USEPA GHG Finding Triggers Reviews and Reconsiderations of Global Warming Science
Over ten years have passed since EPA was petitioned, in October 1999, by 19 private organizations asking EPA to regulate greenhouse gas emissions from new motor vehicles. A decade later, the issue continues to be fraught with controversy. The 1999 petition culminated in the 2007 US Supreme Court closely decided decision (5 to 4) in Massachusetts v. EPA (549 U.S. 497 ERC 2057 (2007)) requiring the EPA to make a finding on whether greenhouse gas emissions endanger public health. On December 7, 2009, EPA signed its finding that greenhouse gas emissions do endanger public health and welfare, and that cars and light trucks cause or contribute to the emissions
Continue Reading...Green Patents: International Trade Commission terminates investigation into allegations of infringement of wind turbine technology patents
Co-authored with Cyrus Frelinghuysen.
On January 8, 2010, the US International Trade Commission (ITC) issued a notice of its decision to terminate a Section 337 investigation into whether Mitsubishi Heavy Industries Ltd. and two of its subsidiaries had infringed three General Electric (GE) patents related to wind turbine technology. GE plans to appeal the ITC’s decision to the U.S. Court of Appeals for the Federal Circuit. The investigation stemmed from a February 2008 GE complaint with the ITC. GE claimed that wind turbines imported by Mitsubishi infringed GE’s U.S. Patent Nos. 5,083,039; 7,321,221; and 6,921,985.
Continue Reading...SEC Issues Climate Change Disclosure Guidance - Not a Statement Regarding Climate Change "Facts"
On January 27, 2010 the Security Exchange Commission (SEC) announced it had voted approval to issue “interpretative guidance” on the existing disclosure requirements as they apply to business and legal developments relating to climate change. The SEC stressed in its announcement that: 1) the interpretive guidance is meant to provide clarity and enhance disclosure consistency; 2) the commission is not making any statement regarding the facts relating to climate change, global warming, pace of warming, or causes; and that 3) it is not changing reporting, and materiality rules. That said, the Commission’s vote was split along “party lines” among the agency's republican and democratic commissioners. Kathleen Casey reportedly criticized the SEC vote as "transparently political and such a breathtaking waste of the commission's resources."
Continue Reading...California requires greenhouse gas emissions to be part of environmental impact calculus
Greenhouse gas emissions are officially factors to be considered in determining the environmental impact of local projects in California. On December 30, 2009, the California Natural Resources Agency adopted amended guidelines to aid public agencies and developers in complying with the California Environmental Quality Act (CEQA). The guidelines expressly provide that greenhouse gas emissions are included in the environmental impact calculus under CEQA.
Continue Reading...EPA endangerment finding and petition for review - the court battle over GHG regulation begins
On December 23, 2009, a Petition for Review was filed in the U.S. Court of Appeals for the D.C. Circuit challenging the US Environmental Protection Agency’s (USEPA) final action and its December 7, 2009 findings that: 1) new motor vehicles and engines cause or contribute to greenhouse gases; and 2) greenhouse gases in the atmosphere threaten public health and welfare of current and future generations. (Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act).
Many of the same companies that filed the Petition are part of a coalition of companies and trade associations that submitted over 133 pages of comments in late June 2009 challenging the Proposed Rule for USEPA’s findings. The coalition questioned the process USEPA used to support its Findings. In addition the coalition asserted that USEPA relied primarily on synthesis reports published by the Intergovernmental Panel on Climate Change (IPCC) and U.S. Climate Change Program – not on underlying science and data. The coalition believes the synthesis reports are insufficient, uncertain, and inadequate to support the findings regarding manmade greenhouse gases and global warming. The coalition also asserted that USEPA did not consider evidence from scientists that disagree that all or most of the climate change that has occurred in the last few centuries is due to human causes.
Continue Reading...Regional Greenhouse Gas Initiative (RGGI) litigation settled
The New York State Energy Research and Development Authority (NYSERDA), New York State Department of Environmental Conservation (DEC) and New York State Public Service Commission have announced a settlement of Indeck Energy’s challenge to the legality of the RGGI. Indeck and others contended that the RGGI system of auctioning emission allowances puts companies who are locked into long term contracts at a serious disadvantage and challenged New York’s authority to implement RGGI. This litigation and settlement highlight the kinds of issues likely to arise as companies face the prospect and costs of current and future regulatory programs focused on long-term reduction of greenhouse gas emissions.
Continue Reading...U.S. PTO launches Green Technology Pilot Program to fast track processing of green patents
Co-authored with Cyrus Frelinghuysen.
On December 7th, just hours before the United Nations Climate Change Conference was set to begin in Copenhagen, the U.S. Patent and Trademark Office (PTO) announced the launch of its Green Technology Pilot Program to speed the processing of green patents. The Program is initially set to run for only twelve months. At the end of that period, the PTO will determine whether to extend the program based both on the efficacy of the program and on feedback from participants. In addition, under the program, the PTO will accept a maximum of 3000 applications, but will reevaluate the resources needed to extend the program should the PTO receive more than 3000 applications.
The announcement was made at a joint event held by the Department of Commerce and the Department of Energy. At the event, Department of Energy Secretary Steven Chu also announced that $100 million in funding from the American Recovery and Reinvestment Act, which President Obama signed into law in February, will be made available to accelerate innovation in green technology, increase America’s competitiveness, and create jobs.
Continue Reading...EPA makes endangerment finding for greenhouse gases
In a bold move that attempts to force the Senate’s hand on climate change legislation, the U.S. EPA today announced a final rule that regulates greenhouse gases as an air “pollutant” under the federal Clean Air Act. In announcing the rule, Administrator Lisa Jackson justified the rule by stating that there is an overwhelming amount of scientific studies and evidence showing that greenhouse gas emissions are “deteriorating the natural balance in our atmosphere and hurting our climate.” EPA's decision to regulate greenhouse gases as a pollutant, however, has the potential to spin out of control, triggering other areas of the Clean Air Act, such as Prevention of Significant Deterioration and New Source Review standards, which could delay thousands of new construction projects nationally by imposing time-consuming and stringent permit requirements at a time of near historic unemployment.
Continue Reading...Friends of the Earth challenges Federal Government of Canada's failure to act on climate law
Friends of the Earth Canada, represented by Ecojustice and Paliare Roland Barristers, recently argued before the Canadian Federal Court of Appeal that the federal government is in violation of a Canadian law that requires Canada to take action to meet their international commitments to combat climate change.
On June 22, 2007 the Canadian legislature passed the Kyoto Protocol Implementation Act (KPIA). KPIA states that its purpose is “to ensure that Canada takes effective and timely action to meet its obligations under the Kyoto Protocol and help address the problem of global climate change.” Within 60 days of coming into force and not later than May 31 of every year thereafter until 2013, KPIA mandated that the Minister of the Environment had to prepare a “Climate Change Plan” and release it publicly. KPIA set out a specific list of guidelines for the Climate Change Plan to ensure that Canada met its international obligations.
Continue Reading...AES resolves investigation by NY Attorney General Cuomo with agreement to disclose climate-change risks to investors
In his latest use of New York's Martin Act as an environmental enforcement tool, on November 19, 2009, New York Attorney General Andrew M. Cuomo announced an agreement with The AES Corporation requiring AES to disclose material risks associated with climate change in its annual report to the Securities and Exchange Commission. The agreement resolves an investigation that began with Mr. Cuomo’s September 14, 2007 letters and accompanying subpoenas to AES and four other energy companies.
Continue Reading...