18 Southeastern Envtl. L.J. 137

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18 Southeastern Envtl. L.J. 137, *
4 of 1680 DOCUMENTS
Copyright (c) 2009 Southeastern Environmental Law Journal, University of South

Carolina, School of Law
Southeastern Environmental Law Journal
Fall, 2009
Southeastern Environmental Law Journal
18 Southeastern Envtl. L.J. 137
LENGTH: 17503 words
STUDENT NOTE: THREE LETTERS PREVENTING THE SUCCESS OF INTERNATIONAL ENVIRONMENTAL

TREATIES
NAME: BY MICHAEL GREENE *
BIO:
* Michael Greene is a 2011 candidate for a J.D. at the University of South Carolina School of Law. In 2007, he graduated from Wofford
College with a B.S. in biology. Michael thanks his editors for their work throughout the writing process. The author can be reached at
michaelcgreene@gmail.com.
TEXT:
[*137] Three letters threaten the viability of present and future environmental treaties: IPR. Intellectual Property
Rights (IPRs) represent environmental challenges with which the private sector and the global community have been
grappling. n1 All countries need access to green technology developments and, yet, for innovation to continue, investors
must have the opportunity to protect the products that pay for expensive research. [*138] Currently, the international
community is unsure how countries will regulate IPRs in future environmental treaties. n2 If a dramatic shift towards
lowering IPRs occurs, there is a concern that the United States will refuse to ratify the agreement. This note analyzes
past treaties and current interests in an attempt to answer this question.
There are five parts to this Note: Part I provides background; Part II explores the interests driving the tension; Part
III analyzes the history and language of previous environmental treaties; Part IV examines issues not yet addressed by
treaties; and Part V predicts the future of IPRs in environmental treaties.
I. INTRODUCTION
There is international disagreement over the best way to distribute green technology. n3 The United States, along
with other More Developed Countries (MDCs), insist that strong IPRs encourage investment in research and
development (R&D), leading to the sale of technologies worldwide. n4 Lesser Developed Countries (LDCs), however,
want more access to green IPRs in order to disperse the technology; thereby reducing their environmental effects at a
lower cost than would otherwise be available with stronger IPRs. n5 Both positions focus on the interaction of IPRs,
green technology, and international treaties. The following sections introduce each of these environmental treaty
"building blocks."
[*139] A. IPRs
IPRs are "legally enforceable rights over inventions and other 'creations of the mind,'" such as trademarks,
copyrights, and patents. n6 These rights are recognized by our legal system for two overarching reasons: (1) "to promote
investments in knowledge creation and business innovation by establishing exclusive rights to use and sell newly
developed technologies" and (2) "to promote widespread dissemination of new knowledge by encouraging (or
requiring) rights holders to place their inventions and ideas on the market." n7 First, without IPR protection, firms
would be unlikely to invest or assume the financial risks associated with R&D. n8 In order to reassure investors that their
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monetary interests will be secure, the government must sanction a window of time during which investors may retain a
licensing monopoly in order to recuperate their investments. n9
The second purpose assists a social goal. n10 IPR development helps accelerate technological and social
breakthroughs. n11 A system promoting disclosure while still protecting investments encourages exploration of new
technology, and increases society's collective knowledge. n12 The incentive to file patents evaporates when countries are
unable to effectively regulate [*140] patent control. n13 Therefore, countries must carefully balance intellectual
property policies in order to fully develop the benefits of technologies protected under IPRs. n14
B. Green Technology
IPRs provide the mechanism for protecting "green technologies" and, as discussed above, drive innovation. n15
Green technologies n16 are an amorphous concept that encompasses efforts with multiple names and definitions, n17
including clean- or renewable-energy, n18 Environmentally Sane Technology (EST), n19 and eco-, n20 clean-, n21 climate-,
or environmentally-friendly n22 technology. n23 Corporations involved in green technologies recuperate their investments
under the IPR structure. Despite slightly different definitions, one common theme links the group: reduction of
anthropogenic effects on [*141] the environment. n24 It is this climate-saving characteristic motivating LDCs to acquire
green technologies.
C. Treaties
The third piece of the equation is international treaties. Treaties are obligatory agreements entered into under the
rule of international law. n25 Ideally, compliance is motivated by pacta sunt servanda or the concept that "[e]very treaty
in force is binding upon the parties to it and must be performed by them in good faith." n26 In reality, however, countries
perform "because they fear retaliation from the other state, or because they fear a failure of coordination, or perhaps
because they fear reputational loss." n27
Before a country commits to a treaty, its government must accept the terms. n28 In order for the United States to
ratify a treaty, "[the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur." n29 Regardless of a treaty's nature, the United States cannot enter a
treaty with a foreign nation until the proscribed formalities are executed. n30 An environmental treaty is like any other
international agreement the United States enters only it focuses on improving and protecting the environment.
D. The Rising Dilemma
International delegations must decide how IPRs can best serve MDCs, LDCs, and the environment. At first glance,
the appropriate action seems obvious: technology must be delivered and installed in LDCs that are unable [*142] to
afford R&D. n31 However, the solution is not that simple. The world generally recognizes MDCs as the leaders of green
innovation. n32 Their participation, therefore, is vital to rejuvenating the environment.
Without IPRs, the environment's future enters a downward spiral. Patenting green technology requires significant
financial investments. n33 Similar to a bank foreclosure sale, forcibly selling technology in a global market diminishes
investors' possibility of recuperating the full value of the property sold. n34 Without investors' confidence in returns, the
green technology revolution will slow or cease altogether. n35 The other side is equally pressing. LDCs, which include
some of the world's top polluters, n36 must obtain climate-friendly technology to reverse their destructive effects.
Denying them access to green advancements perpetuates the negative impacts these countries have on the global
environment. n37
So what do IPRs have to do with environmental treaties? IPRs are inseparable from environmental treaties because
they have the potential to be the "Achilles' heel" of these international agreements. n38 Although only a minor part of the
agreements, if the IPR terms are adverse to U.S. interests, the treaty may not be effective. LDCs increasingly criticize
MDCs for [*143] sheltering climate-friendly technology under the veil of IPRs. n39 In response, LDCs are attempting
to revoke the trusted system that protects rights and recuperation. n40 Both MDCs and LDCs believe environmental
protection is necessary, yet often their methods of achieving this goal are conflicting. n41 Without compromise,
environmental treaties will not succeed.
II. COMPLICATING FACTORS
Profit projections drive business decisions n42 and green technology R&D is no different. n43 Where a market exists,
businesses will invest to procure a profit. n44 As discussed above, IPRs are necessary to protect investments. n45 Money
has, does, and will drive the decision-making process of how to protect the environment. n46 Consequently, the financial
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incentives sculpting the policies should be understood before discussing the direct role of IPRs in environmental
treaties. Money, however, is not the only factor complicating this issue. If LDCs did not substantially contribute to
global climate-change, their requests for technology would carry little pull. n47 The next section examines the
underlying "weights" treaty policies are trying to balance.
A. American Interests
Green technologies were present in Nebuchadnezzar II's Hanging Gardens n48 but only recently has the business
world put on its green-tinted [*144] lenses. n49 This newfound interest has been spurred by predictions of large
financial gains accompanying the preservation and correction of environmental problems. n50
In 2007, the United States Patent and Trademark Office (PTO) approved nearly 1000 green energy patents. n51 This
was an increase of 27.5% from 2002 and nearly 100% from a decade earlier. n52 Green energy patents are the forerunner
for climate-friendly technologies in the number of patents applied for annually. n53 According to the PTO, green patent
applications almost doubled between 2006 and 2007. n54 According corporation's decision to patent technology hinges
on the likelihood of recovering R&D costs and the ability to generate revenues from a future product, based on basic
principles of corporate business planning. n55 If the possibility of recovering profits is high enough, a corporation will
assume the risk of investing. n56 Consequently, if the corporation decides to invest, it will allocate substantial amounts of
capital for the project. For example, venture capitalists invested upwards of $ 4 billion dollars into clean technology
start-up companies in 2008. n57 Also, [*145] the United States government has diverted $ 100 billion dollars annually
to university research. n58 In 2006, General Electric announced it would commit $ 1.2 billion dollars per year to green
technology development. n59 Estimates place green technology initiatives as the recipient of 10% of venture capitalist
investments in 2009. n60
Green technology is a giant that has only recently awoken. n61 In the past decade, substantial sums of money have
been channeled into green technology. n62 House Majority Leader Steny Hoyer, a Democrat from Maryland, predicts
"'[t]hat R&D represents America's chance to become the world's leader in the most important emerging economic
sector: energy technology.'" n63 Senator Debbie Stabenow, a Democrat from Michigan, is equally excited about the green
future but expressed concern that America could lose its grasp as the leading exporter of climate-friendly technologies.
n64
Even President Obama has voiced his opinion about America's potential in the green market. n65 In a June 2009
address, he opined, "The nation that leads the world in creating a new clean energy economy will be the nation that
leads the 21st century global economy." n66 The United Nations predicts that the global market for environmental
technologies will reach $ 2.74 trillion by 2020. n67 People commit "time, passion, effort, energy, and economic capital in
developing these [*146] technologies" with realistic expectation of a return from their venture. n68 Americans driven by
the capitalistic spirit will pursue the emerging profit giant to claim their share. n69
B. Developing Nations Have Money
America's instinct to preserve its interests is only one "weight" on the balancing scales. LDCs' financial situation
contributes to the problem as well.
Developing nations often rely on the nation's poverty in an attempt to acquire green technology for free or
discounted prices. n70 Consider China and India, for example. Undeniably, a majority of citizens in China n71 and India
n72
live below the poverty line. Their governments, however, cannot accurately be described as penniless. n73 An
Organization for Economic Cooperation and Development (OECD) report in 2007 identified China and India as two of
the three largest economies in the world. n74
Further, the Indian government, a regular attendee of environmental conferences, is not insolvent. n75 Cleantech
Group reported that "[d]espite the low investment amount and [three] deals recorded in the region, the renewable energy
sector in India continues to be very active. Major Indian companies, such as Tata Power, BHEL and Greenko Group,
announced [*147] initiatives to ramp up investment in clean energy projects across the country." n76 The "low
investment" amount the article refers to is $ 94 million dollars spent in the first quarter, which is quite a substantial sum.
n77
This year, the country committed to a 12% increase in wind, solar, biomass and small-hydro energy projects, totaling
investments at $ 4.1 billion dollars. n78
China is the other LDC of importance. The Chinese government's allocation of funds for green technology is
second only to the United States. n79 China's spending habits have gained recognition from businesses as an emerging
market of its own. n80 Furthermore, China owns 38% of all solar energy patents, which is the single largest ownership of
IPRs attributed to one country. n81 The R&D for solar patents is funded, in significant part, by a $ 3 per watt subsidy for
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solar initiatives. n82 In June 2009, China announced that it would invest $ 400 billion dollars on peen technology
development. n83 In other words, China has money to spend. n84
Despite having money, n85 LDCs continue to submit treaty drafts in which they ask for 1.0% of MDC's GDP for
green development in their countries. n86 As stated by an Indian newspaper, "while, developed countries like US and
those in Europe showed poor growth due to economic crisis, the [*148] developing countries were the bright spots in
clean energy investment." n87 MDCs will not relinquish expensive patents while LDCs have money. n88 Brain Fan, senior
director of research at the Cleantech Group, confirms that LDCs want to logically invest at the domestic level. n89 So
long as MDCs believe LDCs can afford to purchase green products, technology transfers will be withheld, delaying
climate treatment.
C. Only One Environment
As obvious as the section title sounds, it states a truth that is often overlooked: there is no second chance for the
health of the environment. n90 Just like the explanation of financial interests, an understanding of LDCs environmental
impact is crucial to analyzing IPRs interconnectedness with environmental treaties.
Experts predict that eighty percent of the global growth in carbon dioxide emissions between now and 2050 will be
attributable to China, India, and Southeast Asia. n91 Since 2006, China has led the world in carbon dioxide emissions,
with India nipping at its heels. n92 More alarming is the individual effect climate change is having on China's
population. Nearly one third of Chinese citizens lack access to clean water, which is one quarter of the international
average. n93 Experts also estimate that thirty percent of the country experiences acid rain as a result of sulfur dioxide
released through automobile and industrial emissions. n94 These statistics are localized, but as [*149] Paul Joffe, Senior
Foreign Policy Counsel for the World Resources Institute, explained, "[g]rowing poverty and environmental destruction
will exacerbate each other in a vicious circle." n95 China's rapidly growing population will amplify these problems,
exponentially burdening the environment and the "vicious circle." n96 Climate change's disproportionate effect on
LDCs causes a reliance on MDCs to support their environmental revolutions. n97
India's situation reflects that of China's. The country predicts its energy needs will grow "by three to four times" its
current level and that electricity needs will multiply "by five to seven times" its current requirements (120,000
megawatts would increase to 780,000 megawatts) by 2030--figures predicting outputs that meet the country's eight to
ten percent of annual growth in GDP. n98 To accomplish similar monumental increases, officials estimate that India will
burn nearly six times the amount of coal it currently burns, ultimately reaching two billion tons. n99
Part II.C. is not meant to suggest that China and India are the only countries threatening the environment. n100 Yet
because the two countries routinely rank in the top five most polluting nations, it is important to curb their destruction of
the environment. n101 Further, these countries leverage their environmental effects against MDCs as bargaining tools.
China and India often blame developed nations for global warming and consequently deny responsibility for correcting
these problems. n102 On the other hand, when beneficial, LDCs accept their contribution and use it as leverage for
[*150] lowering IPRs. n103 Regardless of which assertion is made, without slowing and reversing the detrimental effects
imposed by LDCs, the environment cannot rebound. Understanding LDCs' detrimental effects illuminates another
complex "weight" that must be balanced in the IPR debate. n104
III. TREATY LANGUAGE
Green technology innovation is the marriage of generating revenues and advancing environmental stewardship. n105
Appropriately, diplomats incorporated these interests in environmental treaties. This section surveys major
environmental treaties of the past and reviews the language causing friction between LDCs and MDCs.
A. Evolution of Environmental Treaties
In 1992, the United Nations drafted the United Nations Framework Convention for Climate Change (UNFCCC) to
address international environmental concerns. n106 All unrecognized states, including the United States, ratified the
agreement. n107 The UNFCCC's primary purpose was to [*151] commit nations to a negotiating structure for future
environmental treaties rather than require nations to set specific environmental goals. n108 In a general sense, the
UNFCCC seeks to "protect the climate system for the benefit of present and future generations of humankind;" it is not
designed to provide human rights protections and humanitarian aid to individuals, such as climate change refugees,
after an environmental disruption. n109 The UNFCCC is an agreement between states to "anticipate, prevent or minimize
the causes of climate change and mitigate its adverse effects." n110
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While the convention established a scaffold for future treaties, it did not lay out complete plans for IPRs. Instead,
the convention roughly sketched out green technology's future role.
In 1997, the Kyoto Protocol (Protocol) was the first attempt to bind countries to legally binding emissions
reductions. n111 The Protocol legally bound MDC signatories to emission reduction goals through 2012. n112 Signatories
intended the Protocol to be a "first shot" at environmental commitments, with understanding that periodic evaluations
would be needed. n113 Nearly a decade after the Protocol, diplomats agreed upon the Bali Action Plan (Plan) to tweak the
structure established under the UNFCCC for the next generation of environmental treaties. n114 The diplomats intended
to establish an "agreement on the nature of [legally binding] commitments, if any, that would prove acceptable to all
major [*152] players -- including Kyoto Protocol parties with existing obligations, developing countries that are major
GHG emitters, and the United States. . ." n115 Like the UNFCCC, the United States agreed to the Plan in anticipation of
reaching universal agreement on future environmental treaties. n116
The Conference of the Parties reconvened to draft the next link in this chain in Copenhagen in late 2009, n117 to
replace the Protocol when it expires in 2012. n118 While the accord fell short of expectations, there is still hope of
reaching a strong agreement as the UNFCCC talks continue at future meetings. n119 Given the prominence of the private
sector's involvement since the Protocol was signed, the new Agreement must include more extensively negotiated
language about technology transfers and IPRs. n120
B. Language Leading to Conflict
MDC diplomats are skeptical that strong IPRs will be maintained based on anti-IPR language in the UNFCCC, the
Protocol, and the Plan. n121 As additional treaties are written, it is likely that international negotiators will continue to
substitute IPR support for open transfer policies. n122
The UNFCCC, when drafted, contemplated IPR's role in preserving the environment. This understanding is
reflected in the UNFCCC's objective:
[*153] The ultimate objective of this Convention . . . is to achieve. . . stabilization of greenhouse gas
concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with
the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems
to adapt naturally to climate change, to ensure that food production is not threatened and to enable
economic development to proceed in a sustainable manner. n123
Clearly stated, the agreement intends to protect the environment and business investments. n124 As discussed in
previous sections, IPRs play a significant role in protecting a company's financial interests. n125 In Article 4 of the
UNFCCC, parties reaffirm to "[p]romote and cooperate in the development, application and diffusion, including
transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse
gases... in all relevant sectors, including the energy, transport, industry, agriculture, forestry and waste management
sectors." n126 Article 4.1 contains language that lays groundwork for more explicitly transparent language in future
treaties. That section encourages member countries to "[p]romote and cooperate in the full, open and prompt exchange
of relevant scientific, technological, technical, socio-economic and legal information related to the climate system and
climate change, and to the economic and social consequences of various response strategies." n127 Similar clauses
appear throughout the remainder of the agreement. n128
[*154] The Kyoto Protocol, however, was not the success the global community expected. n129 First, the Protocol
did not further address IPRs but simply reiterated the UNFCCC's language. n130 Then, after leading intense negotiations,
the United States refused to ratify the treaty because of asymmetrical demands between more developed and less
developed countries. n131 The Protocol states that the MDCs shall "ensure that their aggregate anthropogenic carbon
dioxide equivalent emissions of the greenhouse gases ... do not exceed their assigned amounts ... with a view to
reducing their overall emissions of such gases. ..." n132 Senator Robert C. Byrd, a Democrat from West Virginia, and
Senator Chuck Hagel, a Republican from Nebraska, in nonpartisan agreement, explained that "any protocol that
required greenhouse gas reductions without commitments from developing countries, or that would result in serious
harm to the U.S. economy" would be unacceptable. n133 Corporations pay upwards of $ 130 billion annually in the
United States to commit and comply with environmental regulations costs. n134 Agreement by the United States to a
protocol that fails to bind Asian continent competitors at the same level levies a substantial economic handicap on
United States businesses--a position the United States government and corporations want to avoid. n135 An updated treaty
under the UNFCCC is anticipated to assuage the imbalance of commitment for post-2012 action. n136 However,
corrections will still need to be made regarding the economy's vulnerability.
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[*155] C. Language with Mixed Messages

Sixteen years after the UNFCCC, the Bali Action Plan finally addressed technology transfer, IPRs and the private
sector. n137 The Bali Action Plan marks substantial progress in negotiating framework. n138 The agreement reached under
that Plan upgrades technology to a more active role. n139 Decision 1/CP.13 1(d) states:
Enhanced action on technology development and transfer to support action on mitigation and adaptation,
including, inter alia, consideration of:
(i) Effective mechanisms and enhanced means for the removal of obstacles to, and provision of
financial and other incentives for, scaling up of the development and transfer of technology to developing
country Parties in order to promote access to affordable environmentally sound technologies;
(ii) Ways to accelerate deployment, diffusion and transfer of affordable environmentally sound
technologies;
(iii) Cooperation on research and development of current, new and innovative technology, including
win-win solutions;
(iv) The effectiveness of mechanisms and tools for technology cooperation in specific sectors. n140
This language signifies a shift in the international community's view of technology when compared to the
UNFCCC. In the UNFCCC, drafters grouped financial support and technology transfers together, which implied that
they are similar actions. n141 The Bali Action Plan, however, identifies the necessity of green advancements, as well as
expediting the dispersion of eco-friendly technologies. n142 Countries should be commended for updating the treaty to
include strategies utilizing climate-friendly technologies; [*156] however, the "accelerant" language hoists a red flag.
n143
Behind the new language is subtle anti-IPR language that conflicts with the Byrd-Hagel Resolution. n144 Where
treaties enumerate "enhanced means for removal of obstacles to" n145 technology transfer, they provide grounds for
attacking IPRs. This concern increases when read with Decision 1/CP.13 1(d)(ii), which intends to deliver more
technologies to LDCs. n146 Language inserted to avoid IPRs barriers will not pass American scrutiny. n147 Under Decision
3 of the Bali Action Plan, the parties:
[R]ecogniz[e] that the immediate and urgent delivery of technology development, deployment, diffusion
and transfer to developing countries requires suitable responses... [in] facilitating access to technology
information and capacity-building, identification of technology needs and innovative financing that
mobilizes the vast resources of the private sector to supplement public finance sources where
appropriate. n148
It is important that diplomats continue inviting the private sector to the negotiating table. n149 Because IPRs are
important to climate change, the private sector should have a voice in global climate-change strategies. n150 However,
despite inviting the private sector to the negotiating table, international discussions ignore business and insert adverse
language, as seen in Decision 1/CP.13 1(d). n151 The Bali Action Plan is riddled with clauses "strongly encouraging"
MDCs to "avoid trade and intellectual property rights policies..." by seeking ways to "integrate the objective of
technology transfer into national policies to enhance the interaction between governments and the private sector." n152
The aggressive language urges technology transfer, which scares American businesses because of its anti-IPR tendency.
Fear is rooted not in the expediency but in the perception that [*157] anti-IPR strategies are the only way to achieve
technology transfer fluidity. n153
As nations revise treaties to support environmental protection, they have increasingly included language focused on
erasing IPRs. n154 Considering the earth's health is inseparable from green innovation, this is a good thing. However, as
the next section illustrates, LDC parties should tread lightly if prying open transfer channels. If anti-IPR advocates
pursue lowering IPRs too aggressively, they may deter MDCs from developing and utilizing IPRs, seriously
threatening an environmental rebound.
D. Compromised IPRs Equals a Compromised Environment
Treaties stand as internationally recognized tools for correcting environmental issues. n155
By uniting in global
efforts, countries combine resources to more efficiently address these transnational issues. n156
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It is a fallacy to presume a treaty is a useful tool for solving international problems solely because it exists. n157
Previous environmental treaties advanced biased views on technology transfer, IPRs, and the private sector, n158 leading
Congress to draft bills against them. n159 Although negotiating diplomats claim to address private sector considerations,
treaties [*158] continue to promote ideas contrary to the American vision of IPRs. n160 The environment's future, as
explained earlier, is entwined with the success of climate-friendly IPRs. n161 As the security of IPRs decreases, so does
the ability to correct environmental harm.
To survive American judgment, treaties must comply with the U.S. Constitution. n162 American IPRs are protected
under a framework that encourages making investments to solve challenging environmental problems. n163 The Framers
wrote, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries." n164 Without protecting the private sector's innovations,
few, if any, incentives exist to encourage engineering solutions to environmental problems. n165 Advancements in green
technology are directly correlated to the security of investments. n166 Without IPRs, "the technologies needed to achieve
our various goals will fail to achieve their full potential." n167
Early treaties portrayed IPRs as roadblocks to distributing green technologies. n168 This view permeated subsequent
treaties and continues to haunt investors over a decade after the approval of the UNFCCC. n169 The unpredictability of
IPR strengths adversely affects green technology investments in real-time. n170 Fewer investments lead to less
innovation, and less innovation translates into more severe environmental harm. n171 In the [*159] first half of 2007,
investors put $ 1.1 billion into clean-technology n172 relying on a government-protected patent and licensing system. n173
Due to the uncertainty surrounding IPRs, companies constantly monitor IPR negotiations worried their
investments may become losses in the future. n174 If the United States government acquiesces to weakening IPRs, it
essentially endorses the theft of American innovation. n175 One author described LDCs as having a "notorious reputation
for being the most egregious violators of IPR[s]." n176 A panel member on the House Energy Independence and Global
Warming Committee summed up the dilemma this way:
We can all agree that it is in everyone's best interest to widely deploy ground breaking green
technologies; yet we must temper this enthusiasm with the reality that no investor in this country will put
money into an innovation that is going to be quickly copied as soon as it hits the market. n177
Unfortunately, the situation deteriorates further. China and India have both reaffirmed their commitment to
lowering IPRs. n178 Therefore, a prohibition of anti-IPR language is unlikely to occur anytime soon. n179 Heeding these
predictions, Congress proactively passed resolutoions to protect American interests. n180 In 1997, prior to the signing of
the Kyoto [*160] Protocol, the Senate unanimously passed the Byrd-Hagel resolution. n181 It stated that any
international agreement allowing LDCs to remain commitment-free on environmental issues would be extremely
harmful to the United States' economy and thus not ratified by the Senate. n182 In 2009, in anticipation of the UNFCCC
talks in Copenhagen, Congress passed three bills protecting the IPRs of green technologies: Foreign Relations
Authorization Act, n183 American Clean Energy and Security Act, n184 and Department of State Foreign Operations, and
Related Programs Appropriations Act. n185 Congress charged the Secretary of State with "protecting the intellectual
property rights of United States persons and their licensees, and to protecting the interests of United States persons
otherwise harmed by violations of intellectual property rights in those countries." n186 The House explicitly required:
[T]hat all actions taken during the negotiations of the United Nations Framework Convention on
Climate Change ensure robust compliance with and enforcement of existing international legal
requirements as of the date of the enactment of this Act that respect intellectual property rights and
effective intellectual property rights protection and enforcement for energy and environment
technology. . . . n187
The government's involvement is necessary, and the United States stands behind their necessary involvement as
evidenced by these actions. n188 Senator Stabenow offers that "[i]t's not about protectionism, but it is about making sure
the rules are followed." n189 Americans are promised a minimum amount of protection, n190 and the government must
provide that base standard, even if that means rejecting environmental treaties.
[*161] Lesser-developed nations criticize Congress' actions, and one country even asked America to "get out of
the way" during treaty discussions. n191 Those critics must look at the totality of the situation. American R&D will slow
to a trickle if climate change agreements weaken IPRs. n192 Forcing the deployment of technologies to LDCs now, may
later retard efforts when the world desperately needs green advancements. n193
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However, not all foreign nations feel this way. Some take refuge in the strength of American IPRs. n194 Japan and
Germany, for example, have been pursing clean technology patents in the United States for years. n195 Developers and
scientists from these nations come to the United States for stronger IPRs than their own nations can provide, n196 and
therefore, "[IPRs] will be the catalyst, not the barrier" n197 for creating technologies. Certain MDCs will likely support
the American campaign for strong IPRs, even if out of self-interest, because if American rights fall, then their
investments tumble as well. n198
Simply put, without IPRs investments will dry up. In the absence of investments, green innovation will be stagnant,
perpetuating uncontrolled climate change by solidifying the global community's dependency on dirty, inefficient
technologies and energy sources. Congressional reliance on Constitutional requirements and foreign support justifies its
rejection of any treaty that sacrifices IPRs.
[*162] IV. UNRESOLVED ISSUES
Section III explored treaty language addressing MDC's concerns about the handling of IPRs. Ideally, MDCs and
LDCs could reconcile these differences in a future environmental agreement. However, even if compromise is achieved,
the United States could still abstain from environmental treaties because novel problems, derivatives of IPR issues, hide
in the shadows. The following section introduces issues world leaders will confront as climate control negotiations
mature.
A. Money Cannot Buy Security
American businesses are worried about compulsory licensing, a new threat to IPRs. n199 Black's Law Dictionary
defines a compulsory license as "[a] statutorily created license that allows certain people to pay a royalty and use an
invention without the patentee's permission." While some nations currently recognize compulsory licenses, the United
States never has." n200
Removing inventors' control over their intellectual property strips them of IPRs and directly conflicts with the
Constitution. n201 This concern is further inflated by China and India's repeated claims that "they cannot meet emission
requirements without free or discounted access to green technology developed in the United States." n202 Worries are
grounded in LDCs' actual attempts to draft treaties with compulsory license language. n203 A draft released in preparation
for Copenhagen contained a clause calling for the removal of "barriers to development and transfer of technologies from
[MDC] to [LDC] Parties arising from the [IPRs by instituting] ... [c]ompulsory licensing for specific patented
technologies. . . ." n204 Representative Mark Kirk, a Republican from Illinois, explained this threat in a June 2009
address, when he said:
[*163] The American people need to know . . . code words, like "compulsory licensing'" and
"technology transfer,'" that really mean allowing other countries to steal the American patents, copyrights
and trademarks for anything related to climate change, efficiency or energy. ... If the United States
agrees to a climate change treaty that allows developing countries to seize U.S. intellectual property in
this area, economic consequences for green-collar jobs would be devastated. n205
Compulsory licenses will amplify private sector concerns about recuperating investments. Assuming compulsory
licensing was acceptable within national borders, n206 a significant difference exists between licenses to MDCs and
LDCs. In MDCs, the licensee fully compensates the IPR owner, n207 whereas LDCs as licensees pay nominal royalties at
best. n208 Current projections expect compulsory licenses granted under an international treaty to change hands for little
or no money. n209 Such a situation exacerbates the skepticism surrounding IPRs because corporations would be unable to
recover their R&D costs. Promoting compulsory licenses allows LDCs to carve-out target technologies, providing
unfettered access to patents at fire sale prices. n210 Andrew Whitehead, a contributing writer for the Birmingham Post
(UK), warns that imposing compulsory licenses on green technology "is a dangerous path and risks stifling innovation."
n211
If China and India push for language implementing compulsory licensing in an international agreement, they will bar
patenting of all climate-friendly technology, securing a right to usurp any MDCs' [*164] green technology. n212 Any
treaty weakening IPRs "will surely hamper our efforts to address global warming by dampening R&D investment and
slowing technology development and deployment at a time when both are needed most." n213 Representative Kirk's, as
well as many other Americans' concerns are not imaginary--they are based on real threats. n214
The United States possesses a strong case for maintaining IPRs at the status quo. Although Dr. Lee Petherbridge's
analysis stems from a pharmaceutical setting, the argument against lowered IPRs in that context also applies to
environmental technologies. n215 He explains:
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[S]ince LDCs typically do not have well-developed Life Sciences industries, they are consequently
unlikely, in the short-term, to suffer from direct competition in the research, production, and distribution
of pharmacological agents.
As things stand, there may be several effects of lower levels of protection. First, LDCs suffer the basic
problem that weak IPR enforcement discourages innovation. The pirating that results from the lack of
IPR enforcement deprives citizens of LDCs (and all of the world's citizens) of access to important drugs,
because they are not being made. Thus, the free-riding nature of developing countries Life Sciences
industries, as a consequence of weak IPR enforcement, is injuring LDCs. Second, lower levels of
protection in a country coincide with poor investment in industries that rely on intellectual property
protection to encourage innovation. Thus, lower levels of protection will not work in favor of LDCs
obtaining investment. This could maintain a domestic environment with little [*165] skill base and little
technical infrastructure. Thus, in the long run, low levels of protection would be detrimental to LDCs. n216
Accepting Dr. Petherbridge's logic that weaker IPRs hurt innovation, one must accept that stronger IPRs encourage
environmental protection through technological advancements. The security of strong IPRs encourages competition "in
the global marketplace [and a] greater likelihood we will create the breakthrough technologies needed to address
climate change." n217 By fighting IPRs, LDCs are essentially attacking a pillar of American wealth. n218 As has been
repeated many times, "[t]hreats to strong IPRs, such as easily-obtained compulsory licensing, are likely to be a strong
disincentive to invest" in green technology. n219 If IPRs are lowered, authorities agree that the harms will outweigh the
benefits, whether measured in profits or environmental health. n220
B. Technology is Dependent on Infrastructure
Assuming all of the over-arching problems are solved (investment recuperation, no compulsory licensing and
agreement on IPR strength), infrastructure in LDCs remains a thorn under foot. n221 In order for any country to benefit
from a technology, they must have the absorptive capacity to incorporate new innovations. n222 This means a country
must expend physical and human capital to integrate the expensive technology. n223 Historically, LDCs have battled with
issues ranging from obtaining capital to corrupt governments, leaving them without ways to build infrastructure. n224
Park and Lippoldt stated in a 2008 study that, "while technology transfer was enhanced by stronger levels of patent
protection, other complementary factors such as 'infrastructure, effective government policies and regulations,
knowledge institutions, access to credit and venture capital, skilled human capital, and networks for research
collaboration' were also necessary." n225 The International Energy Agency estimates a price tag of $ 22 [*166] trillion
over the next 25 years to develop infrastructures capable of handling the "runaway demand" of energy needs in China
and India. n226 Before installing compulsory licensing, future treaties must first consider how to inject capital into LDCs.
n227
The lagging presence of infrastructures is sure to play a role as IPR debates unfold.
Children do not buy cars before they have a driver's license, so why would an LDC purchase technology they
cannot afford to fully or correctly integrate? The situations are analogous. By forcing compulsory licenses upon
businesses without the proper infrastructures in place, treaties would essentially bypass IPRs, extorting valuable
information from the private sector. n228 Until a country has the ability to purchase, implement, and control IPRs, it fails
to present a persuasive argument for compulsory licensing.
V. THE FINAL VERDICT
The interests of all nations rest at a crossroad. n229
Will intellectual property rights be the Achilles' heel that unravels
future environmental treaties?
A. The Verdict
Yes. IPRs will prevent environmental treaties from flexing any substantial muscle. If disagreements continue over
IPRs, the United States will likely reject any environmental treaty that reduces the control of [*167] American
property. n230 History and current skepticism support this prediction.
First, America will not hesitate to stand alone. The United States refused to join the Kyoto Protocol, even after
Australia, the only other holdout, signed the agreement in 2007. n231 Having been an early signatory to the UNFCCC n232
and a party to other international agreements, the United States maintains a track record of committing to environmental
treaties. n233 While politicians do sympathize with environmental needs, they will not, however, bind the nation to a
Page 11
treaty at the expense of Constitutional rights. n234 If senators were unwilling to ratify the Kyoto Protocol, which would
have indirectly impacted the American economy, they will certainly reject a treaty explicitly threatening American
prosperity.
Second, the key to an environmental treaty is American ratification because without it, MDCs and LDCs are
unlikely to join. n235 Ratification by the United States would give an environmental treaty some added strength because
of the nation's presence in the global community. Without the President's and the Senate's consent, American intellectual
property laws will not stand down to international environmental treaties. n236 As long as America's patent system is
unencumbered, foreign inventors will seek safe harbor in the PTO, avoiding the commitments their countries have made
and effectively undermining an environmental treaty.
Diplomats from all nations will travel prepared for negotiations. Unfortunately, MDCs and LDCs have vowed to
argue for terms that are mutually exclusive. n237 Armed with a deep well of support and logic, American representatives
will not sacrifice IPRs for fear of the severe [*168] environmental and fiscal repercussions. n238 Because of the
irreconcilable values driving MDCs and LDCs, future environmental treaties are likely to fail because of disagreements
regarding IPRs.
B. The Qualifier
Despite the grim outlook, all hope is not lost. Since IPR issues began arising, alternative measures have sprouted
from smaller groups. To increase good will, the private sector donates patents to the environmental cause. n239 The list
includes international corporations, such as Bosch, Xerox and DuPont. n240 Along the same lines, websites, such as
Lynx-Street.com, provide an online bizarre where inventors have access to investors, providing a faster injection of
technology into the market. n241 One suggested approach is for companies to sell "ready-to-install" versions of their
technology, as opposed to the IPRs. n242 In such scenarios, technology diffusion would be achieved and profits collected
from the transactions, n243 and the environment would benefit without the forfeiture of IPRs. n244
Another approach is lowering technology tariffs. n245 The OECD has documented Indian and Chinese tariffs in
excess of ten percent on carbon abatement technology. n246 Ten percent, while not an insignificant tax alone, is in
addition to many other fees that quickly add up to a sizeable cost. n247 Green technology charges include pre-shipment
inspection, custom inspections, quantitative import restrictions, import surcharges and border [*169] taxes. n248
Developed countries repeatedly press LDCs to eliminate tariffs on urgently needed technology. n249 The U.S. Chamber of
Commerce identified LDCs with tariffs as high as 70% on "climate-friendly goods and service," not including tariffs
placed on specific types of green technology. n250 A report by the World Business Council for Sustainable Development
"identified economic and market barriers ... as the most significant obstacles to technology transfer." n251 Inductive
reasoning concludes that LDCs' technology purchase prices would plummet if LDC governments softened the green
tariffs.
Finally, MDC and LDC parties created the Clean Technology Fund (CTF) in 2008. n252 The CTF's mission is to
"invest in projects and programs [in developing countries] that contribute to [the] demonstration, deployment, and
transfer of low-carbon technologies. ..." n253 This fund was developed in the spirit of clauses pulled from the UNFCCC
that under the First Principle [*170] of the UNFCCC, that "developed country Parties should take the lead in
combating climate change and the adverse effects thereof." n254 Paragraph sixteen of the CTF goes directly to the heart
of the financial issue, recognizing that "[t]here is a gap in national and international financing for research and
development." n255 There is also an entire Annex devoted to encouraging private sector involvement. n256 The drafters
praise the private sector as "the foundation of economic growth ... [with] a significant role to play in climate change
mitigation and adaptation." n257 Albeit not an environmental treaty, the CTF is a prime example of an international
agreement where nations compromise with and integrate the private sector and IPRs as key players in solving
environmental problems. n258 Most importantly, the CTF acknowledges, "that funding structures for engaging the private
sector will need to be different [than] the structures applied for [the] public sector. ..." n259 The CTF is a sign that nations
are bridging the gap between the private sector and LDCs acquisition of green technologies.
None of these alternative methods are, even in aggregation, stronger than a global environmental treaty. They do,
however, prove that compromises are being made and that countries can find mutual ground. Representative Edward
Markey, a Democrat from Massachusetts, said that "[w]e are now engaged in what could become the most difficult
international negotiation in history: the painful and difficult construction of a binding, universal international agreement
to reduce emissions of greenhouse gases in order to save the planet from a disastrous alteration of the climate. n260 These
examples do not guarantee that an environmental treaty will be signed in the future but they do give hope that diplomats
are capable of compromise.
Page 12
C. Compromise is Necessary
The Economist outlined the situation best: "Neither rich countries nor poor ones can tackle climate change alone.
The rich bear most of the responsibility for the greenhouse gases in the atmosphere. But if they make cuts while the
poor go on a carbon-heavy growth binge, the climate will [*171] suffer anyway." n261 Parties must erect a framework
that encourages technology to flourish while providing aid to LDCs. n262 At the current stage, however, MDCs and LDCs
hold diametric views setting a crash course with failure if nations do not reach a compromise. Diplomats have a long
path to travel before reaching a middle ground. IPRs fuse the environment's fate to green innovations and if
negotiations disregard this reality, these three letters, IPR, will prevent the success of environmental treaties.
Legal Topics:
For related research and practice materials, see the following legal topics:
Environmental LawClimate ChangeGovernmentsNative AmericansAuthority & JurisdictionPatent
LawRemediesGeneral Overview
FOOTNOTES:
n1 See infra Part I.D.
n2 See infra Part III.
n3 See, e.g., Elizabeth Burleson, Climate Change Consensus: Emerging International Law, 34 WM. & MARY ENVTL. L. & POL'Y REV.
543, 585 (2010) (citing United Nations Framework Convention on Climate Change, Negotiating Text, U.N. Doc. FCCC/AWGLCA/2009/8
(May 19, 2009), available at http://unfccc.int/resource/docs/2009/awglca6/eng/08.pdf) (advocating the distribution of technology through an
international database of green technology and best practices); Cynthia Kennedy, Cairo, Beijing, and the Global Environmental Crisis: The
Continuing International Dialogue on Population Stabilization and Sustainable Development, 8 GEO. INT'L ENVTL. L. REV. 451, 453-54
(1996) (advocating the need for developed nations to "increase investment within developing countries").
n4 See Keith E. Maskus, Intellectual Property Rights and Economic Development, 32 CASE W. RES. J. INT'L L. 471, 478 (2000).
n5 See Johannesburg Declaration on Sustainable Development, P 18, U.N. Doc. A/CONF.199/20 (2002); Rio Declaration on Environment
and Development, P 9, U.N. Doc. A/CONF.151/26 (1992).
n6 Ian Harvey, Intellectual Property Rights: The Catalyst to Deliver Low Carbon Technologies 5 (Climate Group) (2008), available at
http://www.theclimategroup.org/_assets/files/Intellectual-Property-Rights.pdf; see also Foreign Relations Authorization Act, H.R. 2410,
111th Cong. 329(h)(2) (1st Sess. 2009) (defining "intellectual property rights" as "the rights of holders of copyrights, patents, trademarks,
other forms of intellectual property, and trade secrets").
n7 See Maskus, supra note 4, at 473-74.

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n8 See id.
n9 See Mary L. Lyndon, Secrecy and Access in an Innovation Intensive Economy: Reordering Information Privileges in Environmental,
Health, and Safety Law, 78 U. COLO. L. REV. 465, 485 (2007) (pointing out how intellectual property law's "monopoly' award . . .
facilitates licensing, so innovators have a chance to recoup their investments"); see also Maskus, supra note 4, at 474 (discussing advantages
to patents, including the ability to prevent "the unauthorized making, selling, importing, or using of a product or technology that is
recognized in the patent claim and that must demonstrate novelty and industrial utility [for 20 years]. Related devices are utility models, or
petty patents, which provide exclusive rights for a shorter period for incremental inventions, and industrial designs"); 35 U.S.C. 154 (2000)
(setting twenty year term in United States).
n10 See Maskus, supra note 4, at 474.
n11 See id. at 476.
n12 See id. at 474.
n13 See id. ("An overly protective system of IPR[s] could limit the social gains from invention by reducing incentives to disseminate its
fruits. However, an excessively weak system could reduce innovation by failing to provide an adequate return on investment.").
n14 See id. ("Thus, a policy balance needs to be found that is appropriate to market conditions and conducive to growth.").
n15 See infra Part II.A.
n16 See Yusuf Esat, The Influence of Environmental Technology on the Common Law as Green Investment Grows, 2009 U. ILL. J.L. TECH.
& POL'Y 203, 204-05 (2009) (defining green technology as "'any technology that has environmental benefits'" and noting that "[i]n order to
define green technology more clearly, it is useful to differentiate between technologies that happen to be beneficial to the environment and
those technologies that are a result of a concerted effort to reduce society's impact on the environment").
n17 See Paul Gupta & Stephanie Carpenter, IP Aspects of Green Technology and Strategies for Building and Investing in Green Technology
Companies, 1718 PLI/CORP 11, 18 (2009).
Page 14
n18 See 42 U.S.C. 7372(2) (defining "renewable energy resource" as "any energy resource which has recently originated in the sun,
including direct and indirect solar radiation and intermediate solar energy forms such as wind, ocean thermal gradients, ocean currents and
waves, hydropower, photovoltaic energy, products of photosynthetic processes, organic wastes and others") (2006); see also Trevor D. Stiles,
Renewable Resources and the Dormant Commerce Clause, 4 ENVTL. & ENERGY L. & POL'Y J. 33, 39-40 (2009).
n19 See Michael J. Baks, Technology Transfers and Developing Countries, 7 GEO. INT'L ENVTL. L. REV. 901, 901 (1995) (noting that
although definitions of ESTs may vary, all are fueled by "a growing market for goods and services that reduce or prevent damage to the
environment").
n20 See Estelle Derclaye, Intellectual Property Rights and Global Warming, 12 MARQ. INTELL. PROP. L. REV. 263, 281 (2008).
n21 See Esat, supra note 16, at 207-08.
n22 See Michael Hasper, Green Technology in Developing Countries: Creating Accessibility through a Global Exchange Forum, 2009
DUKE L. & TECH. REV. 1, PP 3-4.
n23 For purposes of this Note, these terms are synonymous.
n24 See 42 U.S.C. 7371 (stating the purposes of establishing federal renewable energy incentives); see also Baks, supra note 19, at 901;
Esat, supra note 16, at 204-08; Stiles, supra note 18, at 39-40.
n25 See Jack L. Goldsmith & Eric A. Posner, International Agreements: A Rational Choice 'Approach, 44 VA. J. INT'L L. 113, 114-15
(2003).
n26 Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 1155 U.N.T.S. 331, 339 entered into force Jan. 27, 1980).
n27 Goldsmith & Posner, supra note 25, at 118.
n28 Id. at 122. For purposes of this Note, only the American ratification process will be relevant. See Paul L. Joffe, Conscience and Interest:
Law, Rights, and Politics in the Struggle to Confront Climate Change and the New Poverty, 6 RUTGERS J.L. & PUB. POL'Y 269, 276
(noting that developed nations are in a prominent position and are expected to lead the world in climate control issues).
Page 15
n29 U.S. CONST. art. II 2, cl. 2; see also Goldsmith & Posner, supra note 25, at 122.
n30 See Goldsmith & Posner, supra note 25, at 122.
n31 See WORLD BANK, WORLD DEVELOPMENT REPORT 1992: DEVELOPMENT AND THE ENVIRONMENT 38-40 (Oxford
University Press 1992), available at http://www-
wds.worldbank.org/external/default/WDSContentServer/IW3P/IB/2000/12/13/000178830_9810191106175/Rendered/PDF/multi_page.pdf.
n32 See Joffe, supra note 28, at 269-271.
n33 See Hasper, supra note 22, P 3 (pointing out that "IBM recently declared in Project Big Green that they would spend $ 1 billion
annually to research ways to make computing more environmentally friendly. . . .") (citing Paul McDougall, IBM to Spend $ 1 Billion Per
Year on Green Technologies, INFORMATIONWEEK.COM, May 11, 2007, available at
http://www.informationweek.com/news/showArticle.jhtml?articleID=199501024); Mark A. Lemley, Rational Ignorance at the Patent Office,
95 NW. U. L. REV. 1495, 1498-99 (2001) (predicting the average cost of prosecuting a patent to be $ 20,000 with a total of $ 3.94 billion
dollars paid in patent applications each year, excluding the cost of the R&D).
n34 See Gupta & Carpenter, supra note 17, at 18.
n35 See supra Part I.A.
n36 See Carbon Dioxide Information Analysis Center, Top 20 Emitting Countries by Total Fossil-Fuel CO[2] Emissions for 2006, available
at http://cdiac.ornl.gov/trends/emis/tre_tp20.html (ranking the top five CO[2] emitting countries in order as: China, United States, Russin
Federation, India, and Japan) [hereinafter CO[2] Emissions].
n37 See id.; see also Baks, supra note 19, at 901 (noting "one of the most important contributions that developed countries can make to
LDCs is providing them with access to [green technologies] and sufficient funding to purchase those technologies"); infra Part II.C.

Page 16
n40 See Laba Karki, Review of FDA Law Related to Pharmaceuticals: The Hatch-Waxman Act, Regulatory Amendments and Implications
for Drug Patent Enforcement, 87 J. PAT. & TRADEMARK OFF. SOC'Y 602, 602-03 (2005) ("[P]harmaceutical companies depend upon
these intellectual property protections not only to spur investment in research and development of new drugs, but also to recuperate the cost
of bringing the patented drug into market. . . ."
n42 See Robert Hunt, Patent Reform: A Mixed Blessing for the U.S. Economy?, FED. RES. BANK PHILA. BUS. REV., Nov. 1999, at 15,
available at http://www.phil.frb.org/research-and-data/publications/business-review/1999/november-december/brnd99rh.pdf.
n43 See Lyndon, supra note 9, at 475 (noting that [i]ntellectual property encourages investment in whatever improvements will sell").
n44 Id.
n46 See Daniel C. Esty, Environmental Protection in the Information Age, 79 N.Y.U. L. REV. 115, 193 (2004). ("Pollution control and
resource management costs money.").
n47 See Adam Briggs, China's Pollution Victims: Still Seeking a Dependable Remedy, 18 GEO. INT'L ENVTL. L. REV. 305, 318-19 (2006)
(explaining that many countries recognize China's pollution problems and are negotiating ways to assist the country).
n48 See Reden Rodriguez, The History of Green Roof Technology,

http://www.ifenergy.com/50226711/the_history_of_green_roof_technology.php (last visited June 2, 2010).

Page 17
n50 See Sara Standish, Mainstreaming Climate Change and "Green" Investment Trends, NEXT BILLION, Apr. 12, 2006,
http://www.nextbillion.net/blog/2006/04/12/mainstreaming-climate-change-and-green-investment-trends ("[I]ts [sic] no surprise that a
recent investment survey of investors by the National Venture Capital Association and Deloitte & Touche LLP [revealed that] more than 20%
of global investors planned (within the next 5 years) to focus on the environment/energy sector."); see also Rebecca Buckman, Venture
Capital's New Green Machine, WALL ST. J. ABSTRACTS, Jan. 2, 2008, at R18; James Flanigan, Capital Available for the Right Ideas, N.Y.
TIMES, Apr. 17, 2008, at C5.
n51 See Gupta & Carpenter, note 17, at 18.
n52 See id. (approving 424 patents in 1998 and 725 in 2002).
n53 See id. (showing other areas with an increase in number of patents filed, including "methods of trading emissions and offsetting carbon
footprints as well as for clean, energy-efficient technology"); see also RON PERNICK & CLINT WILDER, THE CLEAN TECH
REVOLUTION: THE NEXT BIG GROWTH AND INVESTMENT OPPORTUNITY 20-23 (2007) (noting biofuels, green buildings,
personal transportation, smart grid, mobile applications, and water filtration as other green technology areas).
n54 See Eric L. Lane, Protecting Green Brands in the Eco-Mark Era, IP LAW360, Jul. 22, 2008, available at
http://greenpatentblog.com/_oneclick_uploads/2008/08/ecomarksarticle.pdf (citing 2008 DECHERT LLP ANNUAL REPORT ON TRENDS
IN TRADEMARKS 2 (2009), available at http://www.greenbiz.com/sites/default/files/document/Trendsin_Trademarks2008_green.pdf)
(receiving 1,100 applications in 2006 and more than 2,400 applications in 2007).
n55 See Hunt, supra note 42, at 24.
n56 Id.
n57 See "Climate for Innovation: Technology and Intellectual Property in Global Climate Solutions:" Hearing Before the House Select
Committee on Energy Independence and Global Warming, 111th Cong. 1 (2009) (statement of Robert T. Nelson, Co-Founder and Managing
Director, ARCH Venture Partners), available at http://globalwarming.house.gov/files/HRG/072909IP/Nelson.pdf [hereinafter Nelson].
n58 See id.
n59 See Standish, supra note 50; see also Hasper, supra note 22, P 3.
Page 18
n60 See Hasper, supra note 22, P 7.
n61 See Esat, supra note 16, at 203 (referring to environmentally-friendly technology as a "fledgling enterprise"); Hasper, supra note 22, PP
3-10 (discussing recent corporate injections of funds for capturing new market areas, lowering operation costs, and the general wave of
interest in green technologies).
n62 See 155 CONG. REC. H6489-90 (daily ed. June 10, 2009) (statement of Rep. Berman) (predicting investments will double within the
next ten years) [hereinafter Berman].
n63 Steven Mufson, Asian Nations Could Outpace U.S. in Developing Clean Energy, WASH. POST, July 16, 2009 (quoting Rep. Hoyer
stating that he "hope[s] that America will be selling clean technology to China and India and not the other way around.").
n64 See John Gallagher, Brent Snavely, & Katherine Yung, Keynote Speaker Praises American Innovation, DETROIT FREE PRESS, June
15, 2009. (quoting Stabenow: "I think there's an explosion [of green technology] waiting to happen. ... Shame on us as a country if we lose
the capability to make it here.").
n65 See Mufson, supra note 63.
n66 Id.
n67 See Berman, supra note 62 (noting that currently the U.N. estimates that the environmental market is $ 1.37 trillion).
n68 155 CONG. REC. H6489 (daily ed. June 10, 2009) (statement of Rep. Blackburn).
n70 Ashok B. Sharma, Can the Environment and Trade Tango?, FIN. EXPRESS, Dec. 10, 2007, available at
http://www.financialexpress.com/news/can-the-environment-and-trade-tango/248580/("Union commerce minister Kamal Nath has opposed
the idea of terming India as an emerging economy. 'We are still a developing country with a large number of poor people,' he said.").
Page 19
n71 See Randall Peerenboom, Assessing Human Rights in China: Why the Double Standard?, 38 CORNELL INT'L L.J. 71, 80 (2005)
(discussing a need for economic stability in developing nations, including China).
n72 See Kevin D. Brown, African-Americans within the Context of International Oppression, 17 TEMP. INT'L & COMP. L.J. 1, 8 (2003)
(describing India as "a country infested with massive destitution and material deprivation").
n73 See Sharma, supra note 70 ("According to one indicator in the OECD report, released recently in Paris, India is the world's third largest
economy behind the US and China.").
n74 Id.
n75 See generally Rohit Sachdev, Comparing the Legal Foundations of Foreign Direct Investment in India and China: Law and the Rule of
Law in the Indian Foreign Direct Investment Context, 2006 COLUM. BUS. L. REV. 167, 186-98 (exploring whether China's legal regime is
more conducive to attracting, maintaining, and increasing foreign direct investment than India's).
n76 Press Release, Cleantech Group, Clean Technology Investment Venture Falls to $ 1 Billion in 1Q09, April 1, 2009, available at
http://cleantech.com.about/pressreleases/040109.cfm [hereinafter Cleantech Group].
n77 Id.
n78 See 12 p.c. Rise in Investment in India's Renewable Energy: UNEP, HINDU, June 7, 2009, available at
http://www.hindu.com/thehindu/holnus/008200906071851.htm [hereinafter Rise in Investment].
n79 See Paula L. Green, Funding a Cleaner World, GLOBAL FIN. 26, Sept. 1, 2009, available at http://www.gfmag.com/archives/104-
september-2009/2355featuresfundingacleanerworld.html.
n80 See Rana Foroohar, Big Oil Goes Green for Real, NEWSWEEK INT'L, Sept. 28, 2009, at 13, available at
http://www.newsweek.com/id/215758.
n81 See Copenhagen Economics & The IPR Company, Are IPR a Barrier to the Transfer of Climate Change Technology? 5 (2009),
available at http://trade.ec.europa.eu/doclib/docs/2009/february/tradoc_142371.pdf [hereinafter Copenhagen Economics].
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n83 See Continue Efforts to Tap Markets Large and Small, BUS. TIMES (Malay.), June 22, 2009.
n84 See Rise in Investment, supra note 78 ("China led financing of new renewable energy projects in Asia with an 18 per cent increase over
2007 to $ 15.6 billion. . . .").
n85 See Sushmi Dey, Green Projects Get VCF Energy, ECON. TIMES (India), June 23, 2009.
n86 Developed Nations Must Spend 1% of GDP for Clean Tech: India, FIN. EXPRESS, Aug. 1, 2009; see also China: Rich Nations Should
Pay to Fight Climate Change, USA TODAY, Oct. 28, 2008, at 1, available at http://www.usatoday.com/news/world/environment/2008-10-
28-china-global_N.htm.
n87 Rise in Investment, supra note 78.
n88 See generally Nadia Natasha Seeratan, The Negative Impact of Intellectual Property Patent Rights on Developing Countries: An
Examination of the Indian Pharmaceutical Industry, 3 SCHOLAR 339, 366-69 (2001) (exploring India's resistance to strong intellectual
property protections in the area of pharmaceutical patents).
n90 See Jeffrey E. Gonzalez-Perez & Douglas A. Klein, The International Reach of the Environmental Impact Statement Requirement of the
National Environmental Policy Act, 62 GEO. WASH. L. REV. 757, 787 (1994).
n91 See "Climate for Innovation: Technology and Intellectual Property in Global Climate Solutions": Hearing Before the House Select
Committee on Energy Independence and Global Warming, 111th Cong. 1 (2009) (statement of Mark T. Esper, Executive Vice President,
Global Intellectual Property Center, U.S. Chamber of Commerce), available at
http://globalwarming.house.gov/files/HRG/0729091P/Esper.pdf [hereinafter Esper].
n92 See CO[2] Emissions, supra note 36.

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n93 See Carin Zissis & Jayshree Bajoria, China's Environmental Crisis, COUNCIL ON FOREIGN RELATIONS, Aug. 4, 2008, available
at http://www.cfr.org/publication/12608/#p2.
n94 Id.; see Robin W. Bates, The Impact of Economic Policy on Energy and the Environment in Developing Countries, 18 ANN. REV.
ENERGY ENV'T 479, 497-98 (1993).
n95 Joffe, supra note 28, at 272.
n96 Id.
n97 See Mary Robinson, Margot Wallstrom, & Gro Harlem Brundtland, A New Climate Deal Based on Human Progress and Justice,
HINDU, Dec. 12, 2008 ("[I]ndustrialised countries must take strong and immediate steps to increase assistance to the least developed
countries for adaptation.").
n98 Jayant A. Sathaye et al., Conference Paper Partnerships for Clean Development and Climate: Business and Technology Cooperation
Benefits 2 (2006), available at http://eetd.lbl.gov/ea/ies/iespubs/61472.pdf.
n99 See id.
n100 See CO[2] Emissions, supra note 36 (joining China and India in this poll are the United States and Japan).
n101 See Magali Rheault, In Top Polluting Nations, Efforts to Live "Green" Vary Americans, Japanese Express Highest Levels of
Environmental Stewardship, GALLUP, Apr. 22, 2008, available at http://www.gallup.com/poll/106648/top-polluting-nations-efforts-live-
green-vary.aspx.
n102 See Esper, supra note 91, at 5.
n103 See N. Ravi, Manmohan Singh Seeks Green Technology Transfer Commitment, HINDU, July 9, 2009,
http://www.thehindu.com/2009/07/09/stories/2009070955211000.htm:
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India expects the industrial nations to come out with a stronger and specific commitment to reducing greenhouse gas
emissions as well as the mechanisms to fund the adoption of green technologies by the developing countries. In addition,
it has sought the loosening of the intellectual property regime to enable developing countries to obtain green technology
without paying high licensing fees.
Id.
n104 See United Nations Conference on Env't and Dev., Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 849 (1994)
[hereinafter UNFCCC]:
[A]ll countries, especially developing countries, need access to resources required to achieve sustainable social and
economic development and that, in order for developing countries to progress towards that goal, their energy consumption
will need to grow taking into account the possibilities for achieving greater energy efficiency and for controlling
greenhouse gas emissions in general, including through the application of new technologies on terms which make such an
application economically and socially beneficial.
Id.
n105 See Hasper, supra note 22, PP 3-5 (discussing a company's interest in providing eco-friendly technology while capturing profits in new
markets); see also Lyndon, supra note 6, at 525 (linking regulation with innovation).
n106 See UNFCCC, supra note 104; see also SUSAN R. FLETCHER 8z LARRY PARKER, CLIMATE CHANGE: THE KYOTO
PROTOCOL, BALI "ACTION PLAN," AND INTERNATIONAL ACTIONS CRS-1 to CRS-2 (2008), available at
http://ncseonline.org/NLE/CRSreports/08Jun/RL33826.pdf.
n107 See UNFCCC, supra note 104.
n108 See Jonathan Remy Nash, Beyond Kyoto: The Treatment of Outliers, 15 U.C. DAVIS J. INT'L L. & POL'Y 31, 32-33 (2008) ("[T]he
treaty simply provided a framework for future agreements. It did not on its own impose or suggest any limits on greenhouse gas
emissions.").
n109 UNFCCC, supra note 104, at art. 3(1).
n110 Id. at art. 3(3).
n111 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, UN Doc. FCCC/CP/1997/Add.1,
reprinted in 37 I.L.M. 22 (1998), http://unfccc.int/resource/docs/convkp/kpeng.html [hereinafter Kyoto Protocol]; see also Natural
Resources Defense Council, Environmental Laws & Treaties, available at http://www.nrdc.org/reference/laws.asp (last visited June 2, 2010)
(listing major "international treaties").
Page 23
n112 See Kyoto Protocol, supra note 111.
n113 See id.; see also United Nations Framework Convention on Climate Change, United Nations Framework Convention on Climate
Change Calendar, http://unfccc.int/meetings/unfccc_calendar/items/2655.php (last visited June 2, 2010) (providing a calendar of previous
meetings and thus showing that the UNFCCC was a "first shot" because this treaty was the first significant step diplomats took towards
controlling environmental issues. Also, it was clear diplomats intended additional negotiations to take place because they erected this
scaffold to direct future international environmental discussions.) [hereinafter UNFCCC Calendar].
n114 See Fletcher & Parker, supra note 106, at 9.
n115 Id. at Summary.
n116 See id.
n117 See United Nations Framework Convention on Climate Change, Home, http://unfccc.int/2860.php (last visited June 2, 2010)
(showing the upcoming meetings and events schedule).
n118 See UNFCCC, supra note 104; Green, supra note 79.
n119 See UNFCCC Calendar, supra note 113; Times Topics: Copenhagen Climate Talks, N.Y. TIMES,
http://topics.nytimes.com/top/reference/timestopics/subjects/u/united_nations_framework_convention_on_climate_change/index.html?
scp=1spot&sq=climate%20copenhagen&st=cse (last visited June 2, 2010).
n120 See Jennifer Haverkamp, Environmental Defense Fund, Statement before House of Representatives Select Committee on Energy
Independence and Global Warming: "Climate for Innovation: Technology and Intellectual Property in Global Climate Solutions" 15 (July 29,
2009), available at http://globalwarming.house.gov/files/HRG/072909IP/Haverkamp.pdf ("Technology transfer's centrality to the
Copenhagen climate negotiations is by virtue of it being one of the four 'pillars' of the Bali Action Plan.").
n121 See UNFCCC, supra note 104; Kyoto Protocol, supra note 111; United Nations Framework Convention on Climate Change, Bali
Action Plan, Mar. 14, 2008, FCCC/CP/2007/6/Add.1* [hereinafter Bali Action Plan].
Page 24
n122 See UNFCCC, supra note 104; Kyoto Protocol, supra note 111; Bali Action Plan, supra note 121.
n123 UNFCCC, supra note 104, at art. 2.
n124 See id.
n125 See Berman, supra note 62.
n126 UNFCCC, supra note 104, at art. 4.1(c).
n127 Id. at art. 4.1(h) (emphasis added).
n128 See id. at art. 4.5. Further language in the UNFCCC includes:
[A requirement to p]romote and cooperate in scientific, technological, technical, socio-economic and other research,
systematic observation and development of data archives related to the climate system and intended to further the
understanding and to reduce or eliminate the remaining uncertainties regarding the causes, effects, magnitude and timing
of climate change and the economic and social consequences of various response strategies.
...
The Parties shall take full account of the specific needs and special situations of the least developed countries in their
actions with regard to funding and transfer of technology.
UNFCCC, supra note 104, arts. 4.1(g), 4.9.
n129 See Lakshman Guruswamy, Judging Treaties, 101 AM. SOC'Y INT'L L. PROC. 175, 175-76 (2007) (declaring that the Kyoto Protocol
is not the success others believed it to be).
n130 See Kyoto Protocol, supra note 111, at art. 10-11. See also Haverkamp, supra note 120 ("The Kyoto Protocol, agreed in 1998, echoes
this commitment.").
n131 See Bush Explains U.S. Positions on Kyoto Protocol, Iraq War, July 1, 2005,
http://www.america.gov/st/washfileenglish/2005/July/200507011349191CJsamohT0.4202474.html.
Page 25
n132 Kyoto Protocol, supra note 111, at art. 3.1.
n133 Byrd-Hagel Resolution, S.R. 98, 105th Cong. (1997); see also, S. Fred Singer, Energy-Rationing By Another Name Still Spells
"Kyoto," INVESTOR'S BUS. DAILY, Oct. 31, 2003.
n134 Keith Schneider, Environmental Fight in Prime Time, N.Y. TIMES, Aug. 4, 1992, at 41.
n135 See Andrew C. Revkin, U.S. Is Taking a Back Seat In Latest Talks on Climate, N.Y. TIMES, Oct. 29, 2001, at A7 ("Mr. Bush and many
senators have said that the Kyoto Protocol would harm the economy and unfairly require only the industrial nations to cut emissions, while
fast-rowing developing countries like China face no such constraints.").
n136 Fletcher & Parker, supra note 106, at CRS-9 ("It has been generally anticipated that next steps after 2012 would include measures to
be taken by both developed and developing countries.").
n137 See Bali Action Plan, supra note 122, at Decision 1/CP.13.
n138 See id.
n139 See id. ("Nationally appropriate mitigation actions by developing country Parties in the context of sustainable development, supported
and enabled by technology....").
n140 Id. at Decision 1/CP.13 1(d)(iv).
n141 UNFCCC, supra note 104, arts. 4.3, 4.7, 4.8, 11.1.
n143 See id.

Page 26
n144 See Byrd-Hagel Resolution, supra note 133.
n145 See Bali Action Plan, supra note 122, at Decision 1/CP.13 1(d)(i).
n146 Id.
n147 See Byrd-Hagel Resolution, supra note 133.
n148 Bali Action Plan, supra note 122, at Decision 3/CP.13 (emphasis omitted).
n149 See id.
n150 See Peggy Rodgers Kalas & Alexia Herwig, Dispute Resolution Under the Kyoto Protocol, 27 ECOLOGY L.Q. 53, 56 (2000)
(predicting that the private sector will play a crucial role in fulfilling treaty objectives).
n152 Id. at Annex I C(12)(b), (e).
n153 See id. at Annex I C(12)(b) ("[A]void trade and intellectual property rights policies...").
n154 155 CONG. REC. H6430-04 (daily ed. June 10, 2009) (statement of Rep. Kirk) [hereinafter Kirk].
Page 27
n155 See Paul Kevin Waterman, From Kyoto to ANWR: Critiquing the Bush Administration's Withdrawal from the Kyoto Protocol to the
Framework Convention on Climate Change, 13 TRANSNAT'L L & CONTEMP. PROBS. 749, 754 (2003) ("The international community
did recognize the need, in general, for treaties aimed at protecting the environment for future generations.").
n156 See Goldsmith & Posner, supra note 25, at 116 (comparing countries in a treaty to players in a "coordination game," where parties
comply to standards because both gain more than they would acting individually).
n157 See Bradnee Chambers, Towards an Improved Understanding of Legal Effectiveness of International Environmental Treaties, 16 GEO.
INT'L ENVTL. L. REV. 501, 503 (2004) ("[T]he effectiveness of a treaty is defined by its ability to establish a factual situation with respect
to its subjects. Conversely, if a treaty were unable to establish the conditions it sets out in its objectives, or if it were not followed by its
parties, the treaty would be considered ineffective.").
n158 See David W. Opderbeck, The Penguin's Paradox: The Political Economy of International Intellectual Property and the Paradox of
Open Intellectual Property Models, 18 STAN. L. & POL'Y REV. 101, 102 (2007) ("The history of the international IPR treaty system
suggests that it has trended towards a strong requirement of minimum IPR standards, largely in response to the concerns of IPR-rich
industries in developed countries.").
n159 See supra notes 133 & 154 and accompanying text.
n160 See H.R. 2410; American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong. (1st Sess. 2009); Department of State,
Foreign Relations, and Related Programs Appropriations Act, H.R. 3081, 111th Cong. (1st Sess. 2009). Congress passed these bills because
there are terms being contemplated for treaties that are unfavorable to both public and private American investors.
n161 See supra Part I.D.
n162 See U.S. CONST. art. II 2, cl. 2; see also Goldsmith & Posner, supra note 25 at 122.
n163 See Esper, supra note 91.
n164 See U.S. CONST. art. I, 8, cl. 8.

Page 28
n166 See Gupta & Carpenter, supra note 17, at 17 ("There is an inherent dichotomy between widely disseminating these green technologies
and protecting the intellectual property rights of the inventors.").
n167 Esper, supra note 91, at 4.
n168 See UNFCCC, supra note 104; Kyoto Protocol, supra note 111.
n169 See UNITED NATIONS, AD HOC WORKING GROUP ON LONG-TERM COOPERATIVE ACTION UNDER THE
CONVENTION 48-49 (2009), available at http://unfccc.int/resource/docs/2009/awglca6/eng/08.pdf (many environmental agreements
reference the UNFCCC which includes compulsory licensing, patent exclusions and other exclusions).
n171 See Nelson, supra note 57.
n173 See Ejan Mackay, Legal Hybrids: Beyond Property and Monopoly?, 94 COLUM. L. REV. 2630, 2638 (1994). ("In a dynamic setting,
ventures are undertaken as a function (among other things) of the rights available to recoup the investment.").
n175 See Nelson, supra note 57; Amanda S. Reid, Enforcement of Intellectual Property Rights in Developing Countries: China as a Case
Study, 13 DEPAUL-LCA J. ART & ENT. L. 63, 67-68 (2003) ("U.S. Customs Service seized more than $ 45 million in counterfeit and pirate
products in 2000, representing more than 3,200 shipments. In 2001, the U.S. Customs Service seizures increased to more than $ 57 million
worth of products, representing nearly 3,600 shipments"); David Lague, U.S. Presses Chinese on Piracy, INT'L HERALD TRIB., NOV. 15,
2006, at 15 (noting "[China's] theft of intellectual property was costing U.S. businesses an estimated $ 2.3 billion a year."); see also Kirk,
supra note 154.
n176 Reid, supra note 175, at 64.

Page 29
n177 Nelson, supra note 57.
n178 See Kirk, supra note 154 ("China and India now put it at the top of their lists for negotiations in Copenhagen to 'relax intellectual
property rights.'").
n179 See Maskus, supra note 4, at 477 (explaining that India and China "despite such pressure, effective patent rights may remain limited
until incomes grow beyond current levels.").
n180 See H.R. 2410; H.R. 2454; H.R. 3081.
n181 See Byrd-Hagel Resolution, supra note 133; see also Fletcher & Parker, supra note 106, at CRS-16 ("This non-binding resolution
expressed the sense of the Senate that it would not support a treaty that did not include obligations for developing countries, or that would
harm the U.S. economy").
n182 Id.
n183 H.R. 2410 329(C)(1).
n184 H.R. 2454.
n185 H.R. 3081.
n186 H.R. 2410.
n187 H.R. 3081.

Page 30
n188 See Gallagher, Snavely & Toung, supra note 64.
n189 Id. (quoting Sen. Stabenow).
n190 See supra notes 162167 and accompanying text.
n191 Elias Leake Quinn, The Solitary Attempt: International Trade Law and the Insulation of Domestic Greenhouse Has Trading Schemes
from Foreign Emissions Credit Markets, 80 U. COLO. L. REV. 201, 202 (2009) (responding to US objections at the Bali Conference, "Papua
New Guinea's Kevin Conrad stood and charged the obstinate giant, 'I would ask the United States, we ask for your leadership. But if for
some reason you're not willing to lead, leave it to the rest of us. Please get out of the way.'"); see also Matthew Heimer, The UN
Environment Programme: Thinking Globally, Retreating Locally, 1 YALE HUM. RTS. & DEV. L.J. 129, 132 (1998) ("China, Nigeria, and
India were among the nations protesting that the real issue at hand was what a Nigerian diplomat called the 'lack [of] will by the rich
countries to help developing nations manage their environment.'").
n193 Id.
n194 See Carl E. Gulbrandsen et al., Patent Reform Should Not Leave Innovation Behind, 8 J. MARSHALL REV. INTELL. PROP. L. 328,
333 (2009) (explaining that United States universities are successful due to strong patents rights in the United States).
n196 See id.
n197 Harvey, supra note 6, at 3 (emphasis added).
n198 Id.
Page 31
n199 See Andrew Noyes, Business Groups Join To Protect 'Green Tech' IP Rights, CONGRESSDAILY, Apr. 20, 2009,
http://www.nextgov.com/nextgov/ng_20090420_5054.php.
n200 BLACK'S LAW DICTIONARY 938 (8th ed. 2004).
n201 See U.S. CONST. art. I, 8, cl. 8 ("[b]y securing for limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries") (emphasis added).
n202 Andrew Noyes, Groups Hail Nomination of IP Coordinator, CONGRESSDAILY, Sept. 29, 2009,
http://www.govexec.com/dailyfed/0909/092809cdpm2.htm.
n203 See Kirk, supra note 154.
n204 United Nations Framework Convention on Climate Change, Ad Hoc Working Group on Long-Term Cooperative Action under the
Convention 48 (May 19, 2009), available at http://unfccc.int/resource/docs/2009/awglca6/eng/08.pdf.
n205 See Kirk, supra note 154.
n206 See Andrew C. Mace, TRIPS, eBay, and Denials of Injunctive Relief: Is Article 31 Compliance Everything?, 10 COLUM. SCI. &
TECH. L. REV. 232, 243-44 (2009) (arguing that compulsory licensing exists in the United States, despite Black's Law Dictionary
language).
n207 See Carlos M. Correa, Public Health and Patent Legislation in Developing Countries, 3 TUL. J. TECH. & INTELL. PROP. 1, 43
(2001) (suggesting that a party receiving a compulsory license fully compensates a patent owner).
n208 See Mark C. Lang, What a Long, Strange "TRIPS" It's Been: Compulsory Licensing from the Adoption of TRIPS to the Agreement on
Implementation of The DOHA Declaration, 3 J. MARSHALL REV. INTELL. PROP. L. 331, 349 (2004) ("[D]eveloping and least developed
countries propose that the patent holder receive no, or at most minimal, remuneration for use of the patent.").
n209 See Noyes, supra note 199.

Page 32
n210 Id.; see also Kirk, supra note 154.
n211 Andrew Whitehead, Innovation Must be Maintained, BIRMINGHAM POST (UK), Sept. 24, 2009, at 42.
n212 See Sangeeta Shashikant, Developing Countries Call for No Patents on Climate-Friendly Technologies, THIRD WORLD
NETWORK, June 11, 2009, http://www.twnside.org.sg/title2/climate/bonn.news.3.htm.
n214 See Kirk, supra note 154 ("By 2030, industries with green-collar jobs could provide up to 40 million American jobs, and they could
generate up to $ 4.5 trillion in annual revenue; but none of that would happen if a climate change treaty specifically allowed compulsory
licensing so that Chinese competitors, for example, or European opposition could simply steal the intellectual property of a key U.S. green-
collar manufacturer."); see also Ravi, supra note 103 (discussing a bilateral meeting between Prime Minister Singh of India and Prime
Minister Brown of the UK).
n215 Cf. Lee Petherbridge, Intelligent TRIPS Implementation: A Strategy for Countries on the Cusp of Development, 25 U. PA. J. INT'L
ECON. L. 1133, 1146 (2004).
n216 Id.
n218 Cf. Petherbridge, supra note 215, at 1133.
n219 Harvey, supra note 6, at 3.
n220 Id.
Page 33
n221 See Esper, supra note 91, at 8.
n222 See id.
n223 See id. at 10.
n224 See id.
n225 See id. at 8.
n226 Sharma, supra note 70.
n227 See G8 Summit, Responsible Leadership for a Sustainable Future 1 (2009), available at
http://www.earthobservations.org/documents/gitn/20090708_g8_declaration.pdf (discussing how to increase adaptation and capacity in
developing nations to increase efficiency of technology transfer).
n228 See Klaus Bosselmann, Plants and Politics: The International Legal Regime Concerning Biotechnology and Biodiversity, 7 COLO. J.
INT'L ENVTL. L. & POL'Y 111, 139 n.123 (1996):
Under compulsory licensing, a patent holder can be forced to license the manufacture, use, or sale of the patented item on
terms that the patent holder finds unacceptable. Although the patent holder does at least receive some compensation,
licensing violates the basic philosophy of patents, which is to exclude competitors from profiting from patented invention.
Id.
n229 See 155 CONG. REC. H6490 (daily ed. June 10, 2009) (statement of Rep. Markey) (stating that, "These two necessities, negotiating
an international treaty to halt global warming and developing the new energy economy for the twenty-first century, are deeply
interconnected.") [hereinafter Markey].
n230 See e.g., Byrd-Hagel Resolution, supra note 133.
n231 See Kyoto Protocol, supra note 111; Fletcher & Parker, supra note 106, at CRS-2.
Page 34
n232 See Fletcher & Parker, supra note 106, at CRS-1.
n233 See id. at CRS-17 ("U.S. actions related to climate change include . . . continuing international activities to cooperate on a bilateral
basis or through other international forums to support voluntary action.").
n234 See generally U.S. CONST. art. I, 8, cl. 8 (giving powers to Congress).
n235 See Fletcher & Parker, supra note 106, at CRS-9 ("Further, it appears unlikely that major developing -- and developed -- countries will
be willing to make legally binding commitments in the absence of such a commitment by the United States."); see also id. at Summary
("agreement on the nature of legally binding commitments, if any, that would prove acceptable to . . . the United States.").
n236 U.S. CONST. art. II, 2, cl. 2.
n237 See Byrd-Hagel Resolution, supra note 133; Kirk, supra note 154.
n238 See Byrd-Hagel Resolution, supra note 133; see also Richard B. Stewart, Environmental Regulation and International
Competitiveness, 102 YALE L.J. 2039, 2045-47 (1993) (explaining that political decisions involving international environmental
considerations are interrelated to economical considerations as well).
n239 See Gupta & Carpenter, supra note 17, at 22; see also Elizabeth Burleson, Energy Policy, Intellectual Property, and Technology
Transfer to Address Climate Change, 18 TRANSNAT'L L. & CONTEMP. PROBS. 69, 82-83 (2009) (considering how multilateral
cooperation can lead to environmentally sound technology transfer to address climate change within an appropriate timeframe).
n241 See id.
n242 Hasper, supra note 22, P 16.

Page 35
n243 See id.
n244 See id. at 19 (suggesting that companies sell latent technology not suitable for highly competitive markets but sufficient for developing
nations acquiring environmentally friendly technology).
n245 See Copenhagen Economics, supra note 81, at 30.
n246 See id. at 31.
n247 See id.
n248 See id.
n249 Remarks by President George W. Bush and Prime Minister Kevin Rudd of Australia in Joint Press Availability (Mar. 28, 2008),
available at http://merln.ndu.edu/archivepdf/EAP/WH/20080328-3.pdf ("We talked about the need to help developing nations improve their
environment. And one way that we can do so is to commit ourselves to tariff-free trade and technologies that promote low carbon energy.").
n250 CHRISTOPHER WENK & STEPHANIE WESTERMAN, THE NEXUS OF CLIMATE CHANGE AND TRADE: DON'T BREAK
THE RULES 5 (U.S. Chamber of Commerce 2009), available at
http://www.aaccla.org/NR/rdonlyres/ewr3y2yqoyv37vgwfag2egygbbcuwspsydxyot4ah57wwqfkzcxmvshnmeczpoxx3umobzuoha54vtx4rzex
ix5voha/ClimageChangeandTrade.pdf:
For example, the Philippines, Nigeria, and Egypt all have [non-tariff barriers, NTBs,] on clean coal technology equivalent
to triple-digit tariffs. India's NTBs on fluorescent lamps are equivalent to a 100% tariff. In 2007, the World Bank released
a report entitled International Trade and Climate Change, which took a closer look at trade barriers affecting green
technologies. The study concluded that by removing tariffs and NTBs, trade in the most climate- friendly goods and
services could increase by an additional 7-14% annually.
Id.

Page 36
n252 See CTF Governance, Climate Investment Funds, http://www.climateinvestmentfunds.org/cif/CTF_Governance (last visited June 2,
2010) (listing the following governing countries: Australia, France, Germany, Japan, Spain, Sweden, United Kingdom, United States. Brazil,
China, Egypt, India, Mexico, Morocco, South Africa, and Turkey).
n253 World Bank, Clean Technology Fund 7 (June 9, 2008),

http://www.climateinvestmentfunds.org/cif/sites/climateinvestmentfunds.org/files/Clean_Technology-
Fund_paper_June_9_final.pdf[hereinafter CTF]; see also Press Release, World Bank Group, Climate Investment Funds: Countries Selected
for Governing Bodies (Oct. 17, 2008), http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:21944136 pagePK:34370
piPK:34424 theSitePK:4607,00.html (announcing that initial project approval is expected for early 2009).
n254 UNFCCC, supra note 104, at art. 3.1.
n255 CTF, supra note 253, P 16.
n256 Id. at Annex B.
n257 Id. P 22.
n258 See id.
n259 Id. P 22.
n260 Markey, supra note 229.
n261 Green Backing: How Can Private Capital be Unlocked for Green Projects in Poor Countries?, ECONOMIST, Sept. 17, 2009,
http://www.economist.com/business_finance/displayStory.cfm?story_id=14460526.
n262 See Burleson, supra note 239, at 86 ("[T]echnology transfer requires a careful balancing act that includes both fair treatment for
innovators and energy policies that stimulate global diffusion of environmentally sound technology to address climate change.").

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Copyright (c) 2009 Southeastern Environmental Law Journal, University of South

Southeastern Environmental Law Journal

18 Southeastern Envtl. L.J. 137

LENGTH: 17503 words

STUDENT NOTE: THREE LETTERS PREVENTING THE SUCCESS OF INTERNATIONAL ENVIRONMENTAL

NAME: BY MICHAEL GREENE *

[*155] C. Language with Mixed Messages

n1 See infra Part I.D.

n2 See infra Part III.

n7 See Maskus, supra note 4, at 473-74.

n10 See Maskus, supra note 4, at 474.

n11 See id. at 476.

n12 See id. at 474.

n15 See infra Part II.A.

n21 See Esat, supra note 16, at 207-08.

n23 For purposes of this Note, these terms are synonymous.

n27 Goldsmith & Posner, supra note 25, at 118.

n30 See Goldsmith & Posner, supra note 25, at 122.

n32 See Joffe, supra note 28, at 269-271.

n34 See Gupta & Carpenter, supra note 17, at 18.

n35 See supra Part I.A.

n38 See supra Part I.A.

n39 See infra Part III.

n41 See infra Part III.

n45 See supra Part I.A.

n48 See Reden Rodriguez, The History of Green Roof Technology,

n49 See Esat, supra note 16, at 204-06.

n51 See Gupta & Carpenter, note 17, at 18.

n55 See Hunt, supra note 42, at 24.

n58 See id.

n60 See Hasper, supra note 22, P 7.

n65 See Mufson, supra note 63.

n69 See Mufson, supra note 63.

n82 See Mufson, supra note 63.

n87 Rise in Investment, supra note 78.

n89 See Mufson, supra note 63.

n92 See CO[2] Emissions, supra note 36.

n95 Joffe, supra note 28, at 272.

n99 See id.

n102 See Esper, supra note 91, at 5.

n107 See UNFCCC, supra note 104.

n109 UNFCCC, supra note 104, at art. 3(1).

n110 Id. at art. 3(3).

n112 See Kyoto Protocol, supra note 111.

n114 See Fletcher & Parker, supra note 106, at 9.

n115 Id. at Summary.

n116 See id.

n123 UNFCCC, supra note 104, at art. 2.

n124 See id.

n125 See Berman, supra note 62.

n126 UNFCCC, supra note 104, at art. 4.1(c).

n127 Id. at art. 4.1(h) (emphasis added).

UNFCCC, supra note 104, arts. 4.1(g), 4.9.

n132 Kyoto Protocol, supra note 111, at art. 3.1.

n138 See id.

n140 Id. at Decision 1/CP.13 1(d)(iv).

n143 See id.

n144 See Byrd-Hagel Resolution, supra note 133.

n147 See Byrd-Hagel Resolution, supra note 133.

n149 See id.

n152 Id. at Annex I C(12)(b), (e).

n161 See supra Part I.D.