Supreme Court Grants Cert in Connecticut v. AEP
The Supreme Court has granted the petition for certiorari filed by the defendant-appellees in Connecticut v. Am. Elec. Power Co (“AEP”). In prior posts, we discussed the details of this litigation and its long path through the appellate process. This case was one of the first in which plaintiffs raised climate-based public nuisance claims against alleged emitters of greenhouse gases.
Continue Reading...Talking and Litigating About Climate Science
A Discover Magazine Blog, “The Intersection,” is advising climate scientists how to communicate about climate science. The posts include suggestions on how to communicate on politicized issues while avoiding the appearance of advocacy, how the discussion of climate science should be framed (and for, and by, whom), and whether and how climate science should be simplified to be more media-friendly.
These posts make for interesting reading in conjunction with the Civil Investigative Demand (CID) reissued by Virginia Attorney General Ken Cuccinelli seeking the work papers of former University of Virginia (now Penn State) climate scientist Michael Mann. You may recall that Mann was investigated “for allegations of research impropriety that surfaced last year” after hacked emails obtained from servers at University of East Anglia in England were published online. While Mann was cleared of impropriety by Penn State in June, Attorney General Cuccinelli alleges that the CID is necessary to investigate whether Virginia state grant money was obtained through fraudulent means while Mann was at University of Virginia. The new 28-page demand was served roughly a month after Virginia Judge Paul Peatross (Sixteenth Judicial Court) granted the University’s petition to set aside the earlier CIDs issued by Attorney General Cuccinelli covering the same subject matter.
Continue Reading...Cert Petition in Public Nuisance Case Awaits Consideration
Awaiting the United States Supreme Court’s consideration this term is the petition for certiorari filed by the defendant-appellees in Connecticut v. Am. Elec. Power Co (“AEP”). In prior posts, we discussed this litigation – which was among the earliest to involve climate-based public nuisance claims brought against alleged emitters of greenhouse gases.
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FTC Proposes Revisions to Green Guides
Yesterday the Federal Trade Commission proposed revisions to its Green Guides – “the guidance that it gives marketers to help them avoid making misleading environmental claims.” The Green Guides were first issued in 1992, but have not been changed since 1998. According to the FTC, one reason for the proposed revisions is to “provide new guidance on marketing claims that were not common when the Guides were last reviewed.” In particular, the proposal provides guidance on claims that relate to climate change, including carbon offset and renewable energy claims.
Continue Reading...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.
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