Why the WCI Still Matters

Lane Powell Shareholder David Van’t Hof authored an article in the December 16 Sustainable Business Oregon titled “Why the WCI Still Matters.” In the article, Van’t Hof discusses that although many states have dropped out of the program, the Western Climate Initiative (“WCI”) is still important because it’s building the largest greenhouse gas cap-and-trade program in North [...]

Legal Ramifications of Green Marketing — Marketing Your Green Construction Practices in an Uncertain World

Lane Powell Shareholder Mike Nesteroff authored an article titled “Legal Ramifications of Green Marketing” in the November issue of BUILDERnews magazine. In the article, Nesteroff discusses the increasing use of “green” practices in construction and how companies that overstate the environmental benefits of a project can harm not only their reputation, but possibly their pocketbooks as well. Nesteroff points out the proliferation of green building certifications, such as LEED, Built Green, Green Point Rated and Energy Star, and the benefits to a project, but also the downside when the green claims are overstated or the project fails to live up to the claims.

Solar Energy Trends: The Growth of Solar Systems in the Residential and Commercial Marketplace

Recently, there was much hand wringing in the news over the bankruptcies of three United States solar manufacturers, Solyndra, Evergreen Solar and Spectra watt. What many casual observers don’t realize, however, is that the demise of those companies does not mean that the solar industry is crashing. To the contrary, the solar industry is booming, [...]

Fast-Tracking Nevada Wind Farm Construction

Nevada’s first utility-scale wind farm, the Spring Valley Wind Energy Facility, already on a fast-track approval process through the U.S. Bureau of Land Management (BLM), apparently also has been on a fast track through the courts.

Oregon Legislature Revises Energy Tax Credit Programs

The Oregon Legislature has passed the second of two measures that will substantially revise the way the state provides tax credits for energy projects. The two bills, HB 3672 and HB 2523, divide what was once known as the Business Energy Tax Credit (“BETC”) into several programs with new caps on the size and types of credits available and, for the manufacturing program, a shift in oversight from the Oregon Department of Energy (“ODOE”) to Business Oregon.

Improving Washington’s Business Climate — It Will Require Long-Term Commitment and Hard Choices

The Washington Legislature and its counterparts in many other states have struggled through the painful process of cutting billions of dollars in spending. This “reset,” as it has become known, may not be over. The economy is attempting to recover from the worst recession since the 1930s. One of the unanswered questions is whether one of the outcomes from this reset will be an actual improvement in our state’s business climate.

Who Will be the Northwest’s Next Clean Tech Leaders?

The Pivotal Leaders business network is seeking nominations for its next class of prospective clean technology leaders from the Pacific Northwest. The network aims to grow the Northwest’s clean tech industry by cultivating business leadership. As a member of the inaugural 2010 class, I’ve been part dynamic and diverse group of thinkers and doers in the clean technology space. I encourage you to help identify and encourage tomorrow’s leaders by making nominations for this year’s class.

Oregon Department of Energy Releases Information on New Rounds of Renewable Energy Generation Applications for the BETC Program

The Oregon Department of Energy (“ODOE”) has released information about the 2011 application process for the Business Energy Tax Credit (“BETC”). Under ODOE’s three-tier priority system, $15 million in tax credits is available for renewable projects estimated to cost less than $500,000 (“Tier 1″), $10 million is available for projects costing between $500,000 and $6 million (“Tier 2″), and $10 million is available for projects costing $6 million or more (“Tier 3″). This guidance follows ODOE’s November 23, 2010, release of revised permanent rules for the BETC program. (Click here for links to the new permanent rules and a summary of the changes).

Washington Department of Ecology Updates Rulemaking Suspensions

The Washington Ecology Department (“Ecology”) has released its latest list of rulemaking proceedings that will be suspended in compliance with Gov. Christine Gregoire’s November 17, 2010, executive order directing state agencies to suspend non-critical rulemaking. The list is relatively short, and it appears that many of Ecology’s proposed regulations, particularly those dealing with greenhouse gas emissions, will continue through the rulemaking process notwithstanding the Governor’s suspension order.

Canada’s Clean Energy Sector Likely to See Pluses and Minuses From the U.S. Mid-Term Elections

As the dust is still settling from the November 2 mid-term elections in the United States, Canadian businesses may be picking up mixed signals about the future for developing and selling clean energy to the U.S. While the ascendance of a Republican majority in the U.S. House of Representatives means that no federal legislation regulating greenhouse gases is likely to be passed in the next couple of years, the resounding defeat of a California ballot measure intended to stop implementation of that state’s climate change law sends a signal that regional efforts, particularly the Western Climate Initiative, remain alive and moving forward.

To Green or Not to Green? Market-Driven Approaches Cut Through Regulatory Uncertainty

For companies wanting to know whether, when and how to incorporate regulation of greenhouse gas emissions into their business planning, there seems to be as much uncertainty in the air as anything else. Businesses do not have a clear idea of the form that climate policy may take or what will be required, and it is not even certain whether such laws are inevitable. Proposed federal legislation, some versions of which included a market-based system for trading emissions allowances, has been on and off the table several times already, and its ultimate fate may hinge on the outcome of the November elections.

Legislative Initiatives Encourage Corporate Social Responsibility

In 2009, University of Oregon School of Law Assistant Professor Judd Sneirson predicted that the transition to the green economy will trigger a new race among states to attract corporate charters—not to the bottom or to the top but rather to the left. Now in 2010, legislative initiatives to encourage corporate social responsibility are underway in several states. This article will review three quite different approaches embodied in those initiatives.

Ecology Proposes New Greenhouse Gas Reporting Rules for Washington State Emitters

The Washington Department of Ecology’s (“Ecology”) on-again, off-again greenhouse gas (“GHG”) reporting regulations appear to be back on once again. Ecology has released the latest version of a proposed rule and will be taking public comment through October 14, 2010. Meanwhile, the U.S. Environmental Protection Agency (“EPA”) is moving forward with separate GHG emissions reporting regulations. While the Ecology rules are supposed to emphasize consistency with the EPA, if the proposed state rule is adopted it will affect many more facilities and fuel suppliers than would the EPA regulations.

Oregon Department of Energy Releases Update on Business Energy Tax Credit Program Including List of Projects Holding Preliminary Certificates and a Tiered Priority System for New Preliminary Certificate Applications

On May 12, 2010, the Oregon Department of Energy (“ODOE”) issued a news release that provided an update on how the Business Energy Tax Credit Program (the BETC Program) is proceeding under the new statutory guidance and BETC Program caps created under HB 3680 during the 2010 legislative session.

U.K. Rolls Out Carbon Trading for Businesses — Would the U.S. Adopt It Too?

While the U.S. Congress argues whether or not to adopt climate change legislation that includes cap-and-trade, the United Kingdom has rolled out a new mandatory carbon trading program sweeping in businesses that, up to now, have not been covered by the European Union’s (“EU”) Emissions Trading System.

Washington State Revises Greenhouse Gas Reporting Requirements to Conform with Federal Rules

Washington Governor Christine Gregoire has signed a bill into law that revamps how businesses should report their greenhouse gas (“GHG”) emissions. The bill amends an earlier law that set out an initial framework for GHG reporting. The new law will bring Washington’s GHG reporting requirements more in line with federal rules, but with some important exceptions.

Forming an ECODistrict

The movement behind ECODistricts is gaining momentum. Around the country and, most notably, in the Pacific Northwest, civic leaders, sustainability experts and leadingedge property developers are exploring the concept of ECODistricts. ECODistricts take the most successful elements of sustainable practices in the environmental, social and economic fields, and combine them into a single neighborhood to achieve a new level of sustainability.

New Guidance Issued by Securities and Exchange Commission for Climate Change Disclosures by Public Companies

On February 2, 2010, the Securities and Exchange Commission (“SEC”) published an interpretive release to provide guidance to public companies on the SEC’s existing disclosure requirements relating to climate change. Those requirements apply to registration statements and periodic reports filed under the Securities Act of 1933 and the Securities Exchange Act of 1934.

Multifaceted Incentive Programs Move Oregon to Front of Pack

With all the attention that Oregon’s Business Energy Tax Credit, or BETC, has been getting of late, it might seem as if it’s the only game in town that’s providing incentives for renewable energy and sustainability projects in the state. But BETC is much broader than the points of concern raised by various critics, and there are a number of other non-BETC programs available that continue to make Oregon a leader in providing businesses and residents with significant incentives for sustainability projects.

Oregon is at a Clean-Tech Crossroads

Over the past several years, Oregon has taken a leadership position in renewable energy, energy efficiency and clean-technology development. Largely due to progressive energy policy and strategic incentives, Oregon has become a national focal point for solar energy manufacturing, wind energy production, and most recently, electric vehicle technology and infrastructure.

2010: The Year of Energy Efficiency?

Conserving energy no longer is considered merely a “personal virtue.” The cost of generating a kilowatt of electricity from a new facility typically is five times more expensive than saving a kilowatt of electricity in the existing system. Not surprisingly, then, there is a sharpening focus on reducing energy use, growing jobs and reducing homeowner utility costs.

Grants in Lieu of Tax Credits Under the Recovery Act — A Square Peg in a Round Hole

Many issues are raised by the grant program and the guidance recently issued by Treasury, including the legal effect of the guidance, the resolution of disputes arising under the grant program, unanswered procedural questions under the program, and income tax issues relating to the treatment of grants. These areas of difficulty result from the imperfect fit of the grant program with the existing tax credit rules.

Lane Powell Sustainability and Climate Change

Lane Powell is well-versed in the rapidly evolving legal and regulatory environment that is sustainability and climate change. Indeed, our lawyers also participate in many of the business and government task forces that are shaping those future laws and regulations. In recognition of the scope of the issues, Lane Powell formed its Sustainability and Climate Change team from the many disciplines involved – construction, corporate, environmental, land use, real estate, renewable energy and tax – to provide our clients with up-to-date advice on the state of the law and what may be coming in the near future. View the attached compilation of information authored by our attorneys.

Are Washington State Greenhouse Gas Reporting Rules About to Change?

The Washington Department of Ecology (”Ecology”) is asking for changes to the state law that directs the agency to issue rules for reporting greenhouse gas emissions starting January 1, 2010. Ecology’s goal is, at least in part, to ensure that the State’s greenhouse gas reporting requirements are in line with the federal government’s.

Lawyers Witness Upswing in Sustainable Law Trends

As former advisor to Oregon Governor Ted Kulongoski on sustainability-related public policy, a position I held for the past seven years, I’ve helped the governor push forward some of the nation’s most cutting-edge energy and climate change policies.

As I transition into providing private legal services to clients in the sustainability arena in the Pacific Northwest, I am now helping companies tackle a variety of legal issues arising from increased investment in renewable energy and greenhouse gas (GHG) reduction activities, among other things. Following are some trends I predict many lawyers practicing in the sustainability arena will be faced with in coming years.

View full article (PDF).

This article appeared in the October 2009 issue of Sustainable Industries magazine.

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.

View full article (PDF).

ECODistricts Take Shape

The newest planning tool being talked about in the world of sustainability is the ECODistrict. It’s a unique Green building concept that takes the most successful elements of sustainable practices in the environmental, social and economic fields and combines them into a single neighborhood to achieve a new level of sustainability. View full article (PDF).

This article appeared in BUILDERnews magazine.

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).

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.

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).

LEEDing the Way in a New Year — The Highly Successful ‘LEED’ Green-Building Rating System is Being Refined to Take into Account New Criteria to Better Measure a Building’s Carbon Footprint

Early this year, a significant milestone in the green-building movement will occur as the U.S. Green Building Council goes live with “LEED 2009,” a significant update of its renowned building rating system. View full article (PDF).

This article first appeared in Seattle Business magazine.

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).

Green Leasing: Implementing Sustainability Concepts in Commercial Leases

Everyone wants to own or occupy a green building. Unfortunately, traditional full service and net leases are seriously deficient in fostering sustainability practices. Current commercial leasing practices and documents can have numerous undesirable consequences when used in a green project. Traditional full service and net leases result in inappropriate allocation of the costs and benefits of going green, are deficient in describing the ongoing responsibilities of landlord and tenant in maintaining green certifications and fail to create a relationship between landlord and tenant that will foster compliance with sustainability goals. Green leasing demands new approaches to meet the needs of both landlord and tenant. View full article (PDF).

This article first appeared in the February 2009 Portland State University Center for Real Estate Quarterly & Urban Development Journal.

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).

Law that allows incorporating sustainability into charters allows protection, visibility

In 2007, the Oregon Legislature adopted House Bill 2826, which allows Oregon corporations to include a provision in their Articles of Incorporation “authorizing or directing the corporation to conduct the business of the corporation in a manner that is environmentally and socially responsible.” ORS Chapter 60.047(2)(e) became effective on Jan. 1, 2008. View full article (PDF).

State and Local Regulation of Climate Change is Taking Shape

State and local governments around the country have taken leading roles in responding to the challenge of climate change. Although the presumptive presidential nominees have pledged greater federal participation starting next year, efforts in Olympia and in cities and counties across the state are well underway. 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.

States Step Up to Address Global Warming and Climate Change

Hardly a day goes by that a news program on television or a newspaper or periodical does not mention climate change and global warming. Climate change may appear to be a flavor-of-the-moment issue in the popular press, but for the last several years, state and local governments have viewed climate change as a serious problem that needs prompt attention. Today, some 30 states have either developed, or are in the process of developing, a wide range of strategies to respond to climate change, and are using those strategies to draft legislation and regulations affecting diverse sectors such as electricity generation, transportation, land use and construction. The real estate industry in particular is likely to see many impacts.

View full article (PDF).

This article first appeared in The Real Estate Finance Journal.

The Oregon Business Energy Tax Credit

The Oregon Business Energy Tax Credit (“BETC”) is a nonrefundable credit against Oregon personal and corporate income taxes based on the “certified cost” of certain investments in energy conservation, recycling, renewable energy resources, or reduced use of polluting transportation fuels. Originally enacted in 1979, the BETC was significantly expanded in 2007, and expanded again in 2008, as part of an effort to encourage alternative energy development. The BETC is available only for investments in facilities that are completed by the end of 2015. View full article (PDF).

Climate Change: A Rising Tide in Real Estate and Environmental Litigation

Climate change is an issue that impacts virtually every sector of our economy, and consequently, is likely to affect nearly every area of law. While concerns about climate change have spawned some lawsuits, climate change litigation is still in its infancy. View full article (PDF).

This article first appeared in the Summer 2008 newsletter of the Business Litigation Committee of the Tort Trial & Insurance Practice Section of the American Bar Association.

Species Listing is a Bigger Boon For Lawyers Than Polar Bears

The U.S. Fish and Wildlife Service’s long-awaited Endangered Species Act (ESA) listing of the polar bear as a threatened species is sure to please almost no one. The decision, while lengthy and detailed, stops well short of recommending any different actions to protect the polar bear, although the very listing itself may give rise to legal challenges by proponents of greater protection and opponents of any listing. The greatest impact of the listing, however, may be that federal agencies no longer will consider climate change impacts unless a direct link can be drawn from a specific facility’s emissions to a listed species or its habitat. View full article (PDF).

Polar Bears Listed as Threatened Species, but Fish and Wildlife Takes Climate Change Out of Most Endangered Species Act Determinations

In a much-anticipated decision guaranteed to please almost no one, the federal Fish and Wildlife Service (“Service”) has listed polar bears as a “threatened” species under the Endangered Species Act (“ESA”). Acting one day before a court-ordered deadline, the agency issued a 368-page determination that polar bear habitat, primarily sea ice, is declining throughout the bears’ range due in large part to changes in climate. The ruling, however, together with an accompanying guidance, places limitations on when the Service will consider climate change in evaluating agency actions that might affect not just polar bears but any listed species. This move could undermine court decisions that have ordered the Service to include climate change analysis in its ESA consultations. View full article (PDF).

Climate Change and Greenhouse Gas Emissions Analysis to be Incorporated into Washington State Environmental Reviews

The Washington Department of Ecology (“Ecology”) is taking steps to clarify how state and local jurisdictions should incorporate climate change and greenhouse gas emissions into the environmental reviews they are required to do under the State Environmental Policy Act (“SEPA”). Over the next several months, Ecology will convene a working group that includes business representatives to recommend changes to SEPA and provide guidance to government agencies. View full article (PDF).

Washington Legislature Adopts Broad Climate Change Measure

One of Washington Governor Christine Gregoire’s must-have climate change bills is headed for her signature following passage on March 5 of HB 2815 by the state Senate. Passage came after a vigorous 90-minute debate that turned back several efforts to amend the bill. The measure sets out a number of steps that are intended to begin addressing reductions in the emissions of greenhouse gases (“GHG”) in Washington. The legislation follows Gov. Gregoire’s executive order and legislation adopted last year mandating reductions in the state’s GHG emissions to 1990 levels by 2020, to 25 percent of 1990 levels by 2035 and 50 percent of 1990 levels by 2050. View full article (PDF).

Washington Legislature Passes Tailpipe Emission Disclosure Bill

The first of a series of measures intended to address climate change in Washington passed the legislature and will be sent to Governor Christine Gregoire for signature. The bill, SB 6309, would require all new passenger cars, light duty trucks and medium duty passenger vehicles sold in Washington to have a label disclosing comparative greenhouse emissions. The labeling requirement would take effect beginning with the model year 2010 vehicles. ehView full article (PDF).

Washington’s Draft Climate Change/Greenhouse Gas Reduction Recommendations Have Short Window for Public Comment

Washington’s Climate Advisory Team (“CAT”) has released its 88-page draft report of recommendations to address climate change and reduction of greenhouse gases, together with a longer report discussing recommendations for preparing and adapting to climate change. Although the draft reports were issued on December 21, 2007, the CAT is soliciting public comment only until January 10, 2008, after which the drafts will be finalized and submitted to the Governor Christine Gregoire by the February 7, 2008, deadline set in last year’s executive order. View full article (PDF).