Running on Fumes: Is Natural Gas the Solution for America's Car Culture?

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By: John Bishop, Staff Member

Natural gas has been making quite a buzz lately, between debates about opening up trade of domestic American gas with our allies, sending natural gas to aid Ukraine, and becoming a less energy-dependent nation. However, almost none of the chatter about natural gas has involved using it as a replacement for one of our largest domestic causes of pollution: automobiles.



Let’s face it; America has a thing for cars, and that isn’t going away. Try as we might, Americans can’t seem to give up the independence and freedom of driving our cars.[1] Although new hybrid technology developments such as those in the Toyota Prius and Chevy Volt have helped, the average fuel economy of today’s cars has barely caught up with the 25 mile-per-gallon 1913 Ford Model T[2]. Despite improvements, the fact remains that oil is just not a clean enough source of fuel for our car-crazed culture.

Enter natural gas, the new belle of the clean energy ball. Believe it or not, car engines can be built or converted to run on natural gas in a highly compressed form. Compressed natural gas, or CNG, emits approximately 30% less carbon dioxide when combusted than oil.[3] Moreover, current natural gas prices range from $0.79 to $1.50 per gallon equivalent, which means that driving a CNG-powered car is significantly cheaper than a gas-powered car.[4] Despite these advantages, natural gas powers only 112,000 vehicles in the United States.[5]

One major obstacle to the adoption of natural gas as a viable and available fuel source for automobiles is EPA regulation under the Clean Air Act. According to the EPA, “any change to the original configuration of a certified vehicle or engine, including alternative fuel conversion, is a potential violation of the Clean Air Act...prohibition against tampering.”[6] Because of the danger that these modifications will actually make cars run less efficiently, the EPA regulates these modifications closely, requiring costly certifications and data disclosures from authorized converters. So, although it is cheaper to run a CNG vehicle, conversion costs are prohibitively high, ranging from $6,500-$12,000.[7]

Despite its many potential advantages, it doesn’t appear that we’ll be paying $1 per gallon to run our CNG cars anytime soon. Unless the EPA can reduce the costs of compliance with alternative fuel regulations, CNG-powered cars will remain a pipe dream.

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[1] Paul Lucas, Number of Cars on U.S. Roads on the Rise, The Green Car Website, (Mar. 9, 2014, 10:00 PM), http://www.thegreencarwebsite.co.uk/blog/index.php/2013/11/05/number-of-cars-on-us-roads-on-the-rise/.
[2] Michael Mulchay, U.S vehicle fuel efficiency has increased only 3 mpg in 80 years, Gizmag.com, (Mar. 9, 2014, 10:00 PM), http://www.gizmag.com/us-vehicle-fuel-efficiency-improves-3mpg-80-years/12410/.
[3] NaturalGas.org, http://naturalgas.org/environment/naturalgas/, (last visited Mar. 9, 2014).
[4] Ben Wojdyla, Should You Convert Your Car to Natural Gas?, PopularMechanics.com, (Mar. 9, 2014, 10:00 PM), http://www.popularmechanics.com/cars/how-to/maintenance/should-you-convert-your-car-to-natural-gas.
[5] Alternative Fuels Data Center, http://www.afdc.energy.gov/vehicles/natural_gas.html, (last visited Mar. 9, 2014).
[6] Environmental Protection Agency, http://www.epa.gov/otaq/consumer/fuels/altfuels/altfuels.htm, (last visited Mar. 9, 2014); 42 U.S.C. § 7522(a)(3).
[7] Wojdyla, supra note 4.

Sisters Farming For Themselves: Advancements for Female Farmers

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By: Jennifer Wade, Staff Member

Scholars look back on farm history and question whether women farmworkers were exploited and powerless.[i] Women’s position in the household was valued, but their contributions to farm work in both the private and public spheres may have been overlooked.[ii] As the landscape of farm size and composition of ownership is changing, the female’s place in the farming industry continues to change dramatically, away from the historical discourse of female oppression.



Female operated farms have expanded by 152 percent in the last 35 years.[iii] Female farms that generate sales of $500,000 to $999,999 have grown by 277 percent, and farms with sales over $1,000,000 have grown by 714 percent.[iv] Contrasting the exponential growth, male-operated farms have declined by 10 percent.[v] This means that fewer men are entering farming as a career, while women flock to the agriculture industry.[vi] Female operators are also better educated than male operators, with 61 percent having greater than high school education compared to 47 percent of male operators.[vii]

Female farmers specialize in livestock, mainly horses and free-range beef cattle.[viii] The bulk of sales from female operated farms are grains, dairy, and poultry.[ix] Women are also more likely to own their farmland than male operators.[x] Furthermore, female operators also accept 40 percent less government payments than male operators.[xi]

Despite this advancement, female operators will not report farming as their main occupation, while half of all male operators list farming as their primary occupation.[xii] Additionally, many more female operators are second or third operators behind their husbands.[xiii] This has led to a push to provide educational outreach to support female operated farms.

Women have begun to outnumber men in specific agriculture programs across the country.[xiv] Women are also seeking to mentor other women to start agriculture businesses, as well as provide advice to young farmers on maintaining profitability in the business.[xv] Female farmers who maintain small grow operations seek to help new female farmers gain a foothold in the burgeoning market of small operation farming.[xvi]

The future of women in farming moves beyond that of farm helper to an operation manager. Women are becoming more educated in the marketing and business aspects of the field and are creating networks of female operators. The past beliefs of women in farming as subservient to men is no longer true, and male farmers have come to take pride in the education and skill that women can bring to the farming industry.[xvii]
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[i] Sarah S. Beach, “Tractorettes” or Partners? Farmers’ Views on Women in Kansas Farming Households, Rural Sociology 210, 210 (2013).
[ii] Id. at 213.
[iii] Robert A. Hoppe & Penni Korb, U.S. Dep’t of Agric., Characteristics of Women Farm Operators and Their Farms 4 (2013).
[iv] Id.
[v] Id.
[vi] Id. at 8-9.
[vii] Id. at 9-10.
[viii] Id. at 15.
[ix] Id.
[x] Nat’l Agric. Statistics Serv., U.S. Dep’t of Argric., 2007 Census of Agriculture: Women Farms (2007).
[xi] Economic Research Serv., U.S. Dep’t of Agric., Structural and Financial Characteristics of U.S. Farms: 2001 Family Farm Report 42 (Robert A. Hoppe, ed., 2001).
[xii] Id. at 46.
[xiii] Hobbe & Korb, supra note 3, at 32.
[xiv] Cheryl Tevis, Women on the Grow, Agriculture.com (Apr. 14, 2013, 9:34 PM), http://www.agriculture.com/family/women-in-agriculture/women-on-grow_338-ar30982.
[xv] Id.
[xvi] Id.
[xvii] Beach, supra note 1, at 225.

Celestial Capitalism: The Invisible Hand’s Grab at the Visible Universe

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By: Brandon Adcock, Staff Member

Ironically, in order to consume natural resources, it seems humanity collectively ignores the old saying, “don’t defecate where you digest nutrients,” to put it mildly. For a solution to this problem, space seems to be the final frontier…but has someone already beat us to sustainability? One thing we can always count on as more sustainable than our resources is a scalable, business model. Perhaps an anecdote will make this far, far away issue land closer to our third rock from the sun. I recently learned that my current Internet provider, Time Warner, will be subsumed into Comcast.[i] Unfortunately, in my apartment complex, Time Warner is the only game in town and that game is Monopoly.


The 1967 Outer Space Treaty disallows sovereignty over celestial bodies.[ii] This Cold-War-Era grandstanding hardly made Americans feel better about Sputnik and left private ownership eerily fuzzy.[iii] Captain Kirk may be paying for parking, where one small step for a man[iv] is one giant leap for commerce. Greg Nemitz did just that when he attempted to charge NASA for landing a probe on “his” asteroid, Eros (dismissed for not proving actual ownership).[v] Thankfully, the treaty supposedly outlaws appropriating celestial land parcels.[vi]

Despite this, rule of capture maintains relevancy through allowances for extraction,[vii] so orbiting matter is up for grabs to the first one to reach it. Planetary Resources, colluding with Google, wants the final frontier like the old west for asteroid mining[viii] so that it doesn’t take forced mine-tricks to hide the ’roids they’re looking for. Yet only some entrepreneurs have the luxury of considering private, space exploration.[ix] Should the public worry that Red Bull has a better space program than most nation-states?[x] It depends. Outer space, ideally, offers a fresh start, much like the old west did for the downtrodden. However, running against the capitalist ethic, the prospects of space seem hostile towards start-ups.[xi]

Perhaps a business model would be an investment toward the future. NASA, failing mostly due to Congressional budget cuts and bad priorities,[xii] has opened their pod bay doors to the idea.[xiii] People should battle for free-market competition now before a legal monopoly results. Turning moon rocks into alternative energy[xiv] may help in the short term, but the Earth is unsustainable. What will be the fair market value of humanity’s salvation—living on distant, corporate-owned, leasehold colonies? When it comes to cyberspace, Comcast’s merger means hearing, “meet the new boss, same as the old boss.”[xv] When it comes to outer space, I hope that humanity won’t get fooled again.
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[i] Michael Santoli, Comcast and Time Warner Cable merger: What it means for consumers, Yahoo Finance (Feb. 13, 2014, 10:01 AM), http://finance.yahoo.com/blogs/daily-ticker/comcast-to-acquire-time-warner-cable-143000745.html.
[ii] Berin Szoka and James Dunstan, Space Law: Is Asteroid Mining Legal?, Wired (May 1, 2012, 11:00 AM), http://www.wired.com/wiredscience/2012/05/opinion-asteroid-mining/ (citing language from the 1967 Outer Space Treaty).
[iii] Id.
[iv] Karen Kaplan, Did Neil Armstrong really say, ‘That’s one small step for a man’?, Los Angeles Times (June 5, 2013, 6:30 AM), http://www.latimes.com/news/science/sciencenow/la-sci-sn-neil-armstrong-one-small-step-for-a-man-20150605,0,1063827.story#axzz2urW0mTZ4.
[v] Berin Szoka and James Dunstan, Space Law: Is Asteroid Mining Legal?, Wired (May 1, 2012, 11:00 AM), http://www.wired.com/wiredscience/2012/05/opinion-asteroid-mining/.
[vi] Berin Szoka and James Dunstan, Space Property Rights: It’s Time, and Here’s Where to Start, Space News (Jan. 27, 2014), http://www.spacenews.com/article/opinion/39294space-property-rights-it’s-time-and-here’s-where-to-start (“Such celestial land grabs are specifically outlawed by Article II of the Outer Space Treaty of 1967, whether such claims are made by countries or by private entities”).
[vii] Berin Szoka and James Dunstan, Space Law: Is Asteroid Mining Legal?, Wired (May 1, 2012, 11:00 AM), http://www.wired.com/wiredscience/2012/05/opinion-asteroid-mining/.
[viii] Id.
[ix] See John Schwartz, Thrillionaires: The New Space Capitalists, The New York Times (June 14, 2005), http://www.nytimes.com/2005/06/14/science/space/14rock.html?pagewanted=1&_r=0.
[x] Richard Feloni, New Footage from Last Year’s Epic Red Bull Space Jump Shows Felix Baumgartner Handling a Wild Spin 24 Miles Above Earth, Business Insider (Oct. 16, 2013, 9:21 PM), http://www.businessinsider.com/pov-look-at-red-bulls-space-jump-2013-10.
[xi] Richard Seymour, Why outer space is really the final frontier for capitalism, The Guardian (Dec. 20, 2013, 6:45 PM), http://www.theguardian.com/commentisfree/2013/dec/20/outer-space-final-frontier-capitalism-mine-moon (“[Businesses, which are conservative,] aren't going to invest unless they're reasonably sure of a profit, even if the result is sluggish growth and flatlining innovation”).
[xii] See Rand Simberg, Capitalism in Space, National Review Online (Aug. 10, 2012, 4:00 AM), http://www.nationalreview.com/articles/313417/capitalism-space-rand-simberg.
[xiii] Berin Szoka and James Dunstan, Space Property Rights: It’s Time, and Here’s Where to Start, Space News (Jan. 27, 2014), http://www.spacenews.com/article/opinion/39294space-property-rights-it’s-time-and-here’s-where-to-start (“NASA ‘finally understands the need for such public-private partnerships’”).
[xiv] Richard Seymour, Why outer space is really the final frontier for capitalism, The Guardian (Dec. 20, 2013, 6:45 PM), http://www.theguardian.com/commentisfree/2013/dec/20/outer-space-final-frontier-capitalism-mine-moon (“Apparently, the substance sought is helium-3, an isotope of the element that could potentially replace oil and gas as our energy generators”).
[xv] The Who, Won’t Get Fooled Again (MCA Records 1971).

Mining Eastern Kentucky’s “Mountains of Potential” for Economic Success

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By: Staff Member, Aubrey K. Vaughan[1]

Wayne County, Michigan—home of Detroit, the perennial target for sensationalist stories chronicling the horrors of high unemployment. As of December 2013, the national unemployment rate (not seasonally adjusted) fell to 6.5%.[2] Wayne County’s unemployment rate for the same month was 9.0%.[3] In the thirty-seven counties recently initiated into the Kentucky Department of Agriculture’s Appalachia Proud program,[4] the average unemployment rate for the same month was 10.7%, with twenty-four of the counties reaching double-digit unemployment, and three over 15%.[5]

Detroit and Eastern Kentucky share a history of industrial success: Detroit with car manufacturing and Eastern Kentucky with coal mining. However, both now have high levels of economic distress. Stimulus packages designed to pump money into these impoverished regions have failed. As taxpayers learned firsthand following the $700 billion bailout of Wall Street in 2008,[6] recessions are not fixed with a blank check from the government. Rewarding Wall Street with the bailout, or irresponsible states and bureaucrats with stimulus packages, “only encourages the behaviors of the past,”[7] instead of correcting course away from crony capitalism to one of free enterprise.

Rather than inject more money into the regions with yet another stimulus package, new legislation proposes to remove most government interference from the regions to allow commerce to flourish. Senators Rand Paul and Mitch McConnell are co-sponsoring S.1852,[8] the Economic Freedom Zones Act of 2013,[9] which lays out a plan to “revitalize…Eastern Kentucky and [struggling economies] across the United States by lowering taxes, enhancing education, reducing regulatory burdens, and encouraging charitable giving.”[10] A zip code is eligible to be an Economic Freedom Zone if its unemployment rate is “greater than one and a half times the national average.”[11] If an area qualifies, its federal income tax rate (for both individuals and corporations) will be lowered to a 5 percent flat tax, its federal payroll tax rate will be lowered to a 2 percent tax, capital gains taxes will be suspended, and certain EPA regulations will be lifted.[12] Kentucky Agriculture Commissioner James Comer is developing an Economic Freedom Zone in Eastern Kentucky with the Appalachia Proud program. His plan encourages universities to develop niche agricultural markets and launch industrial hemp pilot programs.[13] Commissioner Comer is also seeking state legislation to “return 100 percent of coal severance tax dollars to coal-producing counties.”[14]

The government is not too big to fail—it clearly has failed in both Detroit and Eastern Kentucky. Rather, the government is too big to let free enterprise succeed. With the implementation of an Economic Freedom Zone in the Appalachian region of Kentucky, the free market will allow the region to thrive once again.
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[1] J.D. Candidate, May 2015, University of Kentucky College of Law.
[2] Press Release, Bureau of Labor Statistics, Employment Situation News Release (Jan. 10, 2014), http://bls.gov/news.release/archives/empsit_01102014.htm.
[3] Local Area Unemployment Statistics Map, Bureau of Labor Statistics, http://data.bls.gov/map/MapToolServlet?survey=la&map=county&seasonal=u (select “Michigan,” “unemployment rate,” “2013,” and “December”; then click “Draw Map”).
[4] Appalachia Proud, Kentucky Department of Agriculture, http://www.kyagr.com/marketing/appalachia-proud-ky.html (last visited Feb. 24, 2014).
[5] Local Area Unemployment Statistics Map, Bureau of Labor Statistics, http://data.bls.gov/map/MapToolServlet?survey=la&map=county&seasonal=u (select “Kentucky,” “unemployment rate,” “2013,” and “December”; then click “Draw Map”).
[6] See Senator Rand Paul, Economic Freedom Zones, 5 (Dec. 5, 2013), http://www.paul.senate.gov/files/documents/EconomicFreedomZones.pdf.
[7] Id.
[8] Press Release, Office of Senator Rand Paul, Sens. Paul and McConnell Introduce Economic Freedom Zones Act of 2013 (Dec. 18, 2013), http://www.paul.senate.gov/?p=press_release&id=1059.
[9] Economic Freedom Zones Act of 2013, S.1852, 113th Cong. (1st Sess. 2013). 

[10] Press Release, Kentucky Department of Agriculture, Commissioner Comer launches Appalachia Proud to boost Eastern Kentucky through agriculture (Feb. 17, 2014), http://www.kyagr.com/Kentucky-AGNEWS/press-releases/Commissioner-Comer-launches-Appalachia-Proud-to-boost-Eastern-Kentucky-through-agricul.html.
[11] Press Release, Office of Senator Rand Paul, supra note 8.
[12] See Paul, supra note 6, at 2-5.
[13] See Commissioner James Comer, Appalachia Proud, Mountains of Potential: An action plan for economic development through agriculture in Eastern Kentucky, 46-49 (Feb. 14, 2014), http://www.kyproud.com/AppalachiaProud/docs/AP-Booklet.pdf.
[14] Press Release, Kentucky Department of Agriculture, supra note 10.

Political Theater and Kentucky Gambling Expansion

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By: Staff Member, Thomas E. Travis[1]

The Kentucky General Assembly currently has two gambling bills pending before it this session. First, House Bill 67 proposes a change to the Kentucky State Constitution to allow the General Assembly to permit and regulate casino gambling in the state.[2] The Kentucky Constitution currently bans all forms of “lotteries,” granting an exemption for the state lottery.[3] Kentucky courts have interpreted this ban to be inapplicable to horse racing,[4] but casino gambling is within the scope of the prohibition, requiring a constitutional amendment to legalize it.[5] Second, House Bill 68 is essentially an enabling act, substantively establishing the permit process and regulatory structure in the case that casino gambling is legalized.[6]

Stan Cave, head of the Family Foundation and Chief of Staff to former Governor Ernie Fletcher (a staunch opponent of racetrack gambling expansion), recently declared that the passage of HB 68 in the 2014 session would be unconstitutional. He claimed it is unconstitutional to pass the enabling act before the public passes the amendment. Further, Mr. Cave contends that if HB 68 were passed, “lawmakers would violate their oath of office to uphold the constitution.”[7]

While Mr. Cave’s rhetoric may score political points with Kentucky’s religious voters, it is unlikely there is much basis to his contention. HB 68 itself contemplates the fact that the statute would be dead letter if the amendment failed to pass.[8] In other words, passage of the bill would confer no actual governmental authority to expand gambling; it would merely have the expansion “shovel ready” upon approval of the amendment. Furthermore, it is a stretch to suggest that the oath of office is violated in passing a bill that is later found to be unconstitutional, especially on grounds as shaky as in the instant circumstance.

Despite the fact that a constitutional challenge would be feeble at best, this does raise questions about the political motivations in packaging the bills. Perhaps prospectively enabling the expansion represents a growing concern among state Democrats that Republicans will take control of the General Assembly and Governor’s Mansion. While a large part of the social conservative coalition still exists, many Republicans, including likely gubernatorial candidate James Comer, the Commissioner of Agriculture, are on board with the expansion.[9]

In short, a constitutional challenge to HB 68 is in large part political theater to galvanize support for November. Despite doubtful illegality, the political undertones suggest this is a conversation warranting further attention. Whether it is electoral paranoia or campaign strategy, the packaged legislation will continue to spark controversy until the voters speak.
_________________
[1] Staff Member of the Kentucky Journal of Equine, Agriculture, and Natural Resources Law 2013-2014: B.S. 2012 Western Kentucky University; J.D. expected May 2015 University of Kentucky. The author would like to thank Professor Scott Bauries for his advice on this topic.
[2] H.B. 67, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014).
[3] Ky. Const. § 226(3) (“Except as provided in this section, lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties. All lottery privileges or charters heretofore granted are revoked.”).
[4] See Commonwealth v. Kentucky Jockey Club, 38 S.W. 2d 987 (Ky. 1931).
[5] See OAG 93-58.
[6] H.B. 68, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014).
[7] Brammer, supra note 2.
[8] H.B. 68, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014) (“effective upon certification of election results in November 2014 if a constitutional amendment is enacted by the General Assembly and approved by the voters permitting the General Assembly to authorize casino gaming”).
[9] Kentucky Wins, Our Coalition, http://kywins.com/our-coalition (last visited February 23, 2014).

A New Approach to Regulating Tobacco Use

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By: Jake Thompson, Staff Member

In New York City, tobacco users will be facing a new tobacco ordinance, which will go into effect March 19, 2014.[i] This ordinance contains many parts and new requirements that include, among other things, higher fines for illegal tobacco sales and even a price floor on a pack of cigarettes of $10.50.[ii] On the same day this ordinance was passed, another ordinance was also passed, which increased the minimum age for purchasing tobacco products from 18 to 21.[iii] Surprisingly, however, none of these restrictions have drawn the ire of store owners and tobacco companies as much as a part of the ordinance that basically bans the use of coupons and promotional discounts for tobacco products, as evidenced by a lawsuit challenging this latter requirement of the ordinance but not any of the other requirements.[iv] Interestingly, while the price floor only applied to cigarettes, the ban on coupons applied to all tobacco products.[v]

Challenging the ordnance alongside a slew of tobacco companies are the New York Association of Convenience Stores and the Bodega Association of the United States.[vi] They are challenging the so-called “coupon ban” on the grounds that the ban violates the First Amendment rights of the plaintiffs by limiting their ability to communicate truthful and lawful discount information about their products to their customers.[vii] While noting that these grounds alone should be sufficient to strike down the ordinance, the plaintiffs further argue that the Federal Cigarette Labeling and Advertising Act and other state law preempt the ordinance.[viii] The argument is basically that the Federal and state laws already regulate the sale of tobacco products, and promotions and these existing laws take precedence over local laws that might be passed, including laws that impose broader restrictions.[ix]

While some might be inclined to dismiss the lawsuit as just another example of tobacco companies protecting their bottom line, it must be remembered that in this lawsuit, neither the price floor on cigarettes nor the minimum age increase have been challenged.[x] The plaintiffs, which, again, include convenience store trade associations, are only trying to protect what they believe is a constitutional right. Further, as a more practical matter, tobacco users in the year 2014 are certainly aware of the plethora of studies touting the harmful effects of all tobacco use in all of its forms. Tobacco users also are faced with fewer and fewer places across the country that even allow smoking or the use of smokeless tobacco. If users continue to consciously make the choice to purchase and use tobacco products, should it really be a government prerogative to prevent them from using a coupon to purchase a can of snuff or a $10.50 pack of cigarettes?
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[i] Greg Ryan, Tobacco Companies Sue NYC to Kill Coupon, Discount Ban, Law360.com (Jan. 31, 2014, 6:36 PM), http://www.law360.com/articles/505922/tobacco-companies-sue-nyc-to-kill-coupon-discount-ban.
[ii] Id.
[iii]Id.
[iv]Id.
[v] Tobacco Companies Sue to Block NYC Law Banning Cigarette Coupons, Discounts, The Republic (Jan. 30, 2014, 5:40 PM), http://www.therepublic.com/view/story/1497f39c14e149499b7decef67d69f35/US--NYC-Cigarette-Prices
[vi]Charlie Minato, Press Release: NATO Files Lawsuit Over New York City Over Tobacco Discount Law, Halfwheel.com (Jan. 30, 2014), http://halfwheel.com/press-release-nato-injunction-new-york-city-over-tobacco-discount-law
[vii] Ryan, supra note i.
[viii] Id.
[ix] Id.
[x] Id.

No One Wants a Lame Horse: The Positive Effects of Gene Therapy on Equine Osteoarthritis

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By: Whitney Stepp, Staff Member

Osteoarthritis (OA) is a degenerative and career-compromising disease in horses that is often emotionally and financially draining for owners. [i] OA a painful, incurable condition primarily characterized by the progressive destruction of articular cartilage[ii] and is also responsible for up to 60% of lameness in performance and pleasure horses.[iii] Equine lameness “is mild or severe loss of ability to move normally that can be caused by problems in a horse’s bones, muscles, nerves, tendons, ligaments, brains, circulation, and metabolism.”[iv] The majority of horse lameness problems occur in the foot,[v] which impairs their ability to do what they were in most cases purchased to do. Thus, it’s in a horse owner’s best interest to not only be aware of the symptoms of OA, but knowledgeable of the most effective treatments.

As with any medical diagnosis, progression of osteoarthritis can be slowed down with early corrective treatment.[vi] There are currently many symptomatic treatment options that veterinarians utilize to relieve clinical signs of Osteoarthritis, such as: prescription medications, icing, pressure wraps, exercise protocols, and dietary management to name a few.[vii] Unfortunately, while the current treatment options relieve clinical signs of OA, they have not been shown to prevent progression. [viii]

In a recent study, conducted by Dr. Ashlee Watts, DVM, an assistant professor at the Texas A & M College of Veterinary Medicine & Biomedical Sciences, a type of gene therapy, (using genes to treat or prevent disease), combined with mesenchymal stem cells, (MSC), was shown to reduce the progression of OA.[ix] The study consisted of thirteen mature Thoroughbreds in the early stages of experimentally induced OA, in all cases affecting the middle carpal bone that is located in knee.[x] Fourteen days after induction, seven horses received placebo injections to treat their OA, while the other six horses received the MSC and gene therapy injections in the affected joints.[xi] Dr. Watts admits that the process is complex, but in simple terms, she utilized gene therapy to augment stem cells to reduce destructive pathways in the joint and increase healing pathways.[xii]

The key results of the study revealed that there were no adverse effects of treatment with the combination of MSC and gene therapy. More importantly, in the week following treatment the researchers[xiii] observed significant improvements in range of motion and joint swelling in the joints treated, as compared to those that only received the placebo drug.[xiv] Also, the joints that were treated had reduced scarring on the joints and higher glycosaminoglycan levels that protect degenerating cartilage. Further, there was improved cartilage matrix gene expression, which is responsible for absorbing shock during weight bearing.[xv] Basically, the building/healing growth factor increased in production, improving soft tissue healing and reducing scar tissue formation, which in allows for more normal movement of the effected joints,[xvi] thus more activity for the injured horse.

Dr. Watts concluded that OA progression was significantly reduced in her model. [xvii] She also believes that “the stem cells may be the keep to major treatments without the gene therapy.”[xviii] It should be noted that further testing is needed in the area of gene therapy and equine clinical practices. With more experimentation and a potential third testing group that only received stem cells as opposed of the combination, researchers may discover major treatment improvements that lead to a complete stop in progression.

Essentially, the use of gene therapy is still in its infancy stages when it comes to clinical practices in equine medicine.[xix] However, more exploration into the possibilities for the use of gene therapy to treat equine injuries would be beneficial to horse owners in Kentucky and across the nation.
_________________
[i] Blood-Horse Publications, Equine Osteoarthritis, Ask the Vet Live, (2014), www.thehorse.com/ask-the-vet/29970/equine-osteoarthritis .
[ii] Erica Larson, Gene Therapy, Stem Cells’ Effects on Equine Osteoarthritis, (Feb. 8, 2014), www.thehorse.com/articles/33350/gene-therapy-stem-cells-eefects-on-equine-osteoarthritis.
[iii] Vetoquinol, Equine Osteoarthritis, Osteoarthritis Fact Sheet, www.equistro.com (last visited February 15, 2014).
[iv] PetMed Express, What is Horse Lameness, (2014), www.1800petmeds.com/education/what-is-horse-lameness-52.htm.
[v] Id.
[vi] Vetoquinol, supra note iii.
[vii] Id.
[viii] Larson, supra note ii.
[ix] Id.
[x] Id.
[xi] Id.
[xii]Erica Larson, Gene Therapy, Stem Cells’ Effects on Equine Osteoarthritis, (Feb 11, 2014), www.farms.com.
[xiii] Id.
[xiv] Erica Larson, Gene Therapy, Stem Cells’ Effects on Equine Osteoarthritis, (Feb. 8, 2014), www.thehorse.com/articles/33350/gene-therapy-stem-cells-eefects-on-equine-osteoarthritis.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Id.
[xix] Id.

Products Liability Action Against Manufacturers and Retailers of Synthetic Marijuana in Kentucky

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By: Scarlett Steuart, Staff Member

Since its appearance in 2006, the use of synthetic marijuana, commonly known as “Spice,” has been on the rise.[i] Spice is a combination of herbs laced with synthetic chemicals, and when used, it produces a similar experience as marijuana.[ii] The Spice label only includes the warning “not for human consumption.”[iii] As a result of the marketing and labeling of synthetic marijuana, primarily young people are being injured. With the criminal law system struggling to keep up with the rapid development and changes of synthetic marijuana, products liability law may be an option of redress. Focusing on Kentucky law, a controversial issue exists as to whether or not a products liability claim for synthetic marijuana is currently permissible.

In 1966, the Kentucky Court of Appeals recognized strict liability in the case Dealers Transport Company v. Battery Distributing Company.[iv] In 1978, the Kentucky General Assembly enacted the Products Liability Act of Kentucky.[v] The Act’s scope is broad and is intended to apply to all products liability claims.[vi] The Act also creates certain presumptions of non-defectiveness, until rebutted by a preponderance of the evidence, based upon time periods.[vii] Additionally, the Act seeks to limit who may be held liable.[viii] If a manufacturer is identified and subject to the jurisdiction of the court, those in the chain of distribution, such as wholesaler distributors or retailers, may avoid liability.[ix] However, a defendant in the chain of distribution may be held liable if they knew or should have known that the product was defective and unreasonably dangerous to the consumer.[x]

The issue in a synthetic marijuana products liability claim is whether the cautionary language of “not for human consumption” constitutes an adequate warning in the light of the foreseeable use and user of the product. In order to be found defective, the plaintiff would be required to show that the risks posed by consuming synthetic marijuana outweigh the manufacturer’s burden of including additional warnings on the synthetic marijuana’s packaging.[xi] The Kentucky courts might consider the warning inadequate because it is not proportional to the potential risks. The warning fails to provide adequate notice of the possible dangers of misusing the product and consumption, which includes the symptoms of rapid heart rate, vomiting, confusion, hallucinations, withdrawal, and addiction symptoms.[xii] If the warning is deemed inadequate, then the synthetic marijuana was sold in a defective condition unreasonably dangerous.

Additionally, wholesale distributors and retailers may be held liable since they have been alerted to the fact that the synthetic marijuana contains an inadequate warning regarding its consumption. Distributors and retailers, such as gas stations, are aware, or should be aware, that packaging only contains the warning “not for human consumption” and that many young people are purchasing synthetic marijuana and suffering from adverse health effects due to consumption. By failing to take action, Kentucky courts may be willing to hold wholesale distributors and retailers liable along with the manufacturers.
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[i]National Institute on Drug Abuse. DrugFacts: Spice (Synthetic Marijuana), 1, available at http://www.drugabuse.gov/publications/drugfacts/spice-synthetic-marijuana (revised December 2012).
[ii] Id.
[iii] Id.
[iv] Dealers Transport Co. v. Battery Distributing Co., 402 S.W.2d 441, 445–46 (Ky. App. 1965).
[v] KRS 411.300-411.350.
[vi] KRS 411.300(1).
[vii] KRS 411.310.
[viii] KRS 411.320.
[ix] KRS 411.340.
[x] Id.
[xi] See Nichols v. Union Underwear Co., Inc., 602 S.W.2d 429, 433 (Ky. 1980).
[xii] National Institute on Drug Abuse. DrugFacts: Spice (Synthetic Marijuana). http://www.drugabuse.gov/publications/drugfacts/spice-synthetic-marijuana (last revised December 2012).

I Love the Smell of Licorice in the Morning: Public Water Systems Protection after Freedom Industries

Image Source

By: Stephen F. Soltis,[1] Staff Member

John Denver once asked for the country roads to take him home to West Virginia. However, after January 9, 2014, Mr. Denver may be less enthralled to return to the Mountain State. The morning of January 9, 10,000 gallons of 4-methylcyclohexane methanol (MCHM), a licorice smelling chemical that is used to process coal, leaked from a storage tank at Freedom Industries near Charleston, West Virginia.[2] Freedom Industries was located directly on the Elk River and was approximately one mile upstream from the West Virginia American Water Company’s (WVAM) municipal water intakes.[3] The MCHM entered the intakes and contaminated the tap water of 300,000 West Virginia residents.[4]

Within hours of the spill, multiple businesses filed lawsuits against Freedom Industries and WVAM.[5] However, these legal measures are largely remedial, and can only compensate for the economic harm already incurred. Congressional and state lawmakers should examine the cause of the leak, determine whether the subsequent contamination of the Kanawha Valley’s drinking water was the result of regulatory gaps, and whether these gaps should be closed.

MCHM did not fit within the existing federal statutory framework designed to protect the environment. The Clean Water Act primarily regulates intended discharges into the “waters of the United States.”[6] However, the Freedom Industries incident was an accident.[7] The Safe Drinking Water Act (SDWA) utilizes health-based standards to control the amount of pollutants in drinking water,[8] but the SDWA does not define MCHM.[9]

There are two proposals pending that, if adopted, may prevent another Freedom Industries incident. The first proposal involves amending the Toxic Substances Control Act (TSCA) by creating stricter oversight of permitted industrial chemicals, including MCHM.[10] However, amending TSCA would likely have far reaching consequences on the industry, and political pressure would likely defeat strict regulations.

The second proposed action is the Chemical Safety and Drinking Water Protection Act of 2014 introduced by Senators Manchin, Boxer, and Rockefeller.[11] This pending legislation would amend the SDWA and require states or the Administrator to create “a chemical storage facility source water protection program.”[12] This program protects “public water systems” from releases of chemicals from facilities covered within the Act.[13] The Act establishes minimum requirements for the program, including “leak detection”, “spill and overfill control”, and “an emergency response and communication plan.”[14]

An ongoing concern with MCHM is that a safe level of exposure has yet to be defined.[15] The Material Safety Data Sheet for MCHM lacks key information regarding MCHM’s dose toxicity and germ cell mutagenicity.[16] The proposed drinking water safety bill directly addresses this concern by requiring notice “to the Administrator” or “the appropriate State agency” of “the potential toxicity of stored chemicals to humans and the environment.”[17]

The proposed legislation is a proactive approach that safeguards public water supplies. The bill requires identification of facilities that could potentially release chemicals into public waters, and establishes a regulatory regime to safeguard against these facilities contaminating the public water system.[18] By requiring increased control over chemical facilities near public water sources, the Act is a first step in safeguarding the water that runs alongside those country roads, and restoring West Virginians’ peace of mind.
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[1] J.D. Candidate, May 2015, University of Kentucky College of Law. The author would like to thank Professor Michael Healy for his guidance in navigating this emerging topic.
[2] 2014 West Virginia Chemical Spill, CDC.gov, http://emergency.cdc.gov/chemical/MCHM/westvirginia2014/index.asp (last visited Feb. 11, 2014).
[3] Id.
[4] Id.
[5] Kate White, Lawyers seek to consolidate water lawsuits, W.V. Gazette, (Jan. 12, 2014), http://www.wvgazette.com/News/201401120046?page=2.
[6] See Clean Water Act, 33 U.S.C. § 1251 (1976).
[7] Brad Plumer, Five big questions about the massive chemical spill in West Virginia, Wash. Post, (Jan. 21, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/01/21/five-big-questions-about-the-massive-chemical-spill-in-west-virginia/.
[8] See Safe Drinking Water Act, 42 U.S.C. § 300(f).
[9] Id.
[10] Joel Achenbach, W.Va. chemical spill poses a new test for lawmakers, Wash. Post, (Jan. 19, 2014), http://www.washingtonpost.com/national/health-science/west-virginia-chemical-spill-in-elk-river-poses-a-new-chemistry-test-for-lawmakers.
[11] Chemical Safety and Drinking Water Act, S. 1961, 113th Cong. (2014).
[12] Id. at § 1472(a).
[13] Id.
[14] Id. at § 1472(b).
[15] Ken Ward Jr., Questions remain about MCHM screening level, W.V. Gazette, (Feb. 8, 2014), http://www.wvgazette.com/News/201402080047.
[16] Achenbach, supra note 10.
[17] Chemical Safety and Drinking Water Act, S. 1961, 113th Cong. § 1472 (2014).
[18] See Id.