CARB unanimously approves AB 32 implementation plan
California’s top air agency – the California Air Resources Board (CARB) – unanimously approved a sweeping plan yesterday to implement the state’s law 2006 Global Warming Solutions Act (commonly referred to as “AB 32”), requiring dramatic cuts in greenhouse gas emissions. After several months of comment on the draft proposal, CARB adopted what is referred to as its “Scoping Plan”, a 134-page plan that outlines targets for every sector of the economy, including cars, refineries, buildings, landfills, energy sources, and others. The ambitious plan requires a third of California’s electricity needs to come from solar energy, wind farms, and other renewable sources to meet the greenhouse gas reduction goals set forth in AB32.
Continue Reading..."Green" trademarks face hostile climate in USPTO
Trademark applications that include the word “GREEN” have hit the United States Patent and Trademark Office (“USPTO”) like a tsunami in recent years. A quick search for pending “GREEN” trademark applications reveals thousands of hits, many of which relate to (hopefully) environmentally-friendly goods or services. In response, USPTO examining attorneys have been laying out sandbags—in the form of descriptiveness refusals—to stem the tide.
The USPTO is likely to dispense with “GREEN” marks in the same restrictive manner it resolved the tech boom filings relating to “i,” “e,” “dot-com,” and other similar marks. It appears likely that it will issue a precedential ruling that will provide direct guidance to GREEN trademark applicants and registrants regarding the scope of protection for their marks. The USPTO may also issue a formal GREEN examination guideline for its examining attorneys. In the end, GREEN marks are likely to be afforded a very narrow scope of protection. As a result, if you’re a commercial enterprise “thinking green,” you’re not alone in the marketplace and you won’t be alone on the trademark registry. From a trademark perspective, the term “green” is unlikely to distinguish your goods or services from those of your competitors.
Continue Reading...Electric company brings federal lawsuit against Kansas Governor for denial of permit for coal-fired power plant expansion
A Kansas electric power company, Sunflower Electric Power Corporation (“Sunflower Electric”), has sued the state government in federal court, seeking injunctive relief relating to the denial of an air quality permit for its planned power plant expansion. On Monday, November 17, 2008, Sunflower Electric filed a complaint (Sunflower Electric Power Corporation v. Sebelius) in the United States District Court for the District of Kansas, asserting that Kansas Governor Kathleen Sebelius and her administration have violated Sunflower Electric's right to equal protection under the law and are unlawfully prohibiting interstate commerce. Sunflower Electric seeks a Court Order declaring that its rights have been violated and enjoining and vacating the Kansas government’s denial of an air quality permit.
Continue Reading...Cap and Trade in China: Shanghai, Beijing and Tianjin establishing emissions exchanges
The Wall Street Journal recently reported that China is taking steps to set up a nationwide emissions trading system. Specifically, the cities of Shanghai, Beijing, and Tianjin are in the process of setting up emissions exchanges modeled on the cap-and-trade system developed in the United States to control sulfur dioxide emissions. The Shanghai and Beijing exchanges were launched in early August, and the Tianjin Climate Exchange was launched in late October. The Tianjin exchange is a joint venture formed by Chinese and American partners, including the giant energy conglomerate China National Petroleum Corp. (CNPC), which is the parent of PetroChina, China’s largest oil and gas producer and distributor, and the Chicago Climate Exchange, the company behind the world’s first voluntary trading system to reduce emissions of greenhouse gases.
Continue Reading...EAB ruling in In re Deseret Power Electric Cooperative opens door to a new regulatory era on climate change
The USEPA Environmental Appeals Board (EAB) issued a potentially groundbreaking decision in In re Deseret Power Electric Cooperative (PSD Appeal No. 0703) by ruling that EPA Region 8 was incorrect when it exempted a new coal fired unit at an existing Utah power plant from limiting carbon dioxide emissions and remanded the permit decision to the Region to reopen the record and reconsider its refusal to impose limits on carbon-dioxide emissions. In its November 13 decision the EAB rejected the Region 8 contention that it was not required to regulate carbon dioxide because the greenhouse gas, while a “pollutant” under the Clean Air Act, was not subject to current regulatory standards. (“We hold that this conclusion is clearly erroneous because the region’s permitting authority is not constrained in this matter by authoritative agency interpretation.”)
Continue Reading...Preliminary injunction stops implementation of Albuquerque Energy Conservation Code provisions
On October 3, 2008, United States District Court for the District of New Mexico entered a preliminarily injunction in The Air Conditioning, Heating and Refrigeration Institute v. City of Albuquerque, barring enforcement of key provisions of Volume I and Volume II of the Albuquerque Energy Conservation Code, and the High Performance Building Ordinance. The code would have required, “either implicitly or explicitly, the installation of appliances with energy efficiencies greater than federal standards.”
Continue Reading...New York Attorney General Andrew Cuomo establishes Wind Industry Ethics Code
*Article updated on 11/18/2009.
On July 15, 2008, New York Attorney General Andrew Cuomo announced an “investigation into two companies developing and operating wind farms across New York state amid allegations of improper dealings with public officials and anti-competitive practices.” While the investigation appears to remain underway, Mr. Cuomo announced on October 30, 2008 that the two wind-farm companies under investigation — Noble Environmental Power, LLC (majority-owned by JPMorgan Partners Fund) and First Wind (formerly known as UPC Wind) — have signed the Attorney General’s new Wind Industry Ethics Code. Mr. Cuomo’s office characterized the Wind Industry Ethics Code as
a result of the Attorney General’s investigation into, among other things, whether companies developing wind farms improperly sought land-use agreements with citizens and public officials, and whether improper benefits were given to public officials to influence their official actions relating to wind farm development. Both Noble and First Wind fully cooperated in the inquiry and their assistance was instrumental in developing the Code of Conduct that is being announced today.
Mr. Cuomo is also establishing an Advisory Task Force to monitor wind companies to ensure that they comply with the Code of Conduct embodied in the Wind Industry Ethics Code.
Continue Reading...Georgetown Law establishes first-of-its-kind State-Federal Climate Resource Center
On November 3, 2008, Georgetown Law announced the establishment of the Georgetown State-Federal Climate Resource Center. The Law Center’s Dean T. Alexander Aleinikoff described climate change as “the single most important environmental issue of our time.”
According to the press release announcing the opening of the Climate Resource Center:
The Center will serve as a resource to states and provide input on climate legislation and regulatory developments under the Clean Air Act; bring together state leaders and federal officials to address climate policy challenges; monitor state, federal and international developments; respond to information requests about state policy from congressional offices and federal agencies; and offer analytical support to states and local governments seeking to protect and promote their role in climate policy. National conferences, as well as briefings and roundtable discussions on Capitol Hill, are also planned.
Continue Reading...Around the Web (10/29/2008)
A roundup of recent news and articles from around the web relevant to climate change law and litigation.
Continue Reading...Dynegy Inc. agrees with New York Attorney General Andrew Cuomo to disclose material risks related to climate change
Following in the footsteps of Xcel Energy's August 2008 landmark settlement with New York Attorney General Andrew M. Cuomo, on October 23, 2008, Mr. Cuomo announced an agreement with Dynegy Inc. under which Dynegy will include disclosures of material risks related to climate change in its Form 10-K filings. The agreements with Dynegy and Xcel are the fruits of Mr. Cuomo's innovative use of New York's Martin Act as an environmental enforcement tool, which began with the New York Attorney General's September 14, 2007 letters and accompanying subpoenas to Dynegy, Xcel, AES Corporation, Dominion Resources, and Peabody Energy. Mr. Cuomo's inquiries regarding AES Corporation, Dominion Resources, and Peabody Energy are said to be "ongoing."
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