Asian Carp Invade Kentucky!

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By: Sam Norman, Staff Member

“It's incredible what the fish are doing to our waterways. Not only is it predatory, but the safety issue with boaters and skiers. Those things jump. ... Once a waterway is infested, they multiply at an alarming rate and weed out all the other fish. They have the potential to totally wreck our major waterways."

-State Senator Joe Bowen[1]

Asian Carp are two different large species of carp know as Bighead Asian Carp and Silver Asian Carp.[2] Asian Carp have settled in freshwater ecosystems all across the United States, including Kentucky.[3] Asian Carp pose a problem to many jurisdictions because they are incredibly damaging to the ecosystem, reproduce at an alarmingly quick rate, have almost no natural predators in North America, and can harm recreations boaters and their property (boats).[4] Asian Carp are very damaging to the ecosystem because they can eat five to twenty percent of their body weight a day in plankton, algae, and other tiny organisms.[5] When this essential part of the food chain is removed so quickly from the environment it causes devastating consequences for other aquatic life.[6] When boats pass over waters that contain Asian Carp, this causes Silver Asian Carp to jump into the air.[7] Since these fish can weigh anywhere from thirty to forty pounds, this can create potential injuries for boaters and their property.[8] Thus, Asian Carp pose a very serious threat to Kentucky’s freshwater ecosystems in more ways than one.

In order to control Asian Carp populations Kentucky, the Kentucky Department of Fish and Wildlife Resources (KDFWR), has implemented a well-rounded multilayered strategy.[9] This strategy includes: a ban on Asian Carp, working with other states in the region to slow the spread of Asian Carp into new waters, educating fisherman on the issue, lobbying federal and state government for financial support, laying a framework for a viable commercial fishing industry in Kentucky, and most importantly, issuing a regulation that allows for commercial fishing of Asian Carp.[10] This is known as the Asian Carp Harvest Program.[11] This regulation allows for limited commercial fishing of Asian Carp if the fisherman has met the qualifications for program participation and abides by the requirements set forth after qualification is met.[12] These requirements include releasing by catch, providing summary information about the catch, etc.[13] As with any policy, this course of action has its advantages and disadvantages. The most important advantage is that commercial fishing is currently the only effective, meaningful way to control Asian Carp populations.[14] Additionally, the framework for a commercial fishing industry is in place in Kentucky and the surrounding region, and there is a market for Asian Carp in Europe and Asia.[15] The disadvantages include the possibility that this could lead to the further spread of Asian Carp because some would want to introduce them into new waters for financial gain.[16] Another concern is that this could lead to a deep decline in the Asian Carp population and ultimately endangered species protection.[17]

With an Asian Carp population that is growing bigger everyday, these concerns have to be dismissed as speculative. KDFWR should continue implementing this strategy because the initial signs show that the commercial fishing has been a success;[18] it’s well rounded, it’s a perfect balance between competing interests, and it turns lemons into lemonade. With this plan and the resolve of the people of Kentucky, I am confident the Asian Carp problem will be solved.
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[1] Janet Patton, Large Asian carp jump, breed quickly — and they're invading Kentucky's waters, kentucky.com (Jan. 1, 2013), http://www.kentucky.com/2013/01/01/2461567/large-asian-carp-jump-breed-quickly.html.
[2] Asian Carp Frequently Asked Questions, Asian Carp Regional Coordinating Committee, http://www.asiancarp.us/faq.htm (last visited Jan. 18, 2014).
[3] Asian Carp Information, Kentucky Department of Fish and Wildlife Resources, http://fw.ky.gov/Fish/Pages/Asian-Carp-Information.aspx (last visited Jan. 18, 2014).
[4] Asian Carp Frequently Asked Questions, Asian Carp Regional Coordinating Committee, http://www.asiancarp.us/faq.htm (last visited Jan. 18, 2014).
[5] Id.
[6] Id.
[7] Asian Carp Information, Kentucky Department of Fish and Wildlife Resources, http://fw.ky.gov/Fish/Pages/Asian-Carp-Information.aspx (last visited Jan. 18, 2014).
[8] Asian Carp Frequently Asked Questions, Asian Carp Regional Coordinating Committee, http://www.asiancarp.us/faq.htm (last visited Jan. 18, 2013).
[9] Asian Carp Information, Kentucky Department of Fish and Wildlife Resources, http://fw.ky.gov/Fish/Pages/Asian-Carp-Information.aspx (last visited Jan. 18, 2014).
[10] Asian Carp Information, Kentucky Department of Fish and Wildlife Resources, http://fw.ky.gov/Fish/Pages/Asian-Carp-Information.aspx (last visited Jan. 18, 2014); 301 Ky. Admin. Regs. 1:122 (4)(1)(a-b)(2013).
[11] Asian Carp Information, Kentucky Department of Fish and Wildlife Resources, http://fw.ky.gov/Fish/Pages/Asian-Carp-Information.aspx (last visited Jan. 18, 2014).
[12] 301 Ky. Admin. Regs. 1:152 (2)(1-4)(2013).
[13] 301 Ky. Admin. Regs. 1:152 (3)(6)( 8)(2013).
[14] Asian Carp Information, Kentucky Department of Fish and Wildlife Resources, http://fw.ky.gov/Fish/Pages/Asian-Carp-Information.aspx (last visited Jan. 18, 2014).
[15] Id.
[16] Id.
[17] Id.
[18] Id.

Make It “SNAP”py, Congress: Debate Over The Farm Bill and Its Effects On Impoverished Lexington, Kentucky Families

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By: Laura Myers, Staff Member

On November 1, 2013, impoverished families across the United States saw their monthly Supplemental Nutrition Assistance Program (SNAP) benefits decrease when the American Recovery and Reinvestment Act of 2009 (ARRA) expired on October 31, 2013.[1] ARRA, better known as the Stimulus Package, provided “a temporary boost in benefits to help individuals and families impacted by the economic downturn.”[2] In addition, the remaining amount of benefits to these low-income families is currently on the chopping block as Congress renegotiates the Food, Conservation, and Energy Act of 2008 (Farm Bill).[3] The Farm Bill expired on September 30, 2012, and its nutritional programs, like SNAP, were extended for one year and have continued to be extended up to the present.[4]

Currently, the pending legislation Congress intends to pass will include staggering cuts to SNAP and other nutritional programs included in the Farm Bill.[5] Thus far, on June 10, 2013, a substantial majority (66-27) of the Senate passed a version of the bill that cut SNAP expenditures by $4.1 billion. Then, the House passed the “Farm only version,” on July 11, 2013, with a slim majority (216-208)—from which all Democrats abstained—that completely removed SNAP from the Farm Bill legislation.[6] The bill is now in conference between the two Houses, but clearly, both parties embrace SNAP funding cuts—it now just becomes a question of how much.[7]

There is an additional layer to this debate over food assistance programs. The 2008 Farm Bill identified areas called “food deserts,” defined as “area[s] in the United States with limited access to affordable and nutritious food, particularly such an area composed of predominantly lower-income neighborhoods and communities.” [8] Lexington-Fayette County, Kentucky has been identified as a city with food deserts.[9] Located in Lexington, God’s Pantry is a food bank that serves client families, and its highest-served population’s zip code-area is one of the food desert pockets located within the city.[10] In 2011, the Lexington-branch site saw a 51% overall increase in its client-base.[11] Further, of its total clientele, 60% are SNAP recipients and have indicated that food stamps do not last them the entire month.[12] This creates an added dynamic to the SNAP problem: SNAP benefits are not the only benefits up for cuts—all nutritional programs funded by the Farm Bill are in danger, including those funding charities like God’s Pantry.[13] Put more bluntly: if Congress makes these reductions, more people will be hungry with fewer resources to feed them.
_________________
[1]Kevin Concannon, United States Department of Agriculture, Helping SNAP Recipients Prepare for November 1st Benefit Changes, USDA Blog (Oct. 28, 2013, 11:00 AM), http://blogs.usda.gov/2013/10/28/helping-snap-recipients-prepare-for-november-1st-benefit-changes/.
[2] Id.
[3] Id.
[4] Nat’l Farmers Union, 2013 Farm Bill, National Farmers Union (last visited Jan. 12, 2014), http://nfu.org/farmbill.
[5] Nat’l Farmers Union, 2013 Farm Bill—Comparisons (last visited Jan. 20, 2014), http://nfu.org/images/stories/legislation/SideBySide%20FINAL.pdf; House Comm. on Agric., H.R. 2642 Summary (last visited Jan. 20, 2014), http://agriculture.house.gov/sites/republicans.agriculture.house.gov/files/documents/HR2642Summary.pdf.
[6] Id.; David Rogers, Farm Bill 2013: House Narrowly Passes Pared-Back Version, Politico.com (July 11, 2013, 3:51 PM), http://politi.co/12pxU3B.
[7] Legislators indicate that they do not want to cut the program entirely but the topic has been too contentious for parties to agree on the amount of cuts to be able to include the nutrition program in the 2013 Farm Bill, and the nutrition program will be dealt with separately for the first time since 1973. Scott Neuman, House Passes Farm Bill Without Food Stamps, National Public Radio (July 11, 2013, 5:20 PM), http://www.npr.org/blogs/thetwo-way/2013/07/11/201215276/house-passes-farm-bill-without-food-stamps.
[8] Food, Conservation, and Energy Act, 7 U.S.C.A. § 7527 (2008).
[9] Keiko Tanaka et al., Lexington Community Food Assessment 2004-07, at 13 (2008), http://lcfa.ca.uky.edu/files/pdfs/LCFA-2003-07_Research_Report.pdf.
[10] God’s Pantry Food Bank, Hunger in Fayette County Report 2 (2011), http://godspantry.org/press-room/hunger-reports.
[11] Id.
[12] Id. at 3.
[13] Nat’l Farmers, supra note 4.

Appalachian Coal Country: Fueling the Future of Kentucky Tourism?

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By: Benjamin Metzger, Staff Member

Call it a tale of two Appalachian regions. On one hand, there is the Appalachian region of Eastern Tennessee. The picturesque area is anchored by the Great Smoky Mountains National Park. Millions of tourists flock to Gatlinburg, a quaint Tennessee town nestled at the base of the towering Smokies.[i] Contrast this with the Appalachian region of Eastern Kentucky, an area encompassing Daniel Boone National Forest. No community is seizing tourism opportunities. Instead, rural towns cling to coal mining, and they are losing jobs by the thousands.[ii]

To explore this intriguing contrast, the Kentucky Chamber of Commerce commissioned an international consulting firm to analyze the feasibility of creating a robust tourism industry in Eastern Kentucky.[iii] The study’s conclusions were encouraging. The study supported Eastern Kentucky’s potential to capitalize on its natural resources by turning them into tourism generators. The culture and history-rich Appalachian region offers natural beauty and numerous opportunities for outdoor recreation; these are essential factors contributing to the success of rural tourism destinations.[iv]

However, developing an Eastern Kentucky version of Gatlinburg is not without some obstacles. Perhaps the most formidable challenge is renovating existing lodging and creating new hotels. The region lacks any upscale hotels, which are important to conference organizers and vacation planners.[v] Local ordinances regulating alcohol sales also pose a hurdle. Of the thirty-four Eastern Kentucky counties, only six are wet counties. The other twenty-eight are either dry or have limitations on alcohol sales.[vi] Finally, the study noted that a lack of broadband Internet access discourages tourism.[vii]

What steps must Kentucky take to create a tourism center? The study first suggested that state parks should pursue private-public partnerships. Although the government is cash-strapped, private funding could provide the dollars required for much-needed renovations and development within the state parks.[viii] The Kentucky legislature may also attract higher-end hotels—along with golf courses, spas, and restaurants—by promoting public incentives to private developers.[ix] These types of businesses open the door for tourism. Eastern Kentucky could also focus on developing a tourism workforce via training and education.[x] A tourism center requires a specialized workforce, so high schools and colleges in Eastern Kentucky would be wise to offer hospitality management and customer service training.

The downturn in the coal industry has triggered an important dialogue about ways in which Eastern Kentucky can diversify its economy.[xi] This is an opportune time to consider tapping natural resources for tourism instead of coal. Economic analysis concludes a “modern, well-planned Gatlinburg” is not out of reach for the Appalachian region of Eastern Kentucky.[xii] The Commonwealth’s business and political leaders should seize the chance to develop rural tourism and revitalize a suffering economy.
_________________
[i] AECOM, Potential for Tourism Development in Eastern Kentucky, Kentucky Chamber Foundation, 85-89 (Oct. 8, 2013), http://www.kychamber.com/sites/default/files/EasternKyTourism2013.pdf.
[ii] Bill Estep, Study: Eastern Kentucky could create 'modern, well-planned Gatlinburg' (Oct. 30, 2013), http://www.kentucky.com/2013/10/30/2903321/study-eastern-kentucky-could-create.html.
[iii] Chamber Touts Tourism Potential of Eastern Kentucky, Kentucky Chamber of Commerce (Oct. 29, 2013), http://www.kychamber.com/news/2013/10/29/chamber-touts-tourism-potential-eastern-kentucky.
[iv] AECOM, Potential for Tourism Development in Eastern Kentucky, Kentucky Chamber Foundation, 4 (Oct. 8, 2013), http://www.kychamber.com/sites/default/files/EasternKyTourism2013.pdf.
[v] Id. at 24.
[vi] Id. at 95-8.
[vii] Id. at 98-9.
[viii] Id. at 2-3.
[ix] Id.
[x] Id.
[xi] Bill Estep, Study: Eastern Kentucky could create 'modern, well-planned Gatlinburg' (Oct. 30, 2013), http://www.kentucky.com/2013/10/30/2903321/study-eastern-kentucky-could-create.html.
[xii] AECOM, Potential for Tourism Development in Eastern Kentucky, Kentucky Chamber Foundation, 4 (Oct. 8, 2013), http://www.kychamber.com/sites/default/files/EasternKyTourism2013.pdf.

FDA Asks Big Pharma to Moooove Out

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By: Marc Manley, Staff Member

After an intense finals week diet of Red Bull and granola bars, one of my favorite holiday past times is tearing into a plump, moist turkey. I swear, each year the bird looks bigger, but that could be the sleep deprivation talking. This year, with the holiday feast looming, I was surprised to discover my favorite tradition was supplying me with more than just a full belly and refreshing nap. This past December, the FDA introduced a new policy aimed at curbing widespread antibiotic use in livestock production.[i] It seems farmers have stumbled across an unanswered secret regarding antibiotic use: it makes my holiday turkey fatter.[ii]

While examining mold in 1929, Alexander Fleming made the most revolutionary discovery in modern medicine. He noticed bacteria would not grow near Penicillium and harnessed this power to create the world’s first antibiotic, Penicillin.[iii] For the next several decades, mankind wielded its most powerful weapon against the deadly microbes, ushering in the golden age of antibiotics.[iv] Unfortunately, the good times are coming to an end as bacteria adapts to the current tides of war. In one example, Neisseria gonorrhoeae, the infamous sexually transmitted infection known as gonorrhea, is now 98% resistant to antibiotic treatment in Asia.[v] One in four Americans with the infection can sympathize with their Asian neighbors.[vi] Scientists attribute the widespread overuse of antibiotics to the development of these super bacteria.[vii]

The largest consumer of antibiotics in America is the livestock industry. In fact, 80% of all antibiotics sold in the United States are fed to livestock.[viii] Unfortunately, these antibiotics are utilized to fatten Wilbur, not to help him forget about his one night stand with Ms. Piggy.[ix] Scientists have been urging Congress to take action to reduce antibiotic use in livestock production for years as a means for slowing antibiotic resistance.[x] The FDA has now implemented a policy aimed at limiting antibiotic use in livestock production to disease management only.[xi] FDA is asking pharmaceutical companies to change the labeling of their bottles to discourage antibiotic use for feed purposes, and is seeking to require a veterinarian’s prescription before a farmer can access antibiotics.[xii] Some critics argue this is a toothless mandate since pharmaceutical participation is strictly voluntary.[xiii] But the two largest pharmaceutical companies, Zoetis and Elanco, have agreed to participate, and hopefully, most companies will follow their lead.[xiv]

While this FDA action may not be the silver bullet to stopping antibiotic overuse, it does signify an important first step. Only through collaboration and education can humanity preserve its most important chemical weapons stockpile. My turkey next year may not be as big as this year’s, but that is a sacrifice I am willing to accept in this war effort. Maybe I’ll just study longer hours and rely on a sleep deprived brain to trick me into believing the bird grew.
_________________
[i] FDA Takes Significant Steps to Address Antimicrobial Resistance, US Food and Drug Administration, http://www.fda.gov/AnimalVeterinary/NewsEvents/CVMUpdates/ucm378166.htm.
[ii] Sabrina Tavernise, F.D.A. Restricts Antibiotic Use For Livestock, N.Y. TIMES (Dec. 11, 2013), http://www.nytimes.com/2013/12/12/health/fda-to-phase-out-use-of-some-antibiotics-in-animals-raised-for-meat.html?pagewanted=all&_r=0.
[iii] See Fleeming Discovers Penicillin, A Science Odyssey, http://www.pbs.org/wgbh/aso/databank/entries/dm28pe.html.
[iv] See Antibiotic Resistance: Delaying the Inevitable, Understanding Evolution, http://evolution.berkeley.edu/evolibrary/article/medicine_03.
[v] Id.
[vi] Id.
[vii] Id.
[viii] See Letter from Public Health Organizations to Congress, (Sept. 6, 2011), available at http://www.pewhealth.org/uploadedFiles/PHG/Content_Level_Pages/Issue_Briefs/Joint-Letter-State-Science-Antibiotic-Use-2011-09-06.pdf.
[ix] See Tavernise, supra note 2.
[x] See Letter from Public Health Organizations to Congress, supra note 8. 

[xi] FDA Takes Significant Steps to Address Antimicrobial Resistance, US Food and Drug Administration, http://www.fda.gov/AnimalVeterinary/NewsEvents/CVMUpdates/ucm378166.htm.
[xii] Id.
[xiii] See Peter Lehener, The FDA’s Toothless Action on Animal Antibiotics Isn’t Enough, Los Angeles Times, http://articles.latimes.com/2013/dec/13/news/la-ol-antibiotics-animals-fda-blowback-20131213.
[xiv] Jason Koebler, The FDA Has Finally Taken Steps to End Antibiotic Use in Livestock, Vice, 

http://motherboard.vice.com/blog/the-fda-has-finally-taken-steps-to-end-antibiotic-use-in-livestock.

Talk Turkey to Me: Chemicals, Grades, and Temperatures Oh My!

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By: Sara Johnston, Staff Member

This past week, news of arsenic-infested poultry from one of America’s largest research-based pharmaceutical companies announced voluntary production halt of its product.[i] The arsenic announcement sent most Americans into a meat selection panic. Poultry and beef products are consistent ingredients to American diets, and announcements of harmful additives to these meats are nothing short of unsettling. With dozens of different brands in the freezer isle, multiple options of cooking instructions, and few options of meat grades, what is the likelihood of a consumer’s confidence in the meat they purchase? Unknown to many, beef is not the only meat with available grades; poultry products are also graded. With the Holidays right around the corner, what better opportunity to examine the appropriate grade, cooking instructions, and steps to have a clean turkey?

The pink coloration of turkey, regardless of grade, often worries consumers. Pink meat does not have the same red flag associated with it as beef.[ii] Pink meat, as long as 165 °F throughout the turkey, is safe. [iii] The coloration difference emanates from oxygen-storing myoglobin, located in muscle cells and retains oxygen from food in the blood until the animal’s cells need it. [iv] The reasons coloration remains after cooking are: chemical changes during cooking, natural nitrites, turkey’s young age, and grilling.[v]

If a turkey is issued a grade, this alone entails the bird has gone through laborious review processes by USDA graders who follow official standards developed by USDA’s Agricultural Marketing Service.[vi] Grade A, the most common grade, means absence of defects such as feathers and bruises.[vii] Depending on the number of defects, the turkey may be down-graded to B or C. When considering grade, it is important the consumer consider age. Younger turkeys will be labeled as fryer-roaster, young hen, or young tom and will have tender and plump meat.[viii]

Chemicals and bacteria become concerns with birds taking hours to thaw, potentially feeding a dozen people. When thawing a large turkey, it is important not to thaw the bird on a counter, or garage.[ix] Thawing can be accomplished through refrigerator thawing, cold-water thawing, and microwave thawing.[x] Refrigerator thawing takes 24 hours for every five pounds of meat.[xi] Cold water thawing takes less time than refrigerator thawing, but more attention, as bacteria can reach into the packing if not properly sealed.[xii] Microwave thawing is the fasted safe method, but requires immediate cooking after thawing.[xiii]

In order to avoid chemical scares, the safest, but more expensive route is to buy organic and cage free birds. The FDA’s lethargic action tactics to force meat distributers to discontinue arsenic, penicillin, and other toxins has caused confidence in our governmental monitoring programs to dissipate.[xiv] Poultry feed containing toxins to increase appetite and weight gain in animals is thought to be harmless, however, once the arsenic is digested, it becomes a carcinogen.[xv] It is unfortunate the answer to choosing a healthy meal for your family needs to be a more expensive one, even after choosing the right grade and preparation method, but it seems that until the FDA enacts more ambitiously to monitor guidelines keeping us safe from carcinogens, organic is the best option.
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[i] Nitro (Roxarsone) And Chicken, U.S. Food & Drug Admin., http://www.fda.gov/AnimalVeterinary/SafetyHealth/ProductSafetyInformation/ucm257540.htm (last updated Sept. 6, 2013).
[ii] Is Pink Turkey Meat Safe?, U.S. Food & Drug Admin., available at http://www.fsis.usda.gov/wps/portal/fsis/topics/food-safety-education/get-answers/food-safety-fact-sheets/poultry-preparation/is-pink-turkey-meat-safe_/CT_Index (last modified Aug. 02, 2013).
[iii] Id.
[iv] Id.
[v] Id.
[vi] Craig A. Morris, Let's Talk Turkey About USDA Poultry Grades, U.S. Food & Drug Admin., (Nov. 18, 2013, 10:15 AM), http://blogs.usda.gov/2013/11/18/lets-talk-turkey-about-usda-poultry-grades/.
[vii] Id.
[viii] Id.
[ix] Kathy Bernard, The Big Thaw For Thanksgiving, USDA FOOD & SAFETY INSPECTION SERVICE, available at http://blogs.usda.gov/2013/11/19/ the-big-thaw-for-thanksgiving.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Id.
[xiv] James Greiff, What was Arsenic Doing in Our Chicken Anyway?, BLOOMBERG (Oct. 10, 2013, 10:57 AM) http://www.bloomberg.com/news/2013-10-10/what-was-arsenic-doing-in-our-chicken-anyway-.html.
[xv] Id.

Will The Bluegrass State Become The Great Wall of Kentucky?

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By: Jamie Houston, Staff Member

The improving economy, which is indubitably invited, seems to be rolling in with both good and bad news. The good news is the economy is improving; the bad news is the demand for natural gas has increased, thereby increasing the cost of Kentucky heating bills this winter compared to last year.[i] Since “natural gas represents the only clean energy option of adequate scale today,” it seems natural gas should suffice simply because the terms “clean” and “adequate” are a match made in energy heaven.[ii] The next step would be to get production booming, right?

Recently, the House of Representatives passed a bill “aimed at speeding up drilling for oil and natural gas,”[iii] and the House anticipates passage of another bill to “streamline permitting for natural gas pipelines.”[iv] However, some oppose the bill, for what may or may not be a good reason. The pipeline bill will essentially place a one-year time limit on the Federal Regulatory Energy Commission, an agency regulating the interstate transmission of natural gas and oil, to approve or deny a pipeline application.[v]

Is there true concern for maximizing the marketability and utilization of what appears to be a viable energy option when there is faint federal legislation to preempt states that hinder expeditious exploration of natural gas pipelines? Notably, there is a hotly contested issue that has matriculated to the Kentucky General Assembly because residents of the Commonwealth have lamented their thoughts of a private pipeline company condemning their lands under eminent domain.[vi] The company wants to build a 1,123 mile natural gas pipeline from the Northeast down to the Gulf Coast.[vii] The Kentucky eminent domain statute requires a pipeline to be a “public service” in order to invoke this doctrine.[viii] Although the joint venture disagrees, officials of the State Energy and Environment Cabinet proclaim that the company is not a public service, and consequently does not have the power of eminent domain.[ix]

A quick recapitulation of the posture of issues obstructing proposed pipelines reveals a political tangle at the federal level, two interpretations of the Kentucky eminent domain statutes, immense pushback from Kentucky residents, and basic geography. Kentucky sits in a particularly interesting position in terms of bargaining power with the pipeline company. A map of the United States shows, and Attorney General Jack Conway recognizes that in order to get the natural gas flowing from the Northeast to the Gulf Coast, “they can’t go around Kentucky.”[x] Will the Bluegrass State turn out to be The Great Wall of Kentucky? Whatever the disposition of this issue, citizens should remain hopeful for some control in the cost of natural gas.
_________________
[i]Pub. Serv. Comm’n, Natural Gas Will Cost More This Winter Than Last Year, (Oct. 31, 2013), http://eec.ky.gov/Lists/News%20Releases%202/Natural%20gas%20will%20cost%20more%20this%20winter%20than%20last%20year.pdf.
[ii] America’s Natural Gas Alliance, Why Natural Gas, Clean, (last visited Nov. 24, 2013), http://anga.us/why-natural-gas/clean#.Uo5-VsTksU8.
[iii] Matthew Daly, House Approves Bill to Speed Up Oil and Gas Drilling, (Nov. 20, 2013, 4:25 PM), http://www.huffingtonpost.com/2013/11/20/house-oil-and-gas-bill_n_4312118.html.
[iv] Id.
[v] Matthew Daly, House Backs Bill to Speed Natural Gas Pipelines, (Nov. 21, 2013), http://www.kentucky.com/2013/11/21/2945073/house-backs-bill-to-speed-natural.html.
[vi] Bluegrass NGL Pipeline Encounters Resistance From Some in KY, Marcellus Drilling, (Aug. 8, 2013), http://marcellusdrilling.com/2013/08/bluegrass-ngl-pipeline-encounters-resistance-from-some-in-ky/.
[vii] Valerie Chinn, Bluegrass Pipeline Expected to Run Through 13 Kentucky Counties, (Nov. 5, 2013, 3:12 PM), http://www.wdrb.com/story/23883716/bluegrass-pipeline-expected-to-run-through-13-kentucky-counties.
[viii] Ryan Quinn, Legislator Pre-Files Bill to Address Eminent Domain and the Bluegrass Pipeline, (Sept. 16, 2013, 5:36 PM), http://www.state-journal.com/local%20news/2013/09/16/legislator-pre-files-bill-to-address-eminent-domain-and-the-bluegrass-pipeline.
[ix] Greg Kocher, State: Eminent Domain Not Possible For http://www.kentucky.com/2013/09/05/2805903/lawyers-for-company-state-disagree.html.
[x] Nick Storm, Conway Says He Has Concerns About Proposed Bluegrass Pipeline, (Aug. 15, 2013, 2:58 PM), http://mycn2.com/politics/conway-says-he-has-concerns-about-proposed-bluegrass-pipeline.

Was My Dad a Child Laborer?

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By: Quinn Hill, Staff Member

My grandfather was a farmer. Customarily, he and my grandmother had a large family, comprised of six children: four boys and two girls. Big families were almost a necessity for small farmers in rural Mississippi, since the children were able to help in the toil of that enterprise. From a remarkably young age, my dad (the oldest of the siblings) was picking cotton, driving mules, bailing hay, and once the farm became mechanized, operating a tractor and its many accoutrements. If any spare hands were needed at a neighbor’s farm, my dad and his brothers would pitch in. Thus, as a child living on a small farm, life was as much, if not more so, about work as it was about play, and the work, to be sure, was very, very hard.

Today, with a more evolved and sophisticated economy, an interesting and difficult question emerges: Was my dad a child laborer? According to the Secretary of Labor, the answer is unclear. Passed in 1938, the Fair Labor Standards Act permits the Secretary of Labor to designate guidelines for the employment of minors.[i] Under both the Act and the Secretary’s guidance, a child may be employed in agriculture by his parent or by one standing in loco parentis, at any time.[ii] While a child above the age of twelve may work at another’s farm with express parental or guardian consent,[iii] any child below that age is prohibited from being so employed.[iv] Further, any employment outside of a family or guardian-run agricultural operation is subject to certain limitations; employment that entails tasks that the Secretary deems “hazardous” is prohibited, notwithstanding express parental consent.[v] It is amusing to note that my dad and his brothers performed many of these tasks on neighbors’ farms, thus violating – though unknowingly – the Act’s express prohibitions.[vi] Considering the phalanx of federal regulations and broad statutory provisions, my dad could most certainly have been classified a child laborer.

Concerns over child labor are ongoing. Indeed, the United Nations has pledged to eliminate child labor by 2020.[vii] Recently, the United Nations reported a steep decline in the international incidents of child labor.[viii] However, it is uncertain as to how much the decline is due to a change in values as opposed to economic depression, and the U.N. stressed that child labor remains a problem of global significance.[ix] The cacao industry in particular has experienced international backlash over many of the producing countries’ use of child labor.[x] In 2001, several cacao producing corporations signed the Harkin-Engel Protocol, a document outlining a kind of war on child labor, signaling, at least on paper, an acknowledgment that the “worst forms of child labor” are a problem worthy of eradication.[xi] Interestingly, the Harkin-Engel Protocol defines “child” as anyone under the age of eighteen.[xii]

Without a doubt, as a nation’s economy advances, so too must its economic ethos. A quick glance at the Fair Labor Standards Act’s provisions on child labor evinces an increased focus on classroom, as opposed to occupational, education.[xiii] However, the very fact that the prohibition against child labor found its statutory articulation in the more general, and generally applicable, Fair Labor Standards Act, shows that the prohibition was part of a larger shift in cultural and economic values that transcended the discrete guidelines of the Act. Recognizing the larger framework within which a prohibition against child labor arose within the United States exposes an obvious problem with single-minded platforms such as the Harkin-Engel Protocol, for such prohibitions are a development of a cultural and economic paradigm shift that cannot be artificially enforced. While cacao industry leaders have attempted to implement the Harkin-Engel Protocol’s guidelines – initiating, for instance, more holistic programs aimed at tackling the child labor from a variety of areas, including greater mechanization of the harvesting process, and increased education of cacao farmers[xiv] -- for the most part, this industry-by-industry approach leaves the larger economic universe at the status-quo.

To be sure, the “worse forms of child labor” are an immediate threat to so many children worldwide; their plight is real, and all nations – particularly, developing nations – should take steps to move children out of the workforce and into the classroom. However, as the Western nations should know from history, and my dad knows from experience, child labor exists within a gray area of the ever-evolving economy and culture of a nation. Thus, the only true solution to the problem of child labor is neither an industry-by-industry prohibition nor a worldwide boycott of goods procured through the use of that labor. Instead, the solution lies in the wholesale development of each nation’s entire economy; only through economic advancement of the nation as a whole can labor shift to those more able to handle its burdens, while maintaining economic output capable of supporting the next generation.
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[i] See 29 U.S.C. 213(c)(2).
[ii] 29 U.S.C. 213(c)(2); 29 C.F.R. § 570.70(b).
[iii] 29 U.S.C. 213(c)(1)(B).
[iv] Id.
[v] 29 U.S.C. 213(c)(2); 29 C.F.R. § 570.70(a).
[vi] See 29 C.F.R. § 570.71. “Hazardous occupations” are listed in this statute.
[vii] Randeep Ramesh, UN Unveils Plans to Eliminate Child Labour by 2020, The Guardian Online, Oct. 28 2012, http://www.theguardian.com/world/2012/oct/29/un-eliminate-child-labour-2020.
[viii] Patrick Barta, Use of Child Workers is Declining, The Wall Street Journal Online, Sept. 23 2013, http://online.wsj.com/news/articles/SB10001424052702303983904579091211679247966.
[ix] Id.
[x] Child Labor in the Production of Cocoa, United States Department of Labor Website, http://www.dol.gov/ilab/programs/ocft/cocoa/ [last visited Nov. 17, 2013].
[xi] Id. A copy of the Harkin-Engel Protocol may be found at http://www.harkin.senate.gov/documents/pdf/HarkinEngelProtocol.pdf. In Article 3 of the Protocol, the “worst forms of child labor” are defined ambiguously as those comprising “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of chidren.”
[xii] Harkin-Engel Protocol, supra, art. 2.
[xiii] 29 U.S.C. § 213(c)(1) and (4)(B)(i) (limiting employment to non-school hours); see also, 29 C.F.R. § 570.123(a) (stating that an exemption based upon “out of school ours” is inline with Congressional intent behind the FLSA).
[xiv] See, e.g., The Hershey Company’s Learn to Grow Program, http://satellite.tmcnet.com/news/2013/07/16/7278816.htm [last visited Nov. 17, 2013] (emphasizing increases in both farmer education and a more efficient, less labor intensive harvesting process, along with funding for child education).

Did Obama Become President to Make Jobs For Lawyers?

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By: David W. Harper, Jr., Staff Member

President Obama is doing his best to help the legal market. Plainly, the demand for Administrative lawyers is on the rise. While George Orwell would disprove of Obama’s 1984-esque legislation, attorneys should rejoice. With each new piece of convoluted, highly regulatory legislation comes high demand for legal advice.[1] Just as securities lawyers joked that the implementation of the Sarbanes-Oxley Act was kind of like the Full Employment Act for securities lawyers, the Affordable Care Act can be seen as the Full Employment Act for health care lawyers.[2] Will the possible amendment to the Ethanol Mandate be the next source of boom for the legal market?

As a result of the Affordable Care Act, there appears to be an increase in demand for health care lawyers to help navigate the lengthy, confusing provisions. In fact, some estimate a 20 percent increase in health care specialists in the legal field by 2018—that is approximately 600 new health care lawyers.[3] In addition to health lawyers, the Affordable Care Act could spark an increase in divorce lawyers. An unintended consequence of Obamacare is that a couple could avoid paying thousands of dollars in federal taxes and health premiums if they divorced; this has been labeled the “wedding tax.”[4] Should a couple choose economics over morality, divorce lawyers would be in high demand as well.[5]

Just as the Sarbanes-Oaxley Act sparked demand for securities lawyers and the Affordable Care Act has sparked demand for health care lawyers, will revisions to the current Ethanol mandate spark a demand for environmental litigators and administrative lawyers? The Environmental Protection Agency is debating reducing the amount of renewable fuel that the oil industry must use.[6] In response, ethanol backers are threatening to file a lawsuit if the EPA indeed decides to scale back the mandate.[7] Ethanol backers would certainly include farmers, as roughly 40 percent of America’s corn crop goes to support ethanol product.[8] Therefore, should the EPA decide to reduce the amount of required ethanol the oil industry must use, many may seek legal help—for instance, the oil industries for oversight and compliance issues and ethanol backers for litigation—creating another “demand-through-legislation” for lawyers. Different from the Sarbanes-Oaxley Act and Obamacare, the Ethanol mandate could spark a broader demand for attorneys as actors will seek legal help for a variety of reasons (compliance and litigation, among others). At a time where the legal market is arguably over-saturated and depressed, it appears President Obama is trying hard to help his former profession prosper.
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[1] Catherine Hollander, Obamacare Is Creating Jobs—Yes, Really (Sept. 26, 2013), http://www.nationaljournal.com/magazine/obamacare-is-creating-jobs-yes-really-20130936.
[2] Id.
[3] Id.
[4] Jacqueline Leo, Why Divorce Lawyers Will Love Obamacare (Oct. 2, 2013), http://www.thefiscaltimes.com/Articles/2013/10/02/Why-Divorce-Attorneys-Will-Love-Obamacare.
[5] Id.
[6] Ryan Tracy, EPA Revisits Ethanol Mandate as Fuel Use Slips (Aug. 8, 2013), http://online.wsj.com/news/articles/SB10001424127887323968704578652011231792732
[7] Darren Goode, Will President Obama slash ethanol mandate? (Nov. 11, 2013), http://dyn.politico.com/printstory.cfm?uuid=CB1F5D72-3B88-4516-B105-E64E55E043DD.
[8] Christopher Helman, Attention Fracktivists: Corn Ethanol Is The Real Enviornmental Culprit (Nov. 11, 2013), http://www.forbes.com/sites/christopherhelman/2013/11/11/attention-fracktivists-corn-ethanol-is-the-real-environmental-culprit/.

Cultivating Justice for Survivors of Rape on American Farms

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By: Laken Gilbert, Staff Member

In America, over 500,000 women work in the fields and most are undocumented immigrants.[i] Women in the fields are especially vulnerable to unwanted sexual advances by farm supervisors.[ii] It is a scarcely-reported epidemic for many reasons, including the fear of deportation and lack of alternative work.[iii] No one knows how many women who work on American farms have been harassed or assaulted.[iv] However, a recent year-long investigation uncovered that since 1998, in the agriculture industry, none of the supervisors accused of assault or rape named in lawsuits filed by the Equal Employment Opportunity Commission (EEOC) have been tried in criminal court.[v] This suggests gross under-reporting in the criminal arena that must be addressed if justice is to be cultivated for survivors of rape on American farms.

In an effort to strengthen the ability of law enforcement agencies to prosecute such crimes while providing survivors protection from immediate risk of removal, Congress enacted the Victims of Trafficking and Violence Prevention Act (VTVPA) in 2000.[vi] The law provides temporary legal status, in the form of a U-visa, for those who are survivors of qualified crimes and are likely to be helpful to law enforcement.[vii] A petition for a U-visa requires, among other things,[viii] certification from an appropriate law enforcement agency that the survivor is cooperating and such agencies have broad discretion when it comes to signing the certification.[ix] However, the Vera Institute of Justice reported in 2011 that in many jurisdictions, law enforcement agencies do not use U-visas regularly or efficiently.[x] The Institute cites reasons such as lack of agency protocols, insufficient training, misunderstanding of law enforcement’s role in the process, and fear that using the U-visa will have negative consequences.[xi]

The plight of women farmworkers and the lack of prosecution of their offenders evidence the need for law enforcement to use U-visas more for the preservation of crucial testimony. Kris Zuniga, sergeant for a police department in rural California, says many farm workers do not get a rape exam.[xii] “And a week goes by, two weeks go by, three weeks go by, and you’ve lost that physical evidence, so now you’re down to a ‘he said, she said’ and those are tough, tough to prosecute.”[xiii]

Increasing law enforcement’s use of U-visas can help curb the lack of evidence in a criminal case. Not only would more women come forward if U-visas were widely used, but many of them would do so sooner, better preserving physical evidence. Furthermore, by using U-visas at the investigation stage, law enforcement can be better situated when moving a case to trial by ensuring that survivor will be present to testify. To achieve this, agencies need to increase training on the implications (or lack thereof) of using U-visas and how providing that protection early on can help increase evidence against offenders. Upsetting the imbalance of power in the fields is essential if justice is to be cultivated for these survivors. Refusing to use U-visas does nothing less than to perpetuate this imbalance and puts offenders on notice that their crimes will not be pursued.
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[i] Rape in the Fields, Frontline (June 25, 2013), http://cironline.org/rapeinthefields.
[ii] Sasha Khokha, Silenced By Status, Farm Workers Face Rape, Sexual Abuse, NPR (Nov. 5, 2013, 5:26 PM), http://www.npr.org/2013/11/05/243219199/silenced-by-status-farm-workers-face-rape-sexual-abuse.
[iii] Id.
[iv] Id.
[v] Id.
[vi] U.S. Dept. of Homeland Security, U Visa Law Enforcement Certification Resource Guide, http://www.dhs.gov/xlibrary/assets/dhs_u_visa_certification_guide.pdf.
[vii] Rodolfo Estrada, How Law Enforcement Is Using The U-Visa, VERA Institute of Justice (Oct. 2011) http://www.vera.org/sites/default/files/resources/downloads/U-visa-practice-brief.pdf.
[viii] Requirements are: they have suffered “substantial physical or mental abuse” as a result of being a victim of one or more specified criminal activities; they possess information about those criminal activities; they help—or are willing to help—with the detection, investigation, or prosecution of the criminal activities; and they were victims of criminal activities that occurred in the United States or that violated the country’s laws. Id.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Sasha Khokha, Despite Barriers, Farm Worker Breaks Silence About Rape Case, NPR (Nov. 6, 2013, 4:26 PM), http://www.npr.org/2013/11/06/243288375/despite-barriers-farm-worker-breaks-silence-about-rape-case?utm_content=socialflow&utm_campaign=nprfacebook&utm_source=npr&utm_medium=facebook.
[xiii] Id.