New York City strengthens anti-idling laws, reflecting nationwide trend of state and local idling regulation
On February 10, 2009, New York Mayor Michael Bloomberg signed legislation reducing the amount of time that vehicles can idle near schools and expanding New York City's enforcement of idling laws. Introductory Number 631-A reduces the amount of time that non-emergency vehicles can idle adjacent to schools from three minutes to one minute. In addition, the legislation requires the Environmental Control Board and Department of Finance to submit annual reports on the number of idling violations issued and the total value of penalties assessed. Introductory Number 40-A authorizes the Department of Parks and Recreation and the Department of Sanitation to enforce idling laws (enforcement was previously limited to the Department of Environmental Protection and the Police Department). The new legislation also gives civilians the ability to report truck idling violations. (Previously, citizens were entitled to report noncompliant buses only.) Hearings were recently held on a third piece of potential legislation, known as Proposed Introductory Number 881-A, which, if passed would require the city to implement technology to allow traffic enforcement agents to issue idling tickets via their hand-held computers.
Continue Reading...Human rights-based climate change litigation - a new tool for environmental advocates?
A January 15 UN report on the relationship between climate change and human rights has concluded that while, in theory, global warming may infringe on certain fundamental human rights, individual human rights-based climate lawsuits are not likely to be successful. Nonetheless, environmental advocates may soon be taking up these issues in the courtroom, in part because litigation can bring mass public awareness to climate change issues. This increased exposure may apply added pressure to shape government policy, but is climate change an issue for courts to address?
Continue Reading...Kansas judge takes Sunflower arguments under advisement; Legislature may moot ruling
*Updated 2/23/09 - added link to administrative proceeding opinion.
Oral arguments on a motion filed by Governor Kathleen Sebelius to dismiss a lawsuit filed by Sunflower Electric Power Co. were heard earlier this month in US District Court for the Federal District of Kansas. That ruling may be moot, however, as the Kansas Legislature is considering a bill (SB 265) that would limit the state’s environmental regulators from enforcing air quality standards in excess of federal limits. The legislature also considered a proposal to allow Sunflower to resubmit its request for air quality permits to build the new coal-fired plants. The Republican-led legislature passed three bills previously permitting the construction of the plants to go forward, but the Governor rejected the bills and the legislature failed to override the Governor’s veto.
Continue Reading...USPTO's TTAB approves "Green Indigo" trademark
The USPTO’s Trademark Trial and Appeal Board (“TTAB” or “Board”) recently reversed an examining attorney’s refusal of the mark GREEN INDIGO for clothing. In In re Jones Investment, Inc. (Ser. No. 77/249,189) (TTAB Jan. 21, 2009), the Board reversed the examiner’s holding that the mark was merely descriptive of clothing items identified in the application. The Board held that GREEN INDIGO is, instead, “suggestive” of the goods and therefore eligible for registration on the principal register. This ex parte holding suggests that the Board may be amenable to preserving some “green space” on the principal register, despite the flood of “GREEN” applications pending in the USPTO.
Continue Reading..."Green" patent issuances hit record high in 2008
IPLaw360 reports that more clean energy patents issued in 2008 than in any year since the data has been tracked. According to the Clean Energy Patent Growth Index report, Fuel cell patents account for the highest proportion of the 928 newly-issued patents, while there was also substantial growth in the number of wind patents. Also on the rise were patents issued in hydroelectric, tidal, and geothermal technologies.
Continue Reading...New EPA Administrator partially grants Sierra Club petition toward Agency regulation of CO2 in PSD permits
On February 17, 2009, US EPA Administrator Lisa Jackson partially granted a petition by the Sierra Club to reconsider the prior EPA Administrator’s late 2008 interpretative memorandum excluding carbon dioxide, and other monitored but uncontrolled pollutants, from Prevention of Significant Deterioration (“PSD”) permit program requirements. While Administrator Jackson opted against a complete stay of the memorandum, she announced her intention to open a public comment period regarding the PSD issue. This clearly is a move by EPA toward potential regulation of carbon dioxide as a “pollutant” under the Clean Air Act, which the Bush Administration had infamously resisted. A Sierra Club organizer was quoted as saying that the Jackson letter “should halt virtually all new coal plant development until the EPA decides how to handle global warming pollution.”
Continue Reading...Antelope Creek tar sands oil project challenged by environmental groups
The Sierra Club and the Indigenous Environmental Network have filed a complaint in a Utah federal court alleging that the proposed Antelope Creek tar sands oil project will disrupt wildlife, poison and dry up rivers, and harm human health with hazardous air pollutants – including greenhouse gas emissions. Specifically, the complaint states that the Department of the Interior and other defendants violated the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) by failing to prepare an Environmental Impact Statement (EIS) and failing to allow for public participation in the agency’s decision. The complaint alleges that the project anticipates the construction of 288 closely spaced new oil wells and will employ experimental thermal recovery methods. According to the Sierra Club, greenhouse gas emissions from tar sands production are three times those of conventional oil and gas production.
Continue Reading...Investment in "clean" technologies likely to fuel rise in IP litigation
A recent Australasian Legal News report noted that "climate change work flows will . . . provide a good line of business for intellectual property (IP) lawyers." Investment in "clean" technologies – those that either replace technologies that generate greenhouse gases, or that reduce greenhouse gas emissions from existing technologies – is expected to rise around the globe. The report projects that there will be "significant patent and trademark litigation work, since companies will try to protect their innovations and brands in the credit crunch as they position for the recovery."
Continue Reading...Highwood coal-fired power plant suspended in favor of natural gas
In a sign of the changing times, a group of Montana electric utilities for the first time has suspended plans to build a coal-fired power plant in favor of immediate plans to build a natural gas power plant that would emit fewer greenhouse gases. The Southern Montana Electric Generation & Transmission Cooperative (“SME”) early last week announced that it would halt plans to build its $900 million 250-megawatt coal-fired Highwood Generating Station. Instead, construction will continue with a different fuelbase: natural gas. SME has decided to build a 120-megawatt natural gas-fired power plant in addition to a few wind towers in place of the coal-fired plant.
Continue Reading...US Fish and Wildlife Service to consider climate change protection for Pika under ESA
The US Fish and Wildlife Service has agreed to determine whether the American Pika warrants protection from global warming effects under the Endangered Species Act by May 2009. If the Service determines that protection is warranted, it has nine months to decide whether the pika should be designated an endangered species. This agreement is part of a settlement resolving a lawsuit filed against the Service in August 2008 by the Center for Biological Diversity. The Center alleged that the Service had improperly failed to take action on an October 1, 2007 petition to evaluate whether the pika was an endangered species due to rising temperatures. At the time the lawsuit was filed, the Service had fallen nearly eight months behind the legal deadline to evaluate the petition.
Continue Reading...Center for Biological Diversity to devote $17 million to climate litigation and advocacy over five years
The Center for Biological Diversity (CBD) today announced the launch of its San Francisco-based Climate Law Institute. The stated mission of the Institute is to bring a strong climate focus to the Center’s five program areas -- Biodiversity, Public Lands, Oceans, Urban Wildlands, and International – in what the Center calls a “coordinated strategy to protect species and ecosystems from the sweeping and potentially catastrophic effects of warming.” The Center states that it is “dedicating” $17 million to this effort over the next five years.
What does the Center mean by a “coordinated strategy”? Apparently more climate-based litigation, and more administrative and regulatory action designed to serve as bases for additional climate-based litigation. The Institute states it will accomplish its mission through: strategic, creative litigation; scientific petitions to protect species; administrative and policy advocacy; and public education and outreach.
Continue Reading...AIG withdraws from climate change lobby group
After receiving growing criticism from Congress for engaging in lobbying activities while essentially being owned by US taxpayers as a result of a federal rescue package last year, AIG formally withdrew its membership in the US Climate Action Partnership last Friday. As noted in prior blog entries, the insurance industry continues to be actively involved in seeking to influence climate change policy and AIG’s public efforts date back to at least 2006. While AIG’s unique financial situation makes its awkward for AIG to be directly lobbying lawmakers on these issues, AIG is still pursuing a fairly public strategy on climate change.
Continue Reading...Center for Biological Diversity follows ESA climate change rulemaking petition with litigation
*Co-authored with Amy Garber.
On January 15, 2009, the Center for Biological Diversity (“CBD”) filed a complaint in the US District Court for the District of Columbia against the US Environmental Protection Agency (EPA) and the Interior, Commerce, Agriculture, Transportation, and Defense Departments, seeking declaratory and injunctive relief. In its complaint, CBD claimed that those federal agencies had violated the Administrative Procedure Act by failing to make merits determinations within a “reasonable” amount of time in response to a petition filed by CBD on February 1, 2007. The petition, entitled “Endangered Species and Global Warming Initiative: An Administrative Procedure Act Petition to Enhance the Recovery of Endangered Species and Address the Growing Impacts of Global Warming on Imperiled Species,” proposed a series of specific modifications to federal regulations at 50 C.F.R. Parts 17, 402, and 424 to require analysis and mitigation of federal actions “that impact the relationship between global warming and endangered plants and animals.”
Continue Reading..."Green" trademarks face hostile climate in USPTO (Part II)
Part II: Greening of the USPTO Trademark Trial and Appeal Board
(Part I of this article described the USPTO’s examination of GREEN trademark applications. Part II focuses on Trademark Trial and Appeal Board cases involving GREEN trademarks.)
Applications for registration on the USPTO’s principal register face two rounds of challenges prior to registration: examination and opposition. Any GREEN trademark application that clears the USPTO examiner’s hurdle must then run the USPTO’s opposition gauntlet. Any entity who believes that it would be damaged by the registration may file an opposition in the USPTO’s Trademark Trial and Appeal Board (“TTAB” or “Board”) within thirty days after the mark is published for opposition (15 U.S.C. § 1063). Even after registration, marks still face a potential hurdle in the form of cancellation actions. (15 U.S.C. § 1064).
Continue Reading...Obama appointees include dedicated climate change advisors
All indications are that addressing climate change will be a top priority for the Obama Administration. In addition to reversing the previous administration’s course on the issue of state-level GHG emissions standards, President Obama has also made a statement by appointing numerous advisors with backgrounds in climate change, including several persons appointed to posts specifically related to climate change. These staffing choices reinforce the policy actions taken by the administration in its first weeks in office. Taken as a whole, all signs point to increased regulation of GHG emissions and other activities related to climate change – either through new national legislation, federal waivers for regulation at state/regional levels, or application of existing federal legislation (such as ESA and NEPA) to the climate change arena. The challenge for Obama’s climate team (discussed below) will be balancing the interests of environmental advocates concerned about climate change, and the interests of corporations concerned about increased operational expenses in a slumping economy.
Continue Reading...EPA to reconsider California emissions waiver request
On Friday, the US Environmental Protection Agency formally agreed to reconsider California's request for a waiver from the Clean Air Act -- specifically, the state's request for authority to impose its own state regulations on vehicles in an effort to reduce greenhouse gas emissions. One of President Barack Obama's first actions when he took office included signing an order requesting that the EPA reconsider the Bush Administration's rejection of California's request. New EPA Administrator Lisa Jackson signed the notice on Friday officially reopening the comment period on California's waiver request. Jackson said the Clean Air Act gives EPA the authority to allow California to adopt its own emissions standards for motor vehicles due to the seriousness of the state's air pollution challenges. However, automobile manufacturers prefer a single, uniform standard, as opposed to different standards in different states or regions.
Continue Reading...Friends of Earth climate change lawsuit nearing settlement
*Updated 2/9/09 - added links to text of proposed settlement agreements.
A groundbreaking global warming lawsuit is now on the verge of settlement in the Northern District of California. The lawsuit, Friends of the Earth, Inc., et al. v. Spinelli (Case No. 3:02-cv-04106, sometimes referred to as Friends of the Earth v. Watson), was originally filed in 2002 against the Overseas Private Investment Corporation (“OPIC”) and the Export-Import Bank of the United States (“Ex-Im”). The Plaintiffs – Friends of the Earth, Inc. (a non-profit environmental advocacy organization), Greenpeace, Inc. and the cities of Boulder (CO), Oakland (CA), Arcata (CA) and Santa Monica (CA) – claimed that OPIC and Ex-Im – federal agencies providing loans, insurance or other assistance for fossil fuel projects around the globe – funded projects without complying with the requirements of the National Environmental Policy Act (“NEPA”).
Text of proposed agreements:
The case originally made headlines in August, 2005 when the Court determined that the Plaintiffs had the legal right to bring suit against OPIC and Ex-Im for funding projects in other areas of the world because United States cities could be affected by global warming effects from these projects. “This was the first court opinion that said greenhouse gas emissions in Chad and Saudi Arabia could have an effect on the environment of the United States,” said Sue Ellen Harrison, the assistant city attorney for plaintiff city Boulder, Colorado.
Continue Reading...Environmental group sues Bureau of Land Management for failing to consider greenhouse gas emissions in granting oil and gas leases
The Western Environmental Law Center (“WELC”) has filed suit in New Mexico federal court against the Bureau of Land Management (“BLM”), alleging that the agency’s 2008 grant of 92 oil and gas leases in New Mexico violated federal law by failing to address greenhouse gas emissions. The complaint also alleges that the Bureau failed to adopt policies designed to make drilling more efficient. This lawsuit, along with a similar complaint filed by WELC in Montana in December, is among the first to use greenhouse gas emissions as a basis for challenging oil and gas leases in the west. Named plaintiffs in the suit are Amigos Bravos, the Natural Resources Defense Council (NRDC), and members of the Oil and Gas Accountability Project.
Continue Reading...Insurers facing climate change coverage litigation, creating climate change policies
While insurers are bracing for potentially significant climate change coverage litigation (see, e.g., Kivalina) under past and current policies, insurers are simultaneously beginning to develop insurance products for risks associated with technologies designed to address climate change issues.
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