Sustainability Law Blog

The 130-turbine Cape Wind offshore wind project in Nantucket Sound, Massachusetts has been on the drawing board for 10 years. After many fits and starts (many of which are detailed in Wendy Williams' fine book Cape Wind) the project received clearance from the Massachusetts Energy Facility Siting Board in January 2009. Close on the heels of that approval, the federal Minerals Management Service (MMS) approved the final Environmental Impact Statement (EIS) for the project. The EIS concludes that the project presents no major environmental hazards, will make a "substantial contribution to the region's electrical reliability" and will lower customers' electricity rates.

The MMS still must issue a final decision on the project, but that decision is likely to be favorable given the content of the EIS. After a few more state-level permitting hurdles, the project developer anticipates construction starting later this year, with electricity delivered in 2011 or 2012.

Offshore sites offer a wealth of new opportunities to harness the power of the wind, and the U.S. (especially in the east) has plenty of promising locales. Once one offshore project is built, regulations will be in place, mitigation measures developed and data on the actual impacts can be gathered rather than just theorized. Hopefully, the first project will cause a domino effect, since the next wave of projects can rely on the work that went in to the review of Cape Wind. The developers of Cape Wind should be commended for their tireless commitment to seeing their project through.

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

As the Oregon legislature convenes, the economy is certainly at the top of the agenda. However, if the lawmakers navigate through the economic morass to reach other business, a number of water issues could (and should) float to the top of their to-do list.

During the interim, there's been a lot of activity on the water front. A few legislative proposals have already surfaced and more will emerge soon. For instance, Governor Kulongoski's proposed budget includes funding for development of an integrated state water management plan; the recommendation is contained in a draft legislative concept (LC 663) as well. The proposal requires the Water Resources Department (WRD) and the Department of Environmental Quality (DEQ) to work together to develop data and strategies to forecast and meet Oregon's water needs.

Sounds like common sense, not rocket science, right? Do we really need a new law to make it happen? In fact, the proposal is more significant than it first appears, and it merits wholehearted support. Here's why. The expressed need for a "coordinated, integrated state water resources policy" has been on the books for a long time—since 1955, in fact—but no plan has ever been developed. (ORS 536.220.) Oregon is now one of only two of 18 western states without a state water plan. The new bill supplements the aspirational language adopted 25 years ago with an explicit mandate to WRD to "just do it"—and to get the job done by 2012 or else have some explaining to do to the legislature. Furthermore, WRD and DEQ are told to create a plan addressing both water quantity and water quality. Not rocket science, either, but a critical directive because existing state laws bifurcate responsibility for quantity and quality while the laws of nature recognize no such division. Water allocation laws implemented by WRD derive from the 1909 Water Code—and even older laws and customs—while most water pollution laws administered by DEQ arose much later, circa 1970s.

Given the inherently integrated nature of the water resource itself, WRD & DEQ must work together in order to develop a plan grounded in reality. The agencies are also directed to assess water needs for ecosystem services and instream flows (in addition to traditional domestic, agricultural, commercial, and industrial uses) and to deal with the formidable challenges of climate change and population growth—all important 21st century realities crucial to sustainable water management.

Sometimes, even in laws, it's necessary to state the obvious. Oregon law should explicitly require a state water plan—one that reflects the reality of integrated water resources and imminent water challenges.

Post authored by Janet Neuman, attorney practicing in the Water Law and Government Relations and Public Policy practice areas.

The Oregonian's January 14, 2009 front page article discussed bridge design architect, Bradley Touchstone's new design for the Columbia River Crossing (CRC). The design has caught the eye of local leaders and architects because it incorporates vertical axis wind turbines that Touchstone says would "scream out to the world" that conservation is a priority for our community.

While I definitely like the idea of building a bridge that is both striking in its design, and that sends a message about our community's values with regard to sustainability, it is crucial that we don't confuse the mere idea of sustainability with actual sustainability. According to the Oregonian, Touchstone has no idea how much actual wind power from the turbines could be utilized. There is also the question of how the turbines would affect bicycle and pedestrian traffic.

While I think the design is both beautiful and could send a message about sustainability, the most important way to show the world our values is to ensure that the CRC has world class transit, light rail, pedestrian and bicycle facilities, and is consistent with the policy of the State of Oregon to reduce greenhouse gas emissions as described in HB 3543.

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

Senate Bill 201 would create an account to fund energy efficiency improvements to 800 low-income houses annually.

House Bill 2121 would establish a pilot program for feed in tariffs to guarantee prices for solar-powered energy. The bill is modeled on a successful feed in tariff program in Germany credited with spurring installation of over 2,500 MW of new solar energy generation capacity. The pilot program would help the state evaluate if similar results would be achieved in Oregon.

House Bill 2186 would require fuels sold in Oregon to reduce their carbon intensity by 10% over a specified time period.

Senate Bill 168 would clarify the authority of the state to use state lands for renewable energy projects. This bill was spurred by the first installment of the Oregon Solar Highway on lands operated by the Oregon Department of Transportation. One hurdle to that project was the obligation of ODOT to use state highways only for "highway purposes." This bill would facilitate further renewable energy projects on state lands by circumventing this and similar restrictive language on the use of state land.

Senate Bill 76 would authorize the Public Utility Commission to permit cost recovery to PacifiCorp for the removal and decommissioning of four major dams on the Klamath River. The bill assumes that removal and decommissioning would ultimately save ratepayers money as compared to the cost of upgrading and relicensing the dams, which would be passed through in rates if the dams are not removed.

The Governor's legislative agenda is ambitious, especially with the Legislature focused on economic issues. However, it is consistent with his vision of Oregon as a leader in green and sustainable industries. All of his proposals would be welcome additions to Oregon law, but the most important and far-reaching would be Senate Bills 80 and 168, and House Bills 2181 and 2121, all of which would provide significant incentives to development of solar energy as a complement to Oregon's already robust wind energy industry. From an environmental perspective, Senate Bill 76 would provide a fantastic impetus to resolution of the seemingly intractable Klamath Basin water disputes.

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

Oregon Governor Ted Kulongoski introduced ten bills addressing energy and climate issues for the state legislature's 2009 session, which opened January 12. They include:

Senate Bill 80 would authorize Oregon's participation in the greenhouse gas cap-and-trade program being developed by the Western Climate Initiative, of which Oregon is a founding member. The bill would put a cap-and-trade program into effect in Oregon in 2012.

House Bill 2180 would establish an Oregon Renewable Energy Fund to help finance smaller renewable energy projects than currently can benefit significantly from the business energy tax credit. Financing of smaller-scale energy projects has frustrated many renewable energy policymakers nationwide; hopefully the Governor's approach will be more successful than past efforts.

House Bill 2181 would allow municipal and county governments to use their bonding authority to fund energy efficiency projects. The goal of the bill is to enable homeowners to participate in energy efficiency improvements by being able to pay for the upgrades over time.

Senate Bill 79 would create an energy efficiency rating system for new and remodeled building systems by the end of 2010, with the hope that the market advantage of an energy efficient building will spur accelerated efforts by building owners to improve energy efficiency.

Senate Bill 101 would require any new energy facility in the state to have greenhouse gas emissions at least as clean as natural gas.

Check back later for a discussion of the Governor's other five proposals.

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

As an undergraduate economics major thirty years ago, I wrestled hard with the concept of waste as an externality not priced correctly by the market. We were living in the aftermath of the 1973 spike in petroleum prices and I had recently returned from an extended journey through Europe, where retail gasoline prices far exceeded those in the U.S. (We coasted our VW Microbus down hills to save gas.) I was in school in Southern California and there was a fear that lead from car exhaust was going to reach deadly levels very soon in the San Gabriel Valley. I worked hard on the idea of how one could accurately price the impacts of combustion engine waste.

So, when I read a quote the other day from Josiah Cain of Design Ecology , I was struck by the idea that water is somewhat different from the other natural resources that we like to refer to as "commodities." Cain was explaining why our single use of water—washing our face with it, putting it down the drain, conveying it to a place where it is treated with chemicals, and then dumping it into a river—makes no sense. The quote: "There's no such thing as waste water." Think about it. We struggle hard enough with accounting for the costs associated with our many wastes in the pricing of consumer products. We adopt environmental laws and regulations to assist with many wastes. For example, EPA is considering adoption of a carbon score for fuels that would account for all emissions from biofuel production: fuel combustion, fuel distribution, refining emissions, tractor and fertilizer emissions, and land conversion. This biofuel carbon score could then be compared to the carbon score of other fuels.

But what do you do with a concept like, "There's no such thing as waste water." What is a lawyer or a lawmaker supposed to do with that? Certainly a good start is found in ordinances promoting living roofs, living walls, rainwater harvesting, and gray water reuse. We may need to take our lead from the design build profession, and not so much from economics.