Efficient Compensation of Class Members Suffering from the BP Oil Spill

 

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By: Ashley Addo, Staff Member

On April20, 2010, our country experienced a devastating tragedy, the BP oil spill. This catastrophic event affected thousands of fishermen, business owners, real estate workers, property owners, shareholders, and more. The spill was a result of an explosion and fire at the Deepwater Horizon oil rig, which was located 130 miles southeast of New Orleans and approximately 50 miles from the Mississippi Delta.[1]The burning lasted for approximately two days before the oil rig tipped into the sea. The leak was finally capped on July 15, 2010, but the overwhelming damages remained.[2]Eleven platform workers were killed during the drilling process, and aquatic life was substantially affected. Consequently, these damages induced hundreds of class action lawsuits against BP and Transocean, the company that owned the oil rig.[3]

While the various classes assert different claims against BP and Transocean, one common claim exists amongst the class action complaints: BP was negligent in the design, maintenance, manufacture, and operation of the oil rig.[4]Accordingly, the plaintiffs in these classes desire recovery from the aforementioned defendants. The question is: with hundreds of class action suits pending against these companies, how quickly will these class members be compensated?

Rule 23of the Federal Rules of Civil Procedure governs the different ways in which a class can be certified.[5]One reason a class can be certified is if predominant issues preside amongst the class as a whole.[6]Once a class is certified, Rule 23(a)(5) permits the creation of subclasses amongst a larger class if needed.[7]In the recent Randleman v. Fidelity National Title Insurance Co. case, the court addressed a circuit split regarding bifurcation and the creation of subclasses in order to remedy a lack of predominance amongst a class.[8]The 4th, 5th, and 11^th circuit’s state that a class should not be certified with subclasses if predominant issues do not exist amongst the class.[9]Conversely, the 2^nd and 9^th Circuits hold that subclasses are permissible, despite a lack of predominant issues amongst the class.[10]

If all of the circuits accepted the minority viewpoint towards class certification,the lawsuits against BP could be substantially expedited. There are hundreds of class action lawsuits pending against BP and Transocean and, although the classes are pleading distinct issues, the overarching commonality is BP’s negligence.[11]Several of these classes could be joined together, and multiple subclasses could be created amongst the class. For example, a class of BP shareholders,property owners, and real estate owners could be certified as one class, with multiple subclasses created amongst the class for the disparate claims.

In response to the oil spill, BP implemented many programs to avoid reoccurrence of the oil spill. Specifically, BP has acknowledged that they“ regret the damage caused to the environment and the livelihood of those in the communities affected” and that they are “putting in place measures to help ensure it does not happen again.”[12] While these strides are critical, BP’s ultimate goal should be compensation of the thousands of injured parties. The livelihood of these class members was radically altered by the oil spill; these individuals relied on the preservation of the Gulf of Mexico as a means of survival. BP has discussed its efforts in compensating individual claims,however, the Company has not publicly addressed how it will handle the hundreds of class action suits.[13]Consolidation of classes and the use of subclasses could reduce the amount of pleadings, hearings, discovery review, and trials that would accompany each suit. Additionally, this approach could reduce potential inconsistent judgments and appeals.

Climate Change is Heating Up in Courts

 

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By: Peter Rottgers, Senior Staff Member

Climate change is a hot topic that is apparently getting steamier. The big questions posed by the issue of climate change still loom large. What is the cause, what is going to happen, and what should we do? The Environmental Protection Agency (EPA) states that the global temperature increased somewhere between 1.0 and 1.7 degrees Fahrenheit last century.[1] Depending on which reputable scientist you ask, this is either no big deal[2], or a prelude to the worst parts of the Bible.[3]

In addition to the fact that climate change might threaten the welfare of the entire human race, a lot of money is at stake. When a lot of money is at stake, people litigate. While the economic impacts of climate change are broad, two of the parties that seem to be most directly affected are the industries that produce greenhouse gases (GHGs) and climate change scientists. Industries that extract and combust fossil fuels are one of the primary producers of GHGs.[4] Of the GHGs produced by fossil fuel combustion, coal accounts for approximately 25% of all emissions.[5] Because the coal industry will be affected, Kentucky will be too.

The coal industry employs over 17,000 Kentuckians directly, and claims to have created over 53,000 total jobs.[6] The latter number represents about 2.5% of the state’s workforce.[7] Kentucky coal is sold to 30 states and four foreign countries, bringing in billions of dollars and generating millions in tax revenue.[8] If coal remains a viable energy resource, Kentucky will remain a major player in the energy industry because only 17% of the state’s coal supply has been extracted.[9] Coal means a lot to the people of this state.

Climate change might mean as much to the scientists that research it. Government grants awarded to scientists specializing in climate research have risen significantly in recent years.[10] Some scientists saw up to 600% increases in grants received last decade compared to those received in the 1990s.[11] Additionally, some have alleged that the scientific community has behaved in an uncharacteristically uncivil manor in regards to these grants.[12] Accusations of dissenting scientists being blackballed by the scientific community are far from uncommon.[13] Because there is large monetary incentive for scientists and green science supporting organizations to achieve certain results in the field of climate change, some have called the conclusions reached into question.[14] The issue has found its way into courts.

The Supreme Court of Virginia has recently taken such a case.[15] Attorney General Ken Cuccinelli, a climate change skeptic, filed a request under the state’s Fraud Against Tax Payers Act for the research documents of climate scientist Michael Mann, who was employed by the University of Virginia.[16] Similar requests have been made of other climate scientists through the use of the Freedom of Information Act.[17] Cuccinelli suspects that the climate science produced by Mann is baseless, and therefore Mann has defrauded the Commonwealth of Virginia by using public money to produce junk science in an effort to secure grant money .[18] The University of Virginia claims it is immune from such requests because it is an agent of the Commonwealth and not an individual.[19]

Some argue that if Cuccinelli’s request were granted, it would set a precedent that could hinder academic freedom.[20] It could also be a tool for opponents of green science to harass their adversaries.

Litigation can be a powerful weapon, and its use could have significant impact on the climate change debate. The prospect of being dragged into court might deter researchers from generating junk science to get bigger paychecks, but litigation against climate scientists might also be used to bully honest researchers out of doing important work on an issue that affects every living and unborn person. Fortunately, the green community has stepped up to the plate. In an effort to ensure a fair fight, the Climate Science Legal Defense Fund (CSLDF) has recently affiliated with Public Employees for Environmental Responsibility.[21] The CSLDF provides funding for legal representation to climate scientists facing the prospect of litigation.[22]

Hopefully, initiatives like the CSLDF will ensure that questions regarding the validity of climate research are properly answered when they are litigated. The future policies on climate change need to be based on the best information possible because so much is at stake. If good science suggests that further regulation and downsizing of industries like Kentucky coal is necessary for the welfare of the human race, then those actions should be taken, but the people of Kentucky should not have to endure further regulation, or even an eventual moratorium, on their most valuable natural resource based on faulty theories.

Getting Green by Going Green: Should the Federal Government be in the Business of Subsidizing New Energy?

By Kelly Calder, Staff Member

Solyndra, a California solar panel manufacturer, recently shut down operations and expressed its intent to file Chapter 11 Bankruptcy.[1] Described as the “biggest green-tech flameout yet,” Solyndra failed despite receiving over one billion dollars from investors[2] and a 535 million dollar loan from the U.S. Department of Energy’s (“DOE”) “Loan Guarantee Program.”[3]

This is not the first solar energy company to file for bankruptcy; Solyndra joins two other American companies, Spectrawatt Inc. and Evergreen Solar Inc., which filed this past August.[4] Solyndra cited numerous reasons for its failure, including heavy competition from government subsidized Chinese manufacturers, but the primary question raised by observers is “whether [the Federal Government] should even be in the business of subsidizing new renewable energy technologies?”[5]

Solyndra’s loan guarantee was a byproduct of The American Recovery and Reinvestment Act of 2009, which amended the Loan Guarantee Program by adding Section 1705.[6] According to the Department of Energy, this temporary program “authorizes loan guarantees for certain renewable energy systems, electric power transmission systems and leading edge biofuels projects that commence construction no later than September 30, 2011.”[7] There are several criteria for receiving a loan guarantee, and the mission of the DOE’s Loan Programs Office is to “enhance American competitiveness in the global economy of the 21st century.”[8] Solyndra was the first company to receive such a loan,[9] and was considered by many to be its “poster child.”[10] Solyndra’s bankruptcy has been viewed by many as a devastating blow to the program.[11]

Despite the uncertainty engendered by Solyndra’s bankruptcy, some still staunchly defend the loan program.[12] They explain that Solyndra represented less than two percent of the total loan commitments made by the DOE and also that, “with a capitalization of just $4 billion, DOE has committed or closed $37.8 billion in loan guarantees for 36 innovative clean energy projects.”[13] The program’s overall success should not be diminished because of the failure of one of its projects.

The DOE has not allowed Solyndra’s bankruptcy to affect its loan policies. According to its website, the DOE just finalized a partial guarantee for an $852 million loan to fund a California solar power plant dubbed the Genesis Solar Project.[14] In addition, First Solar Inc., which is also funded by the DOE, has been largely successful in its solar paneling manufacturing services.[15] First Solar employs the same “thin film” technique Solyndra did, but has managed to overcome the competitive market and overall decline in solar paneling prices.[16]

Upon examination of all the facts, it is apparent that Solyndra’s financial failure is not evidence of government involvement gone wrong, but rather the product of multiple factors, including the inherent difficulties any startup faces when it fails to adapt quickly to unanticipated changes in the economy. While Solyndra’s bankruptcy has been divisive, it should not be viewed as the death kneel for the DOE’s loan program, or prevent future programs like it.

It’s Time for the Lobster Monopoly to End: Maine Needs to Grow Up Like Its Lobsters

Article By: Leslie M. MacRae, JNREL Vol. 18, No. 2

Abstract By: Brandon Wells, Staff Member

Want to go to Maine and catch your own lobster? Well you may find yourself in a lot of trouble. Along with other types of regulation such as limiting quotas, equipment regulation, and seasonal restrictions, Maine has a system of regulation based on state citizenship. In effect, this means that unless you have been a resident of Maine for at least a couple years or so, and in some cases have participated in a type of lobster apprenticeship, you can forget about commercially fishing for lobster legally. While many of the types of regulations used by Maine on its lobster industry are legal and in many cases promote economic well being, regulations based on durational residency requirements are arguably unconstitutional.

Some earlier cases with facts very similar to the issue in Maine have been decided based on the Privileges and Immunities Clause of the United States Constitution. In the earlier case, Hicklin v. Orbeck, 437 U.S. 518 (1978), the court fashioned a two-part test to determine unconstitutionality. The first part of the test was that the state had to demonstrate that non-residents constituted a particular "source of evil." The second part of the test stated that the discrimination had to have a "substantial relationship" to the problem. Being able to prove that non-residents are sources of evil will be hard for Maine, or any other state to do, although it has happened in some cases. See State v. Kemp, 44 N.W. 2d 214 (S.D. 1950).

Over thirty years ago, Maine had implemented a durational residency requirement much like the one they have today. In 1974, the case of Massey v. Appolonio held that the residency requirement violated the Equal Protection Clause. Massey v. Appolonio, 387 F. Supp. 373, (D. Me. 1974). The only problem with the court's decision was that it made clear that it was only discussing the constitutionality of the residency requirement (which was three years at the time) and not whether Maine was able to limit fishing to Maine residents only. In a future suit based on these unresolved matters, it seems likely that Maine will be in a very precarious position, and may very well lose again.

It is anticipated that Maine will argue that nonresidents are a "source of evil" when it comes to protecting their local commercial lobster industry. Maine may say that they are protecting their culture, but it is extremely hard to see how the residency requirements would solve this problem. Even so, there are many other ways to protect this perceived harm, such as regulations based on the type and size of boat.

Maine may additionally argue that non- residential lobstermen will destroy the state's conservation efforts. However, non-residents will be subject to the same regulations and laws as Maine lobstermen. Another potential argument is that lobster is the state's own unique resource. Nevertheless, there are a number of facts to rebut Maine's argument, as lobsters are mobile and are found in many spots far south of Maine on the east coast. Also, the Court has all but out right rejected the idea of ownership over living natural resources.

Along with this shift in thinking by the Court, along with the rigid tests of the Privileges and Immunities Clause and the case law that follows it, Maine will have a very difficult time holding its durational residency requirement up to constitutional muster. Maine has the ability and the knowledge to maintain its beautiful industry and resources without resorting to such illegal statutes and manners. Putting to work its legal and constitutional controls over lobster fishing will see to it that Maine's foothold in the commercial lobster industry continues for many years to come.

Is Cap and Trade Really "Dead"?

By: Brandon Wells, Staff Member

Over the past year, a major hot button issue that has enraged and divided those in the coal industry and those working for environmental protection is the cap-and-trade legislation debate. Cap-and-Trade essentially involves setting the limits at which power plants and other polluters can send emissions into the air, and at the same time creating a trading market for those plants to trade emission limits.

Proponents of cap-and-trade see the bill as an economic solution to the issue of greenhouse gas emissions and pollutants, allowing trading to properly reflect demand and to influence participants to lower their greenhouse gas emissions. The bill will also force participants to invest more in pollution control, enabling them to sell unused credits.

The coal industry basically sees the bill as nothing more than another regulation being imposed on an industry that is already prone to an extreme amount of regulation. Cap-and-trade is a threat to the coal industry because it has the possibility to greatly lower the demand for coal, greatly affecting energy prices, especially in places where coal makes energy costs very low. Since plants must lower their pollution, they will be very cautious and may take less coal and take more costly, cleaner forms of energy. They may also invest more heavily in pollution control. Both of these costs will be passed on to the ultimate consumer, raising energy costs for all.

But as of just last month, Senator Lindsey Graham, a leader in getting cap-and-trade legislation passed has declared the bill "dead." Darren Samuelsohn, Graham's Cap-And-Trade Pronouncement Reframes Hill Debate, The New York Times, March 3, 2010 available at http://www.nytimes.com/gwire/2010/03/03/03greenwire-grahams-cap-and-trade-pronouncement-reframes-h-19532.html.

Senator Graham claims himself that his statements were only meant to stir debate, and they certainly have. Some are now worried that the United States is moving in a radical direction when it comes to climate change, and are moving away from the cap and trade legislation. Id. Others are not necessarily convinced that anything has changed and that cap and trade is cap and trade no matter what you call it. Id. It remains to be seen this coming year whether or not cap-and-trade or some other form of climate legislation will make it through Congress. But what do you think? Is Cap-and-trade really "dead?"

Statutory Interpretation and the Chevron Test in Citizens Coal Council v. Norton: A Problem of Administrative Law in the Context of Environmental Policy

Article By: Erin G. McKenzie; JNREL Vol. 18, No. 2

Abstract By: Bryan Henley, Staff Member

Passed in 1977, the Surface Mining Control and Reclamation Act (SMCRA) set forth a new federal regulation system on coal mining. As evidenced by its name, the SMCRA is designed to regulate surface mining, which it does by creating a federal agency, the Office of Surface Mining (OSM). This agency's role is to oversee state regulation of mining by assuring compliance with federal standards. These federal standards, also laid out in the SMCRA, proscribe "surface coal mining operations" in national parks and other similar areas. However, what happens if underground mining affects the surface? Subsistence is a term that describes some of the effects that underground mining can have of the surface land above the mine; but is it regulated by this statute? The answer is not as forthcoming as one might hope.

The SMRCA, through its original text and amendments, was possibly subject to two alternative interpretations. In Citizen's Coal Council v. Norton, the federal courts were forced to confront this conflict and determine if the language of the statute generally prohibited subsistence. Citizen's Coal Council v. Norton, 330 F.3d 478 (D.C. Cir. 2003). The Secretary of the Interior (and National Mining Assoc., an intervening defendant) interpreted the statute to indicate that the subsistence was not within the scope of the SMRCA , and thus underground mining was permissible in the protected areas where surface mining was not. Citizen's Coal Council, argued that this interpretation was arbitrary and capricious, therefore an inappropriate administrative action under the Administrative Procedures Act. Resolution depended upon the court's application of the Chevron test.

The Chevron test provides a framework for a court to analyze an administrative agency's interpretation of a statute. The test first requires the court to analyze if the statute is clear. If the statute is clear, then it is followed. If the statute is not clear, then the agency's interpretation is afforded deference and the court upholds that interpretation as long as it is reasonable. The district court granted summary judgment, finding that the statue was clear and denied underground mining in protected areas. The appellate court reversed, holding that the statute was unclear but that the agency's interpretation was reasonable. What should be a conceptually simple test was applied to directly opposite results by these courts. This highlights the difficultly of applying the Chevron test. In her article, Erin G. McKenzie analyzes the problems in applying this test and its possible effects such an inconsistency may have on the coal industry.

EPA Announces Settlements with Glass and Cement Makers

By: Derek Leslie, Staff Member

In late January, the EPA announced that Saint-Gobain Containers, Inc., a glass manufacturer, and Lafarge North America, Inc., a cement manufacturer, both agreed to multi-million dollar settlements. The settlements, which cover fifteen glass manufacturing plants and thirteen Portland cement manufacturing plants, represent the first major EPA action since announcing a renewed focus on improving compliance among industries that emit significant amounts of air pollution. Under the settlements, the companies are required to install new pollution control upgrades, accept enforceable emission limits, and pay substantial civil penalties.

In the complaint, filed concurrently with the settlement statement, the EPA alleged the companies had violated new source permit provisions under the Clean Air Act ("CAA"). The CAA requires major sources of air pollution to obtain a permit before modifying the facilities in a way that would significantly increase the emissions of pollutants. CAA permits limit these emissions for specific pollutants at a particular facility. As part of the settlement, Saint-Gobain has agreed to install pollution control equipment totaling an estimated $112 million in order to reduce emissions of NOx, SO2, and particulate matter (PM) by approximately 6,000 tons each year. Additionally, they have agreed to pay a $2.25 million civil penalty, split between the federal government, ten states, and two regulatory agencies. Similarly, Lafarge has agreed to pay a $5 million civil penalty, and spend an estimated $170 million installing and implementing control technologies to curb NOx emissions by 9,000 tons each year and SO2 by more than 26,000 tons per year at their cement plants.

These settlements are an example of more rigorous EPA oversight over CAA emissions, and indicate that the EPA will be enforcing the act more aggressively, pushing NSPS permitting beyond the paradigmatic regulated industries. Indeed, Ignacia Moreno, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division in the announcement suggested, "Enforcing the Clean Air Act's new source review program is a priority, not just in the coal-fired power plant industry, but also in industries like cement and glass manufacturing that have been identified as major sources of pollution. Companies in these industries should strongly consider the benefits of these types of settlements as we intend to aggressively enforce compliance with the law."

Source: United States Announces Two Major Clean Air Act New Source Review Settlements at 28 Industrial Plants Nationwide, January 21, 2010, http://yosemite.epa.gov/opa/admpress.nsf/0/3CCB6EBF63B522AF852576B2006439B7

How Effective will the Proposed Plan to Facilitate Domestic Drilling for Offshore Oil Be?

By: Andrew Leung, Staff Member

Disclaimer: The following post reflects the views of the author and not necessarily that of KJEANRL.

Environmental preservationists and proponents of developmental interests have been engaged in an ongoing struggle to influence American policy to facilitate the adoption and spread of their respective agendas. Environmental preservationists often wish to proscribe or severely curtail any human activities with the potential to have a significant adverse impact on the environment. The environmentalist stance necessarily defaults to a position in opposition to intrusive, irreversible changes to our environment, such as the destructive harvesting of natural resources whose reserves take millions of years to regenerate.

Developmentalists, in the form of corporations peddling natural resources, are diametrically opposed to the environmentalists' stance. Their mentality to exploit natural resources as quickly as possible allows company coffers to be filled at the cost of environmental security. Each time a coal mine is opened or an oil well drilled the probability of toxic contamination rises greatly. Oil and coal magnates would argue that they serve an essential function to society, that they mobilize the world populace. While this is indisputably true, it is just another way for such companies to add to the pollution carelessly being released.

A recent plan to permit offshore prospecting and drilling for oil and natural gas announced by President Obama seems in direct contrast with an environmentalist agenda. The plan "would allow drilling along the Atlantic coastline, the eastern Gulf of Mexico and the north coast of Alaska." John M. Broder, Obama Oil Drilling Plan Draws Critics, New York Times, March 31, 2010, available at http://www.nytimes.com/2010/04/01/science/earth/01energy.html?pagewanted=1.

While the President's proposal has enraged environmental interest groups, oil companies are pushing for more concessions. One would think that the 167 million acres of the Atlantic Ocean from which a moratorium on exploration has been lifted should suffice to appease oil companies. However, they push for more pristine environment to taint, specifically drilling rights to the pristine Bristol Bay in Alaska. It seems the oil companies have already decided the fate of the 130 million acres of Alaskan water to be made eligible for exploration and drilling.

One might argue that the entire oil debate is a matter of politics, as many environmentalists seem to be Democrats while Republicans draw support from coal and oil companies. However, this is not the case. In actuality, the dispute over permitting offshore drilling is a matter of numbers. President Obama concedes that Americans use approximately 20% of the world's oil supply while possessing only 2% of the world's reserves within its territorial limits. John M. Broder, Obama Oil Drilling Plan Draws Critics, New York Times, March 31, 2010, available at http://www.nytimes.com/2010/04/01/science/earth/01energy.html?pagewanted=1. Even if the oil companies are permitted to run roughshod over environmental policy and harvest every drop of oil within the United States' jurisdiction – as seems to be their unstated goal – it would not be enough to satiate the American thirst.

Evidentiary Uses for Environmental Agency Inspection Reports in Kentucky: The Dangers Posed by KRE 803(8)

Note By: Henry L. Stephens, Jr., JNREL Vol. 18, No. 2

Abstract By: Mattea Van Zee, Staff Member

The Natural Resources and Environmental Protection Cabinet (NREPC) was created by the Kentucky General Assembly with the aim to protect the natural resources of the Commonwealth. This Cabinet produces Inspection Reports (IRs) and Notices of Violations (NOVs) to communicate to those jurisdictions under its authority the statutory and regulatory provisions. These reports and notices are issued solely within the discretion of the NREPC based upon the nature of the violation. Prater v. Cabinet for Human Resources, 954 S.W.2d 954 (Ky. 1997) explains the seminal differences between KRE 803(6) and KRE 803(8). With this case as a starting ground, Kentucky courts are urged to harmonize these evidence rules to perform judicial scrutiny on the validity of opinions contained in documents such as those produced by NREPC.

The use of IRs and NOVs has the potential to be powerful and dangerous when admitted into evidence without the physical testimony of the author. This outcome is inevitable if either KRE 803(6) or KRE 803(8) is utilized in the admissibility of the documents. Prater indicated that in cases where public agency documents contain opinions and conclusions of agency inspectors, the documents would not be admitted in their entirety due to the insufficient qualifications that fail to meet the status of expert opinions. It remains unanswered as to whether IRs, NOVs, and other agency documents would be admissible via KRE 803(8) in third party litigation where the agency is not a party. Courts should take heed that this particular provision may serve as an open door to the admission of "expert" opinions conveyed by public officials who may have relied on third party hearsay statements. Instead, admissibility should be sought through FRE 803(6) to prevent this outcome.

Differences also arise in the qualification of these reports as factual findings v. factual allegations. As factual allegations, the statements would not be precluded under FRE 803(8). Additionally, with the lack of expert opinion, FRE 803(6) will not provide a route to admissibility. Those attempting to have this type of evidence excluded should not only argue that there is a lack of factual findings, but also that the statements fail to meet trustworthiness standards. For admissibility in third party actions where the agency is not a party, there still remains a viable option under FRE 803(8) for the admission of conclusions or opinions based on factual investigations if the requirement of trustworthiness requirement is met. Practitioners should assume that there will be a liberal interpretation of factual findings.

Daubert v. Merill Dow Pharmaceuticals, 113 S.Ct. 2786 (1993) provides a newer framework for courts to determine the admissibility of these so-called expert opinions. The Kentucky Supreme Court has adopted this framework in FRE 702 analysis. The trial judge is required to satisfy himself of the expertise, credentials, and rationality of the expert's conclusions. Courts should also consider the weigh of depriving the jury from weighing the credibility of the witness when the testimony comes from an agent's report.

Two Steps Forward and One Step Back: Has the Supreme Court’s Decision in Tahoe-Sierra Preservation Council Unnecessarily Muddled the Waters of Takings Law Analysis or Restored Penn Central to a Place of Prominence?

Note By: C. Phillip Wheeler, Jr.; JNREL Vol. 19 No. 1

Abstract By: Erin M. Boggs, Staff Member

Few issues rile the general public more quickly than the idea that the government can, whether through regulation or a physical taking, deprive a property owner of the ability to do what he wishes with a parcel of property. The Supreme Court has approached this problem in a variety of ways, and integrating these multiple approaches into a coherent view of regulatory takings law has proven difficult. C. Phillip Wheeler, however, closely examines the Court's decisions in this area to offer a somewhat historical perspective and a more firm grasp on the state of the law. He contends that Tahoe-Sierra Pres? Council v. Tahoe Regional Planning Agency, 535 U.S. 305 (2002), offers a firm reaffirmation of some precedent and severely limits others, hopefully clarifying the law in this area.

Tahoe-Sierra involved the interaction of property owners surrounding the highly-visited Lake Tahoe and the Tahoe Regional Planning Agency. In response to concerns about runoff into the lake, TRPA placed a moratorium on new building in the area from August 24, 1981 to August 26, 1983. Tahoe Sierra, 535 U.S. at 306. A second, more restrictive moratorium went into effect August 27, 1983 and lasted until April 25, 1984. Id. The majority of the court found that the moratorium did temporarily strip property owners of the development rights of the subject of the regulation. Id. Nevertheless, despite this finding, the Supreme Court ultimately held that the owners had not suffered a taking, relying particularly on the temporary nature of the regulation. Id. at 332.

Wheeler contends that the Court in reaching this holding clarified the test required by the law when it relied on its holdings in Penn Central and its progeny and severely limited the Lucas line of cases. Penn Central Transportation Company v. New York City, 434 U.S. 104 (1978). In order to reach this conclusion, he traces the development of the law through the modified twelve-factor test of Penn Central and the exceptions carved out in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Wheeler's careful examination of the opinions in the regulatory takings cases, including concurring and dissenting opinions shows both the confusion of the law and the necessity of its clarification in Tahoe-Sierra. By showing the Court's historical arc and close examination of the principles that Tahoe-Sierra reaffirms, Wheeler offers a guide for understanding the narrow reach of the Lucas test and the primacy of the Penn Central test in regulatory takings law. Although Penn Central represents a flexible factor test that can have variable results, this coherent presentation of the law can assist scholars and practitioners alike in evaluating their actions by at least showing the Court's apparent choice of the Penn Central test for all regulatory takings cases.

Taxing Coal in India to Fund Renewable Energy

By: Matt Cocanougher, Staff Member

When I drive to Kroger for my weekly grocery trip hoping that I remember to get all the necessities, the last thing on my mind is the pollution caused by the exhaust of my car. This is not because I somehow enjoy polluting or harbor resentment toward the natural environment. Instead, it is a negative externality, which is defined as "a consequence or side effect of one's economic activity, causing another to. . . suffer without compensation." Black's Law Dictionary 272 (3rd pocket ed. 2006). The idea is that because I do not have to pay for the pollution I am causing, I will drive to Kroger as many times as is necessary because there are no negative economic consequences for my trip. If the legislature decided that they wanted to make me pay for my pollution, then the solution would be to impose some cost on my Kroger trip, which would force me to decide whether it was worth the cost to make the trip each time I went.

The above rationale used to curb my Kroger trips is being used on a much wider scale in India to encourage renewable energy projects at the cost of the coal industry. India's Finance Minister, Pranab Mukherjee, announced in his annual budget speech to parliament that "[a] clean energy tax of 50 rupees ($1) a metric ton will be imposed on domestic and imported coal," which will be used to start a national fund to support renewable energy projects. Natalie Obiko Pearson and Gaurav Singh, India to Start Clean Energy Fund by Taxing Coal Use, Bloomberg, Feb. 26, 2010, available at http://www.bloomberg.com/apps/news?pid=20601091&sid=awGQrKRFV_PQ. Based on information from Emergent Ventures, a climate change consulting company, this new tax could raise around 25 billion rupees. Id. But this increase in revenue will not come without its costs, and those costs are, in fact, a major reason underlying the new levy. As Ashutosh Pandey, an employee of Emergent Ventures, states, the new tax will "help encourage the development of cleaner energies and impose some kind of cost on users of coal." Id.

This new initiative comes as India, the world's fourth largest polluter, has set a voluntary goal of cutting its carbon intensity "by as much as 25 percent by 2020 from its 2005 levels." Id. Whether this goal can be met by 2020 or not, India is clearly showing that it finds the negatives of carbon emissions from coal use destructive enough to warrant imposing a great deal of new costs on coal companies, which will likely be passed down to the coal company's customers resulting in higher energy bills. It will be interesting to see how India's coal industry will react and whether this decision will be a step forward for alternative energy projects.

Be Careful What You Don’t Ask For, Because You Just Might Get Seventy-Five Million Dollars: Why the Federal Claims Court Got It Wrong in Stearns Co., Ltd. v. United States

Comment By: Kevin A. Floyd; JNREL Vol. 19, No. 1

Abstract By: Tanner James, Staff Member

The Fifth Amendment, in establishing the Takings Clause, prohibits the government from taking private property "for public use, without just compensation." U.S. Const. amend. V. Determining what it means to take, however, may present some difficulty for courts. An overly narrow construction may expose private individuals and corporations to unjust governmental control. An overly broad construction, as was seen in Stearns Co., Ltd. v. United States, 53 Fed. Cl. 446 (2002), may put the Treasury at the mercy of the litigious.

In Stearns, the Federal Claims Court found that implementation of the Surface Mining Control and Reclamation Act of 1977 (SMCRA)—specifically, the restriction of mining within the boundaries of national forests—was sufficient to constitute "taking" of Stearns Co.'s property in violation of the Fifth Amendment. Notably absent from the court's analysis, however, was the fact that Stearns, Co. had bargained away its sovereign control over the mines when it sold the tract(s) of land to the Federal Government prior to the passing of the SMCRA. These self-imposed limits suggest that the plaintiff corporation contemplated subjecting itself to government regulation similar to the SMCRA. Furthermore, the court failed to address the relevant elements of claims that arise under the Takings Clause, and failed to support its ruling with sufficient, relevant precedent.

Whereas the holding in itself may not pose a substantial threat to the government, the risk of opening the door to this kind of precipitous, overbroad interpretation of the Takings Clause does. While the common sentiment is that the government should be limited in its powers, these limitations, if construed too broadly, could render the government helpless against hefty lawsuits...even when they have taken precautions through previous agreements.

Is President Bush’s Vision Impaired? An Analysis of President Bush’s ‘Climate VISION’ Initiative

By: Brittany Howell; article originally appeared in JNREL Vol. 19, No. 1

Abstract By: Ramsey Groves, Staff Member

The Department of Energy introduced the Bush Administration's "Climate VISION" initiative in February 2003. "VISION" represents "Voluntary Innovative Sector Initiatives: Opportunities Now." And its purpose is to encourage American businesses and industries to reduce the ratio of greenhouse gases (GHG's) by eighteen percent. However, because change is voluntary as opposed to mandatory, there is a concern that Climate VISION will have little positive impact on the environment.

Climate change references fluctuations in temperature, precipitation, and wind, and the impacts of these variations can be incredibly problematic. For example, experts predict that climate change will cause severe weather events, such as hurricanes, to occur more often. The earth's climate changes naturally due to variations in the concentration of certain gases in the atmosphere. However, humans can contribute to climate change when they engage in activities that emit greenhouse gases. Many of these gases are products of industrial activity, and thus a number of industries have a stake in the regulation of greenhouse gases.

Affected industries are not in favor of mandates requiring them to reduce emissions because this would be very costly. Further, the Bush Administration opposed policies that required reductions in emissions because of a fear that mandatory targets could harm economic growth. For instance, experts predict a considerable rise in gasoline and electricity prices in the event of emission regulation. The energy, manufacturing, transportation, and forest sectors of the economy would all be affected by mandates requiring emission reductions. While each of these sectors have taken some steps to reduce the ratio of greenhouse gases, many people feel that this voluntary program is not what is needed.

Opponents of the Climate VISION initiative take issue with, among other aspects, the fact that the program is voluntary. In the past, there have been several failures of voluntary initiatives. Few, if any, companies will voluntarily take steps to limit production in a way that will place them at a disadvantage relative to competition. Further, President Bush appears to have been influenced by friends in affected businesses. Critics claim that the Bush Administration consulted with oil companies concerning their climate change policy. These opponents argue that the input of oil companies resulted in an ineffective initiative.

Several viable alternatives to the Climate VISION initiative have been suggested by experts. One proposal is to begin a practice of carbon sequestration. Basically, this process entails storing carbon, a greenhouse gas, so that the buildup of carbon dioxide in the atmosphere will slow. Another alternative is to promote biomass energy.

While the Climate VISION initiative is a step in the right direction, it simply is not enough. Although we cannot implement a program that will negatively affect our struggling economy, other alternatives must be considered. Our legislators and policymakers must assume the task and make effective changes.

Training Minds to Consider the Environment: California’s Proposed Environmental Education Curriculum in Primary and Secondary Public Schools

By: Jessica Layne Drake, Staff Member

The children of our nation are, unquestionably, our future. They are the future presidents, congressmen, teachers, and parents who will pass on the American history and values that are taught to them from this generation. Most of this knowledge might come from the home, but a secondary, influential source is the school – most likely this influence comes from public education systems. The power of the school curriculum first made news this year with a New York Magazine article entitled How Christians Were the Founders, which discussed the Texas School Board's push to place emphasis on the Founder's intent to create a "Christian Nation" in their students' Social Studies education. Russell Shorto, How Christians Were the Founders, New York Times, Feb. 14, 2010, available at http://www.nytimes.com/2010/02/14/magazine/14texbooks-t.html?pagewanted=1. However, Texas is not the only one making changes to its curriculum in an effort to educate in a different way. California, while not as influential with textbook publishers as Texas (mostly because of its despairing financial state), has been working with the State's Environmental Protection Agency to find a way to bring a greater focus on the environment in elementary and secondary public schools – hoping to encourage students to grow up to become future scientists and green technology leaders. California Environmental Protection Agency, http://www.calepa.ca.gov/education/eei/ (last visited Mar. 1, 2010).

This initiative, termed the Education and Environment Initiative (EEI), would affect over 1,000 schools that serve over 6 million children across the state of California. Id. This movement began with legislation mandating the curriculum in public schools in 2003, and required several different California agencies to work together in this nation-leading effort. Id; See 2003 Cal. Legis. Serv. Ch. 665 (A.B. 1548) (West); 2005 Cal. Legis. Serv. Ch. 581 (A.B. 1721) (West). As of this year, proposed legislation will further the initiative in mandatory inclusion of environmental issues taught in public schools. Cal.Pub.Res.Code § 71303 (2009). On January 7, 2010, the California Environmental Protection Agency released a statement declaring that the final approval of this proposed curriculum was granted by the California State Board of Education. California Environmental Protection Agency, Press Release: State's First Environmental Education Curriculum Receives Approval from the State Board of Education (2010), http://www.calepa.ca.gov/PressRoom/Releases/2010/Jan06EEI.pdf. Its implementation, therefore, appears imminent.

Specifically, the curriculum will encourage and teach environmental protection and preservation that will work to establish a green economy in the state. Id. Further, it will expand environmental literacy among students and teach them problem-solving mechanisms in particular environmental areas. Id. Collectively, it will impact public school children in grades K-12 covering 85 EEI Curriculum units that will cover content standards in both Science and History-Social Science. California Environmental Protection Agency,
http://www.calepa.ca.gov/Education/EEI/Curriculum/Default.htm#CurriculumUnits.

While California is the first state to attempt this type of curriculum for their primary and secondary schools, hopefully it will not be the last. Our young students are who we will want to look for in the future for imagination and initiative in a continuing effort to protect and preserve the environment so vital to our world. As Senator Fran Pavley, who first introduced the 2003 legislation, stated in support of the curriculum, "today's environmental issues are integrated into everyday life, and this curriculum gives us the opportunity to help shape our future leaders and educate them about preserving our environment through their everyday academics." California Environmental Protection Agency, Press Release: State's First Environmental Education Curriculum Receives Approval from the State Board of Education (2010), http://www.calepa.ca.gov/PressRoom/Releases/2010/Jan06EEI.pdf. If we support a better environmental education to our students, we very well can assist, today, those future leaders in bettering their own world in the future, for tomorrow is only a day away.

Arizona v. California III: Res Judicata, Collateral Estoppel, and Indian Water Rights

Comment By: John J. Goodman; originally appeared in JNREL Vol. 19, No. 2

By: Katie Shoultz, Staff Member

In Arizona v. California, 530 U.S. 392 (2000), the fundamental issue was whether the Quechan Tribe's claims for compensation and water rights for 25,000 acres of reservation boundary land were precluded by reasons of Arizona v. California, 373 U.S. 546 (1963) (hereinafter Arizona I) or by a 1983 consent judgment issued by the U.S. Claims Court (hereinafter Arizona II). In Arizona I, the Court ruled with respect to the priorities of water rights but did not decide the rights of the parties in areas where the boundaries of the reservation remained in dispute. In Arizona II, the federal government and the Quechan Tribe reached a settlement without the boundary land water rights issue being addressed. In the latest case, Arizona III, the Supreme Court ruled that the states' preclusion argument was barred as it was not brought forth in a timely fashion. The Court also ruled that the Quechans' acceptance of the earlier settlement did not inherently contain an issue preclusion.

Arizona III details the longstanding legal saga between the Quechan Tribe and several western states regarding the dispute over ownership of the land with the associated water rights and examines the implications of the Court's decision in regards to Native American natural resources law. Even though the question of ownership remains unanswered since 1893 despite three court cases, three Department of Interior declarations, and a cash settlement of $15 million by the federal government, the implications of this decision are likely far-reaching.

First, the concept of res judicata is applied as a claim preclusion in this case, but it also could be viewed as a means by which judicial administration remains manageable. Second, even though the monetary settlement eliminated the Quechan Tribe's claim against the federal government, it did not eliminate the issue of water rights. This finding may prompt other tribes to review their settlements for unresolved issues. Third, the Court's decision to ignore a portion of the Indian Claims Commission's process may encourage other tribes to view such settlements as potentially non-binding and seek alternative remedies. Finally, the Court's ruling of res judicata may allow for an unequal approach to the different tribes.

Although the case involved important civil procedure concepts, the economic impact is certainly of great importance. Because the case was remanded back to the Special Master to determine the water rights, the Quechan Tribe may successfully establish rights to 25.6 billion gallons of water from the Colorado River on an annual basis. This water can then be sold in a bidding process. As such, enormous economic ramifications can result from the final judgment.

The Balancing of Coal and Coalbed Methane Interests Within the Coalbed Methane Statutory Schemes of Virginia, West Virginia, and Kentucky

Article by: Sharon O. Flanery and Leslie R. Miller-Stover; originally appearing in JNREL Vol. 19, No. 2

Abstract by: Kyle Hermanson, Staff Member

Virginia, West Virginia, and Kentucky each have coal seams that lay within the Appalachian Basin and each of the states have adopted statutory schemes designed to maximize the utilization of those natural resources. Their statutes are intended to both ensure the safe production of coalbed methane (CBM) and coal within the same coal seam and balance the rights of the CBM and coal interest holders when they conflict. In 1990, Virginia became the first of the three states to specifically regulate the production of CBM, doing so within its existing scheme of oil and gas regulations. Virginia's statute states that its provisions should be construed to encourage the exploration for and production of the Commonwealth's oil and gas reserves. The statute goes on to provide that the production of coal should be maximized so long as it does not substantially affect the rights of a gas or oil owner. West Virginia and Kentucky's statutes differ in that they emphasize the recovery of coal and that the recovery of CBM should be promoted, provided it does adversely affect the safety or mining of coal seams.

CBM is natural gas that lies trapped in coal seams. CBM is unique in that it is both generated and stored within coalbeds, with the coal acting like a sponge and storing six times the volume of natural gas found in conventional reservoirs. CBM is often produced as a safety measure in advance of underground mining. However, CBM can also be produced for commercial reasons from unmined coalbeds as well as from the fractured rock wastes generated by longwall mining. In order to produce CBM, "stimulation" of the coal seam is usually required. Fluids are injected into the seam at high pressures in order to stimulate the coal and release the gas. There is some concern that this process may affect both the safety and productivity of coal mining.

Despite Virginia's stated emphasis on gas production over coal, the Commonwealth has the toughest standard for the production of CBM, requiring coal owner consent before a permit for stimulation can be granted and providing no venue for appeal should consent not be obtained. West Virginia and Kentucky, like Virginia, also require a permit for stimulation. However, where consent cannot be obtained, both states allow the stimulation applicant to request a hearing before a state agency review board. At the hearing, the applicant must prove that the stimulation will not render the coal seam unmineable or unsafe for mining in order to obtain a permit. In West Virginia, even if a CBM producer obtains a stimulation permit, absent coal owner consent, the producer is subject to tort liability for any damage caused to coal or mining equipment by the stimulation.

In addition to stimulation, the location and spacing of CBM wells provide ample grounds for conflict between CBM producers and coal operators due to potential safety hazards and significantly increased costs to coal operators related to well placement. Through the enactment of statutes, Virginia, West Virginia, and Kentucky have addressed these and several other issues involved in balancing the interests of the producers of two valuable resources, however each state's statutes differ in their specifics and goals.

Recession May Provide Opportunity for Senator to Stifle EPA’s Regulatory Authority under the Clean Air Act

By: Addison Schreck, Staff Member

In December of 2009, the Environmental Protection Agency announced that it had conclusively determined that greenhouse gases, previously notorious primarily for their effects on the environment, also threaten public health. msnbc.com, EPA: Greenhouse Gases are Dangerous to Humans, Dec. 7, 2009, http://www.msnbc.msn.com/
id/34311724/ns/us_news-environment/. In making this determination the EPA cleared the way for regulation of greenhouse gases under the Clean Air Act. This announcement peaked the interests of environmentalists and the fears of big businesses across the country.

Even more recently, on February 2^nd, Senator Lisa Murkowski (Alaska (R)) introduced a resolution intended to strip the EPA of the aforementioned ability to regulate greenhouse gases via the Clean Air Act. John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html. In addition to curtailing the EPA's ability to regulate six of the primary gases blamed for global warming, the bill seeks to restrain the EPA from finding that U.S. fuel production of biofuels, such as ethanol, is responsible for forest clearing and cropland expansion. Charles Abbott, House Bill Would Prevent EPA Regulating Carbon, Scientific American, Feb. 3, 2010, http://www.scientificamerican.com/article.cfm?id=house-bill-would-prevent.

The concerns voiced by Murkowski, which include predictions of increased agriculture costs come as no surprise after the alarms raised by the national business community in past years. Deborah Zabarenko, CO2 Regulation Could Hit 1 Million U.S. Firms, Reuters.com, Sept. 16, 2008, http://www.reuters.com/article/idUSN1529571120080916. The senator's resolution would require a majority vote in the Senate, and if the resolution does advance through the House it would face the near certainty of veto by President Obama, "because it would rob him of a critical regulatory tool." John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html.

The mood in the United States is one of hope, hope that we have seen the worst of the recession. Whatever legislation or regulation comes into existence, the tenuous economic situation the in which the country and world are positioned must be taken into account. So many of the jobs lost in the current recession are said not to be coming back, and we are seeing entire professions virtually disappear, whether to overseas markets or the relentless march of time. Catherine Rampell, The Growing Underclass: Jobs Gone Forever, N.Y. Times, Jan. 28, 2010, available at http://economix.blogs.nytimes.com/2010/01/28/the-growing-underclass-jobs-gone-forever/. However, the promotion of growth does not mean that progress on the climate change front must come to a halt. At least one side of the debate sees hope in the possibility of so called "green jobs," and if the old industries are no longer interested in doing business within our borders, then what's so wrong with reinventing ourselves? Carol E. Lee, Obama Focuses on Green Jobs, Politico, March 23, 2009, http://www.politico.com/news/stories/0309/20360.html. Necessity has always been the mother of invention, a quick look at today's headlines, and it's obvious, it's time to get inventive.

Can You See Me Now? The Struggle Between Cellular Towers and NIMBY

Comment By: Camille Rorer; originally appearing in JNREL Vol. 19, No.2

Abstract By: Bryan Henley, Staff Member

Cellular telephones, like most modern conveniences, are generally regarded as being beneficial to society. Much like sewage treatment and the production of sausages, most people want them to exist without being exposed to the unseemly processes and facilities that provide them. However, the inner workings that enable cellular telephones cannot be sequestered or buried beneath the pavement because those systems take the form of radio transmission towers. Instead, cell towers must typically be in an open area (and thus visible) and situated in an overlapping grid that covers all places where a person would want to make a telephone call. That's everywhere!

This puts the populace surrounding a potential site in a position of wanting a tower to exist, just not wanting it there. This is the NIMBY, or "Not-In-My-Back-Yard" obstacle. NIMBYs are groups of citizens and organizations that, at least in the context of cellular telephones, oppose the currently proposed site, but would support the tower's existence in another location. While immediately reasonable in any instant debate, this problem only becomes apparent when it is considered that every site would have its own separate NIMBY group in opposition. Left unrestrained, these isolated NIMBYs could comprehensively halt cellular service.

In response to this problem, the federal government amended the Federal Telecommunications Act in 1996. This act declares the ground rules for resolving these conflicting interests. These rules are clearly designed to further the placement of towers, as some reasons for denying a cell tower site are proscribed completely and all others must meet a standard of substantial evidence. This evidentiary standard is the fighting issue in these decisions which are very valuable to both the cellular service providers and the landowners who own the proposed site. In "Can You See Me Now? The Struggle Between Cellular Towers and NIMBY," Camille Rorer explores many such disputes and identifies five of the most common arguments put forth by NIMBYs. Each argument in analyzed from its legal and, when necessary, scientific positions. As our reliance on such communication enhancing devices increases as a society, so will these types of dispute. Through her analysis, Ms. Rorer offers a well considered understanding of what is likely to be a common dilemma.

Proposed Legislation Seeks to Encourage Biofuel Industry

By: Derek Leslie, Staff Member

A new bill making the rounds in Congress could have a significant impact on agriculture across the country. Charles Abbot, House bill would prevent EPA regulating carbon, Reuters, Feb. 3, 2010, http://www.reuters.com/
article/idUSTRE6124L720100203. While the legislation, introduced by Representatives Ike Skelton, Collin Peterson, and Jo Ann Emerson, has received attention mostly for its provisions amending the Clean Air Act to exclude six greenhouse gases from being listed as "air pollutants," frustrating a recent EPA ruling that held otherwise, it also is meant to spur growth in the biofuel industry. Id. The bill would encourage greater use of biofuels in two ways. First, it would adopt a broad definition of biomass. This would include crops, trees, algae, and manure. All of which could be used to make renewable fuels. Id. The legislation would also allow for the use of biomass from federal forests and conservation areas. Secondly, the legislation would prevent the EPA from considering greenhouse gas emissions from foreign land use change, such as forest clearing or the development of cropland, when determining the relative emissions levels of fuel production. Id. These developments, their proponents claim, will help spur the growth of the renewable fuel industry in the United States. Id.

The new bill is far from a done deal however. It faces opposition from the Obama Administration, as well as from many members of Congress. Id. While comprehensive climate change legislation has stalled out in the Senate, this bill may fare better given its more limited scope. Nevertheless, due to its controversial provisions excluding some greenhouse gas from being listed as "air pollutants," it is likely to face a tough fight during this election year.

Some Hopeful Signs for Kentucky’s Water

By: Tara Hester, Staff Member

Governor Steve Beshear and his Energy and Environment Cabinet as well as several other groups are working closely with the coal industry to protect Appalachian creeks and streams from the impact of surface mining. Stephanie McSpirit, Some Hopeful Signs for Kentucky's Water, Lexington Herald-Leader, Jan. 25, 2010, available at http://www.Kentucky.com/589/story/1109938.html. The recent reclamation advisory gives clear guidelines so that more excess spoil is retained on the mine site and not bulldozed into valleys and streams. Id. These guidelines are not only good for streams and creeks and the biological communities that they host but are also beneficial to communities downstream from surface mine sites. Id. Stricter guidelines with more attention on protecting stream and creek channels will help reduce the impacts associated with flooding and flash-flooding events. Id. Currently, these guidelines are not mandatory, but only "best practice" guidelines that coal mines are encouraged to follow. There is hope, however, at both the federal and state level that the guidelines will be followed. Id. In Kentucky, stricter federal standards between the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers in granting 404 dredge and fill permits under the Clean Water Act will undoubtedly push more coal companies into adhering to these new reclamation guidelines. Id.

There are several things that can be done to further protect the Appalachian waters. One suggestion is more collaboration and sharing of information and data between the Division of Water and the Department of Natural Resources in evaluating the cumulative impacts of mine activities on waterways. Id. The Department of Natural Resources needs access to the data collected by the Division of Water to better review the impacts of mining activities on surface water. Id. However, it appears efforts to protect Kentucky's waters are moving in the right direction by encouraging discussion among experts and stakeholder groups in developing strategies and recommendations to better protect Kentucky's natural resources and our communities. Id.