The case involves GT Solar’s claim to designs used in its Solar 36 Rod Reactor.
I’ve posted before about wind developers battling over siting issues and desalination projects struggling with opposition from environmentalists. Today we have two more stories about two more wind projects confronting litigation filed by opponents who claim the projects’ side effects need to be taken into consideration.
One involves a 124-turbine project and a bat biologist who argues the project violates the Endangered Species Act.
The other involves a Canadian farmer seeking court review of Ontario’s Green Energy Act. He reportedly claims the five turbines to be built near his home under the Act would cause noise levels and low-frequency sound sufficient to produce health problems to his family. His case is said to be backed by the University of Western Ontario’s dean of medicine who studied negative health effects of 100 Ontario residents who live near wind turbines.
Credible and substantive salesmanship is usually necessary to sell even the best projects to their host communities.
Surfer lawyers sue to stop construction of 50 million gallon per day desalination plant in San DiegoOctober 20, 2009
San Diego North County Times reporter Bradley Fikes has covered an interesting conflict between a hot cleantech desalination project and coastal preservation groups who think the project’s not so hot. Represented by the Coast Law Group, the San Diego Coastkeepers (SDC) and Coastal Environmental Rights Foundation (CERF) filed a Petition for Writ of Mandamus asking a state court in San Diego to enjoin construction of a coastal desalination plant by Poseidon Resources and order the City of Carlsbad to revoke approval for the project.
According to the petition, the project would be “co-located” with the Encina Power Plant. The petition states that Encina already uses a technology known as “once-through cooling” by which seawater is drawn from the ocean and circulated through the power plant to cool its generators, and then discharged back into the ocean at an increased temperature. The Poseidon desal plant would utilize the Encina Power Plant’s cooling water intake infrastructure to draw in far greater amounts of source water for the project’s desalination process.
According to the petition, Poseidon’s desal plant would require 304 million gallons per day (“MGD”) to produce 50 MGD of potable water. Of this, 100 MGD would be used for the desalination process, with the remaining 204 gallons being required to provide dilution of the desalination by-product, brine, to be discharged back to the ocean. The desal plant would allegedly require 274,400 megawatt-hours of electricity per year to deslinate the water and would produce roughly 100,000 metric tons of carbon dioxide emissions per year, allegedly making the plant the most energy-intensive means of producing drinking water in the State of California.
The petition alleges that once-through cooling is known to be harmful to the marine environment insofar as it draws ocean life into the seawater intake (entrainment), and pins the organisms against the source water intake screens (impingement). The petition claims such entrainment and impingement would kill at least 2.11 pounds, or 96,000 individual marine organisms, per day, equivalent to 23,000 pounds or 1 billion organisms over the course of the plant’s 30-year life expectancy. The groups claim these effects were not properly studied and reported during the approval process.
Thanks to reporter Brad Fikes for sending me a copy of the petition. According to his coverage, the desal project is supported by the city and other local government agencies in the drought-prone Southern California region. The project’s 50 million gallons would cover about 9 percent of countywide demand for drinking water. Poseidon has said construction will begin by Nov. 14, when a critical permit from the California Coastal Commission will expire if not acted on.
See Poseidon’s website on the Carlsbad desalination plant here.
Nuclear waste recycler EnergySolutions hit with three purported class action suits over public offeringsOctober 19, 2009
The Kendall Law Firm, headed by former federal judge and a former United States attorney, piled on the third purported class action complaint against nuclear waste recycler EnergySolutions over its initial and secondary public offerings of securities.
Following the City of Roseville Employees’ Retirement System (complaint) and the Building Trades United Pension Trust Fund (complaint), the Kendall complaint alleges that statements made in the company’s offering documents about its opportunities in the nuclear industry were misleading in that EnergySolutions was not well situated to benefit from those opportunities. According to the Kendall complaint, the Company had petitioned the Nuclear Regulatory Commission in 2007 to change well-established regulations to allow funds from licensees’ decommissioning trust funds to be used for the cost of disposal of major radioactive components that have been removed from reactors before the permanent cessation of operations. The complaint further alleges that the business prospects of EnergySolutions were heavily dependent upon a favorable ruling from the NRC, even though the NRC had already addressed and rejected the issue stating that the purpose of the decommissioning trust funds is to ensure that licensees have adequate funds on hand for decommissioning activities at the time of license expiration.
According to the Kendall complaint, EnergySolutions later issued a press release on October 14, 2008, after its secondary public offering, revealing that the company was reducing its estimates for net income and that the financial crisis would delay their ability to accelerate the decommissioning of nuclear power plant assets. The press release also indicated that the NRC denied the Petition for rulemaking change. On this announcement, EnergySolutions’ stock dropped 44%, from $10.14 per share on October 13 to $5.64 on October 14 with extremely heavy trade volume.
From EnergySolutions’ website:
“EnergySolutions, headquartered in Salt Lake City, Utah, is an international nuclear services company with operations throughout the United States and around the world. With over 5,500 world-class professionals, EnergySolutions is a world leader in the safe recycling, processing and disposal of nuclear material. EnergySolutions provides integrated services and solutions to the nuclear industry, the United States Government, the Government of the United Kingdom, hospitals and research facilities.”
Following closely on the heels of two high-profile reversals from the 2nd and 5th Circuits finding subject matter jurisdiction over public nuisance actions for damage allegedly caused by greenhouse gas emissions, U.S. District Judge Saundra Armstrong did what the district courts in those two prior actions did by dismissing the Village of Kivalina’s federal common law claim for nuisance, holding that her court lacked jurisdiction on the basis of political question and lack of standing. In doing so, Judge Armstrong set the case up for a 9th Circuit appeal and further percolation among the circuits as to the question of whether climate change caused by greenhouse gasses is a justiciable public nuisance, or a non-justiciable political question. The 2nd and 5th Circuits have now found justiciable public nuisances.
Proponents of GHG litigation argue that a similar outcome at the 9th Circuit would accelerate adoption of GHG-reducing technologies in electricity generation and transmission.
Here’s the current round up:
Second Circuit: Connecticut v. American Electric Power Co. — View the Complaint, the S.D.N.Y. Order granting defendants’ motion to dismiss, and the 2nd Circuit’s Sept. 21, 2009 opinion reversing the district court.
Fifth Circuit: Comer v. Murphy Oil USA, Inc. — View the Third Amended Class Action Complaint filed in the Southern District of Mississipi, the district court’s order granting defendants’ motion to dismiss, and the 5th Circuit’s Oct. 16, 2009 opinion reversing the district court.
Ninth Circuit: California v. General Motors — View the Complaint and Judge Martin Jenkins’ Order granting defendants’ motion to dismiss. The case was originally appealed to the 9th Circuit but the appeal was withdrawn .
Portland-based non-profit coalition, The Green Building Initiative (GBI), filed a complaint for trademark infringement based on Registration Nos. 3,549,714 and 3,549,715 and related claims against California company, Green Globe International (GGI). The Portland plaintiff certifies environmentally friendly business practices under its “Green Globes” program and alleges that the California defendant has illegally used the trademarked name to operate a certification system for environmentally friendly building design. Plaintiff claims to have launched its program in 2004. Defendant’s website claims to have launched its program in 1994 during the United Nations Earth Summit in Rio de Janeiro.
USPTO records show several trademarks for GREEN GLOBE(R) and GREEN GLOBES(R) registered to other owners for other goods and services, including food products and environmental services such as ecological restoration.
Texas resort developer Silverleaf Resorts, Inc. persuaded the Massachusetts Land Court to issue a temporary injunction against Berkshire Wind Power Cooperative Corp.‘s use of part of a road crossing its private property, prompting the wind developer to suspend its $43 million wind project on Brodie Mountain. Abutter Silverleaf claimed completion of the wind project would prevent it from using its property for its intended purpose — a high priced resort. This is part of an ongoing dispute between the Massachusetts wind developer and the Texas resort developer at this Massachusetts location.
More about Massachusetts Land Court.
The day after its patent issued, GreenShift Corporation‘s wholly-owned subsidiary GS CleanTech Corporation asserted US Patent No. 7,601,858, against GEA Westfalia Separator, Inc. and other defendants in S.D.N.Y. The first amended complaint asserts only one cause of action for patent infringement.
Titled “Method of Processing Ethanol Byproducts and Related Subsystems,” the ‘858 patent is drawn to a method for obtaining corn oil by evaporating, concentrating and mechanically processing thin stillage.
GreenShift press release here.
Oct. 21, 2009 update: Second related patent awarded to GreenShift. Story here.
Strategic value of solar patents increasing slowly but surely: SunPower secures license from SunLinkOctober 11, 2009
Associated Press reported that SunPower and SunLink have settled a patent suit with SunPower extracting a license from SunLink. The complaint was originally filed in Oregon and transferred to Northern California where it was pending before Judge Saundra Armstrong, who wrote the Kivalina Order on greenhouse gas public nuisance suits that I recently posted about. (I also appeared before Judge Armstrong recently in a contracts case involving “greenwashing” claims and was very impressed.)
‘788 Patent Claim 1:
1. A photovoltaic roofing assembly, comprising:
- a roofing membrane;
- a plurality of photovoltaic modules disposed as a layer on top of said roofing membrane, and
- means for regulating the temperature of said photovoltaic modules.
‘988 Patent Claim 1:
1. A photovoltaic assembly comprising:
- a building rooftop;
- a photovoltaic module having sides and having upper and lower surfaces; and
- a spacer secured to the lower surface of the photovoltaic module and supported by the building rooftop;
- said spacer sized and configured to define:
- an open region beneath said lower surface, said open region extending between and in contact with the lower surface and in direct contact with the building rooftop, and
- including access openings formed therein for fluidly coupling said open region to said upper surface;
- said access openings extending along at least two sides of said photovoltaic module;
- whereby wind uplift forces are resisted when said photovoltaic assembly is mounted to the building rooftop .
Australian patent attorney Justin Blows makes a sharp prediction that strategic use of patents will likely increase as the industry matures.
Back in July, EPA reversed its prior decision and granted California’s request for waiver of federal preemeption, allowing California to regulate greenhouse gas emissions from new motor vehicles. The U.S. Chamber of Commerce (USCC) and National Automobile Dealers Association (NADA) filed a petition for review and statement of issues with the Court of Appeals for the D.C. Circuit, asking the appellate court to reverse the waiver.
Today, a coalition of 18 states moved filed a motion to intervene on California’s behalf. The coalition states are Arizona, Connecticut, Delaware, Florida, Illinois, Iowa, Maine, Maryland, Minnesota, Massachusetts, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.
Commentators argue California’s authority to set its own emissions is an effective means encourage automakers to make cleaner and more efficient vehicles. Others advocate a standardized national auto market to achieve the same goals.
California’s standards will apply from model years 2009 to 2011. According to EPA, national compliance will then count for state compliance for from 2012 to 2016.
EPA provides a description of the California waiver and waiver-determination process here.
Obama’s Presidential Memorandum ordering EPA to review it’s initial decision: here.