The Southeastern Legal Foundation has filed a Petition for Reconsideration of the EPA's endangerment determination due to Climategate. Although EPA likely will reject the Petition, it makes for interesting reading and provides a good foundation for future litigation.
Greg Casas on cap and trade here. Well worth your time.
EPA, as a matter of express policy, has not yet made common cause with the NGOs that aim to stop nanotechnology. 
But it seems the agency has definitely shifted course, aggressively interpreting its legal authorities to justify increased regulation of, and limits on, commercial nanotechnology use.
Recent remarks by Steve Owens, EPA's Assistant Administrator for the Office of Prevention, Pesticides and Toxic Substances, make it clear EPA will, if possible, circumvent TSCA to expand its authority over nanotechnology in order to regulate more aggressively. Owens said EPA will not wait for Congress to amend TSCA to provide the authority it seeks, instead, the agency will propose a reporting rule under TSCA section 8(a) "to require companies to report a range of information on nanoscale materials" and a test rule under TSCA section 4 requiring companies "to test several manufactured nanomaterials for health and environmental effects." He also stated EPA's existing policy that a nanoscale substance with the same molecular identity as a substance listed on EPA’s TSCA Inventory is considered to be an existing chemical is under review, suggesting it likely will be changed.
Continue Reading...This post is courtesy of Cecily A. O'Regan, an IP lawyer in GT's Silicon Valley office. Welcome Cecily!
The USPTO has announced a pilot program enabling applicants to have a patent application 
advanced out of turn for examination (thereby accelerating prosecution) for “green technology.” As anyone familiar with Patent Office backlogs will appreciate, this is particularly good news for start-up companies who may find financing easier with one or more patents further in the queue or (better yet) in hand.
Under this new program applications pertaining to environmental quality, energy conservation, development of renewable energy resources, or greenhouse gas emission reduction are eligible to apply for accelerated examination. Of course, there is a catch - the USPTO will only accept the first 3,000 eligible petitions. Thus, technology companies and entrepreneurs need to consult with patent counsel soooner, not later, to take advantage of this opportunity.
So, in the end, was the UN Copenhagen climate summit nothing more than a good party
and a massive waste of hot air? And what now for US businesses and consumers?
It is, frankly, far too early to evaluate the potential long-term impact (or lack thereof) of the Copenhagen Accord. It is evident the combination of a massive recession and concerns regarding the science used to justify stringent CO2 controls are having a legislative impact. And it certainly seems carbon traders took a hit because Copenhagen is widely perceived to have been a bust. But in the final analysis, it is EPA's endangerment finding, and not the Copenhagen Accord, that matters most for US businesses, consumers, and politicians.
Here's why: EPA's endangerment finding effectively triggers significant Clean Air Act regulatory requirements, and thereby places the fate of US businesses and consumers in the hands of the federal courts. Absent Congressional action taking CO2 regulation away from EPA (and right now passage of climate change or energy policy legislation taking ownership of the CO2 issues is unlikely due to splits in the Democratic Party) there will be a muti-year torrent of litigation from environmentalists, business groups, and everyone in between challenging pretty much everything EPA chooses to do (or not do). This means, in turn, that the courts will effectively make or break US energy policy and thereby shape the future of the US economy.
Joe R. Reeder is a 1970 West Point graduate, an Army Ranger, the 14th Undersecretary of the Army (Clinton Administration), and the past Chairman of the Panama Canal Commission's Board of Directors, among other things. In a recent speech before dignitaries, officials, and industry leaders at a plenary session of
the Watec 09 international energy and environmental conference and exhibition in Tel Aviv, Israel Mr. Reeder explained the U.S. national security imperative of clean energy. Based on Lawrence Livermore Laboratory research, Reeder called for a dual program of advanced research and practical, incremental measures, including federal, state, and local legal reforms to speed development and deployment of an efficient advanced electrical grid and alternative energy systems, an open fuel standard for cars and trucks, and a full bore commitment to nuclear power. Reeder used Patton's Third Army march through France during 1944 and the Arab oil embargo of 1973 to drive home the strategic importance of secure and reliable energy supply and the crippling consequences of dependency on foreign oil.
What with climate change legislation bogged down in the Senate, the growing scandal over the apparent manipulation and misrepresentation of data by pro-regulatory scientists dubbed "Climategate", and apparent public scepticism about the entire issue, perhaps it is time for clean energy advocates to stop worrying about "saving the world" and instead to start focusing on what's good for America. Asking "What Would Patton Do?" might be a good start indeed.
The push to leverage GHG regulation into federal control over local land use, transportation, and development is accelerating. The new House transportation bill, titled the Surface Transportation Authoriza
tion Act of 2009, authorizes the EPA to establish "national transportation related" GHG "goals," and requires States to "develop [approved] surface transportation-related greenhouse gas emission" limits. In other words, States must sync local land use with EPA's GHG limits.
EPA, in turn, has been hard at work developing the analytic tools needed to extend federal control. For example, in 2008 EPA circulated for "peer review" a draft report assessing "land-use scenarios consistent with climate change emission story lines" to better "model" the impact of population growth and land use on "climate change," on the premise that "climate change interacts with existing and future land uses, such as residential housing and roads." This report, though technically not "final" signals clearly where EPA intends to go.
As the Wall Street Journal reports, the biofuel industry is, yet again, suffering tough times. The National Biodiesel Board has released a report claiming the industry "could be expected to collapse" unless the federal biofuels tax credit expiring December 31, 2009 is renewed. However, Congressional action is uncertain, even as state and local governments fail to mandate biodiesel use. The tepid support is due, in part, to the fact feedstocks are typically food crops, as opposed to sugar cane, castor plants or algae, meaning biofuels swap food for fuel.
Help m
ay be on the way, though. First, the Department of Energy is aggressively fun
ding feedstock alternatives to grain and corn including algae. Second, the USDA Animal & Plant Health Inspection Service is considering a petition from Syngenta Seeds, Inc. to deregulate corn genetically engineered to produce a microbial enzyme that facilitates ethanol production. If APHIS grants the petition, then the GE corn and its progeny would no longer be regulated and could be planted without APHIS permits or oversight, obviating some of the "food v. fuel" concerns through increased yields.
Welcome to the e2 Law Blog, sponsored by Greenberg Traurig LLP. Here you will find a skeptical and robust 
critique of environmental and energy (e2) law and policy. We will expose the key issues obscured by the seemingly absurd debates over such things as regulating burping cows or the miasma of thousands of pages in proposed regulations, analyzing and explaining, with sources, what these developments mean to you and your business.
Our primary bloggers are Greg Casas, an energy and 
litigation shareholder in GT's Houston, Texas office, Robert Lamkin, an energy and FERC attorney in GT's Washington, D.C. office, Al Malefatto, an environmental and land use shareholder in GT's West Palm Beach office, and Reed Rubinstein, an environmental and regulatory shareholder in GT's Washington, D.C. office. From time to time, Greg, Al, Rob and I will offer opinions and commentary. Also, we plan on hosting guest bloggers from trade groups, government relations firms, think tanks, academia, the media, and elsewhere, and sincerely hope you will weigh in with your comments and concerns as well. Obviously, the opinions expressed on the e2 Law Blog are those only of the individual blogger, not of GT or its clients.
We hope you find the e2 Law Blog informative, entertaining, and useful. These are challenging times. We look forward to sharing them with you.
Reed D. Rubinstein is a shareholder in the Environmental Law Group in Greenberg Traurig's Washington, D.C., office.More...
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