Sustainability Law Blog

Oregon is one of a dozen states that require electronic waste (e-waste) recycling, thanks to passage of HB2626 by the 2007 Oregon legislature. This is important legislation because e-waste has high concentrations of hazardous substances such as lead and mercury that should be kept out of landfills. Sharing Oregon's concern about this problem are the states of Arkansas, California, Connecticut, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, Rhode Island, Texas and Washington -- all of whom have mandatory e-waste recycling programs.

Unfortunately, state programs lack any uniformity in design or implementation. In Oregon, the cost of e-waste collection and recycling is financed by the manufacturers of certain electronic devices (mostly computers, monitors and TVs). They are required to pay an annual Oregon Department of Environmental Quality registration fee and must either manage their own statewide collection and e-recycling program or pay an additional fee to participate in the state's program. The fee is based on the amount of e-waste generated by the manufacturer's products sold or for sale in Oregon. There is no direct cost to consumers in te Oregon model.

Maine, Maryland and Texas have models similar to Oregon's, but each differs in important but sometimes subtle ways. California has an entirely different model. It passes the cost of its program directly to consumers by charging an e-waste recycling fee at the time a product is purchased.

While it is commendable that states have begun addressing the environmental impact of e-waste, this patchwork of state laws makes it difficult for electronic device manufacturers to manage compliance effectively. Wouldn't it make more sense in the long run to enact federal legislation so that a uniform standard exists nationwide? This would help companies to comply with the laws and keep hazardous e-waste out of our landfills.

Posted by Kimberlee A. Stafford, attorney practicing in the Sustainability and Real Estate & Land Use Practice Groups.

Posted by Tonkon Torp LLP | Permalink | Email This Post

Posted In: Legislation

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What do you think would happen if a local Nordstrom store decided not to accept return merchandise from customers, or if a local Starbucks decided not to honor the company’s diversity policy? Do you think the folks at headquarters would demur, and say that local activism is a source of the company’s strength, or that the company did not like to take a Stalinist approach in dealing with local issues? No. Yet, the Sierra Club and the Audubon Society are both spending lots of their donors’ money lobbying congress to require utilities to use more renewable energy while their local affiliates simultaneously oppose wind and solar projects because wind turbines threaten birds or transmission lines run through deserts. When asked to explain these apparently contradictory efforts, representatives use the “local activism” or “Stalinist” excuses. See "Green Projects Generate Splits in Activist Groups," WSJ December 13, 2007 p. B1.

I don’t think asking for a bit of consistency is Stalinist. Perhaps Audubon and The Sierra Club (both organizations I have contributed to in the past) should employ something like the Natural Step Framework to evaluate energy projects before they allow their local chapters to take a stand. Then they could defend what may appear to be inconsistent positions rationally, rather than claiming that requiring local affiliates to act consistently would be Stalinist.

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

Posted In: Renewable Energy

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The mainstream attention to green business practices may be a new phenomenon, but the reason for it is as old as time – increased evidence that green business practices mean a net benefit to the bottom line. That evidence can come from surprising places. The Portland Office of Sustainable Development (OSD) has relocated their offices from the Portland Building, often criticized as dark and moldy, to the LEED gold-certified Jean Vollum Natural Capital Center (also known as the Ecotrust Building). Since the move, sick days among OSD employees have dropped 30%.

This anecdotal evidence of an unexpected economic benefit of green building is worth a more systematic study. If the OSD's results hold true, companies located in healthy buildings will see increased productivity and, eventually, lower health insurance costs as insurance companies begin to take notice. Also, to the extent those healthy buildings are also energy efficient, that means less money sent out of the region for energy costs and instead available to boost the local economy, all to the benefit of those same local businesses.

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

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Posted In: Green Building

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When new Australian prime minister Kevin Rudd signed documents to ratify the Kyoto Protocol, the United States became the last developed nation in the world not to have ratified the 2002 treaty which sets binding limits on carbon emissions blamed for global warming. Rudd estimates that Australia immediately will exceed its Kyoto emission reduction requirements by one percent. His country has set an ambitious long-term target of cutting carbon emissions by 60 percent of 2000 levels by 2050.

Although the Bush administration does not appear ready to ratify Kyoto anytime soon, the overall attitude in Washington appears to be thawing with respect to global warming (pun intended). There is growing political acceptance of global warming as a real problem, and now the U.S. is completely isolated among developed countries who acknowledge the need for rigorous efforts to combat climate change. Perhaps this will spur a more cooperative U.S. attitude when Kyoto expires in 2012 and negotiations begin for a new protocol.

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

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The Energy Trust of Oregon recently introduced a new program to encourage greater development of wind energy. The Small Wind Program provides cash incentives of up to $35,000 for residential customers and $60,000 for commercial customers who install personal wind turbines of up to 50 kilowatts (KW). When combined with the available state tax credit, this program enables Oregonians to offset up to 50 percent of the cost of a turbine. To participate in the Small Wind incentive program, an applicant must be a customer of Portland General Electric or Pacific Power and own at least one acre with no obstructions where annual wind speeds average least 10 miles per hour. Turbine towers must be at least 60 feet high.

We hope this program will make self-generated renewable power financially feasible for more rural Oregonians. It also may help PGE and Pacific Power get closer to acheiving the new Oregon Renewable Portfolio Standard mandates and increase the market for Northwest small wind developers, contractors and manufacturers such as Portland-based Oregon Wind Corp. The program is one more example of how Oregon is on the leading edge of renewable power incentives in the U.S.

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

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Posted In: Renewable Energy

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An article in today’s Portland Business Journal suggests that Measure 49 is confusing, based on uncertainty as to what level of existing development is necessary to exempt current Measure 37 claimants from the effects of Measure 49. In fact, compared to its confusing older sibling, Oregon’s new Measure 49 is a model of clarity.

Measure 49 clarifies most (but not all) of the perplexing questions and uncertainties that troubled claimants, planners and lawyers alike under Measure 37. For example, Measure 49 establishes clear limits on the number of new homes that can be built pursuant to Measure 37 claims. It eliminates the ability to use Measure 37 claims for commercial and industrial development. And it establishes both streamlined claims procedures for owners wanting to build a few houses, and more detailed procedures for those with larger developments in mind. Measure 49 also clarifies that Measure 37 waivers can benefit subsequent owners of the property, resolves the rights of surviving spouses of deceased claimants, gives greater protection to high quality farm and forest land and groundwater-restricted areas, and establishes precise rules for bringing new claims in the future.

The primary question left unanswered by Measure 49 is not the vested rights of current claimants. The legal concept of vested rights long predates Measure 37 and there is ample law for planners, claimants and courts to determine when a landowner has sufficient vested rights to be exempt from Measure 49.

The biggest unresolved issue we see is the ability of landowners to make a Measure 37 claim for property that the owner has conveyed into a corporate entity, such as a family corporation or a limited liability company. Many landowners have conveyed property into LLC’s for estate planning purposes, and under Measure 37 some governments treated that as a change in ownership. They denied those Measure 37 claims based on land use regulations enacted prior to the transfer. In reality, ownership of the property did not change at all, only the form of holding title. Measure 49 should have (but did not) clarified the rights of owners who transferred title to their own corporations and LLCs.

Despite this one omission, Measure 49 will go a long way toward settling the troubled waters that surround its vague and confusing predecessor.

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

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In the past year, Oregon and Washington joined the District of Columbia and 22 states that have enacted state renewable portfolio standards (RPS). Oregon’s Renewable Energy Act (SB 838), signed by Gov. Ted Kulongoski June 6, 2007, requires Oregon’s largest utilities to acquire 25 percent of their electricity from renewable sources by 2025, with more modest targets for smaller utilities.

Washington’s voters passed Initiative 937 in November 2006, making theirs the second state after Colorado to enact an RPS by initiative. The initiative requires Washington’s 17 largest utilities to obtain 15 percent of their electricity from renewables by 2020.

The Union of Concerned Scientists estimates Washington’s Initiative 937 will create $2.9 billion in new capital investment, nearly $167 million in new property tax revenues, $30 million in lease and royalty payments to landowners, 2,000 new jobs and a $148 million increase in the gross state product in Washington alone. Oregon’s SB 838 is expected to stimulate development of 1,500 megawatts (MW) of new renewable energy in the state, according to the Renewable Northwest Project.

Against the backdrop of increasing state support for renewable portfolio standards, Congress is debating HR 969, which would create a national renewable portfolio standard that compels utilities nationwide to generate or buy 20 percent of their electricity from renewable sources by 2020.

A federal RPS would be good for the renewable energy industry as a whole, providing long-term predictability, attracting more investment capital and allowing manufacturing of renewable energy technologies to achieve economies of scale. Contrary to claims of anti-RPS industry groups, most legal observers and HR 969’s sponsors in Congress are confident a federal RPS would not pre-empt more stringent state standards, such as those of Oregon and Washington. In fact, Oregon and Washington are poised to take particular advantage of the benefits of a federal standard. Both states can quickly capitalize on increased market demand for renewable energy.

This robust growth is based on simply serving increased demand from Washington and Oregon utilities for renewable energy. If a federal standard is enacted, utilities in states not subject to a state RPS will clamor for even more renewable resources. Many will look out of state, especially utilities in states that do not have abundant renewable energy resources or an established renewable energy industry of their own. HR 969 would establish a tradable, national renewable energy credit to facilitate this new national marketplace.

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

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Posted In: Legislation

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