Green Patents: Judge rejects enablement defense in case involving bioremediation patents
Co-authored with Cyrus Frelinghuysen.
On May 19th, in a case involving alleged infringement of bioremediation patents, Judge Jack T. Camp of the US District Court for the Northern District of Georgia granted summary judgment to Plaintiff ChemFree Corporation with regard to Defendant J. Walter Inc.’s enablement defense, holding that:
“[T]he undisputed evidence in this case indicates that it would not have required undue experimentation for a person of ordinary skill in the art to make and use the patented parts washer in 1994. Although the specifications do not describe the process in detail, one of ordinary skill in the art would have either known the procedures to follow or been able to conveniently acquire the necessary information.”
The use of bioremediation has grown increasingly popular since the adoption of the Montreal Protocol in 1989, which phased out ozone-depleting substances commonly used in cleaning products. For example, the US Environmental Protection Agency has reportedly been using a bacteria at a Superfund site in New Jersey to clean up trichloroethylene that had contaminated local drinking water.
Continue Reading...Polar bear "special rule" remains; trend toward climate change "regulation by litigation" likely to follow suit
"The Endangered Species Act is not the proper tool to deal with a global issue - global warming," said Secretary of the Interior Ken Salazar on May 8, in announcing that the administration would retain the Bush era “special rule” under section 4(d) of the ESA, aimed at protecting the polar bear. Despite Salazar’s proclamation, however, environmental advocates are increasingly predicating climate change-based lawsuits on the ESA. Lawsuits seeking protection for specific animals, such as the Pika and the Alaskan Kittlitz’s Murrelet, focus on the indirect effects of global warming on those animals. Other lawsuits use the ESA as a platform to advocate against climate change on a much more general level. The ESA lawsuits are part of a larger trend toward “regulation by litigation,” in which environmental advocates have sought to regulate greenhouse gas emissions through lawsuits based on a host of US laws, such as the Energy Policy and Conservation Act, the Clean Air Act, the Energy Policy Act of 1992, the Administrative Procedure Act, the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), and the Mineral Leasing Act (“MLA”).
Continue Reading...California court rules Wal-Mart's failure to consider greenhouse gas impact significant renders environmental impact report inadequate
Wal-Mart’s plans to build a “supercenter” near Joshua Tree National Park have been put on hold pending revisions of the Environmental Impact Report (EIR) submitted by the company. In a lawsuit filed by the Center for Biological Diversity (CBD), a California Superior Court Judge last week ruled that Wal-Mart’s EIR was inadequate because it failed to consider the greenhouse gases (GHGs) that the project will generate as a significant environmental impact. The ruling prevents Wal-Mart from proceeding with its plans unless and until the lead agency (the City Council of the Town of Yucca Valley, CA) revises the EIR to include a discussion of GHG impacts and mitigation measures.
The ruling is notable for several reasons:
Continue Reading...CBD lawsuit challenges Obama's new fuel economy standards
The Obama administration recently announced new fuel economy standards, which would push average fuel economy requirements to 27.3 mpg for all vehicles. This represents only a 7% increase from 2010. Under the new regulations, passenger cars would have to reach 30.2 mpg and light trucks 24.1 mpg. This modest change was not enough for environmental group the Center for Biological Diversity (CBD), which has challenged the requirements by filing a lawsuit against the National Highway Traffic Safety Administration (NHTSA) and the Department of Transportation in federal court.
CBD has asked the Ninth Circuit to find that the administration violated the Energy Policy and Conservation Act which requires that miles-per-gallon standards be set at the maximum feasible level. The CBD alleges that the Obama rule is much lower than current standards in Europe, Japan, China, and other countries, and is thus clearly not at the maximum feasible level.
Continue Reading...EPA's Proposed new National Renewable Fuel Standard (RFS-2) - the end of corn-based ethanol?
*Co-authored with Amy Garber.
The Obama Administration proposed new standards for biofuels this week, triggering a searing debate between ethanol supporters and the Environmental Protection Agency (EPA) over the scientific assumptions on how to consider the effect of indirect land use changes when evaluating greenhouse gas (GHG) reductions from biofuels. If finalized, the rule could cost the grain ethanol industry billions and ultimately give advanced biofuels a clear economic lead over biofuels produced from corn and other grain.
On May 4, EPA released its proposed revision to the National Renewable Fuel Standard (RFS-2) that establishes new volume requirements for biofuels which must be used in transportation fuels each year to meet the requirements of the 2007 Energy Independence and Security Act (EISA). Included for the first time in an RFS rulemaking is EPA’s required estimate of the “life-cycle greenhouse gas emissions” that various classes of biofuels (renewable fuel, advanced biofuel, biomass-based biofuel and cellulosic biofuel) emit from production through end use. These lifecycle estimates are economically vital to biofuel producers because the RFS-2 volume mandates can be met only through the use of those renewable fuels that meet lifecycle GHG reduction thresholds when compared to the baseline lifecycle emission of petroleum fuels. At controversy is the particular impact that EPA’s proposal will have on the production of grain-based ethanol. The RFS-2 proposes that because of international indirect land use changes corn and other grain ethanol produce weak GHG emission reductions, particularly when compared with second-generation biofuels.
Continue Reading...Energy companies settle Clean Air Act claims by agreeing to spend $6M on pollution reducing technology
Six energy companies have agreed to spend nearly $6.4 million to install pollution reducing technology to settle claims that they violated the Clean Air Act. Lawyers with the Department of Justice filed the proposed consent decrees with the federal district court in Salt Lake City on Friday, April 17th. While not admitting to any Clean Air Act violations, the companies also agreed to pay a combined $632,000 in civil penalties.
The companies, Bill Barrett Corp.; Miller, Dyer & Co.; Whiting Oil and Gas Corp.; Wind River Corp.; XTO Energy Inc.; and Dominion Exploration and Production, Inc., operate natural gas production facilities including wellheads, pipelines, and compressor stations on remote parts of the Uintah and Ouray Indian Reservations in Utah. According to complaints filed by the Justice Department concurrently with the proposed consent decrees, the companies violated the CAA by exceeding emissions standards for hazardous air pollutants, failing to monitor and report those emissions, and failing to obtain proper permits in connection with their natural gas production operations.
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