Renewable + Law : Renewable Energy Lawyer & Attorneys : Stoel Rives Law Firm : Climate Change, Emissions, Carbon Markets, Wind, Solar, Biofuels : Western United States

The State of California and the U.S. Department of Interior (DOI) have entered into a Memorandum of Understanding on renewable energy, building on existing collaboration by California and its federal partners to facilitate the development of renewable energy resources in the state. The MOU stems from California and DOI energy policy directives, and California’s legislative mandate to reduce greenhouse gases to 1990 levels by 2020 and 80% below 1990 levels by 2050, and produce 33% of California’s electrical needs from renewable energy sources by 2020. The MOU notes one reason for California and DOI to really get the ball rolling on their collaboration: the American Recovery and Reinvestment Act specifically directs economic stimulus funding to qualified renewable energy projects that begin construction by December 1, 2010.

The California-DOI MOU complements and expands on several MOUs issued over the past year to establish and outline the activities of the California Renewable Energy Action Team (REAT). The REAT was provided for in California Executive Order S-14-08, issued November 17, 2008, to “establish a more cohesive and integrated statewide strategy, including greater coordination and steamlining of the siting, permitting, and procurement processes for renewable generation … .” In other words, let’s dispense with the permitting hang-ups and delays that plague development projects in California and get more renewable energy facilities online.  While Executive Order S-14-08 does not focus on the development of solar energy in particular, this MOU is geared to faciliting California's burgeoning solar energy industry.

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U.S. EPA is holding a public hearing in Sacramento, California today on the agency's proposed rule on mandatory greenhouse gas emissions reporting.  EPA held public hearings on the new rule in the Washington D.C. area earlier this month. 

Over 13,000 facilities nationwide, accounting for about 85% to 90% of GHGs emitted in the U.S., will be required to report their emissions under the rule.  Reporting will largely be done on a facility-level, with the threshold for mandatory annual reporting based on facility capacity, rather than emissions.  Where a capacity threshold is not feasible or appropriate, facilities that emit 25,000 metric tons or more of GHGs per year will be required to submit annual emissions reports.  Data collection will begin January 2010, the first reports due in March 2011. EPA estimates that the cost to all industries to comply with the new reporting requirements would be $160 million in the first year, and $127 million annually in subsequent years.

The rule was published in the Federal Register on April 10, and comments on the rule are due to EPA no later than June 9, 2009. 

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The California Air Resources Board may soon get its wish.  Back in 2005, ARB first requested a waiver from the U.S. Environmental Protection Agency, to allow California to regulate motor vehicle greenhouse gas emissions.  EPA denied the waiver two years later, after California threatened to sue EPA to force the agency to take action on the request.  The very day after President Obama's inauguration into office, ARB filed with EPA a request for reconsideration of its waiver request.  Several days later, President Obama himself signed a Presidential Memorandum directing EPA to assess whether denial of the waiver was appropriate in light of the Clean Air Act.  Last Friday, Lisa Jackson, head of the EPA, issued a Notice for Public Hearing and Comment on California's request for consideration of the previous waiver denial, which officially initiates reconsideration by EPA.  Discussion at the public hearing on March 5, 2009 may get interesting, as the Notice's 'supplementary information' included a brief discussion on how the waiver denial had "significantly departed from EPA's longstanding interpretation of the Clean Air Act's waiver provisions and from the Agency's history, after appropriate review, of granting waivers to California for its new motor vehicle emission program."  Stay tuned.

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California has not been afraid to jump off the deep end when it comes to tackling some of the biggest environmental concerns of our era. With the 2006 Global Warming Solutions Act, otherwise known as AB 32, California was the first state to institute mandatory greenhouse gas emissions reductions. And Governor Arnold Schwarzeneggar has been right there with the Legislature. While AB 32 mandates a reduction in greenhouse gas emissions to 1990 levels by 2020, in 2005 the Governor called for even further reductions: 80% below 1990 levels by 2050. 

California is going full steam ahead with AB 32, and also SB 375, which implements a variety of land use and planning requirements and incentives to encourage urban development, decrease vehicle miles traveled, and ultimately reduce greenhouse gas emissions.  Meanwhile, Governor Schwarzeneggar is also planning for the worst case scenario. Executive Order S-13-08, released on October 14, 2008, addresses planning for the probable effects of climate change. The Executive Order makes the case that “the longer that California delays planning and adapting to sea level rise the more expensive and difficult adaptation will be.” This may sound like commonsense, but it’s also demonstrated by the numbers. As the Order points out, “billions of dollars in state funding for infrastructure and resource management projects are currently being encumbered in areas that are potentially vulnerable to future sea level rise.”

The Order tasks a conglomeration of state agencies with coordinating the preparation of a Sea Level Rise Assessment Report by December 2010. In the interim, all state agencies planning construction projects in vulnerable areas have to consider “a range of sea level rise scenarios for 2050 to 2100.” The vulnerability of a project must be assessed, and the agency must reduce risks and increase resiliency to sea level rise to the extent feasible. An agency is off the hook for this additional analysis if it has already issued a Notice of Preparation for an environmental impact report under the California Environmental Quality Act, or a project is programmed for construction funding in the next five years. 

The requirements of the Order do not bleed over into private development, but one has to wonder . . . will this additional level of analysis next be shifted to the private developer who proposes a project in a vulnerable coastal area? This would mean another layer of data to incorporate into a project’s environmental review, including information on local uplift and subsidence, coastal erosion rates, predicted higher high water levels, and storm surge and storm wave data. What would it take to reduce the risks associated with sea level rise for a project your company would like to undertake on the coast? How would you increase the project’s “resiliency” to sea level rise? We can’t put everything in the coastal zone on stilts, but what could be required of an individual project?

I know I’ll be looking for notice of the public workshop on the Sea Level Rise Assessment Report that has to take place before the end of next March.

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As technologies develop and commercial acceptance grows, solar photovoltaic installations are increasingly providing a viable alternative for the small-scale distributed generation of electricity to supplement more traditional polluting sources. The growth of the solar industry in the United States over just the past two years has been phenomenal. Having a rooftop solar photovoltaic installation on corporate headquarters, major distribution centers, and other high-profile real estate has become a significant way fro major global corporations to demonstrate their commitment to a cleaner environment. New sources of investment capital are flooding into this niche, and power buyers large and small have been drawn to solar as a way of demonstrating their independence from traditional generation sources and desire to play a part in moving the United States toward a more independent future. States across the country have moved to fill the federal leadership vacuum, in many cases enacting renewable portfolio standards and state renewable energy tax credits, which are critical to the continuing development of our solar resources. The industry is vibrant.

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