Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Tuesday, October 18, 2011

An Antitrust Framework for Climate Change

Posted by D. Daniel Sokol

Michael A. Carrier, Rutgers University School of Law - Camden provides An Antitrust Framework for Climate Change. ABSTRACT: Climate change is one of the most important issues of the twenty-first century. With the Earth’s fate literally hanging in the balance, observers increasingly recognize the fragility of the planet’s ecosystem. Rising temperatures, hurricanes, floods, wildfires, droughts, tropical storms, and other events demonstrate the multiple forms in which climate change appears to be presenting itself.

As seen with President Obama’s 2009 stimulus package, carbon capture technologies, the developing “Smart Grid,” and patent pools addressing climate change based on the open source and Creative Commons models, the issues are pressing. But while climate change has received attention from scholars in other fields, including environmental, property, international, and human rights law, no one has yet analyzed how antitrust law should treat collaborative activity that addresses climate change. This Article addresses this gap. It focuses on four of the most likely antitrust topics to arise.

Part I addresses the issue of markets. Given the fledgling technologies at issue, determining the scope of the relevant market is an uncertain task. In many cases, it will not be clear exactly how broad the market is. For an example, this Part discusses the analysis by the Federal Trade Commission (FTC) of Panasonic’s acquisition of Sanyo, which combined the two largest manufacturers of a type of portable rechargeable battery.

Part II discusses the treatment of monopoly issues, such as refusals to license intellectual property (IP) in the United States and European Union. It then applies this law to patents that assist in the removal of carbon dioxide from the atmosphere.

Standards are the focus of Part III. The context in which standards will most likely play a role involves the “Smart Grid,” which uses “a two-way flow of electricity and information” to create a network that promises to reduce blackouts and to integrate renewable energy sources. This Part explores how antitrust law should analyze these issues.

Part IV analyzes patent pools, tracing their benefits in bringing new technologies to the market and allowing the combination of various patented inputs. In particular, this Part examines the Eco-Patent Commons and Green Xchange, two voluntary arrangements by which patent holders can disseminate beneficial environmental technologies.

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