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CLEANTECH LITIGATION REPORT

Clearing the path to market for better energy technologies . . .

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GT SOLAR’S TRADE SECRET CLAIMS AGAINST SUPPLIER’S FORMER EMPLOYEE TO PROCEED IN
FEDERAL COURT

October 21, 2009

Story here.  Complaint here.  And 51-page Order denying motion to dismiss for
lack of personal jurisdiction.

The case involves GT Solar’s claim to designs used in its Solar 36 Rod Reactor.

Posted in Solar, Trade secrets | Leave a Comment »


WIND DEVELOPERS HIT HEADWINDS

October 21, 2009

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.




Posted in Canada, Environmental Impact, Tort, Wind | Leave a Comment »


SURFER LAWYERS SUE TO STOP CONSTRUCTION OF 50 MILLION GALLON PER DAY
DESALINATION PLANT IN SAN DIEGO

October 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.

Posted in Desalination, Environmental Impact, GHGs, Uncategorized, Water, Writ
of mandate | 1 Comment »


NUCLEAR WASTE RECYCLER ENERGYSOLUTIONS HIT WITH THREE PURPORTED CLASS ACTION
SUITS OVER PUBLIC OFFERINGS

October 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.”

The website also describes the companies completed and current projects and
several case studies.

Posted in IPO, Nuclear, Securities | Leave a Comment »


GREENHOUSE GASSES: POLITICAL QUESTION OR PUBLIC NUISANCE?

October 19, 2009

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:  Village of Kivalina v. ExxonMobil — View the Complaint and Judge
Armstrong’s Order dismissing the action.

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 .

Posted in CCS, Emissions, Generation, Tort, Transmission, Utilities | 1 Comment
»


GREEN BUILDING INITIATIVE ASSERTS GREEN GLOBES(R) TRADEMARK AGAINST GREEN
GLOBE INTERNATIONAL

October 16, 2009

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.

Article here.

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.

Posted in Buildings, Trademark | 1 Comment »


RESORT DEVELOPER PERSUADES MASSACHUSETTS LAND COURT TO HALT WIND
DEVELOPEMENT PROJECT

October 15, 2009

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.

Stories here and here.

More about Massachusetts Land Court.

Posted in Land use law, Wind | 1 Comment »


GREENSHIFT ASSERTS BIOFUEL PATENT AGAINST GEA WESTFALIA

October 15, 2009

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.

http://www.reuters.com/article/pressRelease/idUS199907+20-Oct-2009+BW20091020

Posted in Biofuel, Patent infringement | 1 Comment »


STRATEGIC VALUE OF SOLAR PATENTS INCREASING SLOWLY BUT SURELY: SUNPOWER SECURES
LICENSE FROM SUNLINK

October 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.)

The SunPower complaint asserts two patents, US Patent No. 5505788 (“Thermally
Regulated Photovoltaic Roofing Assembly”) and No. RE38,988 (“Lightweight,
Self-Balancing Photovoltaic Assembly”).

‘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.

Posted in Licenses, Patent infringement, Settlements, Solar | Leave a Comment »


18 STATES INTERVENE TO SUPPORT EPA WAIVER LETTING CALIFORNIA SET NEW VEHICLE
EMISSIONS STANDARDS

October 8, 2009

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.

Posted in Emissions, Federal preemption, Vehicles | Leave a Comment »

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