UPDATE: Domestic Rare Earth Mining as a Solution to Chinese Monopoly

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By: Victoria Clontz, Staff Member

By the end of 2017, over 5 billion people are expected to be mobile phone users.[1] This estimate becomes all the more significant when considered with the fact that 97% of the rare earth metals, the materials used to make high-tech products like cell phones, produced in the entire world come from China.[2] This dominance over the production of such important minerals has put the United States, along with European Union countries, in the precarious position of relying on virtual monopoly holder.[3] The U.S., joined by the EU and Japan, filed a complaint against China’s unfair pricing and supply tactics with the World Trade Organization.[4]

In response to China’s dominance, several companies have begun developing plans for domestic drilling in the various rare earth deposits located in the US.[5] One of these companies, Molycorp, located in Mountain Pass, CA, owns what is reportedly one of the “greatest rare-earth deposits in the world,” almost double the size of the largest deposit in China.[6] The Mountain Pass mine was once the world producer of rare earths, but was forced to close operations in 2002 due to the low-price competition from China.[7]

As with all mining processes, environmental hazards remain a concern among communities and government agencies alike.[8] However, the cost of playing by China’s rules may very well be too high for US manufacturers to continue.
_________________
[1] Zoe Fox, 5 Billion People Will Use Mobile Phones by 2017, Mashable, http://mashable.com/2013/10/03/mobile-phones-2017/ (last visited Oct. 7, 2013).
[2] Russia Vies to Challenge China’s 97% Monopoly on Rare Earth Metals, RT.com (Apr. 26, 2013, 9:21AM), http://rt.com/business/production-china-rare-metals-402/.
[3] Id.
[4] Paul Martyn, Rare Earth Minerals: An End to China’s Monopoly in Sight, Forbes (Jun. 8, 2012, 3:17PM), http://www.forbes.com/sites/ciocentral/2012/06/08/rare-earth-minerals-an-end-to-chinas-monopoly-is-in-sight/.
[5] Id.
[6] Martin Zimmerman, California Metal Mine Regains Luster, L.A. Times, Oct. 14, 2009, http://articles.latimes.com/2009/oct/14/business/fi-rare-earth14.
[7] Id.
[8] Lindsey Hilsum, Are Rare Earth Minerals Too Costly for Environment, PBS (Dec. 14, 2009), http://www.pbs.org/newshour/bb/asia/july-dec09/china_12-14.html.

Expiration of the Farm Bill: What Effects Will its Lapse Have?

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By: John Bishop, Staff Member

Overshadowed by the looming government shutdown, the “Food, Conservation, and Energy act of 2008” or “Farm Bill” is set to expire on October 1, 2013.[1] The Farm Bill provides the statutory basis for crop subsidies, food stamps, and free and reduced school lunch programs.[2] Its lapse, however, is much more of a paper tiger than a farmer’s doomsday.

With a bill of such important (and costly) subject matter, many are left scratching their heads at Congress’s apparent lethargy in passing a new one. If the bill expires, won’t the important programs therein be cut? Not exactly: the Farm Bill has a built-in safety net. When the current Farm Bill lapses, the law will revert to the 1949 “permanent law.”[3] Moreover, most of the major reversions would not take effect until January 1, 2014, granting additional time for legislators to present a new Farm Bill to the President.[4] Both houses of Congress are already working on a revised 2013 Farm Bill.[5]

Although the expiring Farm Bill is making headlines, farmers may feel like they are experiencing Farm Bill “déjà vu.” This year, 2013, is not the first time legislators have run out of time on passing a new Farm Bill. In fact, the last three Farm Bills have been passed well beyond the September 30 expiration date.[6] Doomsdayers’ prophesies about skyrocketing prices of milk and other commodities are probably better described as just “crying over spilled milk.” Congress will more than likely approve an acceptable 2013 Farm Bill before disastrous effects set in.
_________________
[1] Food, Conservation, and Energy Act of 2008, PL 110-234, May 22, 2008, 122 Stat 923.
[2] The 2008 Farm Bill Side-By-Side Comparison, http://webarchives.cdlib.org/sw1vh5dg3r/http://ers.usda.gov/FarmBill/2008/ (last visited Sept. 30, 2013).
[3] What an expiring Farm Bill means to you, Think Forward Blog (Sept. 19, 2012), http://www.iatp.org/blog/201209/what-an-expiring-farm-bill-means-to-you.
[4] Id.
[5] See Agriculture Reform, Food, and Jobs Act of 2013 (S. 954), Federal Agriculture Reform and Risk Management Act of 2013 (H.R. 1947).
[6] Ryan Holeywell, The Farm Bill Expires This Week. Does it Matter?, FedWatch (Sept. 26, 2012), http://www.governing.com/blogs/fedwatch/gov-the-farm-bill-expires-next-week-does-it-matter.html.

It’s a Beautiful Day in the Neighborhood: “Good Neighbor Provisions” versus Federalism in the Clean Air Act

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By: Ellen Black, Staff Member

The Clean Air Act (CAA) authorizes the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for “certain pervasive air pollutants.”[1] A “defining feature” of the CAA is a “cooperative federalism” structure where states implement these federal NAAQS through State Implementation Plans (SIPs). [2] Another distinctive characteristic is its “good neighbor provision,” prohibiting “sources….within a state from emitting air pollutants in amounts that will interfere” with another state’s ability to maintain it own NAAQS.[3] Section 126(b) then offers a remedy for a state that is downwind of a violation by allowing a petition to the EPA for a finding of interference.[4] If a violation is found, the upwind “polluting source must cease operations.”[5]

In 2010, the EPA made the NAAQS for sulfur dioxide more stringent, and affected states were required to submit revised SIPs by 2013.[6] Shortly after this change, New Jersey filed a §126(b) petition against the GenOn REMA Portland plant in Pennsylvania, now newly in violation, claiming sulfur dioxide from Portland was interfering with New Jersey’s NAAQS. [7] The EPA investigated, found the plant to be in violation and thus issued “the Portland Rule,” imposing “direct limits on….emissions” to reduce pollution by 2013.[8]

GenOn then sued, citing a federalism argument that they must have the full time until 2013 to submit their revised SIP before the federal government can enforce under §126(b).[9] The Third Circuit rejected GenOn’s argument, holding that the “EPA was permitted to make a finding in a downwind state’s petition without regard for the SIP process.”[10] The court upheld the Portland Rule as a reasonable interpretation that §126(b), defined as “an independent mechanism for enforcing interstate pollution control.”[11]

In upholding the EPA’s novel construction of the CAA to separate the SIP process and the §126(b) mechanism, the Third Circuit followed an established three-step framework:[12] the two-part Chevron[13] test, which examines the language and then legislative history of an Act,[14] followed by the application a narrow standard of review.[15]

First, the court must determine whether Congress has “unambiguously expressed [its] intent” by examining the “plain” and “literal” language of the statute through “the language itself, the specific context,….and the broader context….as a whole.”[16] The court found that the SIP and §126(b) processes were sufficiently and necessarily distinct in the language of the CAA to support the EPA’s separation of them. [17] Second, through the legislative history, the court determined cooperative federalism was not actually the rationale for enacting §126(b) in the CAA. [18] Rather, the motivation for §126(b) was to ameliorate problems of interstate pollution not addressed in the Act by providing downwind states “an incentive and need to act,” via a “separate and alternative method.” [19] Third, the court determined the §126(b) time frame in the “Portland Rule” was not “arbitrary, capricious, or an abuse of agency discretion” since the EPA’s reasonably acted after confirming that New Jersey was being impaired.[20]

In upholding this distinction between SIPs and §126(b) petitions, the Third Circuit narrowed states’ ability to construct their own plans through “cooperative federalism.” However, this maintains an important safety net for downwind states to better rectify harmful interstate pollution without having to wait the completion of the SIP process. Furthermore, this decision provides the persuasive analytical framework for future courts in the proliferating “good neighbor provision” violation litigation that is emerging across the country.[21]
_________________
[1] GenOn REMA, LLC v. U.S. E.P.A., 722 F.3d 513, 516 (3d Cir. 2013) (citing 42 U.S.C. §§ 7408, 7409).
[2] GenOn REMA, 722 F.3d at 516.
[3] Id. at 516-17.
[4] Id.
[5] Id.
[6] GenOn REMA, 722 F.3d at 517-518.
[7] Id. at 518; see also Lorraine McCarthy, EPA Grants Petition to Limit Sulfur Dioxide From Coal-Fired Power Plant in Pennsylvania, Bloomberg BNA 42 ENR 2458, (Nov. 4, 2011).
[8] GenOn REMA, 722 F.3d at 516, 518.
[9] Jessica Coomes, Appeals Court Upholds EPA Rule to Limit Emissions From Pennsylvania Power Plant, Bloomberg BNA 44 ENR 2117 (June 19, 2013).
[10] GenOn REMA, 722 F.3d at 513.
[11] Id. at 526-27.
[12] Id. at 519, 525.
[13] Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43(1984).
[14] Id. at 519 (citing Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 294 (3d Cir.2012)).
[15] Id. at 525 (citing 42 U.S.C. § 7607(d)(9)(A); North Carolina v. EPA, 531 F.3d 896, 906 (D.C.Cir.2008)).
[16] GenOn REMA, 722 F.3d at 519 (citing United States v. Geiser, 527 F.3d 288, 294 (3d Cir.2008)).
[17] Id. at 521.
[18] Id. at 522.
[19] Id. (citing H.R.Rep. No. 95–294, at 330 (1977), reprinted in 4 1977 Legislative History of the Clean Air Act Amendments of 1977, at 2797).
[20] Id. at 525-26
[21] See Andrew Childers, Tennessee, Kentucky Ozone Plans Lack ‘Good Neighbor' Provisions, Lawsuits Say, Bloomberg BNA 44 ENR 1373 (May 10, 2013); Jessica Coomes, States, Cities Urge U.S. Supreme Court To Review EPA Cross-State Rule Case, Bloomberg BNA 28 TXLR 479 (Apr. 25, 2013).

IRS Uses Old Horse Law to Police Federal Tax Return Preparers

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By: Yvette DeLaGuardia, Staff Member

On Tuesday, for the first time in United States history, the Obama administration defended its attempts to regulate the tax return preparation business.[1] The administration’s efforts, based on a statute that dates back to 1884, have caused tension between tax-return preparers and the Obama administration.[2] The law that is the source of the tension is the Horse Act of 1884.[3]

In 1884, Congress enacted the statute to address the “equine deception” problems that were occurring after the Civil War.[4] At that time, the United States government was spending a lot of money compensating individuals claiming their horses were lost or killed during the Civil War. The “equine deception” involved was due to the agents of the individuals exaggerating the value of the horses.[5]

When the statute was first enacted in 1884, it gave the Secretary of Treasury the authority to regulate “the admission of attorneys and agents who represented claimants before the Treasury Department.”[6] However, the statute has been revised several times since its initial enactment and it currently gives the Secretary of Treasury the authority to “regulate the practice of representatives of persons before the Department of Treasury….”[7]

The United States government only applied the statute to “certified public accounts and attorneys representing taxpayers in audits, appeals and other proceedings” up until 2011. Now, the Obama administration is using the Horse Act of 1884 to support its position that the IRS has the authority to regulate anyone who prepares another individual’s federal tax return. This has caused small tax preparers to bring suits against the IRS for acting outside of its authority. These individuals further claim that compliance with the IRS’ licensing regulations is too expensive and will eventually force them to choose between upping their prices and shutting down.[8]

While the IRS has a legitimate interest in supervising and regulating the process by which federal tax returns are completed, it seems like a bit of a stretch for the IRS to use a statute enacted to prevent fraudulent claims of horse loss for the purpose of regulating small, part-time tax preparers.
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[1] Paul Caron, IRS Relies on 1884 ‘Dead Horse’ Statute to Justify Takeover of Tax Return Preparer Industry, Tax Professor Blog (Sept. 26, 2013, 3:48 PM). http://taxprof.typepad.com/taxprof_blog/2013/09/irs-relies-.html.
[2] Jacob Gershman, IRS Dispute with Tax Preparers is a Horse of a Different Color, The Wall Street Journal Law Blog (Sept. 26, 2013, 3:50 PM) http://blogs.wsj.com/law/2013/09/26/irs-dispute-with-tax-preparers-is-a-horse-of-a-different-color/?mod=wsj_nview_latest.
[3] Id.; see also § 330(a)(1).
[4] Id.
[5] Id.
[6] History of Enrolled Agents, http://www.orsea.org/Help/History%20of%20EAs-1.pdf (last visited Sept. 26, 2013).
[7] § 330(a)(1).
[8] See supra note 2.

Can Drones Atone by Making Swords into Plowshares?

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By: Brandon Adcock, Staff Member

The next big step in agriculture could be the upgrade of faceless, killing machines. Popularly known as drones, the more neutral term is “UAV,” standing for Unmanned Aerial Vehicle.[i] The legal issues in drone use domestically have been tainted by abroad applications. However, perceptions need to change, as UAVs become the key to advancing agriculture.[ii]

The Federal Aviation Agency (FAA)[iii] has banned UAVs for any commercial purpose but hobbyists may fly them “up to 400 feet high as long as they are away from airports and the aircraft remains within line of sight.”[iv] The FAA claims safety concerns, particularly when airplanes rely on knowing when airspace is clear to avoid collisions.[v] Even the drones used abroad typically soar in areas with minimal air traffic.[vi] However, these claims are suspicious when farmland is remote, expansive, and farmers do not take issue with the 400-foot ceiling as much as the 55-pound weight limit,[vii] which is necessary for a flexible platform of cameras, sensors, and mechanical limbs.[viii]

Public distrust of drones better explains why the FAA has bottlenecked UAV usage in agriculture. Despite this, federal law mandates the National Airspace System open by 2015,[ix] which means tech-savvy farmers and paranoid citizens are butting heads sooner than expected as Congress recently nudged the FAA into writing regulations on UVA commercial applications and restrictions in the coming year.[x] Their questionable military applications have the public balking against camera lenses peering into their lives.[xi]

On the other hand, there remains the farmer’s problem. Current technology has widened the farmer’s reach, allowing acreage growth, but their field of vision has not expanded in kind to the diseases, deficiencies, and infestations that still occur.[xii] A swarm of drones could keep watchful eyes on crop conditions, perhaps even tending to problems immediately.[xiii] Drones could allow farmers to turn in loads of equipment for a cost-effective, multi-purpose machine. More importantly, Europe, Canada, Australia, and Japan already use drones for these purposes,[xiv] which makes UAV advocates concerned the U.S. is losing its agricultural edge.[xv]

The public confuses the privacy and due process problems of war drones by also blaming agriculture drones, a solution to the distinct problem of agricultural advancement. The Fourth Amendment foundation and mountains of case law govern against these former issues.[xvi] Besides, farming UVAs would be privately owned expressly for monitoring crops. At the very least, the FFA could keep the height limit but allow profitable use of UVAs and drastically expand their weight limit. Perhaps the restrictions should be on hobbyists, the group least affected as of now, who typically live in neighborhoods and are more prone to voyeurism. Agriculture, as the backbone of our society, could funnel billions back into our economy. Progress could very well mean the new face of agriculture may need to be faceless.
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[i] Thomas Frey, Agriculture, the New Game of Drones, World Future Society (Aug. 30, 2013), http://www.wfs.org/blogs/thomas-frey/agriculture-new-game-drones.
[ii] Miranda Green, Unmanned Drones May Have Their Greatest Impact on Agriculture, The Daily Beast (March 26, 2013, 4:45 AM), http://www.thedailybeast.com/articles/2013/03/26/unmanned-drones-may-have-their-greatest-impact-on-agriculture.html.
[iii] George Silva, Unmanned Aerial Vehicles For Precision Agriculture, Farms.com (Sep. 13, 2013), http://www.farms.com/news/unmanned-aerial-vehicles-for-precision-agriculture-67146.aspx.
[iv] Dan Parsons, Booming Unmanned Aircraft Industry Straining to Break Free of Regulations, National Defense (May 2013), http://www.nationaldefensemagazine.org/archive/2013/May/Pages/BoomingUnmannedAircraftIndustryStrainingtoBreakFreeofRegulations.aspx.
[v] Miranda Green, Unmanned Drones May Have Their Greatest Impact on Agriculture, The Daily Beast (March 26, 2013, 4:45 AM), http://www.thedailybeast.com/articles/2013/03/26/unmanned-drones-may-have-their-greatest-impact-on-agriculture.html.
[vi] Dan Parsons, Booming Unmanned Aircraft Industry Straining to Break Free of Regulations, National Defense (May 2013), http://www.nationaldefensemagazine.org/archive/2013/May/Pages/BoomingUnmannedAircraftIndustryStrainingtoBreakFreeofRegulations.aspx.
[vii] Caleb Carling, Drone, Drone on the Range, Modern Farmer (July 8, 2013), http://modernfarmer.com/2013/07/drones-drones-on-the-range/.
[viii] Thomas Frey, Agriculture, the New Game of Drones, World Future Society (Aug. 30, 2013), http://www.wfs.org/blogs/thomas-frey/agriculture-new-game-drones.
[ix] Miranda Green, Unmanned Drones May Have Their Greatest Impact on Agriculture, The Daily Beast (March 26, 2013, 4:45 AM), http://www.thedailybeast.com/articles/2013/03/26/unmanned-drones-may-have-their-greatest-impact-on-agriculture.html.
[x] George Silva, Unmanned Aerial Vehicles For Precision Agriculture, Farms.com (Sep. 13, 2013), http://www.farms.com/news/unmanned-aerial-vehicles-for-precision-agriculture-67146.aspx.
[xi] Dan Parsons, Booming Unmanned Aircraft Industry Straining to Break Free of Regulations, National Defense (May 2013), http://www.nationaldefensemagazine.org/archive/2013/May/Pages/BoomingUnmannedAircraftIndustryStrainingtoBreakFreeofRegulations.aspx.
[xii] Thomas Frey, Agriculture, the New Game of Drones, World Future Society (Aug. 30, 2013), http://www.wfs.org/blogs/thomas-frey/agriculture-new-game-drones.
[xiii] Id.
[xiv] George Silva, Unmanned Aerial Vehicles For Precision Agriculture, Farms.com (Sep. 13, 2013), http://www.farms.com/news/unmanned-aerial-vehicles-for-precision-agriculture-67146.aspx.
[xv] Miranda Green, Unmanned Drones May Have Their Greatest Impact on Agriculture, The Daily Beast (March 26, 2013, 4:45 AM), http://www.thedailybeast.com/articles/2013/03/26/unmanned-drones-may-have-their-greatest-impact-on-agriculture.html.
[xvi] Dan Parsons, Booming Unmanned Aircraft Industry Straining to Break Free of Regulations, National Defense (May 2013), http://www.nationaldefensemagazine.org/archive/2013/May/Pages/BoomingUnmannedAircraftIndustryStrainingtoBreakFreeofRegulations.aspx.

Kentucky Horse Owners Should Seriously Consider West Nile Virus Vaccination

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By: Megan Crenshaw, Staff Member

With the fall season approaching, several horse owners are beginning to seriously consider West Nile virus (WNV) vaccinations.[i] The number of WNV cases confirmed in U.S. horses continues to rise slowly.[ii] As of September 5, 2013, the United States Department of Agriculture Animal Health Monitoring and Surveillance confirmed 64 cases of WNV in 23 states.[iii] The United States Department of Agriculture Animal and Plant Health reported 627 cases of WNV in U.S. horses in 2012.[iv] Thirteen of those cases were reported in Kentucky.[v] Since 1999, over 25,000 cases of WNV have been reported in U.S. horses.[vi]

The viral disease is transmitted to horses by infected mosquitoes.[vii] A mosquito that bites a bird carrying WNV becomes infected.[viii] The infected mosquito can then feed on horses thereby spreading WNV to the horse.[ix] WNV can cause encephalitis, which is characterized by inflammation of the spinal chord and brain.[x] Signs of WNV in horses includes, changes in mentality, flulike signs, hypersensitivity to touch and sound, twitching, when horses look like they are daydreaming or “just not with it,” drowsiness, propulsive walking (driving or pushing forward, often without control), and spinal signs (including asymmetrical weakness).[xi] It is important to remember WNV does not always result in signs of illness. Some horses that become infected can suffer a loss of appetite and depression.[xii]

As of September 12, 2013, three horses tested positive for WNV in Kentucky.[xiii] Most recently, a 6-year old Standardbred gelding from Todd County tested positive for WNV on September 11.[xiv] None of the three horses affected by the virus in Kentucky were reportedly not properly immunized.[xv] The amount of horses affected by the virus could continue to rise, specifically in Kentucky, if more horses do not receive the WNV vaccination.

WNV remains a concern but with the right vaccine and preventative measures, horse owners can help protect their horses against this life threatening disease.[xvi] Vaccination is the most effective way to protect horses against WNV. In conjunction with the vaccination, good techniques for managing mosquitoes should be used, such as, destroying any mosquito breeding habitats by removing all potential sources of stagnant water and cleaning and emptying any water-holding containers, including buckets, water troughs, and plastic containers, on a weekly basis.[xvii]

It would be very beneficial for Kentucky horse owners to obtain the vaccine for their horses as well as adhere to preventative measures in order to protect their equine. 
_________________
[i] West Nile Virus Reported in Horses Nationwide, FARMS.COM (Sept. 6, 2013) http://www.farms.com/news/west-nile-virus-reported-in-horses-nationwide-66956.aspx.
[ii] Id.
[iii] Id.
[iv] Erica Larson, Kentucky Confirms Second Equine WNV, THEHORSE.COM (Sept. 3, 2013), http://www.thehorse.com/articles/32488/kentucky-confirms-second-equine-wnv-case-of-2013.
[v] Id.
[vi] West Nile Virus, AAEP.ORG, http://www.aaep.org/wnv.htm (last visited Sept. 13, 2013).
[vii] Larson, supra note 4.
[viii] West Nile Vaccine: What is West Nile virus?, Allivet (Feb. 21, 2013), http://allivet.blogspot.com/2013/02/west-nile-vaccine.html.
[ix] Id.
[x] Id.
[xi] Larson, supra note 4.
[xii] West Nile: First Equine Cases Reported In 2013, THEHORSE.COM (July 17, 2013), http://www.thehorse.com/articles/32210/west-nile-first-equine-cases-reported-in-2013.
[xiii] Erica Larson, Virginia, Kentucky Confirm New Equine WNV Cases (Sept. 12, 2013), http://www.thehorse.com/articles/32538/virginia-kentucky-confirm-new-equine-wnv-cases.
[xiv] Id.
[xv] Id.
[xvi] West Nile: First Equine Cases Reported In 2013, supra note 11.
[xvii] Id.

Lasix and the Betting Public

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By: Wes Bright, staff member

One of the main arguments for the prohibition of Lasix is that it makes the sport fair to the betting public. The Governor of Kentucky, Steve Beshear, has adopted this view.[i] Beshear says that it is great for the betting public’s perception that the best horses are running on their own abilities, something that the public has wanted to happen.[ii] Yet, the opposite may be true.

Todd Pletcher and Bill Mott are well known trainers that support Lasix. They both rely on the fairness involved when the drug is used.[iii] It is fair to the horse, industry and the betting public. The use of Lasix is known to the public so there is no chance of foul play when it comes to betting on these horses. Lasix tends to be associated with cheating, but these trainers dispel that idea. If everyone knows which horses are given Lasix before every race, the idea of getting inside information is eliminated.[iv] Thomas Tobin, a professor of veterinary Science at the Gluck Equine Research Center on the University of Kentucky, goes as far as to say that it would be much harder for the betting public to evaluate how non-Lasix horses will perform.[v] The chance of bleeding will occur with every race and bettors will have to blindly guess on whether this will be the race that the horse bleeds. If Lasix is banned, trainers may result to other methods such as “drawing” a horse by taking away its water for a day before the race.[vi] Handicappers will have no way of knowing whether or not the trainer has used these methods.[vii] The more information we can give the betting public, the better off they are.

It is true that since Lasix was introduced, the number of favorites to win has gone down.[viii] This is good for the sport. In other sports we praise the thought that anybody can win on a given day. Fans love to see upsets during March Madness and there is a loud cry for a salary cap in baseball so that the little guys can have a chance to win.[ix] This also advantages the bettor because there is more money to be made.
_________________
[i] Janet Patton, Kentucky Racing Commission approves lasix ban in upper level contests, Kentucky.com (Jun. 13, 2012) http://www.kentucky.com/2012/06/13/2223154/kentucky-racing-commission-passes.html.
[ii] Id.
[iii] Jerry Bossert, Trainers disagree with newly-approved ban on Lasix, which is used to control horse bleeding, DailyNews.com (Aug. 12, 2011) http://www.nydailynews.com/sports/more-sports/trainers-disagree-newly-approved-ban-lasix-control-horse-bleeding-article-1.950488.
[iv] Id.
[v] Dr. Thomas Tobin & Kimberly Brewer, Medication Committee Corner: Lasix and Bleeders – A Classic American Horsemen’s Story, KYHBPA.org (May 16, 2012) http://www.kyhbpa.org/NewsDisplay.asp.
[vi] Bleeders and Lasix, ThinkyThings.org, http://www.thinkythings.org/horseracing/lasixinfo.html (last updated Feb. 4, 2006).
[vii] Id.
[viii] Id.
[ix] Kenny Ducy, A Salary Cap in Baseball?, BleacherReport.com (Jan. 23, 2009) http://bleacherreport.com/ articles/114861-a-salary-cap-in-baseball.

How Will the Federal Decision Not to Prosecute Recreational Marijuana Use Affect Kentucky?

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By: Ted Walter, Staff Member

Recreational marijuana initiatives passed in elections last fall in the states of Washington and Colorado.[i] These state laws are contradictory to the federal laws that place marijuana in the controlled substances act.[ii] Until recently it was unknown how the federal justice administration would respond to those laws. However, U.S. Attorney General Eric Holder has announced that new guidelines will be applied to marijuana prosecution at the federal level. Those guidelines aim to prevent:

“the distribution of marijuana to minors; revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; the diversion of marijuana from states where it is legal under state law in some form to other states; state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; violence and the use of firearms in the cultivation and distribution of marijuana; drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; preventing marijuana possession or use on federal property.”[iii]

These events trigger the bigger question of what effect the federal decision to not prosecute recreational marijuana use in Washington and Colorado will have on other state’s laws. Many states have already seen a movement to follow in the footsteps of Washington and Colorado: Maine, Rhode Island, Massachusetts, Vermont, California, and Oregon.[iv] Undoubtedly, other states will follow suit because of the expected tax revenue from marijuana sales. One author notes that it is likely that marijuana will be “taxed at each stage of its growth, processing, and sale.”[v]

This is of particular interest for the state of Kentucky because of recently enacted legislation that legalizes hemp production. James Comer, the Kentucky Commissioner of Agriculture, is of the belief that the recent change in federal prosecution of marijuana might also translate to hemp.[vi] Comer believes this will allow Kentucky to move ahead with industrial hemp farming.[vii] So strong is this belief, Comer is already “courting hemp processing companies in hopes that they will do business in the state.”[viii] Further, Kentucky Sen. Rand Paul promised his support at the federal level.[ix] If Comer’s beliefs are true, and other states follow the paths of Washington and Colorado, it is possible that very soon in the state of Kentucky, both marijuana and hemp production will provide much needed tax revenue for the state.
_________________
[i] Ryan J. Reilly and Ryan Grim, Eric Holder Says DOJ Will Let Washington, Colorado Marijuana Laws Go Into Effect, The Huffington Post, Aug. 29 2013, http://www.huffingtonpost.com/2013/08/29/eric-holder-marijuana-washington-colorado-doj_n_3837034.html.
[ii] Id.
[iii] Id.
[iv] Id.
[v] Colleen Curry, Marijuana Ruling Could Signal End of Prohibition on Pot, Yahoo! News, Aug. 31, 2013, http://gma.yahoo.com/marijuana-ruling-could-signal-end-prohibition-pot-151612677--abc-news-topstories.html.
[vi] David Ferguson, Kentucky agriculture commissioner: State to grow hemp and we’ll see what Justice Department does, The Raw Story, Sept. 4, 2013, http://www.rawstory.com/rs/2013/09/04/kentucky-agriculture-commissioner-state-to-grow-hemp-and-well-see-what-justice-department-does/.
[vii] Id.
[viii] Id.
[ix] Id.

Tis’ The Season to Discuss the Subsidy

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By: Rebekah McKinney, Staff Member

This time of year for rural Americans is corn-harvesting season, and this year is sure to be a big harvest. After last year’s historically bad drought across the Midwest, this year has been remarkably pleasant, especially for corn farmers.[1] With droughts wreaking havoc on last year’s corn crop, corn prices steadily rose, with prices closing at $8.49 per bushel last August.[2] The hopes of witnessing a repeat of the 2012 corn prices is evident as we draw closer to harvest time, with every spare parcel of land planted with the popular crop.

These hopes and dreams are not likely to come to fruition since this summer’s temperate climate coupled with the high expectations of last year’s corn prices resulted in an overabundance of the popular crop, with a forecasted yield of around 14 billion bushels.[3] Currently, the United States Department of Agriculture estimates the average price per bushel will range from $4.50 to $5.30 per bushel, a far cry from last season’s prices.[4] The corn supply over the last two years demonstrates the high risk and uncertainty involved in the corn market.

With many House Representatives voting for an increase in farm subsidies in the 2013 Farm Bill and the obvious uncertainty regarding crop yields, many commentators argue these subsidies actually cause overproduction of subsidized crops.[5] Furthermore, agricultural subsidies may also cause the unintended effect of increased erosion, pollution of waterways due to increased use of fertilizers and pesticides, and release of greenhouse gases.[6] Finally, tax dollars do not go to the poor farmer as we imagine, but in fact go to the “wealthy” farmers who can shoulder the potential economic loss of a bad year.[7] With $84.4 billion tax dollars spent on corn subsidies between 1995 and 2012, which does not include money spent on remedial measures aimed at addressing the unintended negative effects of corn subsidies, a thorough examination and understanding of the entire picture is necessary. [8]
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[1] NOAA, An Interpretation of the Origins of the 2012 Central Great Plains Drought 1. http://cpo.noaa.gov/sites/cpo/Reports/MAPP/drought/2012%20drought%20report/DTF_Interpretation_of_2012_Drought_FINAL_2-pager.pdf (March 20, 2013).
[2] USDA, U.S. Drought 2012: Farm and Food Impacts, Economic Research Service http://www.ers.usda.gov/topics/in-the-news/us-drought-2012-farm-and-food-impacts.aspx#.UiZ4aI7pZUQ, (July 26, 2013); Jeff Wilson, Corn Future Jump Most Since June on Unexpected U.S. Supply Drop, Bloomberg News, http://www.bloomberg.com/news/2012-09-28/u-s-corn-stockpile-unexpectedly-drops-sparks-price-rebound-1-.html, (Sept. 28, 2012).
[3] Gil Gullickson, No Surprise: Expected Lower Corn and Soy Bean Prices for 2013-2014, Agriculture, Market Analysis http://www.agriculture.com/markets/analysis/corn/no-surprise-expect-lower-cn-soybe_9-ar32512, (July 15, 2013).
[4] USDA, World Agriculture Supply and Demand Estimates 2, http://www.usda.gov/oce/commodity/wasde/latest.pdf (August 12, 2013).
[5] See James B. Stewart, Richer Farmers, Bigger Subsidies, The N.Y. Times, http://www.nytimes.com/2013/07/20/business/richer-farmers-bigger-subsidies.html?pagewanted=all&_r=0 (July 19, 2013); Jordan Ballor & Ray Nothstine, Farm Subsidies: Sustaining Dependency, Acton Institute, http://www.acton.org/pub/commentary/2007/12/05/farm-subsidies-sustaining-dependency (Dec. 5, 2007); Chris Edwards, Agricultural Subsidies, http://www.downsizinggovernment.org/sites/downsizinggovernment.org/files/pdf/agriculture-subsidies_0.pdf (June 2009). http://www.downsizinggovernment.org/agriculture/subsidies#_edn2
[6]Norman Myers & Jennifer Kent, Perverse Subsidies: How Tax Dollars Can Undercut the Environment and the Economy 4 (Island Press, 2001), available at http://books.google.com/books?hl=en&lr=&id=mA-t1xAJDDUC&oi=fnd&pg=PR13&dq=farm+subsidies+and+economy+&ots=AUrcbbIEXC&sig=EtXgW5EawxYxLeKGajY__QRjevA#v=onepage&q=farm%20subsidies%20and%20economy&f=false.
[7] Id.
[8] Environmental Working Group, Corn Subsidies (last visited Sept.4, 2013) http://farm.ewg.org/progdetail.php?fips=00000&progcode=corn.