Green Performance Standards Are Still Evolving

Green construction offers the opportunity to cut operational costs, reduce greenhouse gas emissions and improve the overall health of building occupants.

Given the challenging economic environment, a frequently asked question is whether green projects are delivering the promised savings. Available data to date are both incomplete and contradictory.

Owners Entitled to Interest on Relocation Benefits in Condemnation Proceedings

The Washington Court of Appeals has decided property owners are entitled to interest on state relocation benefits following a taking of property by eminent domain. The decision, however, was not unanimous, and the dissent argued that the issue should be decided by the legislature rather than the courts.

Protecting Your Lien Rights Requires Attention to Detail

The Washington Court of Appeals has issued a decision that serves as a powerful reminder of the need to adhere strictly to all requirements necessary for perfecting lien rights. In A.W.R. Construction, Inc. d/b/a Comet Roofing v. Washington Department of Labor & Industries, the court ruled that a failure to file a mandatory disclosure report barred a contractor from enforcing its lien.

Washington State’s Proposed Mandatory Greenhouse Gas Reporting Rules Differ from Federal Government’s Rules – Which Will Prevail?

Businesses operating in the state of Washington might be understandably confused as a result of the Washington Department of Ecology’s (“Ecology”) release on October 2 of its draft greenhouse gas emission (“GHG”) reporting rules, which differ in some material ways from the federal Environmental Protection Agency’s (“EPA”) reporting rules released on September 22.

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Governor Gregoire Disseminates Ideas for Reforming How the State Manages Natural Resources and Environmental Protection

Washington Governor Christine Gregoire has issued a set of ideas to reorganize and reform how the State manages natural resources and protects the environment. The document describes the suggestions as a “brainstormed list of ideas” to spark further discussion and critical thinking, and not as a blueprint for future reform efforts. However, the Governor’s Natural Resources Subcabinet, which consists of 16 agency heads and members of the Governor’s staff, put together the list and it provides insight into the state’s thinking on natural resources and environmental regulation.

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IRS Announces Qualifying Advanced Energy Project Tax Credit Program: Preliminary Applications Due September 16, 2009

The Internal Revenue Service yesterday issued Notice 2009-72 (the “Program Guidance”) establishing a program implementing the Qualifying Advanced Energy Project Credit (“QAEP Credit”) under Section 48C of the Internal Revenue Code (the “Code”). The Program Guidance may be found on the IRS website: http://www.irs.gov/pub/irs-drop/n-09-72.pdf.

The QAEP Credit was enacted as part of the American Recovery and Reinvestment Act of 2009 (“ARRA”). It is intended to encourage the development of a domestic manufacturing base to support the U.S. renewable energy industry by providing a tax credit equal to 30 percent of the “qualified investment” in a “qualifying advanced energy project.” The QAEP Credit is subject to a nationwide limitation of $2.3 billion, which must be allocated among eligible projects. ARRA required the Treasury Department to establish by August 17, 2009, a program to consider and award certifications for the QAEP Credit. The program announced yesterday fulfills that mandate and sets a short timeline for credit allocation applications.

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U.S. Treasury Department Issues Guidance for Cash Grants in Lieu of Energy Tax Credits

On July 9, 2009, the U.S. Treasury Department issued guidance for the award of cash grants by the federal government (“Grants”) in lieu of energy tax credits under Section 1603 of the American Recovery and Reinvestment Act of 2009 (“ARRA”). When ARRA was enacted in February 2009, Congress recognized that current economic conditions have reduced investors’ taxable income, and the attractiveness of the production tax credit (“PTC”) and the investment tax credit (“ITC”) as incentives for development of renewable energy projects has diminished. The goal in providing cash grants for a limited period is to spur renewable energy development, even in the absence of taxable income, and to further the goals of job creation and expansion of renewable energy sources.

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Washington Climate Change Executive Order Signed

Governor Christine Gregoire signed an executive order on May 21, 2009, that adopts many of the measures that the Legislature failed to pass in its recent session. Executive Order 09-05, titled “Washington’s Leadership on Climate Change,” directs various state agencies to take actions to continue efforts to address greenhouse gas emissions. The order adds some provisions from the Governor’s climate change bill, while stopping short of actually adopting cap-and-trade. View full article (PDF).

U.S. Supreme Court Narrows Scope of Superfund Liability

The United States Supreme Court has ruled that only persons who take intentional steps to dispose of a hazardous substance qualify for liability as an “arranger” under the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). In an 8-1 decision, the Court in Burlington Northern & Santa Fe Railway Co. v. U.S., adopted a narrow definition of “arranger” and, at the same time, endorsed an allocation method that could reduce the chances a responsible party might be held liable for all cleanup costs at a site. View full article (PDF).

Stimulus for smart grids is welcome, but faces challenges

As money starts flowing from the economic stimulus package passed by Congress and signed by President Obama, there is plenty of good news for supporters of energy conservation and renewable energy, but also some challenges. The American Recovery and Reinvestment Act of 2009 contains several provisions for increased funding, extended tax incentives, or outright grants to encourage renewable energy projects, energy savings and green jobs. One key feature of the bill is $30 billion in funding to upgrade the power transmission system and develop so-called smart grid technology. While funding is certain to help, upgrading an overburdened power grid and implementing smart technology both come with issues that money alone may not solve. View full article (PDF).

This article first appeared in the Puget Sound Business Journal.

Federal Stimulus Money Awarded to Oregon and Washington for Underground Storage Tank Cleanups

The federal Environmental Protection Agency (“EPA”) has announced how it will divide up among the states the $200 million in the stimulus bill allocated for cleaning up leaking underground storage tank sites around the county. EPA is awarding nearly $2.7 million to Oregon and $3.4 million to Washington. View full article (PDF).

Supreme Court Permits Cost-Benefit Analysis to Relax Regulation of Power Plants Under the Clean Water Act

The U.S. Supreme Court has approved the use of cost-benefit analysis to determine which water-intake technologies power plants must employ under the Clean Water Act (“CWA”), 33 U.S.C. Sections 1251-1387 (1977). The decision in Entergy Corp. v. Riverkeeper, Inc., delivered on April 1, 2009, significantly relaxes decades of regulatory practice and reverses a Second Circuit ruling, Riverkeeper, Inc. v. EPA, that precluded the Environmental Protection Agency (“EPA”) from comparing technology costs and environmental benefits in setting acceptable levels of environmental impact for existing power plants. View full article (PDF).

EPA Issues Proposed Greenhouse Gas Reporting Rule

After several months’ delay and a change in administrations, the U.S. Environmental Protection Agency (“EPA”) has issued a proposed rule that would require major emitters to collect data on the amount of their greenhouse gas (“GHG”) emissions starting January 2010 and report starting January 2011. In what is the first significant climate change regulatory step by the new president, the proposed rule would apply to approximately 13,000 large industrial sources around the country that emit more than 25,000 metric tons of GHGs. View full article (PDF).

Federal Stimulus Provides Major Funding for Renewable Energy and Energy Conservation

The economic stimulus package passed by Congress and signed today by President Obama contains good news for supporters of renewable energy and energy conservation. The American Recovery and Reinvestment Act of 2009 provides increased funding, extended tax incentives and outright grants to encourage renewable energy projects, energy savings and green jobs. View full article (PDF).

Climate Change Regulation: What is Ahead For 2009?

Individual states, such as Washington, Oregon and California, with the absense of federal legislation, have already banded together to address greenhouse gas emissions and moved forward with their own efforts. Lane Powell Shareholder Mike Nesteroff discusses how under President-elect Barack Obama’s new administration, there could be dramatic new efforts by the federal government to address climate change. Nesteroff also discusses the impact that the new system could make in the current economic climate. View full article (PDF).

Governor’s ‘green’ agenda will also impact real estate – Proposals include mandating improved energy efficiency

By many accounts, nearly 40 percent of the world’s carbon emissions are a byproduct of the power produced for residential and commercial consumption. In an effort to curtail these carbon emissions, significant efforts are ongoing to create clean sources of power. View full article (PDF).

This article first appeared in the Portland Business Journal.

Washington Supreme Court Gives Green Light to State Approval of Wind Farms Over Local Objections

A unanimous Washington Supreme Court ruling on November 20 should give backers of large-scale wind projects a major boost in their efforts to build wind farms in this state. In Residents Opposed to Kittitas Turbines v. Energy Facility Site Evaluation Council (“ROKT”), the court ruled that the Governor and the state Energy Facility Site Evaluation Council (“EFSEC”) have the power to override local zoning ordinances that might hinder development of wind projects. View full article (PDF).

Financial Bailout Package Contains Tax Incentives for Renewable Energy

Renewable energy projects got a large boost last week when tax breaks for those developments were included in the $700 billion federal bailout package passed by Congress and signed into law by President Bush. While solar and wind projects stand to be the largest beneficiaries, other renewables and energy efficiency measures also are likely to gain from the incentives. View full article (PDF).

Western Climate Initiative Releases Cap-and-Trade Market Recommendations, Now the Hard Work Begins

Seven Western states, including Washington and Oregon, in partnership with four Canadian provinces, all operating under the Western Climate Initiative (“WCI”) have now released their final recommendations for designing a regional cap-and-trade market to reduce greenhouse gas emissions (“GHG”) starting January 1, 2012. The WCI would create the most comprehensive cap-and-trade program anywhere, ultimately regulating 90 percent of the region’s GHG emissions and going well beyond a northeastern U.S. program that applies only to electrical generation and a European Union program, which does not cover transportation, residential or commercial fuel uses. View full article (PDF).

Climate Change Regulation is Coming – Prepare to Reduce Development Impact on Global Warming

As fast as you can say “climate change and greenhouse gas emissions,” local governments are initiating regulations aimed at reducing the impact of development on global warming. Whether or not you agree that climate change is an issue, or one that can be addressed in a meaningful way, the regulatory trend is inevitable and represents a significant change in the traditional way environmental laws and regulations have been adopted. Vire full article (PDF).

This article first appeared in BUILDERnews Magazine.