Wednesday, December 17, 2014

Volume Six- Number One (Fall 2014)

Click here to view our Fall 2014 Issue

Including:
Finding A Way Back Into Darkness: Regulating Light Pollution in Florida and Beyond

Shannon Dolson
The Case for the Environmental Protection Agency's Implicit Inspection Authority

Ashley Short
A Hen in the Parlor: Municipal Control and Enforcement of Residential Chicken Coops

Chris Erchull
Justice for Canine Heroes: Kentucky's Need to Strengthen its Criminal Penalties for Killing or Injuring a Police Dog

Battle Beneath the Bluegrass: Kentucky Eminent Domain Law and the Bluegrass Pipeline

All the Pretty Little Ponies: Flaws in the Government’s Plan to Control North American Wild Horses and Burros

Eric Proctor


Benjamin Siegel


Adrienne Anne Stonecypher

Monday, December 15, 2014

A Ticking Chemical Time Bomb- Kate Carpenter

A Ticking Chemical Time Bomb

Kentucky is among one of four states with the highest risk for a chemical accident. With incidents already occurring in Kentucky, people are left wondering what can be done to prevent further damage with the passage of time. To illustrate with a recent example, on October 21, 2014, a chemical spill on Interstate 75 in Madison County, Kentucky shut down northbound and southbound lanes for several hours.[1]  
The truck was leaking ferric chloride solution from one of its valves.[2] The chemical is commonly used in “potable water and wastewater treatment plants, food and dairy plants.”[3] In addition to that accident, in 2012, a train derailed between Fort Knox and Louisville, Kentucky, with 9 out of thirteen of the derailed cars carrying hazardous chemicals.[4] A dam was set up by the EPA to keep the contaminated water out of the Salt and Ohio rivers.[5] While the Kentucky Emergency Response Commission was developed to address concerns involving chemical leakage accidents, there is a need to hold these chemical plants accountable for adherence of federal and state regulations, including harsher penalties.
In Kentucky, 2 out of every 5 students are attending schools within a “vulnerability zone of a high-risk chemical facility.”[6]  With the location, students from preschool to high school face a higher risk of chemical leaks, gas clouds, or explosions from nearby high-risk chemical facilities.[7] This not only affects the health of students, but also leaves the environment at a greater risk.[8] The top five facilities risking the lives and health of the most students in Kentucky are located in Louisville, Catlettsburg, Henderson, and Wurtland, including the following companies: Dupont Louisville Works, Lubrizol Advanced Materials, Inc, Catlettsburg Refining, LLC, Brenntag Mid-South, Inc., and DuPont Wurtland Plant, respectively.[9]
 The worst offender of the list is Dupont Louisville Works, which stores a large amount of hydrofluoric acid and has 119,188 students located in the vulnerability zone, consisting of 246 schools.[10] In fact, in 2013, equipment at Dupont Louisville malfunctioned and leaked about 1500 pounds of the acid into the air and onto the ground.[11] People living within a mile of the plant had to shelter-in-place, meaning that they were to remain in their homes until further notice.[12]
            In order to deal with a disaster involving chemical leakages, the Kentucky Emergency Response Commission was developed to “implement associated federal regulations, and subsequent related legislation and regulations related to hazardous substances; develop policies related to the response of state and local government releases of hazardous substances; develop standards for planning for these events; develop reporting requirements for those who manufacture, use transport, or store these substances…”[13]  At this point in time, the Kentucky Emergency Response Commission requires:

(1)   A legible sketch of the facility which shows a directional arrow, the location of extremely hazardous substances, and the access road;
(2)   The location of the response point and instructions for responsibilities of the facility emergency response coordinator;
(3)   Designation of the staging area and alternative staging area(s);
(4)   A listing of major suppliers of extremely hazardous substances and their telephone numbers;
(5)   A division of the vulnerable zone into four (4) quadrants, listing the special facilities within each quadrant and the total populations of each quadrant.[14]

Under current statutory language, owners and operators of facilities dealing with extremely hazardous substances shall advise the Committee if the facility receives the substance or substances in excess of the quantities allowed by regulations within sixty (60) days.[15] When a release of a substance occurs in a reportable quantity, the owner or operator of the facility shall notify the local and state warning points within times established by administrative regulation.[16]
            So, what are the penalties for violation of these statutes? Any person violating KRS 39E.120 shall be fined between $250-$500 and if the offense is continued for more than 1 day, each day shall be considered a separate offense.[17] Any person violating KRS 39E.190, shall be fined between $1000-$2500 and if the offense is continued for more than 1 day, each day shall be considered a separate offense.
            It is incredibly unlikely that these penalties are enough. For many of the companies producing these chemicals, the fines are not large enough to be punitive and are most likely nominal if anything. If there will be change in Kentucky, it must be on the federal level, not at the state level. In reaction to chemical spills throughout the United States, the Clean Air Act requires that chemical companies submit a risk management plan that includes the worst-case scenario for a chemical spill. Chemical spills can cause a toxic effect to the environment, known as ecotoxicity. It can damage animal life by disrupting their movements and damage air quality and water quality.[18]
In 2012, the National Environmental Justice Advisory Council recommended that the Clean Air Act be expanded by the EPA to “reduce or eliminate catastrophic chemical hazards wherever feasible.”[19] However, following a devastating chemical explosion in Texas, President Obama signed Executive Order 13650 in August 2013.[20] The order will allow federal agencies to improve chemical safety and security, which is greatly needed in many areas of the United States, especially Kentucky.[21]
In order to begin to address the effects of the chemical spills in Kentucky and prevent future spills, it is necessary to adhere to the recommended expansion of the Clean Air Act and Executive Order 13650. In addition to that, harsher penalties are needed to punish companies for refusing to adhere with the statutory language promulgated by the Kentucky Emergency Response Commission, including the possibility of shutting down the companies completely until said violations are corrected.




[1] Greg Kocher, Chemical spill shut down portions of I-75 in Madison County; road now reopened, Lexington Herald-Leader, Oct. 21, 2014, http://www.kentucky.com/2014/10/21/3492868_chemical-spill-shuts-down-portions.html?rh=1.
[2] Id.
[3] Id.
[4] Bruce Schreiner and Dylan Lovan, West Point, Kentucky Fire Erupts at Chemical Train Derailment Site, Huffington Post, http://www.huffingtonpost.com/2012/11/01/west-point-kentucky-fire-_n_2054100.html.
[5] Id.
[6] Kentucky, 40 Percent of Students at Risk of Chemical Catastrophes, Center for Effective Government, http://www.foreffectivegov.org/files/info/kids-in-danger-zones-factsheet-kentucky.pdf.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Erica Peterson, Work Continues to Neutralize Chemical After Spill at DuPont Plant, June 10, 2013, http://wfpl.org/post/work-continues-neutralize-chemical-after-spill-dupont-plant.
[12] Id.
[13] Ky. Rev. Stat. Ann. § 39E.010 (West).
[14] 106 Ky. Admin. Regs. 1:091.
[15] Ky. Rev. Stat. Ann. § 39E.120 (West).
[16] Ky. Rev. Stat. Ann. § 39E.190 (West).
[17] Ky. Rev. Stat. Ann. § 39E.990 (West).
[18] Disasters: Chemical Accidents and Spills, http://www.pollutionissues.com/Co-Ea/Disasters-Chemical-Accidents-and-Spills.html.
[19] Who’s in Danger? Race, Poverty, and Chemical Disasters, Environmental Justice and Health Alliance for Chemical Policy Reform, May 2014, http://comingcleaninc.org/assets/media/images/Reports/Who's%20in%20Danger%20Report%20FINAL.pdf.
[20] Executive Order—Improving Chemical Facility Safety and Security, August 2013,  http://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.

[21] Id.

The Way of the Dodo- Benjamin Siegel

Benjamin Siegel
Journal of Animal and Environmental Law
Fall 2014 Current Events Topic

The Way of the Dodo

            A seven-year study, published Tuesday, September 9th by the National Audubon Society has a dire forecast for more than half of the United States’ bird populations.[1] According to the study, which examined over forty years of climate study data and records from bird censuses, the ranges in which the different bird species migrate are in danger of being shifted dramatically by climate change.[2] David Yarnold, President and CEO of the National Audubon Society, in an interview with NPR’s Morning Edition, put the effects into a perspective he hoped would emphasize the dramatic effects:
            “So, what happens when 40 species of Western songbirds keep having to fly higher and higher up in Western mountains to find a place to live? What happens when Minnesota's loons find that the weather is just too warm for them? There are any number of possible outcomes. They may not be able to fledge. They may not mate. They may not be able to find familiar food.”[3]

It is this uncertainty that worries the study’s authors, and with that uncertainty comes a difficulty of predicting exact implications for the species’ existence. As Yarnold explained, these are changes that took tens of thousands of years to finish their cycles in the past, but today could be completely within one human lifetime.[4] Of the 588 species covered by the study, 314 will lose up to half of their migratory range.[5]
            Should these climate changes continue on their current course without significant resistance from those of us making it possible for the change to occur in the first place (virtually everyone in the first world and industrialized or industrializing nations), at least ten U.S. states are at high risk of losing their state bird population completely.[6] Minnesota’s Common Loon, Maryland’s Baltimore Oriole, Louisiana’s Brown Pelican, Utah’s California Gull, Vermont’s Hermit Thrush, Idaho and Nevada’s Mountain Bluebird, Pennsylvania’s Ruffled Grouse, New Hampshire’s Purple Finch, and Washington D.C.’s Wood Thrush are all threatened by climate change, according to the study.[7]
These are findings that emphasize more than just the environmental impact climate change is going to have on the species’ migratory patterns and chances of avoiding extinction, also dramatically affected is the historic and cultural significance these birds have in their respective states and regions. Maryland’s Baltimore Oriole is so beloved that the city’s Major League Baseball team competes with the bird as it’s mascot,[8] and Utah’s California Gull has the historic significance of saving the state’s Mormon settlers from crickets that would have certainly destroyed their crops.[9]
            Despite these stark findings, those who completed the study consider its results “conservative,” concluding that these results portray and could potentially lead to the best possible future, not the worst.[10] In fact, in the face of the study many scientists and researchers feel this could provide just the “punch in the gut” we need to purposefully act in preventing further damage:[11] “When you realize that only nine bird species have gone extinct in continental North America in modern times, and then you see that we’re looking at 314 North American bird species at risk by the end of this century—it just takes your breath away.”[12]
Some are looking at the glass as being half-full, in a sense. For researchers who are more used to tackling issues with disappearing bird populations or migratory flight patterns changing in the short term, this study provides a welcome shift into a more comfortable, long-term view, and therefore a more long-term action plan.[13] In other words, these researchers are terrified of the potential for such significant risk, but also thankful that this comprehensive study provides a means to look at the problem as a whole and plan accordingly, well in advance.
            David Yarnold, expressing his feeling that all hope is not lost for these bird species, urges those who support Audubon’s mission of a more sustainable future to look for ways to help in the effort.[14]  Within the same data showing how much devastation could be wreaked upon the bird populations lies a potential solution – geographic areas the Audubon Society refers to as “strongholds.”[15] As Yarnold explains, the strongholds “will offer shelter against the decades-long wave of climate change that is already washing over us. Those strongholds will be the key to many birds’ continued success in North America.”[16]  The strongholds are essentially critical habitats that researchers believe must be protected in order to ensure the most success possible in aiding these bird species as their migratory paths inevitably change. Forest managers, farmers, and some energy companies use similar modeling techniques as the Audubon researchers to determine how different variables, such as temperature and precipitation patterns, dictate where the best growing areas for crops are or where the most prudent sites for building new power plants are going to be.[17]  Protecting these stronghold areas is one way we can act to help Audubon’s efforts toward species preservation.
The Audubon Society has provided a guide elaborating on other ways individuals can help.[18] You can sign up for a pledge to act in your local area and stay up to date with new findings and press releases from the organization by visiting their website.[19] You can also ensure that you have a “bird-friendly yard,” which includes installing birdbaths, letting dead trees stand, and using fewer pesticides on your property, among other active roles.[20] Aiding in the strongholds mentioned above by following Audubon’s tips for getting involved in your area provides the legwork and labor force necessary for the overall efforts to combat the negative effects on the climate.[21] Overall, paying attention to your carbon footprint and practicing daily choices which prevent excess carbon emissions could have the most powerful impact if it is an undertaking large numbers of people practice and remain mindful in considering.[22]
 David Yarnold’s words of advice are worth noting and strong consideration for anyone concerned about this international environmental issue concerning far-reaching impacts on North American birds, but ultimately affecting far more than any one particular species:
“I’m not asking one person—or even a small group of people—to take heroic measures. I’m asking each and every one of you to join me in taking personal actions on behalf of birds. You know your local politics best. You understand the values that you and your peers bring to the climate conversation. Audubon works best when it works from the grassroots—we can’t and won’t dictate what the best path is for Minnesotans or Floridians or Californians. What we will do, however, is describe the destination and the urgency we feel. We know that some of you will be most comfortable doing something concrete and visible—for example, planting native grasses or trees in your yard to replace nonnative species. Or you may be inspired to work with others to protect a local Important Bird Area. Even now, Audubon members are wielding sophisticated mapping technology (not to mention common sense) in local land-use planning. And if you’re inclined to act in your state on the big, tough issues like water use and renewable energy, go for it. If your preference is to engage at the federal level to reduce greenhouse gases, we’ll support you. Why? Because conservation doesn’t have a party. This isn’t a Democratic or a Republican issue; this is a bird issue.”[23]



           





[1] NPR Staff, More Than Half of U.S. Bird Species Threatened By Climate Change, NPR News (September 9, 2014, 3:33 AM), http://www.npr.org/2014/09/09/345833757/more-than-half-of-u-s-bird-species-threatened-by-climate-change.
[2] Id.
[3] Id.
[4] Id.
[5] Manon Verchot, 10 States That Could Lose Their State Birds, Thanks to Climate Change, Audubon (September 11, 2014), http://climate.audubon.org/article/9-state-birds-may-abandon-homes-thanks-climate-change.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Michele Nijhuis, A Storm Gathers for North America’s Birds, Audubon (August 27, 2014), http://climate.audubon.org/article/storm-gathers-north-american-birds.
[11] Id.
[12] Id.
[13] Id.
[14] David Yarnold, Its Time To Act, Audubon (September 9, 2014), http://climate.audubon.org/article/its-time-act.
[15] Id.
[16] Id.
[17] Id.
[18] National Audubon Society, What You Can Do To Help Protect Birds, Audubon (September 9, 2014), http://climate.audubon.org/article/what-you-can-do-help-protect-birds.
[19] Id.
[20] Bob Martinka, Ten Ways to Make a Difference for Migrating Birds, Audubon (2014), http://athome.audubon.org/ten-ways-make-difference-migrating-birds.
[21] See endnote 18, supra.
[22] Id.
[23] See endnote 14, supra.