Does the Nanosilver Dispute have a Silver Lining?

By: Rachel Shelton, Staff Member

The National Resources Defense Council (NRDC) is dueling with the EPA over the agency's approval of nanosilver for use in fabrics.[1] NRDC's brief, filed last year in the 9th Circuit, alleges that the EPA allowed the substance on the market without reviewing legally-required information on its potentially harmful effects.[2]

So what is nanosilver and what's the big deal? According to a report prepared for the EPA, nanosilver refers to the nano-particulate form of silver, which is used as a biocide to kill microbes in a variety of consumer products, from medical devices to food supplements to textiles.[3] The EPA report recognizes the need for a comprehensive risk assessment of the effects that nanosilver might have on the health of humans and the environment.[4] The need for an assessment is becoming increasingly important as human exposure to nanosilver becomes more and more common. Clothing treated with nanosilver, such an antimicrobial socks which are designed to decrease foot odor, is now available on the market.[5] The verdict is out on whether the additive is safe - researchers do not understand how nanosilver, toxic to bacteria and other microbes, affects humans.[6]

Despite the lack of a scientific consensus on nanosilver, in 2010 the EPA "conditionally registered" nanosilver and allowed its use for four years, subject to the requirement of additional environmental and toxicology data from manufacturers.[7] Nanosilver is classified as a "pesticide," and as such falls under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).[8] Under the FIFRA regulation scheme, a pesticide may be registered "conditionally" for such period reasonably sufficient to generate enough data to make a decision about whether or not it is harmful.[9] Registration is contingent on an EPA finding that the pesticide will not cause an "unreasonably adverse effect on the environment" during the interim period and that the use of the pesticide is in the "public interest."[10]

The NRDC claims that the EPA should be more discriminating with respect to conditional registration and accuses the agency of abusing the loophole by allowing companies to market a chemical before key data was presented on its toxicity to humans and the environment.[11] The EPA's initial analysis of the risks, NRDC argues, failed to evaluate the potential harm to infants who are exposed to nanosilver and was not supported by substantial evidence; the finding of no "unreasonably adverse effect" was therefore improper.[12]

With such a broad loophole at issue, it seems doubtful that the EPA will fail to justify the terms of their conditional approval. NRDC may have a point though - is it really in the "public interest" to put pesticides in our socks? Regardless of the outcome of the case, controversy over the use and regulation of new nanotechnology is likely here to stay.

____________________

[1]

Lawsuit Seeks to Block EPA's 'Free Pass' on Nanosilver

, 

Natural Res. Def. Council

(Jan. 26, 2012), http://www.nrdc.org/media/2012/120126.asp.

[2]

Id.

[3]

State of the Science Literature Review: Everything Nanosilver and More

, 

EPA 

xii (2010),

available at

http://www.epa.gov/nanoscience/files/NanoPaper1.pdf.

[4]

Id.

at xiv.

[5]

See, e.g., Magical Socks Nanosilver with Silver Nanoparticles

, 

NanoTrade,

 http://www.nanosilver.eu/Tema/Why-Nanosilver/Magical-Socks-Nanosilver-with-Silver-Nanoparticles (last visited Apr. 7, 2013).

[6] Naomi Lubick,

Nanosilver Tracked in Rats

, 

Chemical & Engineering News

(Aug. 17, 2012), http://cen.acs.org/articles/90/web/2012/08/Nanosilver-Tracked-Rats.html.

[7]

Pesticide News Story: EPA Proposes Conditional Registration of Nanosilver Pesticide Product

, 

EPA

(Aug. 13, 2010), http://www.epa.gov/oppfead1/cb/csb_page/updates/2010/nanosilver.html.

[8]

State of the Science Literature Review: Everything Nanosilver and More

, supra note 3, at 12-13.

[9] 7 U.S.C. 

§ 136(c)(7)(C) (2012).

[10]

Id.

[11] Mae Wu,

Nanosilver Stinks

, 

Switchboard: Natural Res. Def. Council Staff Blog (

Sept. 15, 2010), http://switchboard.nrdc.org/blogs/mwu/nanosilver_stinks.html.

[12] Lynn L. Bergeson,

Recent Developments in NRDC's Case Concerning EPA's Conditional Registration of Nanosilver

, 

Nano and Other Emerging Chem. Techs. Blog (

June 23, 2012), http://nanotech.lawbc.com/2012/06/articles/united-states/federal/recent-developments-in-nrdcs-case-concerning-epas-conditional-registration-of-nanosilver/. 

Update: Carla Strickland v. Kathryn and Jeremy Medlen 

In an opinion delivered on April 5, 2013, the Supreme Court of Texas reversed the court of appeals' judgment and found that recovery in pet-death cases is limited to loss of value, not loss of relationship.
Read more about this case in an article by Alison Rowe in our upcoming spring publication of KJEANRL.

More States Join USDA's StrikeForce Initiative: Is Kentucky Next?

By: Megan Crenshaw, Staff Member

The United States Department of Agriculture (USDA) began a pilot program called the StrikeForce initiative in 2010.[1] The USDA via the StrikeForce initiative "provides assistance to help grow American agriculture and provide tools to increase opportunity for rural communities."[2] The USDA hopes to improve the quality of life of producers and their communities and accelerate the implementation of conservative practices on their land.[3] The initiative seeks to increase partnership with rural communities and leverage community resources in targeted, persistent poverty areas.[4] "Ninety percent of America's persistent poverty counties are in rural America."[5] Therefore, there is a strong need for the StrikeForce initiative as it aims to create equal access to USDA programs.[6] The overall goal of the initiative is to "increase investment in rural communities for technical assistance and other resources in priority, poverty-stricken communities."[7]

The pilot program operated within selected regions of three states: Arkansas, Georgia, and Mississippi.[8] The program was expanded to include Colorado, New Mexico, and Nevada in 2011.[9] Now, in 2013, United States Secretary of Agriculture, Tom Vilsack, has announced "new efforts to bring StrikeForce for Rural Growth and Opportunity" in ten more states: Alabama, Alaska, Arizona, North Carolina, North Dakota, South Carolina, South Dakota, Texas, Utah, and Virginia.[10]

So far, the program has partnered with organizations within local communities to promote local and regional development projects.[11] The assistance provided has ranged from food insecurity in Arkansas to access to farm programs in Nevada.[12]

Kentucky is not among the states that were part of StrikeForce's recent expansion despite its persistent poverty counties. Based on data analysis, Kentucky is among the states that take the title of having some persistent-poverty counties.[13] "Persistent poverty is defined as counties where 20% or more of the residents were poor" in recent censuses (1970, 1980, 1990, 2000).[14] The state covers 39,728 square miles.[15] In 2011, the estimated population of the state was 4,369,356 people with 1,820,571 people living in rural Kentucky.[16] "Estimates from 2010 indicate a poverty rate of 22.9% in rural Kentucky, compared to 16.0% in urban areas of the state."[17]

It seems that Kentucky would be among the ten states that recently joined the StrikeForce initiative. Although there are presently no clear reasons as to why Kentucky has not partnered with the USDA to promote economic development and job creation, Vilsack noted that through the StrikeForce initiative, the USDA will do more to partner with local and state governments and community organizations.[18] Perhaps Kentucky will soon be among the latest states to join the initiative.

___________________

[1] News Release, Secretary Launches "StrikeForce" Initiative to Boost Rural Growth and Opportunity (March 26, 2013) (on file with the United States Department of Agriculture), http://www.usda.gov/wps/portal/usda/usdahome?contentid=2013/03/0054.xml.

[2] USDA StrikeForce for Rural Growth and Opportunity, 

USDA.gov, 

http://www.usda.gov/wps/portal/usda/usdahome?navid=STRIKE_FORCE (last visited April 1, 2013). 

[3] News Release, Secretary Launches USDA "StrikeForce" Initiative to Boost Rural Growth and Opportunity,

supra

 note 1.

[4] Additional States Join USDA's StrikeForce Initiative (March 26, 2013), 

FarmFutures.com, 

http://farmfutures.com/story-additional-states-join-usdas-strikeforce-initiative-0-96496.

[5] USDA StrikeForce for Rural Growth and Opportunity, 

USDA.gov, 

http://www.usda.gov/wps/portal/usda/usdahome?navid=STRIKE_FORCE (last visited April 1, 2013).

[6] Tom Vilsack, USDA StrikeForce: Expanding Partnerships and Opportunity in Rural Communities, 

USDA.gov

 (March 26, 2013, 10:53 AM), http://blogs.usda.gov/2013/03/26/usda-strikeforce-expanding-partnerships-and-opportunity-in-rural-communities/.

[7] USDA StrikeForce for Rural Growth and Opportunity,

supra

 note 5.

[8] News Release, Secretary Launches USDA "StrikeForce" Initiative to Boost Rural Growth and Opportunity,

supra

 note 1.

[9]

Id.

[10]

Id.

[11] Vilsack,

supra

 note 6.

[12]

Id.

[13] Geography of Poverty, 

USDA.gov,

 http://www.ers.usda.gov/topics/rural-economy-population/rural-poverty-well-being/geography-of-poverty.aspx (last visited April 1, 2013).

[14]

Id.

[15] Health and Human Services Information for Rural America, Kentucky, 

Raconline.org,

 http://www.raconline.org/states/kentucky.php (last visited April 1, 2013). 

[16]

Id.

[17]

Id.

[18] Additional States Join USDA's StrikeForce Initiative,

supra

note 4.

The Sugar Bailout: The USDA's Quest to Save Our Sweets and Empty the Government's Wallet

By: Jessica Durden, Staff Member

The American taxpaying public is going to pay a higher price for the privilege of being obese. After sugar processors began threatening to default on an $862 million government price-support operations-financing loan, the U.S. Department of Agriculture posited buying an astounding 400,000 tons of sugar to save the industry.[1] American sugar prices have plummeted since October, falling 18 percent.[2] The USDA proposed this large sugar purchase in an effort to put an end to the price plunge and begin raising the price of sugar. The trickle down effect of this buy-out could impact candy heavy hitters like Mars Inc., Nestl

é, and Hershey and, therefore, raise the retail prices on cash-strapped consumers.[3] The USDA loans were a part of an annual program which sprang from the 1934 Sugar Act and was designed to avoid impact on the taxpaying public.[4] However, the monetary effect could still hit the economy: the last time USDA bought out the loans in 2000, the buyout failed and the loan program lost a total of $295 million.[5]

On Valentine's Day 2013, a bipartisan House of Representatives proposed a corresponding bill for sugar reform.[6] The last time a bill to reduce sugar subsidies came up, strong opposition from sugar-producing states killed it.[7] So while proponents of the bill note that the sugar industry was the only industry under the farm bill that did not get slashed in 2008, sugar producers plead that reducing the sugar subsidies will kill employment prospects in the industry.[8] But Republican Representatives and Senators, recognizing the incredible potential for taxpayer and consumer loss, promote the bill on the basis of evening the playing field.[9] U.S. consumers, as of February 2013, were paying 30 percent more for sugar and sugar-based products than international consumers.[10] A USDA buyout would end up sending the bill down to taxpayers via rising food costs.[11]

A potential final decision is due soon, provided that domestic sugar prices make a rebound.[12]

___________________

[1] Alexander Wexler,

Big Sugar is Set for a Sweet Bailout

, 

Wall. St. J.,

March 12, 2013, http://online.wsj.com/article/SB10001424127887324096404578356740206766164.html#.

[2]

Id.

[3]

Id.

[4]

Id.

[5]

Id.

[6] Sidney Van Wyk,

A fresh attack on sugar subsidies

, 

The Wash. Times,

Feb. 14, 2013, http://www.washingtontimes.com/news/2013/feb/14/a-fresh-attack-on-sugar-subsidies-current-congress/#.UVNCv0aMnNw.email.

[7]

Id.

[8]

Id.

[9]

Id.

[10]

Id.

[11]

Id.

[12] Wexler,

supra

 note 1.

Student Comments

The Revival of the Eastern Oyster and the Regulations that Hinder Restoration Efforts

by Collier Marsh, Editor in Chief
__________________________________________

Nudging the Scale: Behavioral Economics and the Obesity Crisis

by Raabia Wazir, Staff Member

The Desperate Need for a Central Governing Body in Horse Racing

By: Jordan Stanton, Staff Member

"Imagine the NBA if every state had different-sized courts, different referees and rules, and no coordinated schedule."[1] That colorable analogy by racing enthusiast, H. Robb Levinsky, sums up the present pitfall in the horse racing industry. Currently there is no central governing body responsible for providing uniformity throughout the sport.[2] Instead, rules and regulations vary from state to state, which has been a profound reason for the sport's demise.[3] Levinsky urges that the main reason the sport has failed to generate significant media attention is because there is not a consistent product to follow.[4]

So how does this billion dollar industry bolster its declining product?[5] This issue is not foreign to congressional consideration. In 2008, a congressional hearing directly focused on the state of thoroughbred racing.[6] The meeting generated potential solutions to remedy this fractured industry, but nothing ended up coming to fruition.[7] Interested parties have suggested that horse racing adopt the commissioner approach which has been lucratively implemented by the National Football League, National Basketball Association, and Major League Baseball.[8] However, this desire has been met with opposition from parties that wish to continue the current practice of individual state operation.[9] Further, opponents of the commissioner approach assert that the industry is in such poor shape that it has no way of successfully reforming.[10]

Betting totals in horse racing took a three billion dollar hit from 2007 to 2010.[11] Horse racing is immersed with issues relating to gambling competition, lack of media exposure, drug problems, and overall poor public perception.[12] The remedy to those problems appears clear. Boxing and horse racing are the only two sports in this country that have no central governing body, and, oddly enough, they are both in the worst shape.[13] With that being said, for this industry to emerge from the depths of rapid decline, Congress needs to push for a bill requiring the creation of a national horse racing commission, similar to what is already in place in the NBA, NFL, and MLB. Since horse racing has failed to put greed to the side, if this industry has any hopes of resurgence, Congress needs to step in and create a governing body to uniformly address the problems festering in horse racing, before it is too late.

_______________________

[1] John Platt,

Horse Racing: An Industry in Crisis

, 

Mother Nature Network

(June 7, 2012, 3:56 PM), http://www.mnn.com/lifestyle/arts-culture/stories/horse-racing-an-industry-in-crisis.

[2]

Id.

[3]

Id.

[4]

Id.

[5]

Id.

 (stating that the horse racing industry has a $39 billion dollar direct economic impact).

[6] Mike Jensen,

Reforms in Horse Racing? Central Body for Industry Considered at Hearing

, 

The Inquirer

 (June 20, 2008), http://articles.philly.com/2008-06-20/sports/25250567_1_delaware-park-national-thoroughbred-racing-association-thoroughbred-horse-owner.

[7]

Id.

[8] William C. Rhoden,

Uncontrolled Sport May Not Merit Triple Crown Glory

, 

The New York Times

(May 27, 2012), http://www.nytimes.com/2012/05/28/sports/horse-racing-may-not-deserve-triple-crown-glory.html?pagewanted=all&_r=1&.

[9]

Id.

[10]

Id.

[11] Andrew Beyer,

Betting Totals Continue to Decline in Thoroughbred Racing

, 

The Washington Post

 (Apr. 22, 2011), http://articles.washingtonpost.com/2011-04-22/sports/35230725_1_jim-gagliano-thoroughbred-population-sport.

[12] Bennett Liebman,

Reasons for the Decline of Horse Racing

, 

The New York Times

(June 6, 2010, 10:34 AM), http://therail.blogs.nytimes.com/2010/06/06/reasons-for-the-decline-of-horse-racing/.

[13] Rhoden,

supra

 note 8. 

Wage Your Bets: It's Time for Kentucky to Open Casinos

By: Vanessa Rogers, Staff Member

Kentucky prides itself on its horsing industry. Will Kentucky's prized possession be able to survive after its neighboring state, Ohio, opens yet another casino?

On March 4, 2013, the Horseshoe Casino opened in Cincinnati, Ohio. Cincinnati's casino is projected to draw about $227 million in gross revenue in its first year,[1] some of which is bound to come from bordering Kentuckians. According to Kentucky's Governor Steve Beshear, "The casino in Cincinnati's good news for Ohio and bad news for Kentucky... Right now we've got thousands of Kentuckians that have been going out of state, and now they'll also be going to Cincinnati to spend their Kentucky money in Ohio, and then Ohio's going to keep the benefits of that."[2] In light of losing potential revenue, Kentucky has one option to sustain its famous horsing industry: fight back and open casinos within its borders.

Despite a long history of gambling on horses, Kentucky has a constitutional ban on casino-style gambling.[3] Since 2007, Beshear has attempted to legalize casinos in Kentucky.[4] His efforts, however, have been met with strong opposition.[5] According to Beshear, the state is losing hundreds of millions of dollars annually to states that have casinos.[6] He encourages Kentucky to legalize casinos in order to keep money in the state to generate cash for Kentucky's horse industry and to increase government revenue.[7] Will Kentucky step up and open casinos within its borders to save its economy and famous horsing industry? Wage your bets.

__________________

[1]

With fireworks and fanfare, Cincinnati casino now open

, 

WLWT.com

(March 5, 2013, 7:51 AM), http://www.wlwt.com/news/local-news/cincinnati/With-fireworks-and-fanfare-Cincinnati-casino-now-open/-/13549970/19163578/-/item/1/-/30kn50/-/index.html.

[2]

Id.

[3] Roger Alfred,

Beshear: Horse Industry Split on Casino Amendment

, 

CourierPress.com

(February 5, 2013, 7:28 PM), http://www.courierpress.com/news/2013/feb/05/beshear-horse-industry-split-on-casino-amendment/.

[4]

With fireworks and fanfare, Cincinnati casino now open

,

supra

 note 1.

[5]

Id.

[6] Alfred,

supra

 note 3.

[7]

Id.

Inside the KHRC's Vote on Lasix

By: Wes Bright, Staff Member

There are those in the horse racing industry that feel there might have been some funny business taking place with the Kentucky Horse Racing Commission's vote to phase out Lasix. Among these is Dale Romans. In a letter to the Courier Press, Romans accused one of the biggest proponents of the plan of foul play by stating that "certain members of the Jockey Club, serving on the Racing Commission, have threatened other commission members with expulsion if they vote against the ban of race day Lasix. In my opinion, the underhanded tactics must end."[1] These assertions give cause for an open records request to enlighten us to the Commission's actions regarding this regulation.

The phase out plan passed 7-5 with one abstention. Of the seven that voted yes, a few commissioners stand out. Even though they had an early opportunity to speak, Commissioners Houston and Leavitt failed to comment on their reasoning.[2] Commissioner Lavin voted on the incorrect belief that Lasix does not have an impact on bleeding.[3] Both Commissioner Bonnie and Commissioner Farmer based their decisions on the idea that Lasix is a performance enhancer.[4] An earlier KJEANRL blog post dealing with Lasix puts an end to this argument.[5] These five commissioners either had nothing to say or their reasoning was very weak.

The comments made by Commissioner Jones are also concerning. They focused on the process this regulation went through to reach a vote. Chairman Beck had a "Lasix committee" hold a public forum, but they did not create a report.[6] They simply drafted a regulation that was up for a vote. The regulation did not go through the Drug Research and Rules Committee like most regulations of this type.[7] The Commission did not produce any type of study as to the effects of this regulation.[8] Also, during the April vote, Commissioners Ludt and Pitino voted against the ban of Lasix for all two year olds. However, on the June 13 vote, Pitino was nowhere to be found and Ludt abstained from voting.[9] It is hard to understand why Commissioner Pitino would be missing from this vote on such a big issue. Although we may never know for sure, it seems that there were questionable actions taken in passing the Lasix phase out plan.

_____________________

[1] Dale Romans,

Commentary: Horse trainer urges Kentucky not to ban Lasix drug

, 

CourierPress.com

(June 11, 2012), http://www.courierpress.com/news/2012/jun/11/no-headline---ev_12romans-commentary/?print=1.

[2] Transcript of Meeting Minutes at 37-38, Kentucky Horse Racing Commission (June 13, 2012) (transcript of the June 13 meeting of the KHRC where the 7-5 vote was cast).

[3]

Id.

 at 38.

[4]

Id.

 at 43-48.

[5] Wes Bright,

How Does Lasix Enhance Performance in Horses

, 

KJEANRL.com

 (Nov. 4, 2012), http://www.kjeanrl.com/search/label/Lasix.

[6]

See

 Transcript at 26,

supra

 note 2.

[7]

Id.

 at 26.

[8]

Id.

[9] Transcript of Meeting Minutes at 104-105, Kentucky Horse Racing Commission (Apr. 16, 2012 (transcript of the April 16 meeting of the KHRC where a 7-7 vote was cast).  

San Joaquin River Restoration Seeks to Restore Salmon While Minimizing Impact on Farmers

By: Clay Duncan, Staff Member

The San Joaquin River is located in central California and was once host to the largest Chinook salmon population in the United States.[1] However, this all changed in 1942 when the San Joaquin River was  damned up.[2] Although the damming proved beneficial to agricultural production, it dried up a large stretch of the river and cut the salmon off from their spawning grounds.[3] This prompted a collection of environmental groups to file suit in 1988 to get some water released and hopefully restore the salmon population to its prior prominence in the river.[4]

Eventually, in 2009, Congress introduced the San Joaquin River Restoration Act in order to effectuate a settlement reached between several environmental and fishing groups.[5] The settlement had a twofold objective: to return the salmon to the San Joaquin River and minimize water supply impacts on farmers.[6] In October 2009, the first tangible step was taken toward reaching the desired ends as the first restoration flows were released down the San Joaquin River.[7] As recent as March 14 of this year, flows were released down the river from the Friant Dam at 400 cubic feet per second.[8]

The Bureau of Reclamation, located within the Department of the Interior and charged with seeing that the settlement is carried out as planned, intends to employ and recirculate various water flows over the next five years.[9] In order to achieve the stated objectives, it will take a concerted effort from the agencies involved and the private contractors in the surrounding region.[10] It remains to be seen whether all affected parties will do what is required to implement this long-term plan and bring the salmon back to the San Joaquin River.

__________________________

[1] Gary Pitzer,

A Briefing on the San Joaquin River Restoration Program

, 

Water Education Foundation

, 3,

available at

http://www.watereducation.org/userfiles/SanJoaquinRestoration_web.pdf.

[2]

Id.

[3]

Id.

[4]

Id.

[5]

Id.

[6] Pitzer,

supra

 note 1, at 3.

[7]

Id.

[8] Interim Flows, 

San Joaquin River Restoration Program

, http://restoresjr.net/activities/if/index.html (last visited Mar. 14, 2013).

[9]

See Draft Environmental Assessment: Recirculation of Recaptured Water Year 2013-2017 San Joaquin River Restoration Program Flows

, 

U.S. Department of the Interior Bureau of Reclamation

, 8,

available at

 http://www.usbr.gov/mp/nepa/documentShow.cfm?Doc_ID=12692.

[10]

See Id.

 at 9.