Intellectual Property and Sustainable Development

Berkeley Declaration on IP, Enforcement, and Access to Medicines

A set of access to medicines groups and experts met last week at the University of California at Berkeley Law School, and have prepared the
attached "Berkeley Declaration on Intellectual Property Enforcement
and Access to Medicines."  The declaration calls attention to the
dangers that the new IP enforcement agenda poses to access to
medicines -- please distribute widely.  It's also available at http://www.law.berkeley.edu/files/Berkeley_Declaration.pdf

The Berkeley Declaration is being released on the occasion of Friday's
joint WTO, WIPO and WHO "Technical Symposium on Access to Medicines."

The Declaration, along with the below cover letter, will be delivered
tomorrow to Director-General Lamy, Director-General Chan, and Director
General Gurry.

Amy Kapczynski
Assistant Professor of Law
University of California at Berkeley Law School
---
Berkeley Declaration on Intellectual Property Enforcement and Access
to Medicines

All people have the right to access the medicines they need to be
healthy. As public health groups, humanitarian and inter-governmental
organizations, experts and academics that work on access to medicines,
we gathered at the University of California at Berkeley to analyze the
serious threats that recent ?intellectual property enforcement?
initiatives pose to this right.  The enforcement agenda threatens the
last decade of efforts to achieve access to medicines for people in
low- and middle-income countries, and compromises the attainment of
health-related Millennium Development Goals. We make this Declaration
to call upon policy makers in governments and international
organizations to reject the cynical and dangerous efforts that have
been made through this agenda to prioritize commercial interests over
the right to health.

The IP enforcement agenda promotes new standards that will require
increased surveillance of goods and more intrusive police powers for
government officials without adequate procedural protections. It aims
to substantially increase the penalties for people alleged to have
infringed patents, trademarks, and copyrights. It would require judges
to consider a range of measures that would restrict the freedom of
people to use knowledge goods, and would impose new punishments for
third parties without due regard for the implications on access to
medicines.

Access to medicines in developing countries depends on the ability of
countries to produce, export, and import generic medicines.
Restrictions on generics impede competition, leading to increased
prices, and preventing people with limited resources from accessing
the medicines that they need. New enforcement measures have been used by customs officials to disrupt the supply of legal generic medicines
between developing countries as they transit through Europe. The draft
Anti-Counterfeiting Trade Agreement (ACTA) represents a deliberate and
non-transparent attempt to bypass multilateral institutions, while
ultimately aiming to impose its standards on developing countries. The
enforcement agenda commandeers public money for private gain, and has
a chilling effect on the manufacturing of and trade in legitimate
generic medicines. Contrary to assurances, it undermines key public
health safeguards that allow countries to balance the right to health
with their obligations under the World Trade Organization’s Trade
Related-Aspects of Intellectual Property Rights Agreement (TRIPS).
While enforcement norms are typically considered procedural, it is
clear that this new agenda goes far beyond procedures and has serious
implications for substantive areas of intellectual property law.

The recent IP enforcement agenda is being promoted in many fora:
globally, in the ACTA negotiations; regionally, with the East African
Community draft ?anti-counterfeit? policy and Bill; and nationally in
free trade agreement negotiations with the European Union and national
”anti-counterfeiting” laws, among others. Additional sites of these
initiatives include the World Customs Organization SECURE project, the
World Health Organization International Medical Products Anti-
Counterfeiting Taskforce (IMPACT), and Interpol. Public safety is
being cynically used as a pretext to promote these initiatives.  In
particular, we reject the attempt to conflate the serious public
health issue of medicines quality with private concerns about the
enforcement of intellectual property rights.

IP enforcement initiatives must not interfere with access to
medicines, and should:
-       Be grounded in human rights principles
-       Protect innovation, competition, and consumer rights
-       Be negotiated through a transparent, inclusive, and open
process, that does not bypass existing multilateral institutions
-       Protect the full use of TRIPS flexibilities that promote
access to medicines

ACTA represents some of the worst enforcement practices on both
substance and process. The agreement has been conducted through a
secretive, illegitimate process, and there is no evidence that its
procedural or substantive shortcomings can be remedied in the current
structure.  ACTA should be abandoned.

The European Union should cease its efforts to export its much-
criticized enforcement policies to low- and middle-income countries.
We call for a moratorium on exporting these policies through free
trade agreements and technical and financial assistance. The review of
EU customs regulations that was prompted by the recent generic drug
seizures must be concluded with amendments to these regulations that
remedy the threat that they pose to access to medicines.
The East African Community ?anti-counterfeiting? draft policy and
proposed legislation introduces unprecedented IP norms at the regional
level, threatens access to medicines, and should be discarded.  It is
particularly inappropriate because it seeks to impose TRIPS-plus
provisions when TRIPS itself does not require the majority of the
participating countries to enforce patents on medicines. The East
African Legislative Assembly, national governments affected, and the
EU Parliament should investigate the origins of such laws at the
national and regional level. We also welcome efforts made to challenge
the recent ?anti-counterfeiting? law in Kenya in court.
We recommend all developing countries approach IP enforcement and
?anti-counterfeiting? initiatives with caution and reject any such
initiatives that affect the ability to produce, export, import, and
use generic medicines. We also call for enhanced South ? South
collaboration in developing frameworks for the management of IP from a
public health perspective.

Finally, WHO should immediately disengage from IMPACT, and instead
take a public health approach to the problem of medicines quality,
safety, and efficacy.  Such an approach must strengthen drug
regulatory authorities, ensure the availability and affordability of
medicines to diminish incentives for unregulated and unsafe medicines,
promote rational use, and require transparency and accountability in
the pharmaceutical sector. WHO should scrutinize and publicize the
implications of IP and its enforcement on public health, and WHO
member states should focus on and lead the implementation of the
Global Strategy and Plan of Action on Public Health, Innovation and
Intellectual Property.

Against the background of continued problems with excessive drug
prices, falling donor commitments, the real danger of not meeting
Millennium Development Goals targets, and the failure of the TRIPS
Agreement to meet the expectations of developing countries on access
to medicines, innovation for unmet health needs, and technology
transfer, a focus on IP enforcement is hypocritical and immoral.  It
will deepen global health inequality, and exacerbate inequity in
access to medicines.

Signed
Farmamundi
Health Action International Africa
Knowledge Ecology International
Public Citizen
Third World Network
Universities Allied for Essential Medicines
William L. Aldis MD, Assistant Professor (Global Health), Faculty of
Public Health, Thammasat University, Bangkok, Thailand
Kajal Bhardwaj, Lawyer (HIV, health and human rights), India
Michelle Childs, Director Policy Advocacy, M?dicins Sans Fronti?res
Campaign for Access to Essential Medicines
Gwen Hinze, International Director, Electronic Frontier Foundation
Busingye Kabumba, Lecturer on Law, Human Rights and Peace Centre
(HURIPEC), Makerere University
Amy Kapczynski, Assistant Professor of Law, University of California
at Berkeley Law School
Els Torreele, Project Director, Access to Essential Medicines
Initiative, Open Society Institute
German Velasquez, Senior Adviser for Health and Development, The South
Centre, Geneva
July 15, 2010

Columbian IP Agreement continues to Raise Human Rights Concerns

During Columbia’s periodic review by the Office of the UN High Commissioner for Human Rights, specifically the Committee on Economic, Social and Cultural Rights, several recommendations were made relating to intellectual property (IP) rights. 

The official UN report can be found here and CIEL’s publications relating to Trade Agreements and IP can be accessed here.

With respect to Access to Medicines, examining the US-Columbia Free Trade Agreement, the Committee noted that: 

The Committee is also concerned that the Free Trade Agreement (FTA) signed between the State party and the United States contains provisions on intellectual property that may result in increase of prices of medicines and negatively impact on the enjoyment of the right to health, in particular of those with low income (arts. 1, 12).

…In this regard, the Committee recommends that the State party consider revising the intellectual property provisions of the Free Trade Agreement signed with the United States, in order to ensure protection against the increase of the price of medicines, in particular for those with low income.  (para. 10)

With respect to development projects, including those that would be under the ambit of the Clean Development Mechanism (CDM) of the Kyoto Protocol, the Committee noted:

The Committee recommends that the State party take concrete measures to review the processes concerning infrastructure, development and mining projects and fully implement decisions of the Constitutional Court in this regard. The Committee also recommends that the State party review the Presidential Directive 001 and the draft bill elaborated by the Working Party on Prior Consultation of the Ministry of the Interior. The Committee further recommends that the State party adopt legislation in consultation with and the participation of indigenous and afro-colombian people, that clearly establishes the right to free, prior and informed consent in conformity with ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, as well as the relevant decisions of the Constitutional Court.  (para. 9)

On Biofuels, the committee notes that:

The Committee is concerned that the policy encouraging agro-exporting goods, such as agro-fuels, may deprive peasants from cultivating their lands. The Committee is also concerned about the unequal distribution of lands owned by a minority of the population, as well as about the absence of a genuine agrarian reform, as recommended in the previous concluding observations of the Committee (art. 11).

The Committee recommends that the State party develop agricultural policies which prioritize the production of food; implement programs that protect national food production with incentives for small producers; and ensure the restitution of lands taken from indigenous and afro-colombian peoples, as well as peasant communities.   (para. 22)

Regarding Access to Knowledge and Education:

The Committee recommends that the State party take immediate measures to ensure access of all children without discrimination, to free and compulsory primary education.  (para. 29)

In addition to these recommendations by the Committee, on GMOs the Seeds Group presented its report on Genetically Modified Organisms and the Human Rights of Indigenous Peoples in Columbia.  The report states: 

The policies and practices of the Colombian State concerning genetically modified organisms (GMOs) have violated, and threaten to continue violating, the rights of indigenous peoples in Colombia, including their rights to self-determination, prior consultation, participation, property, culture, food, heath, and a healthy environment.

In 2005, the Colombian State issued a decree that regulates the approval of GMOs. Though indigenous peoples will be affected by the release of genetically modified (GM) seeds, they were not consulted before the approval of this decree; nor does the decree provide for any consultation during the approval process for each seed. Under this decree, the processes by which certain GM seeds have been approved have violated the Colombian State’s obligation to apply the precautionary principle, and have not taken into account scientific studies that have demonstrated the threat that GM seeds pose to native seeds, human health, and the environment.

The next periodic report of Columbia is due to be submitted by July 2015.

Human Rights, Technology Transfer & Climate Change

On the margins of the WIPO Committee on Development and IP (CDIP), CIEL organized a series of presentations and commentary on the topic of Human Rights and Technology Transfer, in the context of climate change.  Information on what agreements were reached in the CDIP can be found on the CIEL IP Quarterly Update, Second Quarter of 2010.

The speakers included:

• Mr. Robert Archer, Executive Director of the International Council on Human Rights Policy (ICHRP)
• Mr. Michael Waibel, Post-doctoral researcher at Cambridge University
• Mr. Baskut Tuncak, Law Fellow, Center for International Environmental Law (CIEL)
• Ms. Caroline Dommen, Quaker United Nations Office (QUNO)
• Mr. Subhas Gujadhur, First Secretary of the Permanent Mission of Mauritius to Geneva

Mr. Archer began the event with a summary of the Human Rights dimension of climate change, based in part on their earlier publication “Climate Change and Human Rights: A Rough Guide.” 

Mr. Waibel followed with an overview of Technology Transfer in the International Agreements on intellectual property and environmental protection.  His presentation can be viewed here.

Mr. Tuncak then spoke of how and to what benefit human rights obligations can inform discussions on technology transfer.

Finally. Ms. Dommen and Mr. Gujadhur provided their perspective on the preceding presentations. 

For further information, please see IP Watch’s coverage here and/or contact Baskut Tuncak at btuncak [at] ciel [dot] org

Balancing or Swinging? Genes, ACTA and other Recent Developments in IP

The past thirty days have given those who follow developments in innovation policy quite a bit of material.  First, on March 29th, a US district court (SDNY) held that neither isolated genes nor methods of analyzing or comparing genes were patentable subject matter in Association for Molecular Pathology v. US Patent and Trademark Office (USPTO).   Then, recently, the very controversial and secret Anti-Counterfeiting Trade Agreement (ACTA) was officially released in draft form (available here).

First, in the case of genes, the ACLU is calling the court’s decision “a huge victory for womens' health and scientific freedom.”  

The case centered around Myriad Genetics’ patents over BRCA1 and BRCA2, genes which are associated with breast and ovarian cancer.  The plaintiffs challenged these patents as invalid, arguing that genes are not patentable under the “product of nature” exemption from patentable subject matter (35 USC s. 101).

Seemingly an obvious argument by the plaintiffs, the defendant bio-tech industry has argued (successfully) that genes – in their “isolated” or “purified” form – were not a product of nature and hence, a patentable invention.  The defendants’ lawyers repeated this argument before the court in this case, arguing for the patentability of Myriad’s claims over BRCA1 and BRCA2. 

However, the judge did not agree in the least bit with the defendants.  Judge Sweet held that a purified form of a natural product (e.g. a gene) must have "markedly different characteristics" than the unpurified form of that product to be patent eligible subject matter.  Then, citing in re Bilski (US Court of Appeals for the Federal Circuit), a decision which could invalidate thousands of business method patents if upheld by the US Supreme Court, the judge held that the method for analyzing the genes for cancer were not patentable either. 

If upheld on appeal, the BRCA case will have broadly sweeping implications.  The implication for health are clear – when available, doctors will be able to provide gene based tests, results and treatments at a lower cost, thereby increasing access and potentially lowering national health-care costs.

However, the case could also have implications for the food, biofuel, and other bio-based industries.  For example, patents over isolated genes and methods for their analysis are also found in many commercially viable transgenic plants (a.k.a GM crops/foods, GMOs, etc), owned by Monsanto, Syngenta and others in the very concentrated agriculture biotech industry.  For example, see Monsanto’s patent over “DNA constructs and Methods to Enhance the Production of Commercially Viable Transgenic Plants” (US pat. no 7,575,917).

Regarding genes and biofuels, see DuPont’s patent over genes for polyunsaturated fatty acid production using transgenic algae, bacteria, yeast and/or fungi (US pat. no. 7,695,950).  Algae is a second-generation (non-food crop) biofuel, which can be used to produce biodiesel and other biofuels.  Biodiesels are long chain esters, such as the polyunsaturated fatty acids produced by the transgenic algae claimed in DuPont's patent.  The US Dept of Energy claims that algae-based biodiesels are the only viable alternative energy source for automobiles, and thus it is no surprise that Exxon Mobil is investing heavily in algae biofuels.

Turning to ACTA, negotiating parties to the Agreement (US, EU, Japan, New Zealand, and others) – which is basically a new IP treaty in a thinly-veiled disguise – appear to have bowed to pressure from civil society, officially releasing the ACTA Draft.  Knowledge Ecology International (KEI), a leading NGO in advocating for transparency in ACTA negotiations, has stated that the disclosure comes far to late and is incomplete, lacking information on the negotiating parties‘ positions.  

ACTA negotiators are fudging the meaning of counterfeit, confusing copied products, where the consumer is aware of the authenticity of products such as generic medicine and audio/video reproductions, with actually counterfeit products – those which are intended deceive consumers.  Counterfeit medicines are very dangerous and a serious problem.  Awareness should be raised on this issue, but not by equating low-cost generic medicines to deadly counterfeit medicines.  This is the issue that has been at the heart of the ongoing dispute over the EU’s seizure of generic medicines that were in transit from India to Africa through EU ports. 

Medecins Sans Frontieres (aka, Doctors Without Borders) is concerned that the key elements of the ACTA - injunctions, border measures, criminal penalties and enforcement practices - may obstruct and deter legitimate generic competition.  MSF is also concerned about another anti-counterfeiting measure - the 2008 Kenyan Anti-Counterfeiting Legislation, which could not only impact the supply of anti-retroviral medications in Kenya, but throughout the African continent, given the influence of Kenya's laws on the legislative activities of other African countries.  Of particular concern are provisions in the Kenyan legislation on enforcement, and the vague definition of "counterfeit."  For more opinion and information, also see Michael Geist's blog and website on the ACTA (thanks Philip). 

Under current international IP and Trade agreements, TRIPS and the GATT, goods in transit - such as the generic medicines that were seized by the EU- are exempt from IP laws, which are territorial, while the goods are in transit.  In other words, under current international law, a Dutch patent on XYZ drug compound is inapplicable to a generic copy of that drug whose final destination is not in the Netherlands.  The enforceable patents in importing territory are what is applicable.  However, as suspected for some time, the draft ACTA agreement has the potential to go beyond current international IP norms and limiting access to medicines, depending on how the final negotiations shape up (see Dr. Henning Grosse Ruse-Kahn’s analysis of the ACTA text here)

So, are IP norms and laws moving towards a more balanced, a less “one-size-fits-all” approach?   In the case of gene patents, it depends what happens with the BRCA case on appeal, which might in turn depend on what the US Supreme Court has to say about the Federal Circuit Court of Appeals opinion in Bilski.  In the case of ACTA, in the end it will depend on what negotiators agree upon as the final text, which could depend on how much transparency is provided in the negotiations.  We'll see if US Trade Representative Ambassador Ron Kirk is correct when he said "people will walk away from the table" if the ACTA negotiation is made public.

Technology Mechanism for Climate Change: Still in the Lab

The first set of 2010 climate change negotiations under the UNFCCC concluded in Bonn, Germany (April 9-11th) with no progress apparent on the Technology Mechanism referenced in Paragraph 11 of the 2009 Copenhagen Accord. 

In fact, the only real outcome of the meeting appears to be an agreement to hold two additional meetings for both Advanced Working Groups on Long-Term Cooperative Action (LCA) the Kyoto Protocol, as well as for both of these groups to prepare draft texts to facilitate negotiations.  Conclusion for the LCA and Kyoto Protocol Working Groups are available here and here, respectively.

Although developing countries are pushing for legally binding commitments as an outcome of the December 2010 Conference of the Parties (COP) in Cancun, this does not appear likely. 

The Copenhagen Accord (the Accord), in particular the way in which it was negotiated, has led to what observers at Bonn are calling a sense of “deep distrust” at this past meeting between developed and developing countries.  Australia, on behalf of the “Umbrella Group,” stated that the Accord was a clear expression of political will to combat climate change and gave direction for future work.  However, many are concerned that the Accord would result in the end of the Kyoto Protocol.

Specifically, regarding the Technology Mechanism of the Accord, or “enhanced action on technology development and transfer” as it is being negotiated under the in the Working Group on LCA, several issues remain undecided, based on outside reports, including whether:

• activities or outcomes of activities eligible for support can included “purchasing of licenses and other intellectual property (IP) issues”;
• implementation of the technology mechanism shall be funded by new financial arrangements to meet the full incremental costs of compliance;
• the mechanism should support removal of barriers to technology development and transfer and enhancing means to promote technology transfer;
• the Technology Executive shall, among many other things, “address intellectual property issues as they arise”;

and most significantly – whether Intellectual Property Rights (IPRs) will be mentioned in the text, and if so, whether:

• International agreements on IP shall not be interpreted so as to prevent parties from taking measures to address mitigation or adaptation to climate change (e.g. Articles 30 and 31 of the TRIPS Agreement);
• Global Technology Intellectual Property Pools for Climate Change are created;
• Steps are taken to share publicly funded technologies and know-how;
• Patents over environmentally-sound technologies for mitigation or adaptation are excluded from IP protection, including the revocation of any existing IP rights, in particular those that are publicly funded or those involving the use of genetic resources for mitigation or adaptation; or
• A recommendation is made that international action be taken to remove barriers to technology development and transfer, including those arising from IP rights.

In short, negotiators still have a range of options for how they choose to deal with the IP issue.  Obviously, industrialized countries are on the side of not weakening IP protection, with developing countries pointing to past experiences with the refusal to license non-ozone depleting (non-CFC) propellants to India and Korea, as well as experiences with essential medicines under the WTO's TRIPS Agreement.  But, interlinked to technology transfer is the issue of financing – the details of which are still skeletal as well and perhaps dependent on what becomes of the Copenhagen Accord. 

The next intersessional meeting is currently scheduled for the 1st-11th of June 2010 in Bonn, with the two additional meetings to be held between then and the Mexico COP in December.

Renewable Energy Technologies for Rural Development

With the debate around patents and climate change-related technologies at Copenhagen last December, it became easy to forget that there are many low-cost and clean renewable energy technologies available in the public domain. A recent UN meeting highlighted how these technologies can revolutionize the way of life for rural communities.

Over 90% of rural Africa and 1.6 billion people worldwide are without electricity. Kerosene, firewood, and dried dung are relied upon by rural communities for lighting and cooking fuel. These traditional energy sources pose many health hazards, especially for women. Air quality is a major concern with kerosene and open fires, releasing carcinogens, airborne particles, and greenhouse gasses.   Women are disproportionately exposed to open fires for cooking. Midwives working at night have to rely on a dim, flickering light. In addition, women are also the ones who scavenge for firewood or transport kerosene, often in inhospitable terrain. Thus, besides being a health risk, this is also a tremendous loss of productivity for the village; as women in these villages are forced to spend more and more time in search of diminishing fuel sources.

In the Expert Meeting on Green and Renewable Energy Technologies for Rural Development, organized by the UN Conference for Trade and Development (UNCTAD), several promising solutions were described for providing electricity and cooking gas for rural communities. These solutions – solar, biomass-to-electricity, biomass digesters, geothermal, micro-hydro and micro-wind power – were each shown to be particularly affordable and technologically promising in a variety of settings.

One of the most important messages to come out of the meeting was that the technologies deployed must be reliable. To ensure a reliable alternative energy supply and to help empower rural women, one man has started a brilliant effort to ensure solar power takes hold in these villages. A major problem with previous efforts in using solar power in rural settings was the inability to maintain and repair the necessary equipment. Training young men as solar engineers proved futile, as they would quickly leave to more lucrative urban markets.

But, Mr. Bunker Roy, founder of Barefoot College of India, has found a solution to this problem: training illiterate grandmothers. From each African village, he brings an illiterate grandmother back to India for a month of intensive training on solar photovoltaic system maintenance and repair. Learning alongside other grandmothers from villages throughout Africa, the newly-trained solar engineers return to their home village with a newfound sense of confidence and purpose. And, most importantly, they remain in their village, providing a much needed service and passing on their knowledge.

With the provision of clean, off-grid electricity from solar panels, the air is cleaner, the village is more productive and women are becoming empowered. What’s more, it makes clear economic sense. The cost of a solar system large enough for several lanterns is roughly the cost of one year’s supply of kerosene. But, solar energy can only solve some of a rural communities energy needs. Other experiences showed that there are other alternatives which can meet the need for sustainable development in rural communities.

In Nepal and Cambodia, biogas has proven to be a clean and reliable source of cooking fuel. Micro-wind and Micro-hydro are being deployed in Vanuatu and Mozambique, respectively. Many countries are experimenting with “mini-grids” to supply the generated electricity. The Zambia is exploring alternative distribution models, rolling out “energy kiosks” in several villages. India has a program to provide efficient cooking stoves to rural areas in an effort to reduce air pollution.

Several countries are re-visiting previous efforts for large-scale alternative energy generation as well. The Zambia is resurrecting a geothermal plant from the 1980’s to help it cope with an increasing energy deficit, which they attribute to climate change, due to lower levels of hydroelectric power production in recent years. Mauritius is revisiting the feasibility of wind turbines, especially recent advancements that allow for them to collapse during cyclones.

But, there are challenges. First, financing is still a challenge, even with the technologies being off patent protection and in the public domain. The Kyoto Protocol’s Clean Development Mechanism (CDM) has provided some funding, e.g. for Biogas projects in Nepal, but the CDM is geared towards large projects and has a cumbersome administrative process. However, promising financing solutions are gradually being offered. There are also cultural challenges. For example, one effective solution for rural China – placing toilets on top of biogas digesters – was suggested as being culturally untenable in at least one country by a speaker. Finally, there is the challenge of education. Accessing knowledge on what has worked and failed in other villages is crucial. An unnecessarily poor experience with a particular technology can retard the adoption of that or other technologies by a village for several decades. In addition, it is necessary to educate villages about health and environment concerns, such as smoke inhalation and climate change, in order to generate further demand for these renewable energy technologies.

Despite these challenges, this meeting showed that there is much promise in bringing clean electricity to rural villages around the world. With electricity, much more will be possible, including the ability to provide irrigation for farming, encourage education, and generally enable human development in the broadest sense.

First published at WorldChanging.com - check it out here: http://www.worldchanging.com/archives/010993.html

What Obama Means by "Clean," part 3

Environmental details of Obama's budget proposal:

1. Environmental Protection Agency (EPA) - $10 billion overall
   
   • $1.1 billion for clean air and gloabl climate change programs
   • • $21 million to catalog Greenhouse Gas (GHG) emitters
     • $5 million for EPA to write permitting guidance for GHG reduction technologies
     • $6 million for mobile-source climate regulations
     • $7 million to investigate performance standards regulations
     • $6 million for Carbon Capture & Sequestration (CCS) related work
     • $25 million for state air pollution agencies process GHG permits from large-industrial emitters
2. Interior Department - $171 million overall for adaptation initiative (25% increase from 2010 levels)
   
   • $14 billion for 8 climate-science centers
   • US Geological Survey (USGS) - $78 million
   • • $2 million for carbon sequestration projects
     • $8 million for climate change and wildlife center
       
   • Fish and Wildlife Services - $9 million for landscape conservation cooperative
3. Department of Commerce
   
   • National Oceanic and Atmospheric Association (NOAA) - Creating a climate change office to help inform local communities and businesses about climate change (see www.climate.gov)

However, Obama's goals on climate change have some signficant hurdles, besides congressional approval of the budget. 

Domestically, the US Chamber of Commerce is contesting the legal authority of the EPA to regulate GHG emissions under the Clean Act, despite a 2007 Supreme Court ruling stating that the government does indeed have the power to regulate GHG emissions, if they pose a threat to human welfare (Bloomberg article).

Internationally, key parties at the table with the US in negotiating the last-minute Copenhagen Accord - Brazil, China, India and South Africa - are pushing for a "two-track process" on reaching a binding climate treaty, which might incorporate some, all or none of the Copenhagen Accord and the Negotiator Level Text (BASIC Group Statement).   For a very informative guide on National Positions on the Copenhagen Accord, see:  The US Climate Action Network:  Who's on Board with What?

China's labor edge in the Green Economy

Feb. 4 (Bloomberg) -- President Barack Obama is spending $2.1 million to help Suntech Power Holdings Co. build a solar- panel plant in Arizona. It will hire 70 Americans to assemble components made by Suntech’s 11,000 Chinese workers.

via www.bloomberg.com

But, cooperation between US and China is the take home message here (see "Green Wars," below). If the manufacturing capitol of the world and the king of global consumption continue to increase their cooperation on developing truly clean technologies, meaningful agreements on climate change seem much more likely.

US Advisory Group: ‘Near Perfect Storm’ Coming On Gene Patents In The US

Intellectual Property Watch » Blog Archive » Advisory Group: ‘Near Perfect Storm’ Coming On Gene Patents In The US

Appropriately quoted for a week of record snowfall in the US Capitol, IP Watch reports that a Health and Human Services Advisory Committee has released a report which shows a significant concern about accessing research tools - genes in this case - for health-related tests.

An related extension of this concern is the access of research tools to test their potential environmental impact - for example the environmental risks of patented variations of nanomaterials. Pursuant to the US Federal Circuit's narrow interpretation of the experimental use exemption in Madey v. Duke, institutions would be hard pressed to access these research tools for basic public-health research.

Shell Makes a Major Move into Biofuels

It was reported today by Bloomberg that Shell has signed an agreement with Cosan SA Industria & Comercio to start a Brazilian ethanol venture to expand its stake in the biofuels market.  This comes after recent announcements by Shell to shift away from Solar and Wind energy. A separate article in Bloomberg states that this is agreement "may give the oil company shared control of the world’s largest sugar-cane processor."

Shell would contribute over US$ 3 billion in cash over 2 years and almost 3,000 service stations for distribution purposes, in exchange for a 49% stake in the venture.  Cosan will have a majority stake in the joint venture and control ethanol operations. Both companies will have the option to buy each other out after 10 years.

Brazilian first-generation ethanol is made from sugar cane, which is calculated as having a slightly (but significantly) lower carbon footprint than corn-based ethanol, from which US ethanol production is based.  However, cellulosic ethanol, a second-generation biofuel, is particularly appealing because is uses inedible biomass.  This avoids some of the concerns over food crops being used for fuel, which has raised the price of food staples like corn and soy in recent years.

There are, however, concerns over deforestation that will likely will accompany increasing demand for acreage devoted to sugar cane and/or biomass production.  Recent studies have exposed a mis-calculation in the carbon footprint of biofuels due to land use changes, such as deforestation from planting crops for biofuels (see earlier blog post).  Activists are also concerned about human rights violations among laborers working in sugar cane fields.

Shell has been investing in biofuel research and development for some time now.  It has invested in Codexis, Inc. and Iogen Energy Corp. for the commercialization of biofuels and the development of cellulosic ethanol.  Thus, Shell's decision appears to be more along the lines of maximizing synergies and profits among its pre-existing liquid fuel infrastructure, rather than a rejection of the long-term viability of wind and solar.  

Other multinational energy corporations have also entered the biofuels market.  Exxon has been showing off its excitement over the promise of algae based biofuels through a splashy marketing campaign, which appears to have ended with the Copenhagen Climate Change conference in December.  Chevron is also pushing research into celulosic ethanol commercialization, forming research agreements with at least 4 major US Universities and a joint venture with timber giant Weyerhauser Co. (Catchlight Energy LLC).  BP is competing with Shell in the Brazilian ethanol market, having previously invested in Tropical BioEnergia SA and pledged US$ 6 billion over the next several years.