Upcoming Energy Efficiency Conference in Portland

The Citizens Utility Board (CUB), in partnership with the Univeristy of Oregon School of Law, will be presenting its 2nd Annual Policy conference on Energy Efficiency: The Next Generation on Friday, October 26, 2012, at the University of Oregon's White Stag Block (70 NW Couch Street). 

The all-day conference will focus on energy efficiency in the Pacific Northwest and its impact on the regional economy.  Featured speakers include Congressman Earl Blumenauer.  For more information, please visit the CUB Policy Center web site.

 

Gov. Kitzhaber Names Margi Hoffman as Oregon's Energy Policy Advisor

Oregon Governor John Kitzhaber announced today that he has named Margi Hoffman to serve as his Energy Policy Advisor.  She will join the Governor's office on April 2.

Ms. Hoffman has served as Senior Vice President and Director of Oregon Operations with Strategies360, a strategic consulting firm, and has also worked closely with Renewable Northwest Project (RNP) .  The news release from the Governor's office can be found here.

Congratulations, Margi!

LEED Avoids Class Action, Energy Savings Claim Left Untested

There’s big news in the battle between consultants in the green building industry and the U.S. Green Building Council (“USGBC”). Following almost a year of litigation, it appears that the USGBC may have defeated a $100 million class action lawsuit brought by engineers and designers, according to a court order issued last week. The plaintiffs’ complaint filed last October argued that USGBC made false claims about the energy efficiency of buildings certified under its LEED program. According to plaintiffs, who were not LEED accredited professionals, the USGBC’s allegedly false claims about energy saving and energy efficiency deceived consumers into pursuing LEED certification, and along with it, hiring LEED accredited consultants. But the veracity of USGBC’s energy efficiency claims remains undecided for now, as the federal district court for the Southern District of New York has ruled that the plaintiffs lacked “standing” to pursue their case under both federal and state false advertising laws.

More precisely, the court found that engineers and designers were not in a position to claim that the alleged false advertising could have harmed them.  The court rejected the plaintiffs’ injury claims. For one thing, engineers and designers are not direct competitors of USGBC – the Council certifies buildings, while the plaintiffs provide construction and design consulting services. Also, according to the court, the engineers and designers could not show that any alleged false advertising by USGBC caused them to lose clients, because the LEED building certification program does not require builders to use LEED accredited engineers or designers. Even if the USGBC deceived builders about the LEED program, the court reasoned, LEED didn’t preclude them from hiring plaintiffs.

 

 

Naturally, energy use is a critical component of the LEED program. And while the class of dejected New York plaintiffs may never get to challenge the truth of LEED’s past advertising, stakeholders involved in green building can draw some valuable lessons from this skirmish when it comes to green building certification and energy efficiency. 

 

The court’s order briefly touched on the most important of these lessons. Citing USGBC’s own filing in the case, the court noted that green building certification doesn’t necessarily address energy performance so much as the potential for energy efficiency. In other words, LEED certification may establish the potential for energy saving, but it doesn’t prove it. Then again, the LEED program does award points for the use of renewable energy, for on-site generation of renewable energy, and for monitoring and reporting energy use. Bottom line – because so many different factors go into a green building score, a clean/renewable energy claim about a green building can be potentially misleading.

 

So what does this mean? For one thing, one shouldn’t discount the value of a green building certification, whether from LEED, National Association of Home Builders, Green Globes, or any other comparable program. Certifications provide a nice, simple way to prove the green credentials of a building. On the other hand, additional disclosure may be prudent, particularly for those who market or advertise certain green attributes of a building. Architects, builders, owners – and anyone else who might profit from such claims – must be careful to not overstate or misstate the significance of a green building certification. With respect to energy efficiency, for example, a good LEED score may be the result of significant energy efficiency, or it may not. 

 

Finally, what about the New York plaintiffs and their $100 million claim against USGBC? While the merits of their case remain unproved, don’t be surprised if the plaintiffs appeal the district court’s order. If they can convince a higher authority that they may have lost business to the LEED program, they may get a second chance to go after USGBC’s energy efficiency claims.

PSU's Hatfield School of Government Offers "Summer Series on the New Energy Economy"

This summer, the Center for Public Service at the Hatfield School of Government at Portland State University will be offering a series of short, 2-3 day classes under an umbrella called the "Summer Series on the New Energy Economy."  These are non-credit courses, specifically designed for energy industry leaders, a wide range of professionals, and other community members with an interest in learning more about key energy topics.The series is being coordinated by Jeff Hammarlund, one of PSU’s adjunct faculty, who in recent years has taught a series of popular classes on various aspects of the Smart Grid.

The summer series will kick off with the first class on July 11-12. Entitled  "Dissolving Complex Problems in the New Energy Economy," this course will bring a systems science focus to core energy structure, regulation, and policy questions. Other classes, which will run in July, August, and September, include

     * Green Inc: Business Models for the New Energy Economy (July 13-15);

     * Comprehending the Climate Conundrum (July 25-27);

     * Riding the Waves of Change: Project Management and the New Energy Economy (August 10-12); and

     * The Smart Grid and Sustainable Energy Systems (September 14-16);

Additional information and registration instructions can be found here. If you have specific questions, contact Christine Hanolsy at PSU at 503-725-5114 or hanolsy@pdx.edu.

 

Unused ARRA Grant Funds Related to Electric Vehicles, Alternative Fuel Vehicles and Infrastructure Projects

Puget Sound Clean Cities Coalition has announced that it has roughly $400,000 in unused ARRA grant funds available for alternative fuel vehicle and infrastructure projects. 

Examples of eligible vehicles include:

  • Vehicles using alternative fuels recognized by the Energy Policy Act (complete list here: http://www1.eere.energy.gov/vehiclesandfuels/epact/about/epact_fuels.html);
  • Fuel Cell Electric Vehicles;
  • Electric Hybrid Vehicles (including certain Plug-in Hybrid Vehicles);
  • Hydraulic Hybrid Vehicles;
  • Neighborhood Electric Vehicles; and
  • Certain Bio-Diesel Vehicles (if replacing gasoline powered vehicles). 

Infrastructure projects must be related to the storage, distribution, dispensing of advanced fuels or electric vehicle supply equipment. Examples of eligible infrastructure projects include:

  • New dispensing facilities, or additional equipment or upgrades to existing refueling sites;
  • Facility upgrades or building modifications necessary to accommodate alternative fuels for fleet garages and other maintenance centers;
  •  Solar charging systems dedicated to providing on-site vehicle motive electrification

Funding requests must be between $100,000 and $400,000 with a minimum 10% non-federal match. Precise requirements of this grant are located at http://www.pugetsoundcleancities.org/documents/CleanCitiesFY09FOAModification007.pdf

LexisNexis Selects Renewable + Law Blog to its Top 50 Environmental Law Blogs List

Having first reported to our readers in February that LexisNexis had nominated the Stoel Rives Renewable + Law Blog for its Top 50 Environmental Law & Climate Change Blogs for 2011 award, we are pleased to announce we made the list of winners! In publishing its Top 50 list, LexisNexis declared that our Renewable + Law bloggers’ “avowed passion for solar energy, wind energy, biofuels, ocean and hydrokinetic energy, biomass, waste-to-energy, geothermal and other clean technologies is evident in the care they take with this blog-the posts are frequent, the topics are interesting and cutting edge, and the writing is top notch.”

 

Thanks again to all our readers who make regular use of Renewable + Law Blog and those who wrote in to support us for this award. We're honored and inspired, and we plan to keep those Blogs and letters coming.

 

New Tool for Renewable Energy Investors, Entrepreneurs, and Companies

On June 30, 2010, the U.S. Department of Energy ("DOE") launched its Technology Commercialization Portal (the "Portal").  The Portal is an online resource that provides a mechanism for investors, entrepreneurs and companies to identify new technologies coming out of DOE laboratories and other participating research institutions.  Relevant technologies include:

  • Advanced Materials
  • Biomass and Biofuels
  • Building Energy Efficiency
  • Electricity Transmission and Distribution
  • Energy Analysis Models, Tools and Software
  • Energy Storage
  • Geothermal
  • Hydrogen and Fuel Cell
  • Hydropower, Wave and Tidal
  • Industrial Technologies
  • Solar Photovoltaic
  • Solar Thermal
  • Vehicles and Fuels
  • Wind Energy

The Portal contains marketing summaries about the various DOE technologies that are available for licensing.  Each marketing summary describes a technology's applications, advantages, benefits and state of development.  Further, the Portal also provides access to information on patents and patent applications that have been created using DOE funding since 1992.

The Portal is located at http://techportal.eere.energy.gov/

Zino Green Investment Forum

The ZINO Society, a Seattle-based angel investment group, announced last week that its annual “ZINO Green Investment Forum” would be held on March 4, 2010, at the McKinstry Innovation Center in Seattle.   Up to fifteen early-stage companies in “green tech, clean tech, and sustainable products or services” will be selected by the ZINO Green screening board to present their businesses to angel investors and business leaders attending the investment forum. Finalists will be selected to compete for a $50,000 award from ZINO’s investment fund.

Last year’s winner of ZINO Society’s $50,000 GreenFund award was Hydrovolts, the developer of a hydrokinetic turbine.  After winning the award last year, Burt Hamner, CEO of Hydrovolts, stated that “Our new technology makes it possible to generate renewable energy from fast water currents that could not be tapped before, using a really novel turbine design.  It’s a challenge to explain [our technology] quickly and the presentation, coaching and business model feedback we received from ZINO Society members was incredibly helpful.” Hydrovolts went on to win the  2009 Clean Tech Open National Sustainability Award.

Stoel Rives has been a proud sponsor of The Zino Society since its inception.

The application to apply to present at ZINO Green may be found at https://angelsoft.net/angel-group/zino-society. More information about the event is available at ZINO’s website http://www.zinosociety.com/calendar/1143/ or by contacting Rob Brown at r.brown@zinosociety.com or 206-621-0466.

Come Visit Us at E3, The Midwest's Premier Energy, Economic and Environmental Conference, on Nov. 17, 2009

As a proud Exhibit Hall sponsor of E3, the Midwest’s premier energy, economic and environmental conference, Stoel Rives LLP would like to encourage you to attend this annual event. Hosted by the University of Minnesota’s Initiative for Renewable Energy and the Environment, E3 will focus this year on the intersection of innovative technologies and policies, environmental benefits and emerging market opportunities across the renewable energy spectrum.

Stoel Rives attorneys Mark Hanson, Bill Holmes and Greg Jenner are part of the event faculty. Mark will moderate a panel presentation on the challenges and opportunities of converting carbon dioxide to fuels. Bill will moderate a panel discussing exactly how sophisticated smart power grids need to be in order to scale up renewables as a major U.S. energy contributor. Greg, meanwhile, will participate in a panel discussion on the most efficient and effective strategies for financing renewable energy projects.

 

For more information and to register, please visit the following link: http://bit.ly/XUUjJ. We hope to see you there, and encourage you to visit our booth (#24). In addition to our presenters, Debra Frimerman, Kevin Johnson, Kevin Prohaska, Katie Roek, Mary Sennes, Joe Thompson and Vicki Twogood will be available to discuss any questions you may have. Don’t forget to pick up complimentary copies of our Law of Series handbooks, including The Law of Solar, The Law of Wind, The Law of Biofuels, The Law of Building Green, Lava Law,and our most recent additions The Law of Algae and Show Me the Money: The Law of the Stimulus (2d ed).

News from the Sustainability Front

My partner Eric Grasberger and I were recently interviewed for an article in the Oregon State Bar Bulletin (October 2009) entitled "Advancing the New Economy: Oregon Lawyers Embrace Sustainability," by Barry Woods.  The article, which we've summarized here, provides an interesting take on how lawyers at Stoel Rives and other law firms are integrating concepts of sustainability into their practices, their business and their personal lives.  Eric, for example, is a leading green building lawyer and was inpsired by his experience to buy a LEED Gold certified home. 

The article prompted Seattle partner Ken Odza to alert me to another sustainability event, which is a little off the topic of Renewable + Law but likely to be of interest to many who follow this Blog  Ken, who is a food products litigator at Stoel Rives, has organized a series of three complimentary Webinars entitled "Bringing Environmentally Sustainable Food Products to Market."  The first interactive session will discuss "Where to Start? Developing and Financing Sustainable Food Products" and will be held at Noon EDT/9am PST on Tuesday, October 20, 2009.  Ken will moderate a panel of experts including Steven Rowe, Senior Vice President and General Counsel, Darigold, Inc.;  Karen Karp, President, Karp Resources, New York City; Monica Gelinas, Senior Consultant, Karp Resources, New York City; Duff Bryant, Corporate Finance Lawyer, Stoel Rives, Seattle; and Joel Dahlgren, Cooperative Finance Lawyer, Stoel Rives, Minneapolis  For more information about these free Webinars, click here

November 17: Energy, Economics and Environment (E3) Conference

The University of Minnesota’s annual conference on Energy, Economics and the Environment – E3 – will be held in St. Paul on November 17. Hosted annually by the University of Minnesota’s Initiative for Renewable Energy and the Environment (IREE), this year’s conference will explore current technologies, environmental benefits and market opportunities in renewable energy.

Stoel Rives will be a sponsor of the E3 conference and will, as usual, host a booth at the event. Minneapolis tax partner Greg Jenner will join a panel to discuss “What’s the most efficient and effective strategy for financing renewable energy projects?” To review the agenda and register for the conference, click here.

Show me the Money: Washington State Issues Final Guidance for Competitive Energy Efficiency and Conservation Block Grant Program

The American Recovery and Reinvestment Act provides $3.2 billion for energy efficiency and conservation block grants. Most of this money has been allocated directly to various local governments. Washington has an additional $6.4 million available through a competitive grant program.

Washington’s competitive grant program is administered through its Department of Commerce. Today, the Department of Commerce has announced the issuance of final guidelines for applications by smaller cities and counties for funds from the Energy Efficiency and Conservation Block Grant Program. Cities with populations lower than 35,000 and counties with populations lower than 200,000 are eligible to apply. Eligible cities and counties may choose to sub-grant their funds to other local governments, non-profits, or the private sector consistent with the guidelines.

 

The application guidelines, form, and frequently asked questions are available at www.commerce.wa.gov/recovery. The Department of Commerce will host a webinar on September 10, 2009, 9:00-11:00a.m., to review the final guidelines and answer questions. You can register for the webinar at https://www2.gotomeeting.com/register/352879171. For more information contact Heather Ballash at energy_policy@commerce.wa.gov.

Show me the Money: DOE Proposes Amendments to its Loan Guarantee Program

Today, the Department of Energy (DOE) issued a notice of proposed rulemaking to amend 10 CFR Part 609, the rule regulating the loan guarantee program authorized by section 1703 of Title XVII of the Energy Policy Act of 2005.  The two principal goals of section 1703 of Title XVII are to encourage commercial use of new or significantly improved energy-related technologies and to achieve substantial environmental benefits.  (See these recent alerts regarding the DOE loan guarantee program and the related application process)

After reexamining Title XVII, the DOE has concluded that the statute does not require a first lien on all project assets.  DOE has discovered that its current requirement that it be in lien position is in conflict with the financing structure of many energy projects.  For example, many utility scale power plants are jointly owned by public power agencies, cooperative power systems and investor-owned utilities.  In these cases, it may not be commercially feasible to obtain a lien on all project assets or the credit of a sponsor may be sufficient to support a more modest pledge of assets.

Furthermore, DOE has found that other parties are interested in participating as co-lenders, co-guarantors, or insurers of Title XVII loans.  However, these other parties expect to share, on a pari passu basis, in any collateral securing such loans.

Consequently, DOE proposes two amendments to the current rules:

  1. Delete the requirement of a first priority lien on all project assets and leave to the Secretary (of DOE) the determination of an appropriate collateral package, as well as intercreditor arrangements; and
  2. Allow the Secretary (of DOE) to determine if pari passu lending is in the best interests of the United States

 

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Six Years, Not Ten--New Time Limits Govern Certain Claims against Designers, Consultants and Contractors

Owners and developers of commercial buildings in Oregon, "green" or otherwise, should be aware that, effective January 1, 2010, the Oregon Legislative Assembly has reduced the time period within which to assert claims against those who performed design, planning, surveying, architecture, engineering, construction, repair, or construction supervision or inspection of or for the building, from ten (10) years after substantial completion of construction to only six (6) years after substantial completion of construction.

In the context of green and high performance buildings, claims against designers, consultants and contractors for buildings’ failures to achieve LEED, energy efficiency or similar goals would be subject to the new six (6) year limit. However, performance monitoring itself takes several years, possibly in excess of six years in some cases, to determine whether energy savings are being realized at the levels expected. Also, with new green product entries and the integration of new with old technologies, defects may take longer to materialize and discover. Green buildings therefore pose special risks that, for the owner's perspective, may be particularly ill-matched with a shorter limitations period. Owners and developers will need to adapt their purchase and sale, lease and design, and construction documents to take into account the effects of the new law.

Here are the details:

On July 14, 2009, Oregon Governor Ted Kulongoski signed HB 2434 passed in June by the Oregon Legislative Assembly. Although a chapter number has not yet been assigned to the new act, the law will go into effect for building defect claims that arise on or after January 1, 2010.

As addressed in prior Legal Updates from Stoel Rives’ Development Law Group, HB 2434 reduces from ten years to six years after substantial completion the maximum time period during which an owner of a "large commercial building" can assert claims against those who performed design, planning, surveying, architecture, engineering, construction, repair, or construction supervision or inspection of or for the building.

As defined in the statute, the term "large commercial building" includes but is not limited to:

  • rental residential structures of more than four stories
  • mixed-use projects
  • commercial structures that cost more than $250,000 to construct
  • motels, hotels, nursing homes, hospitals and recreational facilities
  • commercial structures with a ground area over 10,000 square feet or a height over 20 feet
  • commercial rental units in a larger structure, if the unit has a ground area of over 12,000 square feet or a height over 20 feet

The term "large commercial buildings" does not include publicly-owned buildings or condominium buildings. One concern for affected building owners and developers is simply the shortening of the period from ten years to six years after substantial completion during which the owner or developer can pursue a defect claim of its own against the designer or contractor of the building.

A second concern, however, is that building owners and developers may end up with legal obligations to a purchaser or tenant regarding building defects for a longer period than the six years after substantial completion during which the owner or developer can assert the claim against the building’s designer or contractor. In this way, a building owner or developer could have a multi-year exposure to getting "caught in a squeeze" by having a defect claim asserted against it by a buyer or tenant yet having no right to assert that claim against the parties that designed and constructed the building.

Owners and developers of "large commercial buildings" in Oregon should consider modifying the claims, warranty, correction of defects, and statute of limitations provisions in their purchase and sale agreements, leases, and construction and design contracts to respond to the changes in Oregon law made by HB 2434.

If you have any questions about the issues of this update, please contact:
 

James A. Zehren
(503) 294-9616
jazehren@stoel.com  

Eric A. Grasberger
(503) 294-9439
eagrasberger@stoel.com 

Thomas R. Page
(503) 294-9216
trpage@stoel.com  
Mark R. Feichtinger
(360) 699-5900
mrfeichtinger@stoel.com

Show me the Money: Applications Available for the Washington State Energy Program

Washington previously received $60.9 million in Recovery Act funding for its State Energy Program (“SEP”). The Washington Legislature later provided $38.5 million to the Washington State Community, Trade and Economic Development (“CTED”) agency to administer a loan and grant program for eligible projects in the areas of energy efficiency, renewable energy and clean energy innovation (see our earlier blog entry here for more details). The deadline for submitting a notice of intent to apply is July 27, 2009 at 5:00 p.m. Pacific time, and the application is due August 17, 2009 at 5:00 p.m. Pacific time.

I attended an informational meeting held by CTED on July 13, 2009. The meeting provided an overview of the loan and grant program, as well as funding details, eligibility guidelines and evaluation criteria. Eligible projects can receive between $500,000 to $2 million in loans and grants in the first round, with the requirement that applicants provide other sources of funding at least equal to the amount of the loan or grant request. The non-SEP funding may include amounts spent or committed to the project since January 1, 2009. Projects will be evaluated based on the feasibility and quality of the project plan, the experience and qualifications of the project team, the ratio of matching funds to SEP funds, job creation, and energy savings/production. CTED intends to announce award decisions in September 2009.

Show me the Money: Up to $31 Million for the Building America Partnerhsip

On June 29, 2009 the Department of Energy ("DO") issued a Funding Opportunity Announcement to provide up to $31 million in grants to implement the Building America ("BA") program. The BA program is part of DOE's Building Technologies Program, and its long-term goal is to develop cost-effective, production-ready systems in five major climate zones that will result in zero energy homes, which produce as much energy as they use, by 2020. The BA program does not pay for home improvements; rather, it pays for showing the home building industry how to minimize the cost of building or retrofitting with significantly improved energy efficiency.

Today, in response to a question that I submitted, DOE has clarified that multi-family homes could qualify as homes under the BA program.

Our full client alert is available by clicking here.

 

Show me the Money: Applications Available now for Washington's State Energy Program

On July 1, 2009, Washington State’s Department of Community, Trade and Economic Development (“CTED”) issued application guidelines and forms for its State Energy Program (“SEP”) (available by clicking here). The American Recovery and Reinvestment Act of 2009 (the “Recovery Act”) provided $60.9 million in new funding for Washington’s SEP. Subsequently, the Washington Legislature allocated $38.5 million to CTED to administer a loan and grant program for energy efficiency and renewable energy program (see our client alert, available here, regarding the legislative action). 

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Show me the Money: $7.5 Million Available to Develop Commercial Energy Efficiency Training Programs

On June 26, 2009, the Department of Energy ("DOE") released a funding opportunity announcement ("FOA") to deploy $7.5 million in Recovery Act funds to further its goals of reducing energy consumption and achieving net zero-energy buildings (defined as buildings that produce as much energy as they consume).  In order to reach these goals, DOE recognizes that a workforce must be created to help existing buildings reach, and new buildings keep, their full energy efficiency potential.

This specific FOA provides ten to thirty individual awards from $250,000, to $750,000 to develop training programs for three specific sets of commercial building specialists:

  1. Equipment technicians,
  2. Operators, and
  3. Energy commissioning agents/auditors

Entities involved with energy efficiency, professional development associations, trade training/development associations, universities, community colleges, technical trade schools, and apprenticeship programs are encouraged to apply.

Applications must be submitted by September 1, 2009 at 8:00 p.m. Eastern Time

Stoel Rives Expands Its San Diego Office

 

We welcome energy attorneys Morten Lund and David Quinby to the firm’s San Diego office as members of the Energy and Telecommunications group. They join attorneys Howard Susman and Brian Nese. The San Diego office has relocated to a larger space at 12265 El Camino Real, Suite 303, to accommodate further expansion (new contact information below).

http://www.stoel.com/images/photos/Lund-M.jpg

Morten Lund, formerly a partner with Foley & Lardner LLP in Milwaukee, has experience in a broad variety of financing transactions, with particular focus on the development and financing of wind and solar energy projects. Morten is a frequent presenter and author on renewable energy topics. He earned his law degree from Yale University in 1995 and obtained his A.B. at Augustana College in 1992. He is admitted to practice law in the state of Wisconsin and is pending bar admission to the state of California.

_____________________________________________

http://www.stoel.com/images/photos/Quinby-D.jpg

David Quinby is the current office managing partner of the firm’s Minneapolis office, and will now split his practice between California and Minneapolis. He concentrates his practice on corporate, securities, finance, and merger and acquisition matters, with a particular focus on renewable energy clients and their project development efforts. David is admitted to practice law in the state of Minnesota and is pending bar admission to the state of California.

The California energy team's capabilities also include real estate, land use and permitting, equipment procurement and construction, state and federal regulation, environmental matters, and dispute resolution.

Stoel Rives has received a national ranking for its Renewables and Alternative Energy practice from Chambers USA: America's Leading Lawyers for Business (2009), rating among the top law firms in this category. The firm has been at the forefront of growth in renewables in recent years and represents many of the industry leaders in solar, wind energy, geothermal, biomass, hydroelectric, ocean, combined-cycle natural gas, carbon sequestration and biofuels project development in California, the United States, Canada and abroad.

For more information about the Stoel Rives Renewable Energy Group, visit www.stoel.com/renewableenergy or contact:

Howard Susman at  (8... or hesusman@stoel.com
David Quinby at  (8... or dtquinby@stoel.com
Morten Lund at  (8... or malund@stoel.com
Brian Nese at  (8... or bjnese@stoel.com

 

DOE Announces $154 million in Funding for State Energy Programs

Yesterday, the Department of Energy (“DOE”) announced more than $154 million in Recovery Act funding to four states for their State Energy Programs (“SEPs”). The funds were awarded to California, Missouri, New Hampshire, and North Carolina. The funding is to be provided in two stages to the four states with the second stage requiring successful performance at the first level. The funding is to be utilized in the areas of energy efficiency, workforce training, education and related programs.

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Green Trademarks and Eco-Friendly Claims

Jere Webb, a partner in our Trademarks and Intellecutal Property Group, recently wrote the following interesting piece about green marketing claims:

It is evident that virtually every business now is trying to position itself as being “green”. For a discussion of restrictions on “green advertising”, particularly the FTC’s green ad guidelines (the “Green Guides”), and similar efforts at the state level, see “Green Claims Advertising – What You Can Say and What You Can’t”. The FTC is reviewing the Green Guides and likely will amend them in the near future. For comments submitted in the review process and additional information, see Green Guides.

 

            The newer arena is green trademarks. The United States Patent and Trademark Office is now routinely rejecting, based on descriptiveness, multiword trademarks, that start with or contain the word GREEN. An example is the mark GREEN JOURNEY for hybrid cars. But in the same application, the applicant sought to register for clothing, and the Trademark Office accepted the mark, but with a disclaimer of the word GREEN. It found that the two word mark was merely “suggestive” of clothing, not “descriptive”. See "Green" Trademarks Face Hostile Climate in USPTO.    

 

            For an example of a green mark that passed muster, the Trademark Trial and Appeal Board (TTAB) recently reversed an examining attorney’s descriptiveness refusal for the mark GREEN INDIGO for clothing, finding it to be an “incongruous” term for clothing and therefore merely suggestive and not descriptive. The case is In re Jones Investment, Inc.  (TTAB Jan. 21, 2009.) 

 

            The lesson is: If you want to include the word “GREEN” in a trademark, some careful review and advice from a trademark lawyer is in order.

 

            Want to read more? See “Eco-Friendly Claims Go Unchecked” (USA Today June 22, 2009).   The FTC’s brochure “Sorting Out Green Advertising Claims” can be found here:  http://www.ftc.gov/bcp/edu/pubs/consumer/general/gen02.pdf

 

 

Show me the Money: Florida, Idaho, and Kansas State Energy Programs Received $77.1 Million from the Recovery Act

On June 24, 2009, the Department of Energy (“DOE”) announced more than $204 million in Recovery Act funding to ten states for their State Energy Programs ("SEPs"). 

Here is a summary of how the monies will be used in Florida, Idaho, and Kansas:

Florida's SEP will fund energy efficiency, renewable energy, and alternative fuels projects in the state.  Florida will deploy these funds through several loan and grant programs to promote the commercialization of new clean technologies.  Florida was awarded $50.4 million, and will receive an additional $63 million after demonstrating successful implementation of its SEP.

Idaho's SEP will launch a set up new programs, including the Renewable Energy Business Development Program, to further renewable energy development in the state while creating new jobs and stimulating the economy.  Further, new zoning regulations will be created to attract renewable energy developers and projects.  Idaho received $11.4 million and will receive more than $14 million in additional funding after demonstrating successful implementation of its SEP.

Kansas's SEP will launch several initiatives to boost energy efficiency in commercial buildings, increase financial options for renewable energy, and increase cost savings for individual homeowners in its state.  A portion of the money will also be deployed to create a new utility rate price plan and to fund an energy audit rebate plan.  Kansas received $15.3 million and expects to receive an additional $19 million after demonstrating successful implementation of its SEP.

 My colleagues are blogging on the other states that received funds. 

Show me the Money: Conneticut and Utah State Energy Programs

Today, the Department of Energy (“DOE”) announced more than $204 million in Recovery Act funding to ten states for their State Energy Programs ("SEPs"). 

Here is a summary of how the monies will be used in Connecticut and Utah:

Connecticut will use its SEP funding to further a variety of programs. Examples include the deployment of alternative-fuel vehicles and in-home energy audits. In-home energy audits involve a specialist performing an energy assessment, weatherizing the home, and installing energy conservation devices. After demonstrating successful implementation of its plan, the state will receive an additional $19 million, for a total of $38 million.

Utah will use its SEP funding to collect data about potential renewable energy resources in the state and to improve energy efficiency. The energy efficiency program will provide financial incentives to upgrade residential, commercial, public education, and government buildings. New construction developments will also qualify for rebates if they meet specific energy efficiency goals. After demonstrating successful implementation of its plan, the state will receive an additional $17 million, for a total of $35 million.

My colleagues are blogging on the other 8 states that received funds today. 

 

Energy Efficiency and Conservation Block Grants - Formula Grants

The American Recovery and Reinvestment Act of 2009, provides over $2.7 billion in formula-based grants to states, U.S. territories, units of local government, and Indian tribes under the Energy Efficiency and Conservation Block Grant (EECBG) Program. 

 

The purpose of the EECBG Program is to assist eligible entities in creating and implementing strategies to:

  • reduce fossil fuel emissions in a manner that is environmentally sustainable and, to the maximum extent practicable, maximizes benefits for local and regional communities;
  • reduce the total energy use of the eligible entities; and
  • improve energy efficiency in the building sector, the transportation sector, and other appropriate sectors.

The funding opportunity announcement (FOA) related to the EECBG has been recently amended.   Originally, all applications had to be submitted through the FedConnect website, www.fedconnect.net.  The most recent announcement to the FOA allows for applications to be submitted via email to eecbg@netl.doe.gov with the subject line "EECBG Application (Unique Identification Code)."

Show me the Money: Government Requests for Solar Systems

Numerous federal agencies are actively seeking services and materials related to solar power.  For example, the following opportunities are currently open:

  • The Department of Defense is seeking a ten year photovoltaic (PV) solar power purchase agreement related to its Defense Distribution Depot in Tracy, California.  The total contract quantity is 12,200,000 kWh.  Responses are due July 28, 2009.
  • Federal Prison Industries is seeking integrator and financing services for PV panel systems.  The work includes, but is not limited to, the design, construction, supplies, and financing for turnkey PV systems.  Responses are due July 6, 2009.
  • The Fish and Wildlife Service is requesting proposals for the equipment, labor, and material necessary to install a grid tied 20KW nominal PV system at a site in Southwest Montana.  Responses are due July 10, 2009.
  • The Western Montana Acquisition Zone is requesting proposals to generate power at a site in Missoula, Montana.  Responses are due July 1, 2009.

 

 

Show me the Money: Net-Zero Energy Commercial Building

The Department of Energy ("DOE") expects to establish net-zero energy performance for all U.S. commercial buildings by 2050. DOE  has issued a funding opportunity announcement ("FOA") to support this goal.  $1 million will be awarded to fund the collection of information on technologies for individual components and systems to support this goal.

 

 

Show me the Money: Seminar for Identifying Funding for Renewable Energy Projects

The American Recovery and Reinvestment Act provides almost $94 billion dollars in direct and indirect spending to clean energy company and projects. See Show me the Money: A Guide to Sources of Funding through the American Recovery and Reinvestment Act

On June 17, 2009, I will be speaking in Cle Elum, Washington about how to get your project "shovel ready" for Stimulus Funding.  The seminar will also include sessions on identifying sources of funding and application mechanics.

Please click here for event information

Show me the Money: DOE Delivers $80 Million to Four States for Weatherization

On June 8, 2009, the Department of Energy ("DOE") announced the transfer of approximately $80 million in funding from the American Recovery and Reinvestment Act ("Recovery Act") to Arizona, Kansas, Mississippi, and Oregon to expand state weatherization assistance programs.  These four states have now received 50% of their Recovery Act funds for the Weatherization Program.

Arizona received an award of $22.8 million for the Arizona Weatherization Assistance Program ("AZ WAP").  The AZ WAP will use the Recovery Act funds to weatherize 6,409 homes over the next three years, provide training for technicians to perform such weatherization, and work with local utilities to review energy consumption for weatherized homes.  After demonstration of successful implementation of this plan, Arizona will receive more than $28 million in additional funding.

Kansas received an award of $22.6 million for the Kansas Weatherization Assistance Program ("K-WAP").  K-WAP will use the Recovery Act funds to weatherize 5,820 new homes through a collection of public and private nonprofit agencies.  K-WAP has also increased the number of trainings it runs to meet the increased demand for weatherization workers.  After demonstration of successful implementation of this plan, Kansas will receive $28 million in additional funding.

Mississippi received an award of $19.8 million for its weatherization program.  The Mississippi weatherization program will use the Recovery Act funds to weatherize 5,467 homes through the Community Services Division at the Mississippi Department of Human Services.  After demonstration of successful implementation of this plan, Mississippi will receive $24 million in additional funding.

Oregon received an award of $15.4 million for its weatherization program.  The Oregon weatherization program will use the Recovery Act funds to weatherize 4,635 homes through a network of 22 subgrantees (including community action agencies, housing authorities, area agencies on aging, senior centers, a development corporation and Native American tribes).  After demonstration of successful implementation of this plan, Oregon will receive $28 million in additional funding.

 

Apply Now for REAP Grants and Loan Guarantees

The USDA announced today that it is accepting applications under the Rural Energy for America Program (“REAP”).  REAP provides grants and loan guarantees to agricultural producers and rural small businesses to purchase renewable energy systems, make energy efficiency improvements and conduct feasibility studies for renewable energy systems.

REAP funds are available in the following amounts:

  • Grants for energy efficiency projects are available for up to the lesser of $250,000 or 25% of the project costs.
  • Grants for renewable energy systems are available for up to the lesser of $500,000 or 25% of the project costs.
  • Grants for feasibility studies for renewable energy systems are available for up to the lesser of $50,000 or 50% of the costs of the study.
  • Loan guarantees are available for up to the lesser of $25 million or 75% of the project costs. 

Applicants must be agricultural producers or rural small businesses.  Agricultural producers are farmers or ranchers that obtain more than half of their gross income from agricultural operations.  Small rural businesses are small businesses, as determined in accordance with the Small Business Administration's small business size standards, located in rural areas.  Applications are due July 31, 2009.

Washington's American Recovery and Reinvestment Act Comprehensive Application

On May 11, the Washington Department of Community, Trade, and Economic Development (“CTED”) filed an application with the United States Department of Energy to receive American Recovery and Reinvestment Act (“ARRA”) funds for Washington’s State Energy Program (“SEP”). The application contains funding for renewable energy, energy efficiency, and farm energy assessments. Once the SEP is approved, funding will commence through CTED with advice from the Clean Energy Leadership Council.

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"Show Me The Money"

 

We announce the publication of a guide to federal clean energy funding opportunities under the $787 billion American Recovery and Reinvestment Act (“ARRA”). Titled “Show Me The Money,” the guide reviews the various programs and potential sources of federal funding for clean energy companies and projects. The guide addresses funding opportunities under the ARRA for each of the following energy industry areas: wind, solar, biofuels, biomass, smart grid, transmission, geothermal, marine and hydrokinetic, green building, energy efficiency, advanced battery and fuel cell technology, clean energy equipment manufacturing, green vehicles and clean coal. The guide also contains information about some of the funding opportunities and updates at the federal and state level which we will continue to track closely.

President Obama Clamps Down on Lobbyists and First Amendment

On March 20th, President Obama issued a directive to the heads of executive branch departments and agencies.  The directive is aimed at achieving the laudable goal of ensuring merit based decision-making for grants and other forms of stimulus funds provided by the American Recovery and Reinvestment Act of 2009 (usually referred to as the Stimulus Bill).  It seems that while candidate Obama promised repeatedly during his campaign to limit the influence of lobbyists in Washington DC, the passage of the Stimulus Bill has sent record numbers of lobbyists to D.C. to scramble for federal dollars.

In apparent response to this, President Obama has singled out registered lobbyists and regulated their contacts with the executive branch.  His directive provides that “executive department or agency officials shall not consider the view of a lobbyist registered under the Lobbying Disclosure Act of 1995, concerning particular projects, applications, or applicants for funding under the Recovery Act unless such views are in writing.”  Officials are directed to inquire regarding the possible presence of registered lobbyists both upon the scheduling and commencement of phone calls and in-person conversations “with any person or entity concerning particular projects, applications, or applicants for funding under the Recovery Act.”  If any registered lobbyists are detected, the directive forbids them from attending the meeting or participating in the phone call.

Not surprisingly, the American League of Lobbyists (ALL) has objected to the Obama Administrations restrictions.  In a demonstration that politics does indeed sometimes make strange bedfellow, ALL has been joined by the ACLU and the Citizens for Responsibility and Ethics in Washington (CREW).  In a letter to the President released Tuesday, these three groups requested that President Obama rescind the constitutionally offensive provisions of the directive immediately.   

As tempting a political target as they may be, registered lobbyists have a place in our political system and rights under our Constitution.  The President should heed the groups’ advice and tailor his directive to enable transparency while not muzzling any voices--including those paid to advocate.

Governor Kulongoski Proposes Nine Bills to Promote Renewable Energy Projects, Energy and Fuel Efficiency

Oregon Governor Ted Kulongoski continues to take aggressive action in the green business realm. Having made renewable energy one of his budget priorities, Gov. Kulongoski filed nine bills under the climate change umbrella to be considered in the 2009 legislative session. According to Gov. Kulongoski, the bills will “build on our leadership in renewable energy that will create jobs and reduce greenhouse gas emissions.”

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Portland Businesses Are Seeing Green

Portland continues to expand its reputation as a beacon for green business. Today’s Wall Street Journal features an article on how sustainable development and renewable energy businesses are giving a much-needed boost to Portland’s commercial real estate market. There is much excitement surrounding Denmark-based Vestas Wind Systems’ recent announcement that it will be building a new North American headquarters in Portland. The article also highlights German solar energy manufacturer, SolarWorld, and Spanish renewable energy developer, Iberdrola Renovables, both of which have opened large offices in the greater Portland area.

Not only are green businesses flocking to Portland, but existing Portland businesses are also embarking on environmentally friendly real estate development. Stoel Rives recently announced plans to move into a platinum-LEED certified building in the largest downtown office move in Portland history. The firm will be relocating to Park Avenue West, a building that will feature an abundance of daylight, energy efficient lighting and light controls, efficient water usage, and various other elements of a platinum-LEED designation. For more information on Stoel Rives’ relocation to greener office pastures, click here.

Dingell Unseated; Waxman to Head House Energy and Commerce Committee

In a move that could have a significant impact on the energy sector (and create a buzz among political science departments) nationwide, Representative Henry Waxman (D-CA) has dethroned Representative John Dingell (D-MI) in his nearly 28-year post as chairman of the influential Committee on Energy and Commerce. The 137-122 secret vote has shaken up the seniority system that has driven the caucus for decades. It also replaces a long-time friend of the auto industry with someone who has been championed by environmentalists for his positions on clean air and global warming. 

Waxman’s ascension to the Energy and Commerce Committee chairmanship is particularly significant because the committee shepherds legislation on climate change, energy, and health care—all of which are key priorities of the Obama Administration. Waxman (who also has a strong leadership record on health care issues) has pushed for aggressive targets for carbon emissions reductions, more stringent auto emissions standards, and a national cap-and-trade program. Although Dingell recently proposed legislation that would impose gradual reductions in greenhouse gas emissions, Waxman has put forth much more ambitious climate change legislation. 

 

Also of note is Obama’s recent appointment of Philip Schiliro, a longtime aide to Waxman, as the new White House director of Congressional relations. This appointment is considered to be significant in that it provides Waxman with a direct channel to the White House. Congressional insiders have also noted that House Speaker Nancy Pelosi is a close ally of Waxman’s. This web of connections underscores the potential for the Obama Administration and Congress to work closely together to usher in major changes to U.S. climate change policy.  

           

Governor Kulongoski's Climate Change Agenda Unveiled

Earlier this week, I attended Climate Solutions’ Business Briefing on the Governor’s Proposed Climate Change Policy. Hosted by Gerding Edlen, the briefing offered a snapshot of the Governor’s legislative agenda for 2009 and beyond, and gave the sustainable business community the opportunity to offer feedback on what needs to happen to move the plans forward.

The Governor’s Climate Change Agenda (the “Agenda”) covers four major areas: greenhouse gas (“GHG”) reductions, renewable energy, sustainable transportation, and energy efficiency. Some highlights follow.

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Congress Extends PTC and ITC--More Analysis to Follow

In an email alert that we just sent out, my colleagues in the Stoel Rives Tax Section report:

Today the House passed, and President Bush signed into law, H.R. 1424, which includes the Energy Improvement and Extension Act of 2008 (the Act). The Act contains the much-anticipated extension of the production tax credit (PTC) and investment tax credit (ITC) sunset dates.

The Act extends the PTC placed-in-service sunset date for certain wind and refined coal facilities until December 31, 2009, and extends the PTC placed-in-service sunset date for certain other qualifying facilities until December 31, 2010. The Act also expands the PTC to include certain marine and hydrokinetic renewable energy facilities placed in service on or before December 31, 2011.

The Act extends the ITC placed-in-service sunset date for solar, fuel cell and microturbine property until December 31, 2016 and expands the ITC to include combined heat and power system property, qualified small wind energy property, and geothermal heat pump system property.

In addition, H.R. 1424 contains a variety of other renewable energy tax provisions, including provisions allowing the energy credit to offset alternative minimum tax liability; increasing the amount of the biodiesel and renewable diesel fuel credits and extending the sunset dates until December 31, 2009; authorizing new clean renewable energy bonds and qualified energy conservation bonds; and extending the energy efficient commercial buildings deduction and the new energy efficient home credit.

Our Tax Section is working on preparing a more detailed analysis of the tax aspects of HR 1424.  If you'd like to receive updates concerning H.R. 1424 and other renewable energy and clean tech issues, please subscribe to our Renewable Energy Mailing List.

 

When is a Green Building Lease Like a Power Purchase Agreement? Avoiding Deja Vu All Over Again

On April 16, 2008, Northern States Power filed a petition with the Minnesota Public Utilities Commission for a determination that "Xcel Energy has all legal rights necssary to possess, use and dispose of any renewable energy credits ('RECs') arising from the production of renewable energy that Xcel purchases under its renewable energy power purchase agreements ('PPAs')."  NSP's request was directed primary at "46 older PPAs that did not contain language explicity addressing the treatment of RECs."  Suprisingly, until 2003, Xcel Energy's form of PPA for certain small facilities was silent on the question of which party--the generator or the utility--was entitled to the RECs associated with the renewable energy.  Xcel and the affected generators are now filing pleadings before the Commission to sort out the question of who gets to claim the RECs produced by these renewable energy projects--NSP, as the utility buyer, which needs more RECs to meet Minnesota's RPS; or the generators, who wouldn't mind being able make a little more money by selling reserved, unbundled RECs in a separate transction (some of them may have already done just that, and may be unpleasantly surprised if the Commission rules that Xcel is the true owner of those RECs).  The discussion rages on in Docket E-002/M-08-440. (To see the filings, go to the Minnesota Public Utility Commission's e-docket and enter "08" in the year and "440" as the docket.)

So, what do renewable energy PPAs have to do with the lease of a green building?  Well, imagine this scenario.  A developer designs and builds a marvelous new high performance green building with a Platinum LEED certification.  The building's developer/owner leases the building to a company that wants to enjoy the prestige of occupying a top-knotch green office space.  A couple of years later, the state recognizes and values "white tags" (energy efficiency credits); or, the federal government gets around to enacting a comprehensive carbon cap and trade law.  Suddenly, the green building may be yielding additional value in the form of white tags, carbon offset credits or other environmental attributes. 

So who gets that value?  The owner, who took all that risk to develop the green building?  Or the lessee, who is perhaps paying a higher than market rate to rent space in a very desirable green building?  Perhaps a lender has a claim that the value was pledged as collateral for its loan.  If the lease is silent on the point, the lessor and lessee may find themselves quarreling over who gets to own and sell the tags or offsets.  The same issue can crop up in agreements to sell "green" condominiums or other transactions in which some feature of a green building is conveyed to another party.

To avoid re-learning the lesson that Xcel and its generators are now absorbing in a different context, the simple fix is to make sure that the green building lease or transfer agreement directly addresses the question of who gets to keep (or receive) any credits or benefits that are recognized as a result of the building's high performance, green status.  Some forethought about how these agreements are drafted can avoid disputes later on.