War on Coal: The Selenium Battle

By: Elizabeth Combs, Staff Member

Selenium is a naturally occurring metalloid element that can conduct electricity[i]. While small amounts of this element are essential to human and animal life, large amounts of selenium can cause deformities and disease in certain animals[ii] and harm humans.[iii] Although selenium is naturally occurring in certain places in our environment, such as within the selenium-rich coal seams and rock layers found in the mountains of Kentucky,[iv] it can become dangerous once released into the air and water.[v] Throughout many Central Appalachian states, including Kentucky, selenium is often exposed as a result of mountaintop removal coal mining activities,[vi] causing it to be discharged into streams and ground water.[vii] Once released into water systems, selenium accumulates in the tissues of fish and other aquatic animals.[viii] Harmful effects, such as abnormal spine curvature and bulging eyes[ix] [as seen in the photos above], can result if the amount of selenium contained in the tissue reaches toxic levels.[x]

Although the amount of selenium that can be released into water sources is monitored, criteria for selenium discharge does not normally appear on Clean Water Act (CWA) permit applications.[xi] Instead, each state establishes its own water quality criteria. Before becoming an enforceable monitoring criteria, these standards, as well as any subsequent revisions, must first be approved by the Environmental Protection Agency (EPA).[xii] As of 2013, the standard in Kentucky for chronic selenium discharge was 5 parts per billion (ppb).[xiii] However, based on cutting-edge scientific research into the long-term effects of selenium, Kentucky recently proposed a change to these standards.[xiv] The new monitoring process would involve testing the tissue of fish within any water sample exceeding the 5 ppb selenium limit.[xv] In order to trigger a water pollution violation, the concentration of selenium in the fish tissue would have to be greater than 8.6 ppb.[xvi]

Since the original selenium discharge criteria would trigger a water pollution violation simply upon a measurement exceeding 5 ppb in the water source,[xvii] many environmental groups interpreted the revised standard as effectively increasing the amount of selenium discharge allowed and thus weakening the standard for selenium exposure.[xviii] Although the revision to Kentucky’s standard was based on scientific information showing that selenium did not become toxic until it surpassed an accumulation of 8.6 ppb in fish tissue,[xix] other experts argued that toxic effects on aquatic life could be found at as low as 3 ppb in tissue.[xx] However, the EPA must first approve any revisions to a state’s standards for water quality.

In Kentucky, where the “War on Coal” can be seen and felt by many citizens, coal companies and mining organizations are actively and regularly challenging the EPA and its seemingly ever-increasing regulatory authority over the coal mining industry. However, these same companies and organizations were surprised when the EPA chose to approve Kentucky’s new standards on selenium in late 2013.[xxi] This decision, which was highly anticipated by both environmental and coal mining organizations, was based on the fact that the new two-step process to measure chronic selenium discharge is grounded in the latest scientific research.[xxii] According to the EPA, the newly approved criterion focuses on the long-term effects of selenium and is not only adequate for, but also protective of, aquatic life.[xxiii]

At a time when environmental regulations continue to be strengthened and intensely enforced, it is quite unusual for the EPA and mining industry groups to be on the same side of an issue that involves coal, and yet the EPA’s decision to approve Kentucky’s revised selenium standard did just that. Interestingly, something just as unusual resulted from this decision–in response to the EPA’s approval of Kentucky’s revised standards, several environmental groups are taking action against the EPA.[xxiv] These groups, including the Sierra Club, Kentuckians For The Commonwealth, Appalachian Voices, and the Kentucky Waterways Alliance, have filed suit in the U.S. District Court for the Western District of Kentucky arguing that the new selenium standards violates the Clean Water Act.[xxv]

Likely due to the fact that the previous selenium criteria was a standard that these environmental groups relied on in past litigation regarding pollution by coal companies, these groups want the EPA to maintain the original standard for chronic selenium discharge–5 ppb as measured from water samples.[xxvi] The outcome of this case is important not only for Kentucky, but because other coal-producing states are expected to follow our lead, this decision may affect revisions to selenium standards in other states.[xxvii] However, regardless of what happens in this case or one’s opinions regarding environmental regulation, I think we all can agree that the issue of selenium and its unusual line-up of characters have certainly proven to be a unique and unusual battle in the “War on Coal.”

_________________
[i] The Periodic Table – Selenium, Minerals Education Coalition, www.mineralseducationcoalition.org/elements/selenium (last visited April 1, 2014).
[ii] Id.
[iii] Toxic Selenium in Kentucky Streams, Appalachian Voices (Feb. 2013), http://appvoices.org/aww/KY_Selenium_Handout.pdf.
[iv] Id.
[v] Laura Beans, Coal Mining Industry Influences EPA’s Selenium Pollution Standards, EcoWatch (July 2013), http://ecowatch.com/2013/07/26/coal-mining-influences-epas-selenium-standards/.
[vi] Id.
[vii] Appalachian Voices, supra note 3.
[viii] Id.
[ix] Beans, supra note 5.
[x] Appalachian Voices, supra note 3.
[xi] Beans, supra note 5.
[xii] Emily McKinney, EPA Approves Kentucky’s New Science-Based Selenium Water Quality Standard, Frost Brown Todd, LLC (Nov. 25, 2013), http://www.frostbrowntodd.com/resources-1626.html.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Appalachian Voices, supra note 3.
[xix] McKinney, supra note 12.
[xx] Appalachian Voices, supra note 3.
[xxi] McKinney, supra note 12.
[xxii] Id.
[xxiii] Id.
[xxiv] Groups Challenge EPA’s Dangerous Selenium Decision in Kentucky, Sierra Club (Dec. 13, 2013), http://content.sierraclub.org/press-releases/2013/12/groups-challenge-epas-dangerous-selenium-decision-kentucky.
[xxv] Id.
[xxvi] Daniel Siegal, Sierra Club Sues EPA To Block New Ky. Selenium Standard, Law360, Dec. 2013, available at http://www.law360.com/articles/495770/sierra-club-sues-epa-to-block-new-ky-selenium-standard.
[xxvii] McKinney, supra note 12.

Kentucky Proposed ‘Ag Gag’ Bill Raises Concern

Image Source

By: Alison Cox, Staff Member

A Senate committee in the Kentucky General Assembly recently approved a bill that would make it a crime to film farm operations on private property without the owner’s consent. The Senate Agriculture Committee attached this legislation to House Bill 222, a bill designed to set euthanasia standards for shelter animals.

[i]

The new language has created public policy concerns by animal rights activists, as well as questions of constitutionality. Kentucky State Representative Joni Jenkins said that the language added by the Senate committee made the bill “more complicated, and maybe even unconstitutional.”

[ii]

The Kentucky Legislature won’t pass House Bill 222 easily due to high public scrutiny.

This new language would subject a person to a Class B misdemeanor, punishable by up to 90 days in jail and a $250 fine, for secretly recording farm operations on private property.

[iii]

The bill, however, does not apply to law-enforcement officials and farming operations on public property.

[iv]

The Humane Society has dubbed this bill the latest issue of “ag-gag” legislation.

[v]

The Human Society defines an “ag-gag” bill as any bill that seeks to criminalize whistle-blowing on factory farms, and as a result keep Americans in the dark about where their food is coming from.

[vi]

Matt Dominguez of the Humane Society has said such bills, “go to show how much the industry has to hide.”

[vii]

Not only will the bill potentially keep Americans in the dark, but it may also be a violation the First Amendment, as the bill is very much directed at restricting speech. The First Amendment does not free undercover investigators from civil or criminal liability, even if they ultimately produce an accurate video that serves the public good. But, this type of bill represents the broadest approach to “ag-gag” laws because these laws could potentially implicate a wide range of otherwise innocent activities and may face strong First Amendment challenges for overbreadth and government restraint of content of expression.

[viii]

Tennessee Governor Bill Haslam vetoed a proposed “ag-gag” law after the Tennessee Attorney General called the bill “constitutionally suspect.”

[ix]

The Tennessee bill was just one of fifteen so called “ag-gag” bills that were both introduced and defeated in 2013.

[x]

However, in February 2014, Idaho became the seventh state to pass “ag-gag” legislation into state law

[xi]

. The Idaho legislation criminalizes unauthorized recording inside agricultural facilities, punishable by up to one year in jail and a $5000 fine.

[xii]

Though the Kentucky bill is controversial, the bill has found support. Kentucky Farm Bureau has supported the provision as a necessity to protect Kentucky farmers.

[xiii]

However, there are serious implications to public policy if farmers’ rights are protected in this way. The farmers may be able to be protected through other means.

The public policy concerns and the suspect constitutionality of the Kentucky provision seem to outweigh the argument of protecting the farmer’s rights, but the question remains as to whether Kentucky will join eleven states that failed to pass proposed “ag-gag” legislation in 2013 or whether it will join the likes of Idaho and pass the controversial legislation.

[xiv]

_________________

[i]

Cho Park, Critics: Kentucky Senators ‘Snuck’ ‘Ag-Gag’ Into Animal Rights Bill, ABCNews (Mar. 28, 2014),

http://abcnews.go.com/Blotter/critics-kentucky-senators-snuck-ag-gag-animal-rights/story?id=23098835

.

[ii]

 Id.

[iii]

Jack Brammer & Janet Patton, Kentucky bill would prohibit filming of farm operations without owner’s consent, Kentucky.com (Mar. 25, 2014),

http://www.kentucky.com/2014/03/25/3160704/kentucky-bill-would-prohibit-filming.html

.

[iv]

Id.

[v]

 Park, supra note 1.

[vi]

Anti-Whistleblower Bills Hide Factory-Farming Abuses from the Public, The Humane Society (Mar. 25, 2014),

http://www.humanesociety.org/issues/campaigns/factory_farming/fact-sheets/ag_gag.html#id=album-185&num=content-3312

.

[vii]

Brammer & Patton, supra note 3.

[viii]

Jessalee Landfried, Bound & Gagged: Potential First Amendment Challenges to "Ag-Gag" Laws, 23 Duke Envtl. L. & Pol'y F. 377, 395 (2013).

[ix]

Taking Ag Gag to Court, Animal Legal Defense Fund,

http://aldf.org/cases-campaigns/features/taking-ag-gag-to-court/

(last visited Mar. 31, 2014).

[x]

Anti-Whistleblower Bills Hide Factory-Farming Abuses from the Public, The Humane Society (Mar. 25, 2014),

http://www.humanesociety.org/issues/campaigns/factory_farming/fact-sheets/ag_gag.html#id=album-185&num=content-3312

.

[xi]

Ag-Gag Bills at the State Level, ASPCA,

http://www.aspca.org/fight-cruelty/advocacy-center/ag-gag-whistleblower-suppression-legislation/ag-gag-bills-state-level

(last visited Mar. 31, 2014).

[xii]

Id.

[xiii]

Kentucky ‘Ag Gag’ Bill Targets Undercover Animal Investigation Videos On Farms, Huffington Post (Mar. 25, 2014, 5:59 PM),

http://www.huffingtonpost.com/2014/03/25/kentucky-ag-gag_n_5030196.html

.

[xiv]

Id. (discussing the fifteen proposed ag-gag bills introduced in eleven states in 2013).

Application of the Bankruptcy Code to Mineral Rights in Space

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By: Brad Butler, Notes Editor

In 2010, entrepreneurs Peter Diamandis and Eric Anderson founded Arkyd Astronautics,

[i]

which they later renamed Planetary Resources, with the intention of developing the technology to extract natural resources from asteroids.

[ii]

Recent estimates suggest that an average 98-foot asteroid could yield as much as $50 billion worth of platinum.

[iii]

Clearly, this could prove to be extremely lucrative, and the venture has caught the attention of several prominent investors such as filmmaker James Cameron, real estate developer Ross Perot, Jr., and Google co-founders Larry Page and Eric Schmidt.

[iv]

However, these space-mining missions are extremely capital-intensive and would cost several hundred million dollars each.

[v]

In light of the high costs, debt financing will likely be required.

[vi]

Unfortunately, creditors will not provide financing until there is a system in place that efficiently provides security for their debt and effectively ensures payment on that debt. In the United States, we have the bankruptcy system. However, it is unclear whether the Bankruptcy Code applies extraterritorially to assets located in space.

To answer this question, we must determine whether Congress intended for the Code to apply outside the United States. In E.E.O.C. v. Arabian American Oil Company, the Supreme Court of the United States held that Title VII of the Civil Rights Act of 1964 did not apply to the conduct of an American employer abroad.

[vii]

The Court stated that Congress must clearly express an intention for the statute to apply abroad to rebut the presumption against extraterritoriality, and Title VII simply did not do so.

[viii]

However, the clear expression of intent is not a “clear statement rule” and a court should look to the statute in its entirety.

[ix]

Furthermore, when a provision of a statute does provide for some extraterritorial application, then the presumption against extraterritoriality is rebutted for that provision alone.

[x]

In the case of the Bankruptcy Code, it is clear that Congress provided no clear statement, but Congress did show a clear intention to apply the Code abroad. The grant of jurisdiction to the bankruptcy court extends to all property owned by the debtor wherever located.

[xi]

The “wherever located” language is also incorporated into the definition of property included in the bankruptcy estate.

[xii]

Therefore, Congress clearly intended for the court to have jurisdiction over the property of the estate, but a grant of jurisdiction does give rise to substantive rights.

Courts routinely apply the jurisdiction of the Bankruptcy Code and look to local law when determining property rights. In Butner v. United States, the Supreme Court held that the Code did not articulate the priority of the secured creditors, so the Court looked to the local law of North Carolina.

[xiii]

In this case, the asteroids would certainly be the property of the company under the common law principle of ferae naturae

[xiv]

and the bankruptcy court would clearly have jurisdiction over the property. However, the problem then arises as to which law to apply. Here, the local law would be the governing law in space.

The major treaty that has served as the basis for all modern space law is the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (“Outer Space Treaty” or “OST”), in which Article VI provides for the possibility for private entities to conduct business in space and possibly own property.

[xv]

However, the OST does not discuss how the property rights are determined.

[xvi]

Another treaty, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“Moon Treaty”) states that natural resources in space are considered “the common heritage of all mankind.”

[xvii]

Fortunately, the Moon Treaty has only 14 signatories, none of which are space-capable nations.

[xviii]

So, there is some ambiguity as to what the law actually provides. Under the OST, there is no clear answer as to whether a private company may own an asteroid, how long it could own the asteroid, or who actually owns the resources extracted upon return to Earth.

[xix]

Under the Moon Treaty, either everyone or no one owns all property and natural resources in space.

[xx]

So, it is unclear whether the company would even have the right to sell the natural resources once it brings them back to Earth. If they cannot be sold, then they have no value and would not benefit the bankruptcy estate. Creditors will not lend money to a company that cannot monetize its assets and provide the potential for repayment of the loan extended by the creditor. Therefore, Congress must pass legislation that providing a mechanism for determining property rights and the effects of those rights, or all interested parties must amend the OST. Until either of these two things is done, there is no rational basis for creditors to lend money to private companies seeking to engage in space mining or exploration and modern innovation will be further deterred.

_________________

[i]

John Cook, NASA vet and X Prize creator at the helm of secretive space robot startup Arkyd, GeekWire (July 8, 2011, 10:48 PM),

http://www.geekwire.com/2011/nasa-veteran-emerges-helm-arkyd-stealthy-space-travel-startup/

.

[ii]

Matthew Sparkes, Planetary Resources unveils cosmic plan 'to boldly go' and mine asteroids for gold and platinum, The Telegraph (April 24, 2012, 8:40 PM),

http://www.telegraph.co.uk/finance/newsbysector/industry/mining/9222766/Planetary-Resources-unveils-cosmic-plan-to-boldly-go-and-mine-asteroids-for-gold-and-platinum.html

.

[iii]

Id.

[iv]

We’re on to Something, Planetary Resources,

http://www.planetaryresources.com/team/

(last visited Mar. 25, 2014).

[v]

Sparkes, supra note 2, at 1.

[vi]

Id.

[vii]

E.E.O.C. v. Arabian American Oil Company, 499 U.S. 244, 249 (1991).

[viii]

Id.

[ix]

Morrison v. Nat’l Australian Bank Ltd., 561 U.S. 247, 261 (2010).

[x]

Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 455-56 (2007).

[xi]

28 U.S.C. § 1334(e)(1).

[xii]

11 U.S.C. § 541(a).

[xiii]

Butner v. United States, 440 U.S. 48, 55 (1979).

[xiv]

See Pierson v. Post, 3 Cai. R. 175, 176 (N.Y. Sup. Ct. 1805).

[xv]

Rand Simberg, Property Rights in Space, The New Atlantis (Fall 2012), pages 20-31,

http://www.thenewatlantis.com/publications/property-rights-in-space

.

[xvi]

See id.

[xvii]

Id.

[xviii]

Id.

[xix]

See id.

[xx]

See id.

What’s Eating France’s Grapes?

Image Source

By: Victoria Clontz, Articles Editor

What’s eating France’s grapes? Well, perhaps consuming is a better term and the answer is climate change. Last year, an international team of scientists estimated that by 2050, some of the world’s most famous wine-making regions will shrink by nearly 70 percent.

[i]

The grape vine is particularly sensitive to climate variability and change, like many crops.

[ii]

But wine producers place much more importance on quality since temperature and precipitation affects alcohol, acidity, and color.

[iii]

As the world continues to warm, conditions in some areas will sour.

[iv]

Signature wines produced in some of the world’s most famous regions, such as Champagne or Bordeaux, will probably lose some of their quality and character.

[v]

As the heat rises, so does the resulting wine’s alcohol content.

[vi]

A warmer growing season or longer hang time on the vine produces more sugar in the grapes.

[vii]

The cool conditions of the Champagne region produce low-sugar, high acid grapes that are well suited for champagne.

[viii]

So what does this mean for the lovers of fine French champagne? It means that the best sparkling wines may not come from its namesake region in the future.

[ix]

“Given that most grapevines produce fruit for 25 to 50 years, grape-growers and wine-makers must consider the long term when determining what to plant, where to plant, and how to manage their vineyards,” says Antonio Busalacchi, climate scientist and wine expert at the University of Maryland.

[x]

The wine sector of France is now buying up land in places like southern England as it confronts the need to simultaneously reduce risks of yield losses and continue to produce the world’s leading wines.

[xi]

In fact, English sparkling wines have recently been beating champagnes at international competitions.

[xii]

The soil in locations like Dover is similar to the chalky soil of the Champagne region.

[xiii]

This transition for grape growers, specifically the relocation of wine-makers from the Champagne region, raises an interesting question given the restrictions placed on products bearing the Champagne name by the Appellation of Controlled Origin (AOC).

[xiv]

AOC rules dictate that only wines produced under certain conditions in the Champagne region may bear the product name champagne versus sparkling wine.

[xv]

So what will happen when the climate becomes inhospitable to the grapes used to make champagne and the traditional houses leave the region? This issue is sure to become more hotly debated as temperatures continue to rise in France.

_________________

[i]

Susan Gaidos,

Grape Expectations

,

Science News

(Jan. 24, 2014, 2:50 PM),

https://www.sciencenews.org/article/grape-expectations?mode=magazine&context=187953

.

[ii]

Lisa Palmer,

Vineyards Take Action as Climate Change Threatens Wine and Livelihood

,

The Guardian

(Oct. 3, 2013, 12:42 PM),

http://www.theguardian.com/sustainable-business/blog/vineyards-climate-change-threat

.

[iii]

Id.

[iv]

Gaidso,

supra

note 1.

[v]

Id.

[vi]

Id.

[vii]

Id.

[viii]

Id.

[ix]

Id.

[x]

Palmer,

supra

note 2.

[xi]

Id.

[xii]

Georgi Kanchev,

British Wine Benefits as the Climate Changes

,

N.Y. Times

, Dec. 14, 2013, at B1

available at

http://www.nytimes.com/2013/12/14/business/international/in-global-warming-a-boon-for-british-wine.html?pagewanted=1&_r=0

.\.

[xiii]

Palmer,

supra

note 2.

[xiv]

Comité Champagne,

Recognition of the Champagne Appellation

,

http://www.champagne.fr/en/terroir-appellation/appellation/recognition-of-the-champagne-appellation

(last visited Mar. 17, 2014).

[xv]

Id.

You Can't Sit With Us! The Different Permitting Standards for LNG for Countries with and without U.S. Free Trade Agreements

Image Source

By: Ellen Black, Production Editor

Until recently, domestic production of natural gas was so low that the United States imported it in the form of liquefied natural gas (LNG) to LNG terminals built on the coasts.

[1]

 However, with the “shale-gas revolution made possible by fracking” and other drilling advances, natural gas is now much more accessible and domestically abundant. 

[2]

 Since natural gas cannot be stored like oil or coal, the glut of this resource must either be used or not drilled until it can be used or sold. This increase in supply, coupled with a constant demand, has resulted in a significant drop in the price of domestic natural gas, creating an artificially low price due to oversupply.

[3]

 Reasonably, natural gas companies want to increase demand by exporting LNG to countries without this resource, which will pay a much higher price,

[4]

 yet the current permitting requirements limit exportation.

The Natural Gas Act of 1938 (NGA), 15 U.S.C. § 717,

[5]

 governs the regulation of natural gas, and contains provision § 717b(a), which governs the exportation and importation of LNG using a standard of “benefiting the public good.” For the first time in decades, in May 2013, two permits to export LNG were conditionally granted, one in Louisiana and one in Texas.

[6]

 This represents a significant shift in this industry, and has opened the door to at least twenty other such applications to the Department of Energy (DOE).

[7]

 Originally, all applications for import and export of natural gas underwent the same process of review as analyzed under a public interest standard.

[8]

 However, as America promulgated more complex free trade agreements in recent years, it has become practice to subject applications for import and export to different standards of review for those countries with and without free trade agreements.

[9]

In the Energy Policy Act of 1992

[10]

, Congress amended the NGA to include sections 3(a) and 3(c) which govern differences in free trade agreement and non-free trade agreement country applications for export of natural gas. The Economic Regulatory Administration (ERA) is responsible for making the decision whether an application for export is “consistent with the public interest,” which is based on “various factors including security of supply, balance of payments, price of the import or export, national and regional needs for gas, and the eligibility of the purchasers and participants.” 

[11]

For export permits to free trade agreement countries, with the Energy Policy Act of 1992, there is now an “expedited application process.”

[12]

 This section also requires that these applications be deemed “consistent with the public interest” and that these applications be “granted without modification or delay.”

[13]

 As a result of the latter provision, the DOE does not conduct a full public interest analysis of these section 3(c) applications and cannot condition them “by insertion of terms which otherwise might be considered necessary or appropriate.”

[14]

 There are currently twenty countries with which the U.S. has free trade agreements concerning the treatment of natural gas.

[15]

For non-free trade agreement countries, there is a much more in-depth process as dictated by § 3(a) of the NGA, which provides that “the [Secretary of Energy] shall issue such order upon application, unless after opportunity for hearing, [he] finds that the proposed exportation or importation will not be consistent with the public interest.” 

[16]

 This creates “a rebuttable presumption that a proposed export of natural gas is in the public interest.”

[17]

 For countries without free trade agreements, the DOE issues a notice of the application for import or export in the Federal Register, publishes the Section 3(a) application and all subsequent pleadings and orders on its website, and invites interested persons to participate in the proceedings.

[18]

 In granting this application, there is “a wider range of considerations for a permit within the public interest review, includes in part environmental concerns, the domestic need for natural gas, and international considerations. 

[19]

 These “non-statutory” criteria are not exhaustive, and have changed over decades with each subsequent agency application. 

[20]

This difference in permitting schemes thus creates an unnecessarily complicated and bifurcated process for LNG permits. It is in the best interest of the United States to have more exportation LNG, and also a more streamlined and uniform process for permitting.

_________________

[1]

 Bryan Walsh, The Unintended Consequences of Exporting Natural Gas, Time (May 27, 2013), 

http://science.time.com/2013/05/27/natural-gas/#ixzz2iAT5ebSh

.

[2]

 Id.

[3]

 Id.

[4]

 Id.

[5]

 15 U.S.C. § 717 (2013).

[6]

 Zach Colman, DOE Gives Green Light to Controversial Natural Gas Export Project, The Hill E2 Wire (May 17, 2013, 1:30 PM), 

http://thehill.com/blogs/e2-wire/e2-wire/300459-doe-green-lights-controversial-natural-gas-exports#ixzz2iINmYCW2

.

[7]

 Id.

[8]

 Shani Harmon, Reining in the Natural Gas Bonanza, Legally: Whether U.S. Law and Policy Restrictions on Natural Gas Exports Are Consistent with International Trade Law, 25 Geo. Int'l Envtl. L. Rev. at 619 (2013).

[9]

 Id.

[10]

 42 U.S.C. § 7172 (2013).

[11]

 Report of the Committee on Natural Gas Imports and Exports, 1 Energy L.J. 165 (1980).

[12]

 Harmon, supra note 8, at 619.

[13]

 DOE's Program Regulating Liquefied Natural Gas Export Applications: Hearing on LNG Before the House Committee on Oversight and Government Reform, Subcommittee on Energy Policy, Health Care, and Entitlements (March 19, 2013) (statement of Christopher Smith, Acting Assistant Secretary for Fossil Energy).

[14]

 Id.

[15]

 Id.

[16]

 Harmon, supra note 8, at 620.

[17]

 DOE, supra note 13.

[18]

 Id.

[19]

 Id.

[20]

 Id.

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

Image Source

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.

_________________
[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]
_________________
[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.