Kentucky Coal: What Authority Does the EPA Actually Have?

Image Source

By: Elizabeth Combs, Staff Member

Shortly after Congress passed the National Environmental Policy Act, President Richard Nixon established the U.S. Environmental Protection Agency (EPA) in 1970 as an independent regulatory agency intended to administer and manage environmental policy.[i] Founded in large part in response to decades of “rampant and highly visible pollution,”[ii] the EPA was given far-reaching powers[iii] to ensure the protection of public health and the natural environment.[iv]

Since the EPA manages the protection of the land, air, and water, it naturally follows that this agency also regulates many industrial activities. The EPA’s regulation of the mining industry is mostly concerned with waste rock, wastewater, and air emissions created during these activities.[v] The EPA relies mostly on the statutory authority granted to it by the Clean Water Act (CWA) to regulate mining activities. According to the CWA, a mining company must first obtain a permit before any mining operations take place[vi]. These permits ensure that any wastewater discharges that result from the mining operations are treated, stored, and disposed of in compliance with relevant water quality standards.[vii]

While this permit program, referred to as the National Pollutant Discharge Elimination System (NPDES), has been in place since the 1970’s,[viii] the EPA’s interpretation and implementation of this regulatory authority has varied depending on the goals and objectives of each Presidential administration.[ix] During the current administration, much focus has been placed on the need to reduce greenhouse gas emissions.[x] As a result, the EPA has launched many new regulatory initiatives while tightening the requirements of long-standing mandates, like that of the CWA, leading to devastating effects on the energy industry.[xi] Of particular importance in Kentucky is the EPA’s issuance of more stringent guidelines for permitting procedures specifically applied to Appalachian surface coal mining operations.[xii] These new regulations have created massive delays in the permitting process, causing many mining companies to be inoperable and thus, leading to massive layoffs of thousands of both direct and indirect coal mining jobs.[xiii]

However, it is not completely clear whether the EPA actually has the authority to issue these regulations, especially given the other federal and state authorities involved in the surface mining permitting process.[xiv] In addition to the EPA’s use of the CWA to issue NPDES permits, the Surface Mining Control and Reclamation Act (SMCRA) requires compliance with its own, albeit EPA-approved, environmental protection standards via the issuance of permits by the Department of the Interior’s Office of Surface Mining Reclamation and Enforcement.[xv] Further, individual states have the opportunity to control and regulate their own surface mining activities by having their own permitting program approved by the Secretary of the Interior.[xvi]

As a result of the EPA’s drastically increased standards and uncertain statutory authority, several groups, including the National Mining Association, the Kentucky Coal Association, and the West Virginia Department of Environmental Protection, recently challenged the EPA’s authority in federal court.[xvii] In July of last year, the U.S. District Court for the D.C. Circuit ruled in favor of these plaintiffs, finding that the EPA had exceeded its authority in issuing these new, more stringent regulations, having “impermissibly interjected” into the SMCRA permitting process.[xviii] While the outcome of this case was certainly a victory for the coal industry, particularly for the targeted surface coal mining companies in Appalachian states, what is often referred to as “the war on coal” is far from over. The EPA has appealed this decision, and that case is currently pending in the U.S. Court of Appeals for the D.C. Circuit. With a decision expected in late 2013 to early 2014, the “war on coal” wages on in this and other EPA-related litigation. Given its potential impact on the coal industry in Kentucky, this pending case will certainly be an interesting and important one to watch.
_________________
[i] The Guardian: Origins of the EPA, EPA Historical Publication, Spring 1992, available at http://www2.epa.gov/aboutepa/guardian-origins-epa.
[ii] Jack Lewis, The Birth of the EPA, EPA Journal, Nov. 1985, available at http://www2.epa.gov/aboutepa/birth-epa.
[iii] The Guardian, supra note 1.
[iv] Jack Lewis, Looking Backward: A Historical Perspective on Environmental Regulations, EPA Journal, Jack Lewis, Mar. 1988, available at http://www2.epa.gov/aboutepa/looking-backward-historical-perspective-environmental-regulations.
[v] Mining Overview, National Pollutant Discharge Elimination System, U.S. Envtl. Prot. Agency Website, available at http://cfpub.epa.gov/npdes/indpermitting/mining.cfm (last visited Oct. 14, 2013).
[vi] Id.
[vii] Id.
[viii] Id.
[ix] Richard L. Gordon, An EPA War on Coal?, Regulation, Spring 2013, available at http://www.cato.org/sites/cato.org/files/serials/files/regulation/2013/3/v36n1-7.pdf.
[x] Id at 16.
[xi] Id at 16.
[xii] Environmental Issues & Kentucky Coal, Kentucky Coal Association Website, available at http://www.kentuckycoal.com/documents/CoalWhitePaperV11.pdf (last visited Oct. 14, 2013).
[xiii] Id at 3.
[xiv] Nat’l Mining Ass’n v. Jackson, 880 F.Supp.2d 119 (D.C. Cir. 2012).
[xv] Id at 124.
[xvi] Id.
[xvii] Nat’l Mining Ass’n v. Jackson, supra note 14.
[xviii] Id at 119.

The Impact of the Government Shutdown on the United States Farm Bill and Why the Bill Must Be Split Into Two Pieces

Image Source

By: Brad Butler, Staff Member

The Agricultural Act of 1949 (“Act”) was enacted on October 31, 1949.[i] It is the only permanent legislation concerning U.S. agricultural policy.[ii] Temporary modifications and extensions to the Act, known as “farm bills,” are typically enacted every five years.[iii] The Food, Conservation, and Energy Act of 2008 (“2008 U.S. Farm Bill”), the most recent farm bill, was a $288 billion, five-year agricultural policy bill that was passed by Congress in June 2008.[iv] The 2008 U.S. Farm Bill expired in September 2012, but Congress extended certain provisions of the 2008 U.S. Farm Bill through September 2013 when it passed the American Taxpayer Relief Act of 2012 in early 2013 to avoid the fiscal cliff.[v] However, September 2013 has come and gone without the passage of another farm bill. If neither a new farm bill nor another extension is passed, then the U.S. will revert back to the agricultural policy set forth in the Act on January 1, 2014 and every consumer and farmer in the U.S. will be affected.

Reversion would have several consequences. It would give dairy farmers huge subsidies because the cost of operating a farm, after adjusting for inflation, was much higher in 1949 than it is today.[vi] The current support prices for dairy under the Act are more than double the current market price.[vii] Collin Peterson, a member of the House Agricultural Committee, predicts that the support by the federal government would require the Agriculture Department to artificially raise the market price of dairy products through a massive government-buying program.[viii] The Act also sets floor prices for certain commodities, such as wheat, which also directly affects consumers.[ix] For example, in 2012, the market price for a bushel of wheat was $6.37, but under the Act there would be a price floor of $13.58 per bushel.[x]

There are more time sensitive matters, however. A critical issue is the availability of tax incentives to purchase crop insurance so that farmers can obtain the operating loans needed to survive from now until harvest next year personally and professionally.[xi] Without the proper tax incentives to purchase the insurance, the extra cost could amount to around $50 per acre, which is infeasible for large farms.[xii]

Now that the federal government has shut down, there will not likely be a new farm bill in the immediate future. However, the government shutdown is not the only reason that the bill has not been passed. Over the summer, the U.S. Senate passed its version of a farm bill.[xiii] The U.S. House of Representatives separated the farm bill into two parts: the agricultural policy bill[xiv] and the nutrition assistance program bill.[xv] The House passed the agricultural policy bill and the nutrition program bill separately, but the Senate rejected both. The House wanted $20 billion cut from the Supplemental Nutrition Assistance Program (“SNAP”) over the next ten years, while the Senate only wants $4.1 billion cut during that same time.[xvi] The House has since recombined the farm bill.[xvii] However, it took a step toward ensuring that the bill remains separated in the future: it authorized the programs for different lengths of time.[xviii] Food stamps would be authorized for three years, and the agricultural policy would be authorized for five.[xix]

SNAP is clearly causing the gridlock. The House and the Senate have both recognized the necessity of passing a new farm bill, but the extent of the cuts to SNAP has created an impasse. A separation of the farm bill into its parts is logical because it removes a controversial political element from agriculture policy. Neither the House nor the Senate rejected the other’s farm bill because of the agricultural policy – it was because of the level of the proposed cuts to SNAP. It is ironic that Congress on the whole seems to understand the need to reduce government spending even though it allowed the extension to the 2008 U.S. Farm Bill to lapse and a reversion to the rules under the Act is possible. The reversion may cost more in the long-term than simply agreeing to a specific reduction to SNAP. The practical impact of splitting the bill would be the obvious fact that the Congress would likely be at odds every time the SNAP program needs to be reauthorized. Therefore, Congress must be aware of the fact that splitting the bill would ensure that the agricultural policy bill is passed when it needs to be reauthorized. However, the guaranteed passage of the agricultural bill every few years might be at the expense of SNAP and the people who need it.
_________________
[i] Agricultural Act of 1949, 7 U.S.C. § 1431 (1949).
[ii] Eric Schuck, Congress needs to pass a farm bill -- or learn to farm like it's 1949, Oregon Live (Sep. 8, 2012, 12:00 PM), http://www.oregonlive.com/opinion/index.ssf/2012/09/congress_needs_to_pass_a_farm.html.
[iii] Kevin Diaz, Minn. farmers get lost in budget standoff; crop policies revert to '49, Star Tribune (Oct. 7, 2013, 9:32 AM), http://www.startribune.com/politics/226683921.html.
[iv] House Committee on Agriculture, 2008 Farm Bill, http://agriculture.house.gov/issue/farm-bill/2008-farm-bill.
[v] Ron Nixon, Tax Bill Passed By Senate Includes Farm Bill Extension, NY Times (Jan. 1, 2013, 11:02 AM), http://www.nytimes.com/interactive/us/politics/debt-reckoning.html?_r=0.
[vi] Diaz, supra note 3, at 1.
[vii] Id.
[viii] Id.
[ix] Id.
[x] Id.
[xi] American Farm Bureau Federation, A Tale of Two Farmers: Harvest, the Farm Bill and Political Paralysis, The Voice of Agriculture (Oct. 1, 2013), http://www.fb.org/index.php?action=newsroom.news&year=2013&file=nr1001b.html.
[xii] Id.
[xiii] S. 954
[xiv] H.R. 2642
[xv] H.R. 3102
[xvi] FRAC Action Council, Farm Bill 2013, http://frac.org/leg-act-center/farm-bill-2012/.
[xvii] H. Res. 361
[xviii] Erika Johnsen, House re-couples, staggers “farm bill” as the clock winds down, Hot Air (Sep. 30, 2013, 6:41 PM), http://hotair.com/archives/2013/09/30/house-re-couples-staggers-farm-bill-as-the-clock-winds-down/.
[xix] Id.

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

Image Source

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?

Image Source

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

Image Source

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

Image Source

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.
_________________
[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?

Image Source

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.
_________________
[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

Image

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

Image Source

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.