Intellectual Property and Sustainable Development

Carbon Capture and Storage (CCS): grants, prizes, and concerns

On Tuesday, the US Dept. of Energy announced it was distributing $575 million USD in grants to 22 projects in 15 states, in an effort to deploy Carbon Capture and Storage / Sequestration (CCS) technology within the next 10 years.  The money was allocated under the Economic Stimulus package (ARRA 2009). 

The Washington Post reports that the Dept. of Energy has invested $4 billion USD in CCS, leveraging $7 billion USD from the private sector.  Interestingly, this massive investment comes as a grant – not as a prize.  The difference being that prizes reward for success, whereas grants allocate money up front, creating jobs, but not necessarily ensuring the desired outcome.  In the case of CCS, the desire outcome is an environmentally sound means of reducing carbon emissions. 

There are many concerns over the environmentally soundness of CCS, including:

• The potential for stored carbon to leak underwater into oceans, decimating marine ecosystems, including fisheries;
• The potential for stored carbon to leak into the atmosphere, undermining the mitigation potential of CCS;
• The decreased pressure to shift away from “brown” energy sources, in particular coal combustion for electricity; and
• The increased consumption of gas and coal when carbon capture is used on power plants, due to the energy intensive nature of carbon capture. 

The Washington Post only mentions the risk of asphyxiation due to a massive leak of stored CO2 near populated regions.  This is certainly a concern, but just one.

As the Deepwater Horizon disaster has shown, the ability to stop underwater leaks is very difficult.  Detection of slow leaks above and below ground is also very difficult.  The increased consumption of coal with carbon storage will correspond to increased production of mercury, requiring more effective abatement technologies than are currently available and environmentally sound storage of mercury (which is uncertain at this time), to prevent increased atmospheric emissions of mercury.

Perhaps a series of prizes to identify and design effective solutions to the environmental risks of CCS, simultaneous to or preceding the development of the technology, would be a worthwhile investment - to say the least.  In this way, ad hoc remedies may be less necessary to correct for inadequate risk assessment, as witnessed by the catastrophic disasters and series of failed corrective measures that took place in the Gulf of Mexico over the course of nearly three months.

Energy Ministers Endorse Clean-Tech Measures, Back CCS Group

Government energy ministers gathering in Washington, D.C., today launched 11 energy-efficiency and renewable energy initiatives around the world, which they claim will avoid the need to build 500 midsize power plants during the next 20 years.

via www.nytimes.com  (see http://www.nytimes.com/gwire/2010/07/20/20greenwire-energy-ministers-endorse-clean-tech-measures-b-89532.html)

Of particular note is that "the United States and a dozen other nations will create what is being called the Carbon Capture, Use and Storage Action Group to develop a strategic plan for deploying carbon-capture-and-storage (CCS) infrastructure around the world by 2020.  Hopefully the development of this "strategic plan" is transparent and allows for the participation of NGOs representing a range of interests, in particular the public interest. 

For example, one might recall the issue with lead in paint.  While not saying that lead in cement/limestone brick is analogous to lead in paint, BUT - consider the following example of what some companies are doing at the pilot scale with CCS technologies:  capturing carbon dioxide and other toxic heavy metals and forming a carbonate mineral brick that embeds the toxic heavy metals, for use in buildings and other infrastructures .

"Mercury Control: 
Coal-fired power plants represent the largest source of mercury emission in the United States, but most operate with minimal controls designed to capture particulate matter that remove less than 35% of the mercury from their flue gas. This removal percentage can increase to greater than 50% when a sulfur scrubber is added, but capture levels are dependent upon coal type. With new federal and state regulations emerging, many power plants are contemplating the use of activated carbon injection (ACI) or other additional controls to remove more mercury from flue gas. The Calera CMAP process has the potential to not only capture mercury that would otherwise be emitted, but to bind it into the mineral output in a way that will prevent leaching to the environment..As with mercury, other trace metals can be captured by the CMAP process, including lead, chromium, cadmium, selenium, zinc, and others."  Available at:  http://www.arb.ca.gov/cc/etaac/meetings/102909pubmeet/mtgmaterials102909/basicsofcaleraprocess.pdf

Studies indicate that leaching of heavy metals from the mineral, while being below US guidelines, does indeed occur.  Moreover, what happens in the case of intentional demolition?  Or, what about earthquakes stronger than the specifications of building codes?  Perhaps the settlement of the "9-11 illness" victims, including many first responders, warrants consideration? (see article on the 9-11 Settlement here)

While these toxic heavy metals may be contained for a period of time, these solutions do not appear to offer a permanent solution, to say the least.  All the more reason for transparency and public participation in the development of these "strategic guidelines" for CCS. 

U.S. Identifies Vast Riches of Minerals in Afghanistan - NYTimes.com

via www.nytimes.com

http://www.nytimes.com/2010/06/14/world/asia/14minerals.html?pagewanted=1&ref=world

An interesting development in Afghanistan, in particular regarding the large scale commercialization of electric vehicles. Apparently, the US has recently learned that Afghanistan holds vast supplies of lithium, a essential component of most batteries for electric vehicles. Some have speculated about the likelihood of limited supplies of lithium as a limiting factor in the meaningful growth of the electric vehicle market. See our earlier post on the topic here.

In addition, the war-ravaged country also holds vast reserves of iron and copper, based on geological surveys conducted by the Russians several decades earlier, the NY Times Reported recently.

The NY Times writes, quoting government officials:

“No one has tested that law; no one knows how it will stand up in a fight between the central government and the provinces,” observed Paul A. Brinkley, deputy undersecretary of defense for business and leader of the Pentagon team that discovered the deposits.

At the same time, American officials fear resource-hungry China will try to dominate the development of Afghanistan’s mineral wealth, which could upset the United States, given its heavy investment in the region. After winning the bid for its Aynak copper mine in Logar Province, China clearly wants more, American officials said.

Another complication is that because Afghanistan has never had much heavy industry before, it has little or no history of environmental protection either. “The big question is, can this be developed in a responsible way, in a way that is environmentally and socially responsible?” Mr. Brinkley said. “No one knows how this will work.”

Coping with the “Deepwater” Disaster

        

Some of the visually oriented among us are turning to revising a particular corporate logo as a means of coming to grips with an immeasurable catastrophe.    Greenpeace UK and others have re-design contests underway.  Some of the entries are really quite good. 

http://www.flickr.com/photos/greenpeaceuk/4682407000/in/set-72157623796911855/

http://www.logomyway.com/contestView.php?contestId=1746 

Others, however, are touting the use of new treatments with environmental consequences unknown to clean up the mess.  For example, one firm is suggesting that we dump nanotech chemicals (nanomaterials) to help clean up the oil.  Some nanomaterials have been linked to health concerns such as pierced cellular walls and have “unique” physical features, the unknown risks of which pale in comparison to past “miracles” like asbestos. 

"We can aerial spray it in the sea. We can put it in the boats and dump it out and the strength is so strong, it's about one gallon to every acre," Rodney Bath, Vice President of Government Sales, added.

Fortunately, the company still needs approval by the US EPA for this use.  But, its a good example of the way in which the private sector often responds to problems – and the need to have rigorous environmental impact assessments for technologies, especially those that are new and unproven. 

The International Court of Justice (ICJ) has recently held that environmental impact assessments are now such standard practice that they can be considered a “requirement under general international law.”  Hopefully, the type of assessment they are speaking of is rigorous enough to avert future “solutions” that unjustly expose us all to their astronomical externalities. But, the meaning of this requirement under "general international law" depends upon national environmental regimes, so given the disaster in the gulf, it appears that there is still some work to be done on elevating the standard for environmental assessments. 

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.

The "Green Tea Party"

Op-Ed Columnist - A Tea Party With a Difference - NYTimes.com

Op-ed on the status of climate/energy/jobs bill in the US Congress, and what Thomas Friedman suggests the Tea Party do about the environment, jobs and reducing the deficit.

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.

Economist Debates: Innovation

What is the right role for government in spurring innovation? The outlines of this age-old debate will be familiar to many. One side argues that governments inevitably get it wrong when they get too involved in innovation: picking the wrong technology winners, say, or ploughing subsidies into politically popular projects rather than the most deserving ones. The other rebuts that given the grave global challenges we face today—in the 1960s America thought it was the Soviet race into space, today many countries worry about climate change and pandemic threats—governments need to do much more to support innovation.

CHECK OUT THE FULL DEBATE AT www.economist.com

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.