protection Agency (EPA) scrutiny. Hydraulic fracturing is currently state-regulated, but the EPA and the environmental lobby have teamed up to close the loophole that exempts fracking from federal regulation under the Safe Drinking Water Act.[7] If legislation like the FRAC Act (HR 1084) passes in the near future, the entire fracking industry could be subject to much harsher federal regulations that could stymie or even temporarily stop active fracking operations.[8] The EPA’s first section of its forthcoming 2014 study on fracking’s environmental impact has garnered mixed reviews.[9] However, the initial report emerged from Wyoming, while the major players in fracking are eastward in Texas and the Appalachian Basin, and the EPA has indicated Wyoming is not indicative of the rest of the country.[10] So while coal has felt the blow of a burgeoning natural gas industry, the natural gas companies face a tough road ahead to remain state regulated: coal has lost the battle, but not the war, and the long term economic effects of the fracking boom remain unclear. In an unexpected twist, an environmental crackdown could actually salvage the struggling coal industry.

[1]See Liam Denning, Coalface Cracks Under Pressure from Cheap Gas, Wall St. J., Feb. 7, 2012, http://online.wsj.com/article/SB10001424052970203315804577206860331660388.html?mod=WSJ_Energy_leftHeadlines.

[2]See America’s Natural Gas Alliance, Safe & Responsible Development: How We Produce America’s New Natural Gas, anga.us, http://anga.us/media/206825/hydraulic%20fracturing%20101.pdf.

[3]See Denning, supra note 1.

[4]Id.

[5]See Marcellus Shale Coalition, Production Processes, MarcellusCoalition.org, 2011, http://marcelluscoalition.org/marcellus-shale/production-processes/.

[6]See Ian Thomson & Maya Pope-Chappell, MarketBeat: Stocks to Watch: Micron Technology, Hasbro, Alpha Natural Resources and More, Wall St. J., Feb. 6, 2012, http://blogs.wsj.com/marketbeat/2012/02/06/stocks-to-watch-micron-technology-hasbro-alpha-natural-resources-and-more/?mod=WSJ_qtnews_wsjlatest.

[7]See Adam Orford, Hydraulic Fracturing: Legislative and Regulatory Trends, Marten Law, Oct. 4, 2011, http://www.martenlaw.com/newsletter/20111004-fracking-roundup.

[8]Id.

[9]See Mead Gruver, Reps. scrutinize EPA frack-pollution link in Wyo., Washington times/Associated Press, Feb. 1, 2012, http://www.washingtontimes.com/news/2012/feb/1/reps-scrutinize-epa-frack-pollution-link-wyoming/#.TymnOB8wHms.email.

[10]Id.

PROMOTION OF URBAN AGRICULTURE IS IMPORTANT TO THE AMERICAN FOOD SUPPLY

By: Clay Duncan, Staff Member

Typically, the mention of agriculture conjures up images of cornfields and sprawling farms in distant, rural areas. It therefore may come as a surprise to hear that a crucial, yet overlooked, segment of the American agricultural industry exists within and adjacent to metropolitan areas. This “urban agriculture” is “[t]he growing, processing, and distributing of food and other products through intensive plant cultivation and animal husbandry in and around cities.”[1] Despite the smaller scale on which its growers operate, it is a meaningful tool for combatting hunger and achieving food security on a national scale.[2]

As a result of our highly industrialized and “corporate-controlled food system”, the United States suffers from harmful side effects in the form of environmental damage and health costs to the end consumer.[3] Additionally, many poor Americans are food insecure in that they suffer from “hunger in the midst of plenty.”[4] Through the creation of sustainable farms with affordable produce near poverty-ridden cities, the poor are given greater access to the food they need.

In order for urban agricultural activities to endure, they must be resistant to the constant pressures to convert land to commercial uses. A recent study looked at 15 metro-area counties from the Pacific to the Atlantic coasts in an effort to see what can be done to preserve urban farmland and farming.[5] Based upon the research, farmers are more likely to develop and maintain their land if they feel that the local government will side with them on disputes that may arise with non-farmers.[6] In terms of land use, farmers were shown to respond favorably to farm-friendly zoning regulations and the promotion of land transfers to their descendants.[7] Also, it was found that labor shortages in urban agriculture suggest a need to reform worker programs in an effort to increase the labor supply and allow farmers to maintain their operations profitably.[8]

Urban agriculture will never produce the same quantity of food that our current, nationalized system provides. However, it is still very important as it allows for food to reach those suffering from poverty and hunger in a more cost-effective way. Local city governments should make an effort to promote urban farms and prevent their conversion to other commercial uses.

[1]Urban Agriculture and Community Food Security in the United States: Farming from the City Center to the Urban Fringe, Urban Agriculture Committee of the Community Food Security Coalition (Feb. 2002), at 5, available athttp://www.foodsecurity.org/urbanagpaper.pdf.

[2]Id. at 4.

[3]Id. at 6.

[4]Id.

[5] Dick Esseks, Lydia Oberholtzer, Kate Clancy, Mark Lapping, Anita Zurbrugg, Sustaining Agriculture in Urbanizing Counties: Insights from 15 Coordinated Case Studies (Jan. 16, 2009), at 5, available athttp://www.farmland.org/resources/sustaining-agriculture-in-urbanizing-counties/documents/Sustaining-agriculture-in-urbanizing-counties.pdf.

[6]Id. at 179.

[7]Id.

[8]Id. at 181.

Naturally Confusing Consumers: Implied Federal Preemption of State Claims Regarding False and Misleading Food Product Labels

By: Taryn DeVeau, Staff Member

Consumers have become increasingly conscious of eating nutritious food, and food product manufacturers have profited from consumers that confuse foods labeled “Natural” with those labeled “Organic.”[1] “Organic” foods have specific USDA certifying criteria, whereas “Natural” foods do not.[2] Consumers’ health conscience craze has created a $22.3 billion market niche for foods labeled “Natural,” resulting in an increase in class action lawsuits claiming such food labeling is false and misleading.[3]

According to Stephen Gardner, litigation director for the Center for Science in the Public Interest, “Natural” food labeling claims comprise the largest litigation area of food labeling claims, and this trend has been influenced by the failure of courts to find state claims preempted.[4] The failure to find preemption is largely a consequence of the FDA’s refusal to define the term “Natural.”[5] Currently, the FDA’s informal policy is still in place, which allows use of the term unless the food contains added color, artificial flavors, or synthetic substances.[6]

Some foods whose “Natural” status has been questioned include Snapple, Healthy Choice pasta sauce, Skinnygirl Margarita, Ben and Jerry’s, and Wesson cooking oils.[7] A recent lawsuit filed against Kashi claims the labels are intentionally misleading because they contain synthetic and unnaturally processed ingredients.[8] The alleged synthetic substances include “prescription drugs, irradiated substances, pesticides, and federally declared hazardous substances.”[9]

The Nutrition Labeling and Education Act (“NLEA”) of 1990 was added to ensure consistency with a national standard and to preclude states from adopting inconsistent requirements.[10] The NLEA contains an express preemption provision, 21 U.S.C. §343-1, providing that states must not have food labeling requirements that are not “identical” to the FDCA.[11]

“The NLEA states that it ‘shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [21 U.S.C. §343-1(a)] of the [FDCA].”[12] Courts have analyzed this section in different ways. Some courts have found the statement to mean that only express preemption is possible. The California Supreme Court stated that the “preemptive scope” of §343-1 was only intended to cover “the plain language of the statute itself.”[13] The court in Holk found that it is possible to find implied preemption based on “provisions of federal law other than the NLEA.”[14]

In Holk, the court found the claims against Snapple that its products were not “Natural” because they contained High Fructose Corn Syrup were not impliedly preempted because the FDA has not officially defined the term.[15] However, in Thomas Mason v. Coca-Cola Co., the plaintiff claimed that “Diet Coke Plus” is misleading because “Plus” indicates an added amount of vitamins and minerals.[16] The term “Plus” has been precisely defined in FDA regulations.[17] The court found that in order to find implied conflict preemption, more than just a regulation defining the term is necessary.[18] Here, even if the FDA defined the term “Natural,” it is not guaranteed courts would analyze the issue consistently. It is necessary for courts to resolve the uncertainty regarding implied preemption analysis of food labeling claims in order to benefit both food manufacturers and consumers.

[1] Bruce Silverglade and Ilene Ringel Heller, Food Labeling Chaos, The Case for Reform, Center for Science in the Public Interest, http://cspinet.org/new/pdf/food_labeling_chaos_report.pdfhttp://cspinet.org/new/pdf/food_labeling_chaos_report.pdf (last visited Dec. 29, 2011). Major Agribusiness Competing with Organics on the Cheap,“Natural” Food Products with Toxic Chemicals and GMOs Deceiving Consumers, The Cornucopia Institute, October 12, 2011, http://www.cornucopia.org/2011/10/cerealcrimes-pressrelease/ (last visited Dec. 28, 2011).

[2] Major Agribusiness Competing with Organics on the Cheap supra note 4.

[3]“Natural” Beats Organic in Food Sales According to Nielsen’s Healthy Eating Report, Nielsen Wire, http://blog.nielsen.com/nielsenwire/consumer/“natural”-beats-“organic”-in-food-sales-according-to-nielsen’s-healthy-eating-report/ (January 21, 2009); Ashby Jones, Is Your Dinner ‘All Natural’? Wall Street Journal, http://online.wsj.com/article/SB10001424053111903374004576580671156407598.html. (September 20, 2011).

[4] Julie A. Steinberg, Food Label Lawsuits: Manufactured Litigation or Consumer Protection?, Boomberg BNA, 40 PSLR 83, http://news.bna.com/psln/display/batch_print_display.adp.

[5] Ashby Jones, Is Your Dinner ‘All Natural’?, Wall Street Journal, http://online.wsj.com/article/SB10001424053111903374004576580671156407598.html. See Holk v. Snapple Bev. Corp., 575 F.3d 329, 333(U. S. App. 2009); See also 65 Food Drug L.J. 403 (2010).

[6]What is the meaning of ‘natural’ on the label of food?, U.S. Food and Drug Administration, http://www.fda.gov/AboutFDA/Transparency/Basics/ucm214868.htm (last visited Dec. 27, 2011).

[7]See Holk v. Snapple Bev. Corp., 575 F.3d 329, 333(U. S. App. 2009); See also Lockwood v. Conagra Foods, 597 F. Supp. 2d 1028, 1031 (N.D. Cal. 2009); Ashby Jones, Is Your Dinner ‘All Natural’?, Wall Street Journal, http://online.wsj.com/article/SB10001424053111903374004576580671156407598.html.

[8]Michael Bates v. Kashi, 2011 WL 3821651 at 1 (S.D. Cal. August 24, 2011).

[9]Id. at 2.

[10]Farm Raised Salmon Cases, 175 P.3d 1170, 1175 (Sup. Ct. Cal. 2008).

[11] 21 U.S.C. §343-1(a).

[12] In re FERRERO at 9.

[13] Farm Raised Salmon Cases at 1091.

[14] Holk at 336.

[15]Id. at 339.

[16] Thomas Mason v. Coca-Cola Co., 2010 U.S. Dist. LEXIS 65107, *1.

[17] Thomas Mason v. Coca-Cola Co., 2010 U.S. Dist. LEXIS 65107, *6 (citing 21 C.F.R. §101.54(e)).

[18]Id. at *10.