Blawg Review #208

Welcome to Blawg Review #208.  It’s an honor and a privilege to host that weekly “Carnival” of law blogs.  For those of you not familiar with Blawg Review, it’s the oldest established permanent floating rundown of legal blog posts in cyberspace.

For those of you new to Green Patent Blog, welcome.  We operate at the intersection of IP law and all things green, clean, or renewable. 

We’re especially pleased you could join us during Earth Week, which of course, includes Earth Day.  So as we cover the law blogs today, we’ll put a special emphasis on the green and earthy.


The big green law story this week was the Environmental Protection Agency’s (EPA) proposed finding that greenhouse gases may endanger public health or welfare.  The Environmental Law Professor Blog has a good summary and a link to the EPA proposal.  This Greentech Media piece has additional analysis. 

This action comes after the Supreme Court’s 2007 decision in Massachusetts v. EPA, which held that carbon dioxide is a pollutant subject to regulation by the EPA and ordered the agency to conduct a scientific review and decide whether to regulate greenhouse gas emissions under the Clean Air Act.  The EPA’s proposed finding now enters the public comment period.

As to the economics of such regulations, Energy Legal Blog reports that the White House Office of Management and Budget (OMB) has concluded that the EPA’s finding will not in itself significantly affect the economy, but notes that OMB’s “narrow” analysis notwithstanding, “future regulation of GHGs is expected to have profound and far-reaching economic effects.”

Cleantech Blog discusses the Waxman-Markey draft bill designed to reduce tropical deforestation, which was made public in late March.  The bill provides for carbon offsets, an incentive program for preservation of tropical forests and “strategic reserve auctions” of additional emission allowances. 


Climate Intel blogs about the bill’s goal of reducing travel demand through a provision that requires states and cities to establish travel reduction goals as part of their transportation plans.


The only thing I hate more than carbon emissions is spam.  Turns out the two are linked, and there’s another reason to hate spam – it is contributing to global warming.  GreenBiz reports on a study by an environmental research firm concluding that the 63 trillion spam e-mails sent each year waste 33 terawatt-hours of energy (enough to power 2.4 million homes), with the average spam e-mail resulting in 0.3 grams of CO2 emissions.  Rocky Radar also covers the story with the green but provocative suggestion “Kill a Spammer, Save a Tree.” 

Also on Climate Intel this week is a report on two pieces of good news for the ethanol industry.  First, a report by the Congressional Budget Office found that it was high energy prices, much more than increased ethanol production, that led to spikes in food prices between April 2007 and April 2008.  Second, the EPA moved to increase the amount of ethanol that can be blended into gasoline to 15%.

Turning to state green laws, Green Tech Gazette reports that Michigan’s renewable portfolio standard may be starting a shift in the state’s manufacturing sector from the automotive industry to clean tech.  According to the story, Global Wind Systems Inc. will add 250 wind turbine manufacturing jobs this year, with 90% of the new hires coming from the state’s growing pool of former auto workers.  The state law requires utilities to provide 10% of electricity from renewable sources by 2015.


Over in the Empire State, Wind Power Law Blog posts about plans to manage coastal waters and strike a balance between the need for offshore energy development and protecting marine resources.  While some advocate a federal public trust doctrine to regulate development, the blog says, New York state is currently drafting a plan for its local waters.

The Howrey firm’s Global Climate Law Blog posts about NYU professor Richard Stewart’s prescription to fix U.S. policy on nuclear waste.  In a recent paper, Professor Stewart advocates a major shift in policy comprising a more flexible approach to waste management that would include reprocessing the waste as an alternative to disposal.

In Alabama, biological waste may rise to a constitutional issue.  According to Green, Inc., the New York Times’ energy and environment blog, Alabama legislators want to amend the state’s constitution to prohibit the use of biosolids, AKA sludge.  The article discusses the pros and cons of using biosolids – which comprise a potpourri of waste materials, including human, commercial, hospital and industrial wastes – as fertilizer.  According to the Green, Inc. story, U.S. farmers will likely use about 4 million tons of the stuff to fertilize their fields this year, despite the presence of such nasties as pharmaceuticals, steroids, flame retardants, metals, hormones and human pathogens.  Business executives, agronomists and hydrologists will meet at the Residuals and Biosolids 2009 Conference in Portland on May 3rd to talk about the future of biosolids.

Turning to IP and starting with false advertising, Joel Makower at Two Steps Forward analyzes the (now) Seven Sins of Greenwashing.  The greenwashing study, conducted by Canadian environmental marketing firm TerraChoice, finds that a staggering 98% of 2,219 products studied made at least one false or deceptive environmental claim.  The report divides the types of claims into categories, which were originally the six sins of greenwashing, and adds a seventh sin in this edition.  Mr. Makower analyzes TerraChoice’s criteria for assessing greenwash, and in an earlier post, discusses his take on what recent polling data reveal about consumer environmental attitudes.

Also apropos of our theme, over at the TTABlog John Welch discusses the fate of a trademark about a tree.  The Trademark Trial and Appeal Board affirmed the examining attorney’s refusal to register the mark SILVER BIRCH for skin and body preparations in part because the applicant was evasive as to whether the goods will contain silver birch as an ingredient.  The presence of material from the tree in the products was relevant to an analysis of the mark’s descriptiveness.


Coming off the Passover week, I would be remiss if I didn’t mention this post from Jonathan Turley’s Res Ipsa Loquitur Blog about a right of publicity lawsuit involving the image of a famous Jewish filmmaker in beard and payess.  Apparently Woody Allen sued American Apparel for using his likeness in an advertisement.  But it wasn’t just any likeness.  It was one of the all-time classics:  Woody’s Alvy Singer character in Annie Hall being perceived by Annie’s family as a Hasidic Jew.  Awesome!

Shifting gears to health law issues, David Harlow’s Health Care Law Blog discusses Massachusetts General Hospital’s suspension of its pediatric cardiac surgery program following two significant negative outcomes.  Drug and Device Law publishes its 50-state survey of medical monitoring law.  At Downtown Lawyer, Jodie Hill writes about an Eighth Circuit Court of Appeals decision holding that the Americans with Disabilities Act does not require an employer to accommodate an employee with cancer during her treatment and recovery period.

Bitter Lawyer offers a five-step plan for building a successful ambulance chaser practice for those attorneys putting up their own shingle.  

A better plan, I think, is to go camping.  There’s nothing more earthy than camping, and the Camping Earth Blog offers tons of suggestions, including what to eat (lunchmeat and deli cheese, but only for the first day or two, then peanut butter or roasted hot dogs), how to build a campfire, even how to buy hiking boots (closely examine the construction and look for good support).  And if you have such a good time roughing it that you can’t bear the thought of going back to your office lawyer job, Camping Earth even blogs about camping jobs (you know you want to be a Park Ranger!).


It was a pleasure being your host this week.  Blawg Review has information about next week’s host, and instructions on how to get your blawg posts reviewed in upcoming issues.

Eric Lane Avatar

Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.