Sustainability Law Blog

Governor Kulongoski recently unveiled an ambitious legislative package aimed at mitigating the impacts of global warming and putting Oregon on track to reduce greenhouse gas levels to ten percent less than 1990 levels by the year 2020. The Governor's plan has four components, one of which is sustainable transportation. The sustainable transportation plan intends to address the state's growing transportation needs and reduce greenhouse gas emissions. To do this, the Governor plans to put forward the following four measures in 2009:

1) Encouraging alternative vehicle technologies such as plug-in hybrids and all-electric vehicles;
2) Authorizing the Environmental Quality Commission to adopt a low-carbon fuel standard that will require fuel providers to reduce the average carbon intensity of fuels sold by ten percent over time;
3) Expanding transportation options to allow Oregonians to attain an overarching vehicle miles traveled reduction goal that will be set by the Governor; and
4) Developing a least carbon model which will direct the Oregon Department of Transportation to consider the least carbon option in order to relieve congestion rather than just building additional capacity.

The biking community has already sounded warning bells about the fact that bicycles are not front and center in the Governor's plan. While the Governor does address expanded bicycle programs under the rubric of "expanding transportation options," bicycles are certainly not a key component of the Governor's plan.

Considering that Portland is a city known for its bike friendliness and high number of cyclists, it seems that this is an opportunity not to be missed. Take me for example—I used to regularly commute by bike, but now that I work in downtown and live in West Linn, I have not biked to work even once. But, if a safe biking route existed and there was a clean and convenient bike storage/locker/showering facility available to me, I can guarantee that I would bike commute to work on a regular basis. I am certain that there must be many more Oregonians like me—hampered by logistics but bikers at heart. Considering that bikes are one of the most carbon neutral transportation methods, it seems that this is a group of Oregonians not to be overlooked in planning for a more sustainable future.

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

A recent study by the General Accounting Office found that over 600 businesses have sprung up across the U.S. to sell voluntary carbon offsets. The supply of voluntary offsets has grown from the equivalent of 6.2 million tons of GHGs in 2004 to 10.2 million tons in 2007, with the number of projects producing offsets increasing from 93 to over 200 over the same period.

Quality assurance and standardization have not kept up with this booming market. Some offset providers provide a wealth of information assuring the quality of their offsets, others provide very little. Accordingly, offset buyers should exercise significant due diligence in making sure they are getting what they are promised for the money spent on carbon offsets.

While this offset market currently is limited to a relatively small market of voluntary buyers, the issue of offsets will soon loom much larger as the Western Climate Initiative (WCI) resolves how to incorporate offsets into its GHG cap-and-trade program. The recent WCI proposal for the cap-and-trade program offers little concrete guidance on how member jurisdictions can separate the wheat from the chaff of carbon offsets, and how regulated emitters can use offsets to meet their GHG cap obligations.

Several quality control programs for offsets exist, including Clean Development Mechanisms (CDMs) under the Kyoto Protocol, the California Climate Action Registry (CCAR), and others. Because one can't see an offset (short of visiting the site where the offset occurs, not often practical for potential buyers), standardization of qualitative evaluation methods for offsets is crucial. It will both maximize the GHG reduction benefit from money spent on offsets, and also avoid a backlash against the idea of offsets that will likely result if buyers find that they didn't get what they paid for.

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

One unfortunate aspect of the Western Climate Initiative (WCI) proposal for a greenhouse gas (GHG) cap-and-trade system is that it has failed to protect states that have been "early actors" in reducing GHGs. This is a consequence of the baseline chosen for allocating allowances to each jurisdiction. Ultimately, the WCI based the allowance budget on emission levels as of January 1, 2008.

This unfairly penalizes states like Oregon that achieved significant reductions prior to 2008 with actions such as the Business Energy Tax Credit (BETC), while rewarding states that have done nothing and consequently have lots of low-hanging fruit available to reduce emissions going forward. These same fruit are no longer available to Oregon and other early actors, which will have to find harder, more expensive methods to achieve reductions.

The WCI program also unfairly penalizes businesses that will be subject to cap-and-trade in early actor jurisdictions like Oregon. For example, Oregon businesses have already funded the BETC and spent money to reduce emissions, resulting in a relatively low number of allowances credited to those businesses based on the January 1, 2008 baseline. In contrast, emitters in foot-dragging jurisdictions will have lots of allowances because they did not previously reduce their emissions, and once they implement relatively cheap emissions reductions measures, they will have lots of extra allowances to sell. The Oregon businesses that then choose to buy those allowances rather than implement comparatively expensive mitigation measures will end up funding emissions reductions measures in other states.

The WCI is an admirable effort to achieve a laudable goal in response to the disappointing vacuum of federal action on climate change. Nonetheless, the proposal should be revised to bring more fairness to the relationship between early actors and foot draggers. Otherwise, the foot draggers will be rewarded, which will discourage early action against GHG emissions by other emitters who are not yet slated to be subject to cap-and-trade, but someday will be. Instead, those emitters will adopt a "use it or lose it" philosophy and seek to maximize emissions until the next baseline date and thereby increase the number of allowances that they ultimately receive.

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

Beginning with its Spring 2009 line, Nike Inc. (NYSE: NKE) will offer for the the first time Nike Considered Design ("NCD") products in each of its six key categories: basketball, running, football (soccer), women's training, men's training and sportswear. Nike will also offer NCD products in its tennis and ACG (All Condition Gear) categories.

As the Portland Business Journal's website noted on October 28, 2008:
"The goal, accordingly to the company, is to create products while reducing the waste throughout the development process, using environmentally preferred materials, and eliminating toxics."

Nike has set admirable goals for its NCD products. 100 percent of Nike footwear will meet baseline NCD standards by 2011, all apparel will meet baseline NCD standards by 2015, and all equipment will meet baseline NCD standards by 2020. According to the Corporate Social Responsibility Newswire in its October 30, 2008 post, "Achievement of these goals would mean waste in Nike’s supply chain will be reduced by 17 percent and the use of environmentally-preferred materials will be increased by 20 percent."

In addition to being produced sustainably, Nike's NCD products will be recyclable, further reducing their environmental impact. You never know, one day you might be able to say about your favorite pair of sneakers, "LeBron won his 2008-09 NBA championship with this heel."