Sustainability Law Blog

The Ethisphere Institute, a New York-based business ethics and social responsibility think tank, has identified the world's 10 most sustainable cities. Portland, Oregon was the only U.S. city to make the list. The Institute remarked on Portland's role as a hub for sustainable industries, the interconnectedness of its urban planning and mass transit, and its overall environmental awareness. City leaders from around the world recruit Portland's sustainability experts to develop their own programs, the Institute noted.

Cities were judged on their environmental plans and programs, transportation and housing, sustainable initiatives, and health and recreation. The other nine cities are Victoria, Canada; Copenhagen, Denmark; Oslo, Norway; Helsinki, Finland; Edinburgh, Scotland; Doha, Qatar; Reykjavik, Iceland; Wellington, New Zealand, and Rotterdam, the Netherlands. The cities were not ranked within the top ten.

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

Today the U.S. Senate approved, by a 93-2 vote, legislation extending the crucial wind energy Production Tax Credit (PTC) through December 31, 2009. The bill, H.R. 6049, also would create a new investment tax credit for purchases of small wind systems used to power homes, farms and small businesses. The bill now moves to the House of Representatives for a vote later this week. This vote is probably the last opportunity to extend the PTC before its current expiration date at the end of this year.

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

I recently attended an Oregon Natural Step Network meeting featuring the founder of a local winery speaking about her company's sustainability journey. I was inspired to hear about the sacrifices, successes and lessons learned along the way.

The Oregon Wine Board estimates that about 26% of Oregon's 17,400 acres of planted vineyards are certified biodynamic by the Demeter Association , organic by Oregon Tilth, or sustainable by Low Input Viticulture & Enology, Inc. (LIVE) . That's an impressive number and it continues to grow as more consumers seek out wines that are made using sustainable practices.

I learned about what sounds like a great tool. The Oregon Wine Board, recognizing that sustainability is part of the Oregon wine identity, is developing an "Oregon Certified Sustainable" or "OSC" label to be rolled out late this year or early 2009. According to the Wine Board's website, it has been working in partnership with Oregon Tilth, LIVE, the Demeter Association and Salmon Safe to create "a unifying platform and certification logo to help consumers easily identify sustainable wines." The idea is that if a vineyard has already met the rigorous requirements of one or more of these agencies, they would be allowed to use the OSC logo on their wine bottles. Given that earning any of these certifications is no easy task, consumers would be assured that wine with this new logo is not guilty of greenwashing.

Post authored by Kimberlee A. Stafford, attorney practicing in the Real Estate and Land Use and Sustainability Groups at Tonkon Torp.

Yesterday the House of Representatives passed HR 6899 by a vote of 236-189. While the offshore oil drilling aspects of the bill will get the most press attention, the bill also contains provisions vital to the renewable energy sector.

Specifically, HR 6899 would extend the wind energy production tax credit under Internal Revenue Code (IRC) Section 45 for an additional year, to January 1, 2010. It also would extend the production tax credit for other renewable energy facilities such as biomass, geothermal, solar and small hydropower for three years, to January 1, 2012. HR 6899 also adds marine renewables (i.e. wave and tidal energy) to the list of energy sources eligible for the credit.

HR 6899 also would extend the investment tax credit for certain renewables under IRC Section 48 for an additional eight years, to January 1, 2017. This tax credit is primarily used to finance commercial solar energy projects.

Finally, HR 6899 would implement a federal renewable portfolio standard (RPS), similar to RPS's in effect in more than half of the states. The federal RPS would require retail electric suppliers with an annual load of not less than 1 million megawatt-hours to generate a certain percentage of their base load from renewable resources. The minimum percentage would start at 2.75% in 2010 and increase incrementally to 15% by 2020. Rural electric cooperatives, government agencies (i.e. BPA) and electric suppliers in Hawaii would be exempt from the RPS requirement.

The production and investment tax credit extensions are crucial to the continued growth of the renewable energy sector in the U.S., especially for wind and solar. The federal RPS also would help boost the industry nationwide, although for most states that already have RPS's in place (like Oregon and Washington), the federal standard would be less rigorous than state standards already in place. The Senate should act quickly and decisively to put this bill on the President's desk as soon as possible.

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

In pushing past the 20 gigawatt milestone (that's 20,000 megawatts), the U.S. wind industry doubled its wind energy output in two years. The first 10 gigawatts took over two decades. The U.S. is now the world's largest generator of electricity from wind energy, and next year will bypass Germany as the nation with the most wind energy generating capacity (expected to be about 24.3 gigawatts).

Today, windpower generates about 1.5% of the nation's electricity. However, the U.S. Department of Energy believes the nation has the capacity to provide 20% of the nation's electricity needs with wind energy by 2030. That would support 500,000 new jobs and reduce greenhouse gas emissions by the equivalent of 140 million cars. Recently, both the Democratic and Republican National Conventions were powered by wind energy.

The benefits and potential of wind energy strongly justify renewal of the production energy tax credit before it expires at the end of 2008. Hopefully Congress will, in its last session before the election, finally achieve this important milestone.

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

A few nights ago I attended an event with Sen. Max Baucus (D-MT), chair of the influential Senate Finance Committee which will consider extension of the federal production and investment tax credit that benefits the deployment of renewable energy sources. The extension has been held up in part due to disagreements over oil drilling.

Baucus, who was joined at the Portland event by his Senate Finance Committee colleague, Sen. Ron Wyden (D-OR), confidently assured that the extension would be passed before the current Congress adjourns. He was optimistic that an agreement on the extension could be reached and passed perhaps even before Election Day.

This year Congress is weighing extensions of tax credits totaling more than $50 billion over the next decade. The renewable energy production tax credit would cost $7 billion and two solar investment credits would cost $2.7 billion over 10 years. Despite the certainty Baucus expressed on the likelihood of an extension of the production and investment tax credits, Baucus cautioned that the total cost of the extension, and thereby the full availability of credits, might be reduced from current proposed levels in order to reach consensus.

Posted by Jack Isselmann, partner practicing in the Government Relations and Public Policy and Sustainability Practice Groups.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers recently issued revised regulations to the Clean Water Act . The new regulations govern compensatory mitigation for the fill of wetlands, streams, and other waters of the United States. The Clean Water Act states that compensatory mitigation is required to replace the unavoidable loss of wetland, stream, and/or other aquatic resource functions and area due to dredging and filling.

The new rule, effective June 9, 2008, encourages mitigation banking as the preferred option over in-lieu fees programs and permittee-responsible mitigation. EPA and the Corps explained in the comments to the new rule that mitigation banking is preferred because "mitigation banks must have an approved mitigation plan and other assurances in place before credits can be provided to permittees…Because of the requirements imposed on mitigation banks, they generally involve less risk and uncertainty than in-lieu fee programs and permittee-responsible mitigation.”

Until now, mitigation banks accounted for 33% of mitigation, while permittee-responsible mitigation accounted for 60%. In-lieu fee mitigation already was the minority at 7%. Under the new rule these percentages are certain to shift, and will likely cause a boost in the mitigation banking industry. It remains to be seen whether or not this new rule will result in filled wetlands being replaced by more ecologically viable wetlands. Dr. Joy Zedler, Chair of the 2001 National Resources Council Wetlands Mitigation Study Committee, put it best: "It could be the best of all worlds…or it could be the same old same old…It's all in the implementation."

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