Sustainability Law Blog

Governor Kulongoski recently revealed his new comprehensive water strategy initiative, Headwaters to Ocean (H2O). The initiative's primary goal is to "achieve sustainable water supplies and quality to benefit Oregon's people, communities, economy, environment and ecosystems, and fish and wildlife" in the face of the pressures of climate change and rapid population growth. The H2O initiative is part of the Governor's legislative package designed to mitigate the impacts of global warming. To fund this initiative, Governor Kulongoski intends to ask the 2009 Legislature to put a referral bill before voters requesting $100 million from projected lottery dollars per biennium for 10 years. This bill, if passed, would then be placed on the November 2010 ballot. If approved, the H2O initiative would join a new class of climate change-based initiatives funded by lottery dollars.

The use of lottery money to fund climate change-based initiatives seems to be an emerging international concept. For example, the Climate Group, an independent, not-for-profit organization that works internationally with government and business leaders to advance climate change solutions, recently secured €1.5 million (approximately $2.36 million) from the Dutch National Postcode Lottery. The monies will be used to fund a global hub for climate change leadership involving influential state and regional governments around the world, including California and New York. Similarly, an injection of ₤1.25 million (approximately $2.47 million) in lottery funds from the UK's national lottery will help to fund a project aimed at making a small Scottish town, Stirling, the UK's first carbon neutral city.

Given the fact that Oregon is considered a forerunner in sustainability in the United States. Oregon's use of innovative funding to address climate change seems befitting its status as a "green state."

Posted by Jeanette C. Schuster, Attorney practicing in the Sustainability and Real Estate and Land Use Practice Groups.

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Posted In: Climate Change , Sustainable Practices

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Oregon Governor Ted Kulongoski recently outlined his policy proposals for boosting energy efficiency (Click here for a summary of the Governor's remarks). His proposals include net-zero greenhouse gas emissions by 2030 for all new residential and commercial buildings, energy performance certificates on all homes sold in Oregon, a new public awareness campaign, and expansion of the Oregon Business Energy Tax credit (BETC) and the State Energy Efficient Design program (SEED) .

The net-zero energy emissions goal is likely the most important of the Governor’s proposals because buildings are big energy consumers and have a big impact on the environment. The National Renewable Energy Laboratory (NREL) reports that commercial and residential buildings use almost 40% of the primary energy and roughly 70% of the electricity in the U.S. Energy demand is also on the rise, with commercial sector demand doubling in size between 1980 and 2000 and expected to grow another 50% by 2025.

In contrast, net-zero energy buildings produce the majority of their own energy needs over the course of a year. Designed to be exceptionally energy efficient, these buildings are powered by renewable energy sources such as solar panels or wind turbines located on site. Ultimately, net-zero energy buildings could result in less energy consumption despite an expected boom in demand.

Nevertheless, the Governor’s plan will encounter challenges beyond his worries of how to finance the policies. To begin with, there is no single definition of net-zero energy efficient building.

Another concern is that a net-zero energy buildings are not necessarily green or sustainable structures. Builders are not required to use green building methods, such as reducing waste or using recycled building materials, to earn a net-zero structure certification.

All this goes to show that gaining energy efficiency isn't easy. Oregon will have many choices to make, on energy efficiency and other green options, as it marches into a sustainable future.

Posted by Marc Sanchez, Summer Associate at Tonkon Torp LLP.

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Posted In: Renewable Energy , Sustainable Business , Sustainable Practices

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Erin Flynn, Economic Development Director of the Portland Development Commission, made that comment at the recent Portland Leadership Summit’s breakout session on Economic Development and Prosperity.

Ms. Flynn said that Portland economic development faces two challenges: the need for new development tools, and institutional fragmentation. She noted that while the city has good tools for development, they are place-based and real estate-dependent. She argued for creating complementary economic development tools that will encourage entrepreneurship and micro business development. She also suggested making manufacturing more visible and cautioned that as we develop the city, we not displace profitable businesses from their current locations.

Ms. Flynn also believes that accountability for economic development is spread too thin over many city agencies. Good ideas can languish or get lost in translation when one agency is responsible for developing an idea but another agency is responsible for implementing it. Ms. Flynn suggested that the city must systematically coordinate economic development resources and activities across bureaus in order to improve delivery and impact as well as identify remaining gaps.

For someone who's been arguing that the city spends too much time boasting about sustainable development and not concentrating enough on developing a sustainable economy - of which sustainable development is a vital component (see blog post November 27, 2007) - I welcome Ms. Flynn’s point of view.

Posted by David Copley Forman | Permalink | Email This Post

Posted In: Sustainable Business

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Two bills are under consideration by the Washington state legislature to achieve aggressive emission reduction targets set in 2007. The first, HB 2815, would convert the goals passed in 2007 to concrete targets, then direct the statewide Department of Ecology to design a cap-and-trade system, a monitoring and reporting system, and a comprehensive emissions inventory for point-source emitters. These efforts would be coordinated with the Western Climate Initiative, of which Washington is a member. The program should be designed for implementation by 2012.

While HB 2815 appears to have broad support, another bill, HB 2797, is more controversial. This bill would focus on land use and transportation planning as a method for reducing emissions, rather than targeting point-source emissions as HB 2815 does. Specifically, HB 2797 would add a climate change goal to the state's Growth Management Act, require cities and counties to adapt their comprehensive plans and zoning ordinances to further that goal, and take other actions that require consideration of climate change issues by local governments when making land use decisions.

It is too early to tell how either bill will emerge, if at all, from the legislature for the Governor's signature. However, given the large role that transportation and land development play in greenhouse gas emissions, it seems likely that a point-source emissions law will not be enough to meet Washington's aggressive targets. Thus, some variation of HB 2797 will eventually be needed, even if it does not become law in 2008.

Posted by David J. Petersen, partner practicing in the Sustainability and Real Estate & Land Use Practice Groups.

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The recent listing of polar bears as a threatened species under the Endangered Species Act (ESA) has sparked controversy about whether or not greenhouse gas emissions can be regulated under the ESA.

The Bush administration is adamant that they cannot. Alaskan Governor Sarah Palin, whose state produces 15% of the nation's oil, couldn't agree more. On May 21, Governor Palin announced that the state of Alaska intends to sue to challenge the polar bears' listing. The Governor's overriding concern is not for the bears, she thinks they're doing just fine, but is for the oil and gas industry whose operations take place in prime polar bear habitat.

Specifically, the state intends to sue under the Administrative Procedure Act and the ESA based on the argument that the models that predict continued loss of sea ice, the main habitat of polar bears, are wrong. Considering that Alaska touts itself as "the premier destination for adventure and ecotourists seeking a personal connection with nature, wilderness and the local people," the Governor's position seems to be selling the state of Alaska short.

(To see satellite images of the decline in sea ice since 1979, click here).

Posted by Jeanette C. Schuster, attorney practicing in the Real Estate and Land Use Group.

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Forced by court order, the U.S. Department of the Interior (DOI) Secretary Kempthorne capitulated on May 14 and listed the polar bear as a threatened species under the Endangered Species Act (ESA). While acknowledging that the best science available predicts a continued steady decline in sea ice and that the threat to polar bears comes from global climate change and its effect on sea ice, the DOI took several steps to bar any action designed to reduce greenhouse gas emissions as a result of the listing. Sepcifically, Secretary Kempthorne announced plans to propose amendments to the ESA, which he characterized as one of "the most inflexible laws Congress has passed," and he ordered the Fish and Wildlife Service to issue guidance to its staff declaring that the best scientific data available today cannot make a causal connection between harm to polar bears and greenhouse gas emissions from a specific facility, or resource development project, or government action.

In addition, the DOI directed the U.S. Fish and Wildlife Service to issue a rule that would allow activities that are permissible under the Marine Mammal Protection Act (MMPA) to also be permissible under the ESA. Most controversially, the MMPA permits oil and gas drilling and exploration. Consequently, the DOI's recent listing and related directives could have inapposite results under the ESA—on the one hand, the DOI's actions would allow fossil fuel production in prime polar bear habitat, while on the other hand, they could potentially force the agency to protect the bears against the products of fossil fuel combustion, greenhouse gases.

You can read the full remarks by Secretary Kempthorne from the press conference on the polar bear listing May 14, 2008 here.

Posted by Jeanette C. Schuster, attorney practicing in the Real Estate & Land Use Practice Group.

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Did you ever wonder what's buried in a cemetery – besides dead bodies? According to Michael d' Estries in a March 25 post in Green Living, "The average cemetery buries 1,000 gallons of embalming fluid, 97.5 tons of steel, 2,028 tons of concrete, and 56,250 board feet of high quality wood in just one acre of green." I don't know what's scarier, dead bodies or 1,000 gallons of embalming fluid. Ashes to ashes, dust to dust – apparently not.

Don't want to spend eternity polluting the Earth? Now you can "go green" even when you're no longer going. Just have a ‘natural burial.’ “It is composting at its best,” said Cynthia Beal, owner of Portland's The Natural Burial Company, in "Green Funerals Feature Biodegradable Coffins," a December 27, 2007 CNN.com/technology post. The Natural Burial Company sells the Ecopod, a kayak shaped coffin made from recycled newspapers. Cynthia's book, "Be a Tree," will be available soon.

Natural burials have been popular in Britain for years. Now many burial companies in the United States are offering a natural alternative. Memorial Ecosystems Inc. opened the first green cemetery in the U.S., The Ramsey Preserve in South Carolina, and green cemeteries are sprouting up all over the country.

The Green Burial Council says it has been working since 2005 “to make burial sustainable for the planet, meaningful for families, and economically viable for the provider." According to its website, greenburialcouncil.org, they're doing it by:

• developing a certification program that is bringing about a new ethic in death care rooted in transparency, accountability and ecological responsibility;

• building out an international network of "approved providers" committed to reducing toxins, waste and carbon emissions associated with conventional end of life rituals; and

• bringing conservation organizations together with cemetery operators, funeral establishments and cremation companies to create burial programs that facilitate the restoration, acquisition and stewardship of natural areas.

Cynthia wants to be a cherry tree, but she and others in the green burial movement are fertilizing the seeds of something grander.

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Lately, the ire of many commentators has been focused on the biofuels industry. Their claim is that increased demand for corn and other feedstocks to make biofuels has caused a worldwide shortage, sending commodity prices through the roof. These efforts have led to calls by some policymakers to reconsider the nation's support for biofuels.

However, the facts show that the effect of biofuel manufacturing on food prices is negligible. According to an editorial in the Portland Tribune on April 22, domestic corn growers (noting the demand from ethanol manufacturers) increased corn output by 24% in 2007, well more than all the corn used in ethanol that year. US corn exports reached an all-time high in 2007, notwithstanding the diversion of some corn to domestic ethanol. If there is a world corn shortage, it does not arise in the United States.

Moreover, the contribution of corn to many staple groceries is minimal in terms of cost. For example, a standard box of cornflakes includes about 5 cents worth of corn and a can of soda less than 2 cents worth of corn sweetener, even at today's corn prices. It is true that the cost of raising livestock has gone up due to corn price increases, but blaming ethanol for higher meat prices ignores the calls that have been made for years, and which have fallen mostly on deaf ears, for the livestock industry to modernize and diversify its feed supply.

Continue reading "Ethanol's Impact On Food Prices Is Grossly Overstated" »

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The ethanol strategy is intended to displace some of the U.S.'s use of foreign oil, right? Does it strike anyone as odd that we are spending trillions of defense dollars in the Middle East, prompted to some degree by a perceived need to stabilize U.S. access to petroleum resources, while we debate relative minutia related to the possible global effects of our ethanol production? We appear to be taking it as an inescapable given that U.S. petroleum policy will have massive consequences throughout the world, but we scrutinize any competitive product for each and every tenuous connection to adverse impacts on the international economy.

Posted by Max M. Miller, Jr. | Permalink | Email This Post

Posted In: Renewable Energy

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The EPA notified Congress on March 27 that it will request public comment this spring on regulation of greenhouse gases under the federal Clean Air Act. Taking public comment is the first step toward formal regulatory action, which EPA is pursuing to comply with the Supreme Court's 2007 decision in Massachusetts v. EPA. In that case, the Court ruled that greenhouse gas emissions are "air pollutants" within the scope of the EPA's regulatory power under the Clean Air Act.

Congressional Democrats, some states and some environmental groups decried the public comment period as a stall tactic to what they view as an inevitable finding that greenhouse gas emissions endanger public health, a necessary precursor to regulation under the Act. The EPA responded that proceeding without public input would be irresponsible. Whatever your view on EPA's tactics, watch for a formal call for public comment later this year and be sure to participate.

Posted by David J. Petersen, partner practicing in the Sustainability and Real Estate & Land Use Practice Groups.

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Federal energy law requires payment to public utilities of 1.5 cents per kilowatt-hour (adjusted for inflation) for renewable energy generation developed by those utilities. This "Renewable Energy Production Incentive" (REPI) was initially enacted in 1992 as the public counterpart to the private production tax credit (PTC). However, inconsistent payment from the feds has discouraged many public utilities from pursuing renewable projects on their own because they can't compete financially with private developers who benefit from the PTC. Also, the Bush Administration has reduced the REPI appropriation to zero in FY 2009.

Most recently, Energy Northwest put its 50 MW Reardan Twin Buttes Wind Project west of Spokane, WA up for sale, citing inconsistent REPI payments. The Washington legislature is considering taking up the slack, but any bill will be a stopgap solution and will of course only apply in Washington. With a change in administrations in Washington, D.C., hopefully we will see a renewed commitment to renewable energy development on a national scale, not only by fully funding the REPI but also by providing a long-term extension of the PTC. The need is great enough and the opportunities are broad enough that all who seek to develop renewable power, public or private, should be encouraged to do so.

Posted by David J. Petersen, partner practicing in the Sustainability and Real Estate & Land Use Practice Groups.

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Three major U.S. banks -- Citigroup, JP Morgan-Chase, and Morgan Stanley – recently established new guidelines for assessing climate change risk when asked to fund power plant-related projects. The banks' "Carbon Principles" recognize the economic value of low carbon emissions and encourage clients to lower those emissions by investing in renewable energy and implementing low-emissions technologies. Also, potential borrowers will need to demonstrate their commitment to cleaner technologies and to evaluate more carbon-friendly alternatives when seeking financing for power plant projects. The principles were devised with input from both energy companies and environmental groups, and all involved seem satisfied with the outcome.

The principles are further evidence that the marketplace increasingly sees eventual regulation of carbon emissions as inevitable. Recognizing that their clients will eventually have to incorporate carbon emissions costs into their business models, the banks wisely have developed these guidelines to minimize the risks of investing in carbon-intensive projects. Nothing drives corporate behavior quite like the need to please those with the money, so these guidelines have a good chance of having a significant effect on the development of more carbon-friendly power plants.

Posted by David J. Petersen, partner practicing in the Sustainability and Real Estate & Land Use Practice Groups.

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