Valid Concerns Over Environmental Tobacco Smoke or Rights Going Up in Smoke?: An Analysis of Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health

Comment by Emily Heady; originally appeared in JNREL Vol. 19, No. 2

Abstract by Mattea Carver Van Zee, Staff Member

Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health, 591 S.E.2d 744, 752 (W. Va. 2003), investigates a state's adjudication on the legitimacy of Clean Indoor Air Regulations (CIAR). While CIARs have been upheld on federal constitutional challenges, the question remains as to whether local health boards hold the authority to enact such regulations.

Foundation demonstrates the potential state application of legitimacy determinations by looking first to the state's legislative mandates. The Supreme Court of Appeals determined whether the West Virginia Legislature granted local boards of health the authority to prohibit smoking in public places. The legislation provided that environmental health protection included methods of promoting and maintaining clean and safe air, water, food, and facilities. Local boards of health may uphold these public interests where necessary and proper for the protection of the general health of the area and for the prevention of disease. The court determined that the CIAR was consistent with the Legislature's mandate maintaining that the Legislature had delegated broad power to the local boards. When regulations are promulgated by a legally enabled board of health, the regulations are to be construed as valid if the regulation is reasonably calculated to achieve the Legislature's intended result.

Constitutional challenges facing locally-promulgated CIARs include the taking of private property without just compensation and as an inappropriate exercise of eminent domain. The court concluded that a regulation does not represent an unconstitutional taking where the regulation is reasonably found to promote the health, safety, morals, or the general welfare of the public. Additionally, the regulation must not destroy all economic use of the property. Second, challengers contended that CIARs represent an unconstitutional deprivation of due process. The court distinguished that the bans were not deprivations as the regulations apply to truly public areas. Truly private areas, such as one's home, would not allow such regulations.

Third, challengers argued the regulations usurped the power of the state Legislature by creating criminal laws and penalties. Challengers failed to recognize the penal possibilities set forth by the Legislature itself. Instead of usurpation, the local boards of health were merely reciting the penalties in their own regulations. Fourth, it was argued that the local CIARs violated the equal protection clause of the state constitution. With the local CIAR, distinctions were made between differing types of facilities, such as bars, gaming facilities, and restaurants. While bars are exempted from the smoking bans, restaurants were not. However, the court reasoned that because the regulations did not differentiate between facilities of the same type, equal protection was not denied.

Aside from West Virginia, other localities have varied in upholding the constitutionality of such regulations. Like West Virginia, the states seem to focus on health issues, preemption, and property rights. In conclusion, it is unclear what other factors state courts will utilize to analyze the constitutionality of health-related regulations.

“A Tough Row to Hoe: What Partlo v. Johanns Means for the Organic Food Industry”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Karen Campion. Staff Member Natasha Camenisch wrote the following abstract.

Organic farming has become a popular sector of agriculture in the United States. Organic farmers do not use chemicals on their crops and "currently draw a premium of anywhere from 10% to 130% over the price of conventional produce" because of their farming methods. Since organic farmers are making a huge profit off their crops, the amount of cropland dedicated to growing certified organic crops, fruits, and vegetables is continually growing. As a result of the benefits of organic farming, many consumers have sought to protect the integrity of this agriculture practice.

Congress enacted the Crop Loss Disaster Assistance Program (CLDAP) to provide "emergency assistance to all farmers who lost crops due to a disaster, as soon as practicable." Partlo v. U.S., 2006 WL 1663380 at *33 (D.D.C. 2006). In 1995, the CLDAP established separate payment rates and yields were established for different end uses of the same crop. The rates were meant to reflect the differences in price that produce would have commanded on the open market but for having been ruined in a disaster.

In 1998, organic farmers suffered a serious setback. The Secretary of Agriculture issued regulations specifying that "in spite of differences in yield or values," separate rates would not be established for "crops with different cultural practices, such as organically or hydroponically grown." Id. at *4. In Partlo v. Johanns, the court determined that there was no duty on the Secretary to establish distinct rates.

Organic farming has a number of health and environmental benefits. The Partlo decision could make organic farming less attractive for farmers and consumers alike. In her comment titled, "A Tough Row to Hoe: What Partlo v. Johanns Means for the Organic Food Industry," Karen Campion analyzes the court's explanation of why the plaintiff's Equal Protection rights were not violated and how the Administrative Procedures Act was not violated.