Environmental Law

Sulfur-Ore Mining in Minnesota: Are Near-Term Economic Gains Worth Long-Term Losses?

October 15, 2018
Economics, Environmental Law

Sam Duggan, MJLST Staffer 

Mining copper and nickel from sulfur-ore in Northern Minnesota is different than mining iron from taconite, and the environmental consequences are orders of magnitude greater. Unfortunately, the public discourse around developing copper and nickel reserves largely fails to consider this. As a result, the public is not armed with information needed to rationally debate whether sulfur-ore mining is a good choice for Minnesota.   

Taconite is a relatively unreactive iron-containing mineral. Although miners exposed to asbestos-like compounds from taconite dust are likely at increased risk of mesothelioma, proper dust mitigation practices and sound environmental planning/reclamation can limit long-term consequences to a scarred landscape. However, as with other types of mining, there are consequences associated with boom-or-bust economics.   

In stark contrast to taconite, sulfur-ore is highly reactive and has a particularly insidious property. A decommissioned mine slowly fills with rain, snowmelt and ground water. Sulfur reacts with water and oxygen to produce sulfuric acid, which dissolves metals contained in the sulfur-ore. Like a liquid miner, this acid liberates geologically sequestered metals into a dissolved, bioavailable and toxic form. As metals dissolve from the mine walls, more sulfur is exposed to oxygen and water. This produces more sulfuric acid which dissolves more metals. Through this chain reaction, the mine “mines” itself for centuries or more after its decommission. Importantly, mining target metals (i.e., copper, nickel) never occur alone. They co-occur with non-targets (i.e., lead, cadmium, manganese, arsenic, sulfate) that also dissolve from mine walls. Over time, concentrations of toxic compounds grow higher. Once the mine fills, acidic and metal-rich water (acid mine drainage) leach down-gradient and poison the watershed. Similar processes also occur in tailings piles stored outside the mine.

Sulfur-ore mines are responsible for numerous Superfund sites, including the infamous Berkley Pit copper mine. In 2016, thousands of snow geese landed in Berkley Pit’s toxic water and died en masse. Consider also the 2015 Gold King mine spill. At Gold King, a mine entrance cap was accidentally ruptured during routine monitoring and 3 million gallons of acidic, metal-rich water poured into the Animas River in Southwest Colorado. Related lawsuits seek many millions in damages. The history of mining in the Western U.S. is replete with other examples of sulfur-ore mines contaminating watersheds.

Methods exist for mitigating sulfur-ore mine pollution including capping, chemical neutralization, and constructing water treatment facilities specifically dedicated to the mine. However, these options cost millions and must be perpetually maintained, as it is nearly impossible to prevent water and oxygen from entering a mine. The chain reaction can linger for millennia, continually dissolving metals from rock and leaching toxins into the watershed.

Notably, the mining corporations who reap the lion’s share of a mine’s economic benefit escape long-term environmental liability because bankruptcy law and parent-subsidiary corporate structure often shield parent corporations from their mining subsidiaries’ environmental liabilities. For precisely this reason, the mine permitting process often requires corporations to offer financial assurances for potential environmental damages. However, financial assurances underestimate damages, and taxpayers are left with the bulk of sulfur-ore mine cleanup costs for generations.

The long-term consequences of sulfur-ore mines were recognized by the Obama Administration, particularly regarding mining in Minnesota’s Boundary Waters watershed. In 2016, the Obama Administration instituted a 2-year moratorium on mining permits near the Boundary Waters to study effects of sulfur-ore mining. That study could have led to a 20-year permitting moratorium. However, in 2018, after only 15 months, the Trump Administration decided that the study did not reveal new information and lifted the moratorium. Now, parent companies such as Chile’s Antofagasta can apply for mining permits within the Boundary Waters watershed via their subsidiary company Twin Metals. The permitting process is already underway for Polymet — an open pit, sulfur-ore copper mine just outside the Boundary Waters watershed. Importantly, Minnesota’s sulfur-ore resources could support dozens of mines.  

Given that sulfur-ore mines are economically viable for a few decades and an environmental scourge for centuries or more, decision makers should consider whether near-term economic gains are worth long-term losses.

California’s Sport Venue Boom: A Weakening of CEQA?

October 6, 2018
Environmental Law, Sports Law

By: Gabe Branco, Minnesota Journal of Law, Science & Technology Vol. 20 Staffer

The Los Angeles Rams, Sacramento Kings, Golden State Warriors, Los Angeles Clippers, and Oakland A’s are all seeking to build new stadiums in compliance with the California Environmental Quality Act (“CEQA”). CEQA subjects public and private agencies to a process focused on determining any significant environmental impact the proposed project may have and whether any suitable alternatives exist that may mitigate those significant impacts. The process takes some time, as the agency must complete several environmental impact reports (“EIR”), allow for adequate public notice and comment, and provide a period of time for environmental based claims to be litigated.

The Golden State Warriors have been successful in their CEQA process, but have been subjected to high costs in preparing the EIRs and combating lawsuits from environmental groups. The Los Angeles Rams have taken a different approach. CEQA allows for agencies to file for project “statutory exemptions” in order to cut down on the lengthy procedural process. One exemption of CEQA is the voter-sponsored ballot initiatives. In California, it is the right of the people to make changes to the law through these initiatives, which have the same effect as legislation. Land use decisions are subject to these initiatives, and thus projects that are approved through the initiative are not subject to CEQA. The Los Angeles Rams collected signatures from 15% of the population in Inglewood to qualify the development project for special election. The development project was then supposed to be placed on the ballot initiative, but the Inglewood City Council unanimously approved the project. The Los Angeles Rams do not need to complete an EIR, provide time for notice and comment, and are shielded from litigation. The Los Angeles Clippers, Sacramento Kings, and Oakland A’s have received or are in the process of receiving legislative exemptions with varying CEQA procedures somewhere in between the Golden State Warriors’ and the Los Angeles Rams’ processes. While the afore-mentioned franchises must still complete an EIR, they have considerably reduced (or eliminated) litigation and notice and comment periods.

The question becomes whether these exemptions given so willingly to sports teams weaken CEQA’s ability to force agencies to be more considerate of a project’s environmental impacts and alternatives. Sport stadiums do have a significant impact on the environment. Shortening or doing away with judicial review and notice and comment limits the number of alternatives an agency could be made aware of and limits public recourse for legitimate claims, leading to a less than efficient plan for limiting significant environmental impacts.

So far, the courts have held that past projects with CEQA exemptions do not conflict with CEQA’s purpose. Saltonstall v. City of Sacramento, 234 Cal.App.4th 449 (2015). The rationale may well be rooted in the desire for the Courts to limit the amount of environmental litigation on the Court’s docket, and push through stadium projects that may vitalize a California city’s economy. While state legislators have introduced a bill that would prevent future sports teams from gaining the exemption the Los Angeles Rams received, teams may still limit the procedures enforced by CEQA through legislative exemptions. Clearly, that as long as sports have a strong economic foothold in American culture, sports stadiums will continue to be built at the expense of the environment.

Big Houses With Big Energy Demands

October 1, 2018
Energy Law, Environmental Law

Bethany Anderson, MJLST Staffer 

A recent Aspen Times article says Pitkin County, home of the popular Aspen ski resort and numerous mountain mansions, will target larger homes as it heightens energy efficiency requirements and raises energy prices. The proposed change would increase a per-square-foot energy consumption fee from $1 to $45 for homes over 5,750 square feet and to $60 for homes over 8,250 square feet. While some argue changing these requirements is the best way to reduce energy demand on strained resources, others say the consumption fees don’t address key aspects of large home construction: the resources used in construction, the waste of resources in demolition, and the energy demand from pools, hot tubs, and snow-melting driveways

The U.S. isn’t alone in balancing growing (in various senses) housing demands and energy consumption constraints. Similar home size concerns arise in Australia, where housing units have increased in size while the number of residents per unit has decreased. That means energy usage per unit increases.

On the other hand, in an era of innovation and new technologies, smaller doesn’t necessarily mean more efficient. One Virginia man doubled the size of the house on his lot but cut energy bills. He says it’s not about being “eco-friendly” or about building a smaller home; rather, it’s about taking the time and effort – and shouldering the cost – needed to construct a sound, well-insulated home.

All of this poses legal and technological challenges. Technologically, how can (some) people get what they want – a big, “American-dream” house – without overconsuming energy? More investigation into construction techniques and materials – as professed by that Virginia man – could prove fruitful. Legally, can residences be regulated in the manner Pitkin County wants to regulate? Homes have not historically been regulated as products under the EPCA, a 1975 statute concerned primarily with energy supply, demand, and efficiency. Perhaps more comprehensive regulation, or including homes under the EPCA, would solve the energy demand and efficiency problems Pitkin County faces in a more equitable way than slapping on fees for large homes. New Jersey offers a rebate for homes that meet energy efficiency standards – maybe rewards are better than penalties. Australia proposes adding embodied energy, or the energy used in each step of production of a certain thing, to the cost calculus. And, though Pitkin County is considering increased fees, it has thus far not supported square footage limits for snow-melt driveways, pools, hot tubs, or patios. These might be good starting points for striking a balance between big demand for big things against limited energy resources.

 

Perpetuating Inequality and Illness Through Environmental Injustice

April 30, 2017
Administrative Law, Environmental Law, Healthcare

Nick Redmond, MJLST Staffer

In Sidney D. Watson’s Lessons from Ferguson and Beyond, published in issue 1 of MJLST’s 18th volume, the author focuses on issues of inherent racial bias in access to health care for African Americans, and how the Affordable Care Act may be able to help. The author “explores the structural, institutional, and interpersonal biases that operate in the health care system and that exacerbate Black/white health disparities.” The article’s focus on health care in particular is a critical component of inequality in the U.S., but it also only briefly touches on another important piece of the disparity puzzle: environmental justice. Conversations about environmental justice have taken place in multiple contexts, and in many ways serve to emphasize the multiple facets of racial disparity in the U.S., including police violence, access to health care, access to education, and other issues which are all influenced by the accessibility and the dangers of our built environment.

Such systemic inequalities can include access to public transportation and competitive employment, but they can also be problems of proximity to coal plants or petroleum refineries or even a lack of proximity to public natural spaces for healthy recreation. Lack of access to safe, clean, and enjoyable public parks, for instance, can serve to exacerbate the prevalence of diabetes and obesity, and even take a toll on the mental health of residents trapped in concrete jungles (which the article refers to as “social determinants” of poor health). Though there is some indication that environmental factors can harm neighborhoods regardless of income, industrial zones and polluted environments tend to lie just around the corner from low-income neighborhoods and disproportionately affect those who live there, primarily communities of color.

Often the result of urban development plans, housing prices, and even exclusionary zoning, issues of environmental justice are an insidious form of inequality that are often on the periphery of our national political conversations, if addressed at all. Indeed, the U.S. Environmental Protection Agency’s Office of Civil rights (established in 1993) has not once made a formal finding of discrimination, despite President Bill Clinton’s executive order which made it the duty of federal agencies to consider environmental justice in their actions. When the primary federal agency tasked with ensuring access to environmental justice appears to be asleep at the wheel, what recourse do communities have? The answer, it seems, is depressingly little.

A high profile example in our current discourse, environmental justice appears to have failed Flint, Michigan, and it seems likely that the issue won’t be resolved any time soon. Other examples like Columbus, Mississippi and Anniston, Alabama, are becoming more and more prevalent at a disturbingly high rate. Impoverished people with little political or legal recourse struggle against the might of the booming natural gas industry and new advances in hydraulic fracturing, and as water runs out these communities will be the first to feel the squeeze of rising food prices and access to the most essential resource on the planet.

At risk of sounding apocalyptic, there is some hope. National groups like the NRDC or the ACLU have long litigated these issues with success, and more local or regional groups like the Minnesota Center for Environmental Advocacy or the Southern Environmental Law Center have made enormous impacts for communities of color and the public at large. But as Sidney Watson states at the end of her article: “[w]e need to talk about race, health, and health care. We need to take action to reduce and eliminate racial inequities in health care.” These same sentiments apply to our built environment and the communities that we have pushed to the periphery to take the brunt of the harmful effects of our dirty technologies and waste. Few people would choose to live near a coal plant; those who are forced to do so are often trapped in an endless cycle of illness, poverty, and segregation.

Extending the Earth’s Life to Make It Off-World: Will Intellectual Property Law Allow Climate Change to Go Unchecked?

February 28, 2017
Climate Change, Intellectual Property, New Technology, Space Law

Daniel Green, MJLST Staffer

The National Aeronautics and Space Administration (NASA) recently discovered seven Earth-like planets. Three of these planets are even located the specific distance from the star, Trappist-1, in order to be considered in the proposed “Goldilocks zone” necessary to sustain life, thereby bringing about the conversation of whether a great migration for humanity is in order such as seen in movies of the last ten years such as Passengers, The Martian, Interstellar, even Wall-E. Even Elon Musk and Stephen Hawking have made statements that the human race needs to leave earth before the next extinction level event occurs. The possibility that these planets may be inhabitable presents some hope for a future to inhabit other planets.

Sadly, these planets are forty light years away (or 235 trillion miles). Although relatively near to Earth in astronomical terms, this fact means that there exists no possibility of reaching such a planet in a reasonable time with present technology despite the fact that NASA is increasing funding and creating institutes for such off worldly possibilities. As such, humankind needs to look inward to extend the life of our own planet in order to survive long enough to even consider such an exodus.

Admittedly, humanity faces many obstacles in its quest to survive long enough to reach other planets. One of the largest and direst is that of climate change. Specifically, the rise in the temperature of the Earth needs to be kept in check to keep it within bounds of the two-degree Celsius goal before 2100 C.E. Fortunately, technologies are well on the way of development to combat this threat. One of the most promising of these new technologies is that of solar climate engineering.

Solar climate engineering, also known as solar radiation management, is, essentially, a way to make the planet more reflective in order to block sunlight and thereby deter the increase in temperature caused by greenhouse gases. Though promising, Reynolds, Contreras, & Sarnoff predict that this new technology may be greatly hindered by intellectual property law in Solar Climate Engineering and Intellectual Property: Toward a Research Commons.

Since solar climate engineering is a relatively new scientific advancement, it can be greatly improved by the sharing of ideas. However, the intellectual property laws run directly contrary to this, begging the question as to why would anyone want to hinder technology so vital to the Earth’s survival. Well the answer lies in numerous reasons including the following three:

  • Patent “thickets” and the development of an “anti-commons”: This problem occurs when too many items in the same technological field are patented. This makes patents and innovations extremely difficult to patent around. As such, it causes scientific advancement to halt since patented technologies cannot be built upon or improved.
  • Relationship to trade secrets: Private entities that have financial interests in funding research may refuse to share advancements in order to protect the edge it gives them in the market.
  • Technological lock in: Broad patents at the beginning of research may force others to rely on technologies within the scope of the patent when working on future research and development. Such actions may ingrain a certain technology into society even though a better alternative may be available but not adopted.

There is no need to despair yet though since several steps can be taken to combat barriers to the advancement of solar climate engineering and promote communal technological advancement such as:

  • State interventions: Government can step in so as to ensure that intellectual property law does not hinder needed advancements for the good of humanity. They can do this in numerous action such as legislative and administrative actions, march-in rights, compulsory licensing, and asserting a control over funding.
  • Patent pools and pledges: Patent pools allow others to use one’s patents in development with the creation of an agreement to split the proceeds. Similarly, patent pledges, similarly, limit the enforcement of a patent holder by a promise in the form of a legally binding commitment. Though patent pools have more limitations legally, both of these incentivize the concept of sharing technology and furthering advancement.
  • Data commons: Government procurement and research funding can promote systematic data sharing in order to develop a broadly accessibly repository as a commons. Such methods ideally promote rapid scientific advancement by broadening the use and accessibility of each advancement through the discouragement of patents.

Providing that intellectual property laws do not stand in the way, humanity may very well have taken its first steps in extending its time to develop further technologies to, someday, live under the alien rays of Trappist-1.

Farm Drainage Revisited: Will Tile-Drain Effluent Be Considered a Point Source and Fall Under Clean Water Act Regulation?

January 26, 2017
Agriculture, Environmental Law

Theodore Harrington, MJLST Managing Editor

For years, nutrients from farming operations have been leaking into the Raccoon and Des Moines Rivers, and ultimately arriving at the mouth of the Mighty Mississippi. These nutrients, most notably nitrate and phosphorus, are the result of both fertilizers and natural crop growth and have deleterious effects on humans and the environment. As these nutrients mix with groundwater just below the surface, a polluted effluent is created. This effluent is then drained through a grid of plastic piping a few feet below the soil.

Nearly two years ago, Des Moines Water Works (DMWW), a public water utility, sued the Drainage Districts in Sac, Buena Vista, and Calhoun Counties to recover monies spent treating the polluted effluent to make it safe for public consumption. Defendants contend that the polluted effluent does not fall under the jurisdiction of the Clean Water Act, and therefore DMWW is the appropriate entity to bear these costs, which approach $7,000 per day!

Where it stands: Summary Judgment briefs were traded in May and June of last year. Since then, oral arguments have been heard by the Iowa Supreme Court since September 14, 2016. (Click HERE to see John Lande arguing for the Board of Water Works and Michael Reck arguing for the counties.) A federal trial in front of Judge Leonard Strand is set for this coming June in the Northern District of Iowa. The trial will come two and a half years after the original filing, and lengthy appeals, possibly to the Supreme Court, are likely to follow. Though it will be years before we have an answer to the question titling this post, the judgment’s consequences will reach beyond individual farms to the heart of the industry.

Drinking the Kool-Aid? Why We Might Want to Talk About Our Road Salt

November 1, 2016
Environmental Law, Health Law, Public Health

Nick Redmond, MJLST Staffer

Winter is coming. Or—at least according to the 2017 Farmer’s Almanac—“winter is back” after an exceptionally mild 2015–2016 season, and with it comes all of the shoveling, the snow-blowing, and the white walkers de-icing of slippery roads that we missed last year. So what does the most overused Game of Thrones quote and everyone’s least favorite season have to do with Kool-Aid (actually, Flavor-Aid)? Just like the origins of the phrase “drinking the Kool-Aid,” this post has to do with cyanide. More specifically, the ferrocyanide compounds that we use to coat our road salt and that are potentially contaminating our groundwater.

De-icing chemicals are commonly regarded as the most efficient and effective means of keeping our roads safe and free from ice in the winter. De-icing compounds come in many forms, from solids to slurries to sticky beet juice- or cheese brine-based liquids. The most common de-icing chemical is salt, with cities like Minneapolis spending millions of dollars to purchase upwards of 15,000 tons of treated and untreated salt to spray on their roads. In order to keep the solid salt from clumping or “caking” and becoming unusable as it sits around it’s usually treated with chemicals to ensure that it can be spread evenly on roads. Ferrocyanide (a/k/a hexacyanoferrate(II)) and the compounds sodium ferrocyanide and potassium ferrocyanide are yellow chemicals commonly used as anti-caking additives for road salt in Minnesota and other parts of the country, and they can be found in varying concentrations depending on the product, from 0.0003 ppm to 0.33 ppm. To put those numbers in perspective, the CDC warns that cyanide starts to produce harmful effects on humans at 0.05 mg/dL, or 0.5 ppm.

But why are chemicals on our road salt troubling? Road salt keeps ice from forming a bond with the pavement by lowering the freezing point of snow as it falls on the ground. As the salt gets wet it dissolves; it and the chemicals that may be attached to it have to go somewhere, which may be our surface and ground waters or the air if the liquids evaporate. The introduction of these chemicals into groundwater is of particular concern for the 75% of Minnesotans and people like them who rely on groundwater sources for drinking water. The potential for harm arises when ferrocyanide compounds are exposed to light and rapidly decompose, yielding free cyanide (CN and HCN). Further, as waters contaminated with cyanide are chlorinated and introduced to acids they may produce the harmful compound cyanogen chloride, a highly toxic gas that was once considered for use in chemical warfare. Taking into account the enormous amount of salt used and stored each year, even small concentrations may add up over time. And although the EPA has placed cyanide on the Clean Water Act’s list of toxic substances, the fact that road salt is a non-point source means that it’s entirely up to states and municipalities to decide how they want to regulate it.

The good news is that ferrocyanides are among the least toxic cyanide salts, and tend not to release toxic free cyanide. What’s more, the concentrations of ferrocyanide on road salt are generally quite low, are spread out over large areas, and are even further diluted by precipitation, evaporation, and existing ground and surface water. In order to really affect drinking water the ferrocyanide has to (1) not evaporate into the air, (2) make its way through soil and into aquifers, and (3) in large enough concentrations to actually harm humans, something that can be difficult for a large molecule. Despite all of this, however, the fact that Minneapolis alone is dumping more than 15,000 tons of road salt each year, some of it laced with ferrocyanide, should give us pause. That’s the same weight as 15,000 polar bears being released in the city streets every year! Most importantly, these compounds seep into our garden soil, stick to our car tires and our boots, and soak the fur of our pets and wild animals. While cyanide on road salt certainly isn’t a significant public health risk right now, being a part of local conversations to explore and encourage alternatives (and there are a number of alternatives) to prevent future harm might be something to consider.

At the very least think twice about eating snow off the ground (if you weren’t already). Especially the yellow stuff.

Haiti, Hurricanes and Holes in Disaster Law

October 31, 2016
Administrative Law, Climate Change, Environmental Law, Social Welfare

Amy Johns, MJLST Staffer

The state of national disaster relief is one that depends greatly on the country and that country’s funds. Ryan S. Keller’s article, “Keeping Disaster Human: Empathy, Systematization, and the Law,” argues that proposed legal changes to the natural disaster laws (both national and international) could have negative consequences for the donative funding of disaster relief. In essence, he describes a potential trade–off: do we want to risk losing the money that makes disaster relief possible, for the sake of more effectively designating and defining disasters? These calculations are particularly critical for countries that rely heavily on foreign aid to recover after national disasters.

In light of recent tragedies, I would point to a related difficulty: what happens when the money is provided, but because of a lack of accountability or governing laws, the funds never actually make it to their intended purposes? Drumming up financial support is all well and good, but what if the impact is never made because there are no legal and institutional supports in place?

Keller brings up a common reason to improve disaster relief law: “efforts to better systematize disaster may also better coordinate communication procedures and guidelines.” There is a fundamental difficulty in disaster work when organizations don’t know exactly what they are supposed to be doing. A prime example of the lack of communication and guidelines has been seen in Haiti, in which disaster relief efforts are largely dependent on foreign aid. The fallout from Hurricane Matthew has resurrected critiques of the 2010 earthquake response—most prominent was the claim of the Red Cross to build 130,000 homes, when in fact it only built six. Though the Red Cross has since disputed these claims, this fiasco pointed to an extreme example of NGOs’ lack of accountability to donors. Even when such efforts go as planned and are successful, the concern among many is that such efforts build short—term solutions without helping to restructure institutions that will last beyond the presence of these organizations.

Could legal regulations fix problems of accountability in disaster relief? If so, the need for those considerations is imminent: climate change means that similar disasters are likely to occur with greater frequency, so the need for effective long-term solutions will only become more pressing.

Solar Climate Engineering and Intellectual Property

April 27, 2016
Climate Change, Data, Environmental Law, Intellectual Property

Jesse L. Reynolds 

Postdoctoral researcher, and Research funding coordinator, sustainability and climate
Department of European and International Public Law, Tilburg Law School

Climate change has been the focus of much legal and policy activity in the last year: the Paris Agreement, the Urgenda ruling in the Netherlands, aggressive climate targets in China’s latest five year plan, the release of the final US Clean Power Plan, and the legal challenge to it. Not surprisingly, these each concern controlling greenhouse gas emissions, the approach that has long dominated efforts to reduce climate change risks.

Yet last week, an alternative approach received a major—but little noticed—boost. For the first time, a federal budget bill included an allocation specifically for so-called “solar climate engineering.” This set of radical proposed technologies would address climate change by reducing the amount of incoming solar radiation. These would globally cool the planet, counteracting global warming. For example, humans might be able to mimic the well-known cooling caused by large volcanos via injecting a reflective aerosol into the upper atmosphere. Research thus far – which has been limited to modeling – indicates that solar climate engineering (SCE) would be effective at reducing climate change, rapidly felt, reversible in its direct climatic effects, and remarkably inexpensive. It would also pose risks that are both environmental – such as difficult-to-predict changes to rainfall patterns – and social – such as the potential for international disagreement regarding its implementation.

The potential role of private actors in SCE is unclear. On the one hand, decisions regarding whether and how to intentionally alter the planet’s climate should be made through legitimate state-based processes. On the other hand, the private sector has long been the site of great innovation, which SCE technology development requires. Such private innovation is both stimulated and governed through governmental intellectual property (IP) policies. Notably, SCE is not a typical emerging technology and might warrant novel IP policies. For example, some observers have argued that SCE should be a patent-free endeavor.

In order to clarify the potential role of IP in SCE (focusing on patents, trade secrets, and research data), Jorge Contreras of the University of Utah, Joshua Sarnoff of DePaul University, and I wrote an article that was recently accepted and scheduled for publication by the Minnesota Journal of Law, Science & Technology. The article explains the need for coordinated and open licensing and data sharing policies in the SCE technology space.

SCE research today is occurring primarily at universities and other traditional research institutions, largely through public funding. However, we predict that private actors are likely to play a growing role in developing products and services to serve large scale SCE research and implementation, most likely through public procurement arrangements. The prospect of such future innovation should be not stifled through restrictive IP policies. At the same time, we identify several potential challenges for SCE technology research, development, and deployment that are related to rights in IP and data for such technologies. Some of these challenges have been seen in regard to other emerging technologies, such as the risk that excessive early patenting would lead to a patent thicket with attendant anti-commons effects. Others are more particular to SCE, such as oft-expressed concerns that holders of valuable patents might unduly attempt to influence public policy regarding SCE implementation. Fortunately, a review of existing patents, policies, and practices reveals a current opportunity that may soon be lost. There are presently only a handful of SCE-specific patents; research is being undertaken transparently and at traditional institutions; and SCE researchers are generally sharing their data.

After reviewing various options and proposals, we make tentative suggestions to manage SCE IP and data. First, an open technical framework for SCE data sharing should be established. Second, SCE researchers and their institutions should develop and join an IP pledge community. They would pledge, among other things, to not assert SCE patents to block legitimate SCE research and development activities, to share their data, to publish in peer reviewed scientific journals, and to not retain valuable technical information as trade secrets. Third, an international panel—ideally with representatives from relevant national and regional patent offices—should monitor and assess SCE patenting activity and make policy recommendations. We believe that such policies could head off potential problems regarding SCE IP rights and data sharing, yet could feasibly be implemented within a relatively short time span.

Our article, “Solar Climate Engineering and Intellectual Property: Toward a Research Commons,” is available online as a preliminary version. We welcome comments, especially in the next couple months as we revise it for publication later this year.

Bottom-Up Approach to Climate Change

April 6, 2016
Energy Law, Environmental Law

Allison Kvien, MJLST Managing Editor

Most often, climate change is discussed on the global, top-down level: what changes may happen all around the world as a result of increasing global temperatures and greater fluctuations in weather events. There are very interesting maps that can show you just how much coastline will be underwater depending on different levels of sea level rise. To see just how much sea level rise it would take to put any city in the world underwater, you can use this mapping tool. There are also plenty of articles discussing hundreds of other effects of global climate change, such as food production, human health, endangered species, and the global economy.

We talk about climate change from a bottom-up perspective far less often, but it is a perspective that really does deserve our attention. Myanna Dellinger, in a recent article published in 2013 by the Minnesota Journal of Law, Science, and Technology, discusses and analyzes “bottom-up, polycentric developments within national and international environmental and human rights law in general.” This approach to viewing the large issue of climate change could be very beneficial because, as Dellinger points out, “waiting for national- and supranational-level actors to reach a broadly based and substantively effective agreement on climate change mitigation is like waiting for Godot—unlikely to happen, at least at a substantively early enough point in time.” Dellinger’s article argues that bottom-up approaches could be very viable alternatives to waiting for the unlikely global, top-down action to occur. Read her interesting and novel article here.

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