California Air Resources Board Issues Draft Update to AB 32 Scoping Plan

This week the California Air Resources Board (ARB) released a draft of its AB 32 Climate Change Scoping Plan Update. The original Scoping Plan was adopted in 2008 and must be updated every five years. The Scoping Plan serves as a blueprint for achieving AB 32’s goal of reducing greenhouse gas (GHG) emissions to 1990 levels by 2020.

The draft Update summarizes programs implemented over the last five years under AB 32 and outlines actions necessary to continue California’s progress toward the 2020 emissions reduction goal. The draft Update shows that California is on track to meet the 2020 emissions reduction goal and inventories the progress made across different economic sectors and programs like cap and trade. With the Update, ARB continues its strategy of achieving AB 32 goals through a mix of emissions reduction measures, including regulatory programs, incentives, and market-based approaches.

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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.


PNWER Energy Storage Conference, Pivotal Leaders Event--Portland, October 8

The Pacific Northwest Economic Region (PNWER) Energy Storage Coaliation (ESC) will be holding an important energy storage conference at the Portland Convention Center on October 8, 2012.  ESC has worked with the Oregon and Washington public utility commissions to bring together a diverse mix of developers, utilities and regulators to share their perspectives on opportunities and barriers to deploying energy storage in the Pacific Northwest.  You can find the draft agenda for the event here and register for the conference here.

Following the PNWER event, Pivotal Leaders will hold an Energy Storage Panel from 4-6 PM at the Portland offices of Perkins Coie, 1120 NW Couch Avenue, 10th Floor.  I will be joinging the panel with Dave Curry of Demand Energy, Praveen Kathpal of AES Corporation, and Lee Kosla of SAFT .  Guests are welcome, but an RSVP is required.  Contact  I hope to see you at both of these events.

For those interested in energy storage, I regularly follow the topic on Twitter, @BillHolmesStoel.  The PNWER Energy Storage Coalition can also be found on Twitter, @PNWERESC.  Finally, is an excellent energy storage news aggregator that offers daily news and a weekly newsletter on the topic.

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!

Upcoming Event: Energy Storage for the Grid: Watchful Waiting or the Perfect Storm?

I'll be moderating Energy Storage for the Grid: Watchful Waiting or the Perfect Storm? at the MIT Enterprise Forum Northwest's May 8, 2012 program at Seattle's Museum of History and Industry (MOHAI) , 2700 24th Ave East.  The event, which includes a networking reception, will be held from 5:00 to 8:30 pm. 

The evening's panelists will be:

  • Terry Oliver, Chief Technology Innovations Officer, Bonneville Power
  • Alexander H. Slocum, Professor, Massachusetts Institute of Technology
  • Chris Wheaton, Chief Operating & Financial Officer, EnerG2
  • Nathan Adams, Manager of Development and Emerging Technologies, Puget Sound Energy

Among other topics, the panel will address:

  • The most promising energy storage strategies
  • How different storage methods could work together with the grid in the Northwest and nationally
  • How entrepreneurs, the changing energy marketplace, grid operators, and utilities are responding to the call to build the foundation for a clean energy economy 

For more information about this event, visit MITEF Northwest's web site

I hope to see you there!  In the meantime, for those who are following energy storage, I'm "tweeting" regularly on that topic as well as Department of Defense renewables procurement  at @BillHolmesStoel (#energystorage)


CUB Policy Center and UO Hold Inaugural Smart Grid Conference in Portland

The CUB Policy Center, in partnership with the University of Oregon School of Law,  will be holding its inaugural policy conference: Smart Grid: Today's Regulation and Tomorrow's Technology, on Friday, October 21, 2011, at the University of Oregon White Stag Block (70 NW Couch St., Portland, OR 97209).  The luncheon keynote speaker will be former FERC Commissioner Nora Mead Brownell, who is the co-founder of ESPY Energy Solutions.

The conference is designed to educate utility analysts, policy analysts, attorneys, industry professionals, stakeholders and others on the current regulatory environment in Oregon and the region and to provide a forum for investigating the opportunities and challenges of integrating the Smart Grid into that environment. The CUB Policy Center notes that space for this conference, which promises to be well attended, is limited and encourages attendees to register early.   

I'll be participating in the Closing Panel to recap and discuss lessons learned during the day, and I hope to see you there.

EPRI Project to Develop Functional Requirements for Customer Energy Storage System (CESS) Launched - Public Webcast July 22

The Electric Power Research Institute (EPRI) is developing a new report to define functional requirements for customer energy storage systems (CESS). The project is engaging energy storage stakeholders to collaborate on the development of the functional requirements through a public process.

EPRI's effort is designed to create an understanding between electric utilities and their storage needs, the manufacturers and suppliers of customer energy storage systems, and customers of the systems.


A webcast open to all stakeholders will take place on Friday, July 22, 1:30 PM – 3 PM ET. During that webcast, attendees will be asked to help refine the draft document, and provide comments. Registration is required at

This new EPRI report will builld on last year’s efforts to develop functional requirements for utility systems that support Distributed Energy Storage Systems (DESS), substation grid support and renewable energy integration.


Questions, comments and any feedback can be directed to A copy of the CESS functional requirement document will be circulated among registrants a couple of days before the webcast.


Thanks to Emanuel Wagner, EPRI's Project Coordinator at Technology Transition Corporation, for the tip about this webcast.

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


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:;
  • 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

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.


Governor Brown Signs Bill Increasing California's Renewable Portfolio Standard to 33%

A Legal News Alert from Seth Hilton and the Stoel Rives Renewable Energy Law Group:

California’s Governor Jerry Brown signed Senate Bill ("SB") X1-2 on Tuesday requiring California's electric utilities to procure 33% of their energy from renewable resources by 2020.  Upon signing the bill, Governor Brown stated the "bill will bring many important benefits to California, including stimulating investment in green technologies in the state, creating tens of thousands of new jobs, improving air quality, promoting energy independence and reducing greenhouse gas emissions."

Details concerning the implementation of the new legislation will have to be worked out at various California regulatory agencies, including the California Public Utilities Commission and the California Energy Commission. The legislation will likely spawn numerous regulatory proceedings as the various regulatory agencies struggle to come to grips with the new RPS mandate.

For more information about SBX1-2, please see our earlier blog post and detailed Renewable Energy Law Alert, dated March 29, 2011.

Legislature Passes SBX1-2 to Increase California RPS to 33%

Legal News Alert from Stoel Rives Renewable Energy Law Group

The California Legislature has passed Senate Bill (“SB”) X1-2, which requires California’s electric utilities to increase their renewable generation to 33% by 2020. Passage of the legislation is the culmination of years of effort to increase California’s Renewable Portfolio Standard (“RPS”) from its current 20%. In 2009, the Legislature passed SB 14, which also would have increased California’s RPS to 33%, but the bill was vetoed by Governor Schwarzenegger on the ground that it imposed too many restrictions on the use of out-of-state generation to meet California’s RPS requirement. Governor Schwarzenegger then issued an executive order directing the California Air Resources Board to develop its own 33% Renewable Energy Standard under the Board’s authority pursuant to Assembly Bill 32, the Global Warming Solutions Act of 2006. Last year, the Legislature again tried to pass another 33% RPS bill, SB 722, but the session expired before the legislation could reach a final vote. Two bills were introduced in this session: SB 23 and SBX1-2. SBX1-2 was identical to SB 23, but it was introduced in special session in an attempt to speed passage of the legislation. SBX1-2 now goes to Governor Brown for signature, and he is expected to sign the legislation into law.

For more background and information on the decision and its implications, click here.

California Court Enjoins Implementation of Cap-and-Trade

Legal News Alert from Stoel Rives Environmental Law Group


March 23, 2011

San Francisco Superior Court has issued a final decision in Association of Irritated Residents v. California Air Resources Board.  For the moment, the California Air Resources Board (CARB) is enjoined from further rulemaking to implement the California Global Warming Solutions Act (A.B. 32), including for the cap-and-trade program.  The Court upheld the validity of CARB’s Scoping Plan for implementation of A.B. 32, saving CARB from having to revise the Plan.  But, the Court found flaws with CARB’s environmental review of the Scoping Plan under the California Environmental Quality Act (CEQA), in particular its analysis of alternatives to the Plan’s recommended greenhouse gas (GHG) reduction measures, such as cap and trade.  CARB is enjoined from further rulemaking until the agency has come into compliance with CEQA by amending its environmental review of the Scoping Plan. 

For entities facing regulation under A.B. 32, this decision has important implications.  Scoping Plan GHG reduction measures that have already made their way through the rulemaking process appear unaffected.  But CARB’s cap-and-trade program never made it out of the formal rulemaking process. While the Board members of CARB approved the cap-and-trade program in December 2010, it left it to the Executive Officer to take final action to adopt the proposed regulation (or bring it back to the Board) after more details were finalized.  CARB had a packed schedule this year to finalize cap and trade prior to its January 1, 2012 start date.  Under the Court’s final decision, these activities will have to be shelved if they fall within the rubric of further rulemaking or implementation.  Regulated entities may thus have a temporary reprieve from the onset of cap and trade in 2012.  But continued uncertainty over the details of CARB’s planned GHG regulation of stationary sources is a less than ideal situation for regulated sources.

For more background and information on the decision and its implications, click here.

If you currently subscribe to Stoel Rives legal updates, click here to update your contact information and preferences. To join the Stoel Rives mailing list and ensure direct delivery of future alerts, click here to subscribe. To unsubscribe, send an email to

California Court Enjoins Implementation of Cap-and-Trade

Legal News Alert from Stoel Rives Environmental Law Group


March 23, 2011

San Francisco Superior Court has issued a final decision in Association of Irritated Residents v. California Air Resources Board.  For the moment, the California Air Resources Board (CARB) is enjoined from further rulemaking to implement the California Global Warming Solutions Act (A.B. 32), including for the cap-and-trade program.  The Court upheld the validity of CARB’s Scoping Plan for implementation of A.B. 32, saving CARB from having to revise the Plan.  But, the Court found flaws with CARB’s environmental review of the Scoping Plan under the California Environmental Quality Act (CEQA), in particular its analysis of alternatives to the Plan’s recommended greenhouse gas (GHG) reduction measures, such as cap and trade.  CARB is enjoined from further rulemaking until the agency has come into compliance with CEQA by amending its environmental review of the Scoping Plan. 

For entities facing regulation under A.B. 32, this decision has important implications.  Scoping Plan GHG reduction measures that have already made their way through the rulemaking process appear unaffected.  But CARB’s cap-and-trade program never made it out of the formal rulemaking process. While the Board members of CARB approved the cap-and-trade program in December 2010, it left it to the Executive Officer to take final action to adopt the proposed regulation (or bring it back to the Board) after more details were finalized.  CARB had a packed schedule this year to finalize cap and trade prior to its January 1, 2012 start date.  Under the Court’s final decision, these activities will have to be shelved if they fall within the rubric of further rulemaking or implementation.  Regulated entities may thus have a temporary reprieve from the onset of cap and trade in 2012.  But continued uncertainty over the details of CARB’s planned GHG regulation of stationary sources is a less than ideal situation for regulated sources.

For more background and information on the decision and its implications, click here.

If you currently subscribe to Stoel Rives legal updates, click here to update your contact information and preferences. To join the Stoel Rives mailing list and ensure direct delivery of future alerts, click here to subscribe. To unsubscribe, send an email to



On February 11, 2011, California Public Utilities Commission (CPUC) Administrative Law Judge Burton Mattson issued a Proposed Decision conditionally accepting the 2011 Renewables Portfolio Standard (RPS) Procurement Plans for Southern California Edison, Pacific Gas and Electric Company, and San Diego Gas and Electric Company.  If adopted, the Decision would set a schedule for the utilities’ 2011 RPS solicitation.  The Decision was on the agenda for the CPUC’s March 24, 2011 business meeting, but was held at Commissioner Florio’s request until the April 14 meeting.


On March 17, 2011, Commissioner Florio noticed an all-party meeting on the Proposed Decision for March 25, 2011.  Yesterday, Commission Florio circulated an agenda for the meeting.  Among the issues raised by the agenda is whether an RPS solicitation in 2011 is necessary and prudent.


Stoel Rives’ Partner Seth Hilton will be present at the all-party meeting, and will provide an update afterwards. 

Smart Grid Oregon Announces Its First Policy Conference--November 9, 2010

Following on the heels of a September 2010 report by GTM Research forecasting that the smart grid market in the U.S. will grow more than 70%, from $5.6 billion in 2010 to $9.6 billion by 2015, Smart Grid Oregon today announced the new organization’s first conference to be held on November 9, 2010 at the World Trade Center in downtown Portland.

The conference will feature keynoters Kurt Yeager, Executive Director of the Galvin Electricity Initiative and President and Chief Executive Officer of the Electric Power Research Institute; and Roy Hemmingway, past Chair of the Oregon Public Utility Commission and also past Chair of the New Zealand Electricity Commission.


Smart Grid Oregon is a trade association that was launched in June 2009 and is dedicated to making Oregon a leader in the implementation of Smart Grid technologies and in supporting companies that build and market Smart Grid products and services.  The aim of the first Smart Grid Oregon Public Policy Conference is to help public and utility officials, regulators, legislators, city and county governments and other stakeholders in Oregon and the region gain a better understanding of the Smart Grid and policy decisions that will need to be addressed in the coming years.


Stoel Rives is a member of Smart Grid Oregon, and we are a sponsor of the November 9 conference.  See you there!

To learn more, go to or contact Ashley Henry at or 503-866-9191.

Washington Revising its State Energy Strategy

The Washington State Department of Commerce (formerly the Department of Community, Trade and Economic Development or CTED) has announced that it is attempting to revise Washington’s comprehensive energy plan (the “State Energy Strategy”). 

The State Energy Strategy was last revised in 2003, and it does not serve current energy realities and forecasts. Therefore, the Washington State Legislature has tasked the Department of Commerce with updating the State Energy Strategy while taking account the following three goals and nine principles:

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SEC Adopts Interpretive Guidance on Disclosure Regarding Climate Change

As described in a previous alert, the Securities and Exchange Commission ("SEC") voted on Wednesday, January 27, 2010 to adopt an interpretive release to provide guidance on existing public company disclosure requirements as they apply to business or legal developments relating to climate change. The SEC has now distributed the interpretive release itself, which can be found here.  The interpretive release indicates that its purpose is to provide guidance on how to interpret existing SEC disclosure rules and requirements as applied to business and legal developments associated with climate change.  For our detailed alert on the subject, click here.

SEC Posts Climate Change Interpretive Release

Earlier today, the Securities Exchange Commission (SEC) posted its climate change interpretive release, which can be found at  Our prior Blog on the subject is here, and our alert on the topic can be found here.  Stoel Rives corporate securities partners Ron McFall and CJ Voss will be posting a follow up alert shortly. 

 If you'd like to sign up for our Energy Law Alerts, click here

SEC Issues Interpretive Guidance on Greenhouse Gases

My partner Tom Wood circulated this preliminary alert this afternoon:

"Earlier today the U.S. Securities & Exchange Commission (SEC) approved interpretive guidance intended to inform public companies how climate change must be taken into account when applying existing disclosure requirements.  Specifically, the SEC's interpretative guidance highlights the following areas as examples of where climate change must be considered in crafting disclosures:


·         The direct effects of existing and pending environmental regulation, legislation and international accords and treaties on the company’s business, its operations, risk factors and in Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A);


·         The indirect effects of climate change legislation and regulation on a company’s business—this could include new opportunities or risks posed by legal, technological, political and scientific developments related to climate change; and


·         The actual and potential effect on a company’s business and operations resulting from physical changes to the planet resulting from climate change.


"The interpretive guidance specifies that public companies must have adequate knowledge of their greenhouse gas emissions—a requirement that is consistent with recent EPA regulations requiring many (but not all) significant greenhouse gas emitters report their direct emissions starting in calendar year 2010.  The SEC stated “management should ensure that it has sufficient information regarding the registrant’s greenhouse gas emissions and other operational matters to evaluate the likelihood of a material effect arising from the subject legislation or regulation.”

Unsurprisingly, the SEC said that registrants must weigh whether climate change related information is material or not.  In doing so, they said that if it was a close question, the company should decide in favor of disclosure."


The complete language of the interpretive guidance has not yet been released.  Corporate securities partners C. J. Voss and Ron McFall are reviewing the issue and will be issuing an Energy Law Alert on the topic.  If you'd like to sign up for our Energy Law Alerts, click here

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 More information about the event is available at ZINO’s website or by contacting Rob Brown at or 206-621-0466.

EPA Announces "Endangerment" and "Cause or Contribute" Findings

Stoel Rives partner Tom Wood reports:

Minutes ago EPA announced its long awaited “endangerment” and “cause or contribute” findings in relation to six key greenhouse gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.  While technically this announcement is of limited significance (applying only to motor vehicle emissions), the policy import of these determinations is tremendous. 


In 2007, the U.S. Supreme Court held that greenhouse gases are air pollutants covered by the Clean Air Act in the Massachusetts v. EPA decision.  This case arose in relation to EPA’s choice not to regulate carbon dioxide emissions from new motor vehicles.  The Court held that EPA must determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision.  


Earlier this year EPA proposed to issue the two part finding required to commence regulation of greenhouse gas emissions from new motor vehicles.  This required first a finding that greenhouse gas emissions endanger public health and welfare and a second finding that emissions from new motor vehicle engines cause or contribute to greenhouse gas air pollution.  The comment period for these proposed findings ended June 23, 2009 and EPA received over 380,000 public comments.  Today, Lisa Jackson (EPA Administrator) signed final findings that greenhouse gases endanger both the public health and the public welfare of current and future generations and that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare.


As a legal matter, today’s findings relate only to vehicle emissions.  However, the precedent that they create will almost certainly result in substantial regulation for other source categories.  It is no coincidence that this finding was announced on the first day of the Copenhagen talks on climate change.  The Obama administration both wanted to show that some progress was being made in the U.S. and it wants to leverage this progress into further statutory or regulatory requirements. 


Towards this goal, one of the more interesting things to come out of the determinations is the formal establishment of the new pollutant: “Well-Mixed Greenhouse Gases.”  This term is now officially entered into EPA’s regulatory lexicon as a pollutant to be regulated.  Well-Mixed Greenhouse Gases consists of the 6 Kyoto gases (carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride) but introduces the grouping now as a regulatory unit.  It is noteworthy that vehicles are not material sources of all of these greenhouse gases and so the use of this term should be seen as setting the stage for future regulation.


Also of interest is an EPA restatement in a footnote that at this time it does not consider greenhouse gases to be a regulated air pollutant.  This is of tremendous significance to stationary sources of greenhouse gases as the moment that greenhouse gases become regulated, there is the potential argument that they are subject to Title V and major new source review permitting.  At the risk of understating the issue, that would be a mess of biblical proportions. 


For those wishing to read all 284 pages of the findings document, it can be found at:

The findings are not valid until 30 days after they are published in the Federal Register.  Expect publication to occur later this month.



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: 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

Demonstration of Low Temperature Geothermal Power Generation

Seeing how Stoel Rives is a Silver Sponsor of the Geothermal Energy Expo, held in Reno until October 7, 2009, it appears timely to talk about some geothermal energy news (click here for conference details, come by and see us at booth #520).

On October 2, 2009, the U.S. Department of Energy (DOE) announced the Geothermal Research Initiative, a program to demonstrate low temperature geothermal electrical power generation systems using oilfield fluids produced at the Rocky Mountain Oilfield Testing Center. This program is moving forward as a collaboration between the Office of Fossil Energy and the Office of Energy Efficiency and Renewable Energy’s Geothermal Technologies Program.

The Geothermal Research Initiative will demonstrate the versatility, reliability, and deployment opportunities which utilize the co-produced water from oilfield operations. These systems are designed to offset the electricity usage of the oilfield while also creating a second use for water which would otherwise be discarded. The DOE believes that the co-produced water can become a significant energy resource with an estimated 10 barrels of hot water being produced along with each barrel of oil in the United States.

The program will produce operational and performance data which will be freely available to the public. The goal of the program is to educate industry and the public about the potential for geothermal energy production from co-produced water and establish the best systems for particular climates. 

Obama Administration Officials Release Report on Ocean Policy

Last week, Obama Administration officials released the Interagency Ocean Policy Task Force Interim Report (the “Interim Report”), which lays out a comprehensive national policy for protecting and managing the use of our oceans, coasts, and the Great Lakes. Created by President Obama via a June 12, 2009 Presidential Memorandum, the Interagency Ocean Policy Task Force (the “Task Force”), is led by the Council on Environmental Quality’s Chair, Nancy Sutley and is composed of twenty-four senior-level officials from government agencies, departments, and offices. In preparing the Interim Report, the Task Force sought input from within the federal government, and from local officials, tribal representatives, scientists, legal and policy experts, and other stakeholders. The Task Force also solicited public input via a 90-day public engagement process. 

The Interim Report identifies three key components to its comprehensive ocean and coastal strategy: (1) a national policy, (2) a robust governance structure, and (3) categories for action. The Interim Report’s national policy proposal is premised on the stewardship of the ocean, coasts, and Great Lakes as being “intrinsically and intimately linked” to human health, environmental sustainability, economic prosperity, security, foreign policy, social justice, and adaptation to climate change. With respect to the robust governance structure, the Interim Report calls for increased coordination among government agencies. To this end, the Interim Report proposes an interagency National Ocean Council to facilitate interagency coordination on ocean-related issues and implement the National Ocean Policy. The Interim Report also prioritizes nine categories for action in order to address the main challenges currently confronting our oceans, coasts and Great Lakes, including ecosystem-based management, improved observing systems and data collection, coastal and marine spatial planning, and regional ecosystem protection and restoration.

There is a 30-day window for submitting written comments on the Interim Report. The Task Force is also holding several regional public meetings to brief the public and accept comments on the Interim Report, and to obtain input on developing a framework for coastal and marine spatial planning. The Task Force has until December 9, 2009 to submit its proposed coastal and marine spatial planning framework to President Obama. The final Task Force report will also be issued later this year.

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 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 For more information contact Heather Ballash at

Australia passes 20% renewable energy target by 2020

From my colleague Adam Walters:

On August 20 the Australian government announced the passage of a bill quadrupling its Renewable Energy Target (RET) to ensure that 20% (approximately 45,000 GWh) of Australia’s electricity is generated from renewable energy sources by 2020.


How does Australia’s RET Scheme Work?


The RET scheme is an expansion of Australia’s Mandatory RET scheme introduced in 2001, the first of its kind in the world. It works through the creation and sale of Renewable Energy Certificates (RECs) by renewable power generators to “liable parties” (mainly large-scale electricity utilities and consumers), who must provide a designated quantity of REC’s to Australia’s renewable energy regulator to demonstrate compliance and avoid having to pay charges for any shortfall. One of the changes brought about the new legislation is to increase from $40/MWh to $65/MWh.

Renewable energy sources eligible for accreditation under the RET scheme include: solar, wind, hydro, tidal, wave, biomass and geothermal, as well as solar water heaters and other smaller generation units. Hydro has historically dominated Australia’s renewable energy landscape, but recent project announcements and funding opportunities for wind and solar projects signal greater diversification of the industry, particularly for proven technologies.        

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Show me the Money: Green Jobs Grants

Recently, the U.S. Department of Labor has issued $500 million for green job training.  This money is being released through a series of competitive grants.

If you are an organization within Washington State, the Governor's Office requests that you submit a brief information form to the Governor's Evergreen Jobs Leadership Team.  The Team is compiling a list of potential applicants which will be posted on a public website.  The information on this list will be available for stakeholders to find grant partners and leverage resources.

A copy of the form is available here:


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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DOE Announces $59 million in Conditional Loan Guarantees

On July 2, 2009, the Department of Energy ("DOE") announced $59 million in conditional loan guarantees in the form of $16 million for a wind turbine assembly plant and $43 million for a 20 megawatt flywheel energy storage plant.

Nordic Windpower, USA has been conditionally offered a $16 million loan to support the tooling and commercial-scale set up of its assembly plant in Pocatello, Idaho.  This assembly plant produces one megawatt two blade turbines which are 10% less costly to manufacture, install, operate, and maintain than competing systems.

Beacon Power was conditionally offered a $43 million loan to support the construction of a 20 megawatt flywheel energy storage plant in Stephentown, New York.  The flywheel system is utilizing a newly developed technology to provide frequency regulation services by absorbing and discharging energy to maintain the consistency of power on the electric grid.

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).

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.


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 or contact:

Howard Susman at  (8... or
David Quinby at  (8... or
Morten Lund at  (8... or
Brian Nese at  (8... or


Show me the Money: $12.9 million available for Geologic Sequestration Training and Research

The Department of Energy ("DOE") has released $12.93 million to fund geologic sequestration training and research. $7.93 million is available for awards to all universities, colleges, and college-affiliated research institutes and $5 million is available for awards to historically black colleges and universities or other minority institutes listed on the Office of Civil Rights's accredited post secondary minorities institution list. 

Individual awards will be made across five areas of interest:

  1. Simulation and Risk Assessment
  2. Monitoring, Verification, and Accounting
  3. Well Completion, stimulation, and Integrity
  4. Capture and Transport- including pipeline transport and pre-combustion capture
  5. Post-Combustion capture- including oxy-combustion capture

DOE anticipates awarding 42 awards ranging from $100,000 to $300,000 to fund research projects involving field projects for hands-on training opportunities. 


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:



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,  The most recent announcement to the FOA allows for applications to be submitted via email to with the subject line "EECBG Application (Unique Identification Code)."

Show me the Money: $57 million Deployed to 30 Biomass Projects

On June 11, 2009, the Department of Agriculture ("USDA") announced that thirty projects, located in fourteen states, would receive $57 million in Recovery Act funding.  Of these funds, $49 million will be for wood-to-energy grants and $8 million is for biomass utilization.

These funds will serve two important objectives.  First, the funds will promote the development of biofuels from wood and stimulate renewable energy infrastructure. Second, the projects will create a market for low value woody biomass that would otherwise constitute fuel for wildfires.

For information about specific projects, please call the United States Forest Service or go to

Show me the Money: $10 million for Climate Showcase Communities

On June 16, 2009, the Environmental Protection Agency ("EPA") issued a request for applications ("RFA") for its Climate Showcase Communities Grant Program.  The RFA provides $10 million for programs to help lower green house gas ("GHG") emissions through energy and resource management.

Eligible activities are those that reduce GHG emissions in the following priority areas:

  • Use or supply of green power products, on-site renewables, and other clean energy supply options;
  • Energy performance in municipal operations (including municipal energy, water, and waste-water utilities);
  • Energy performance in residential, commercial, agricultural, aqua-culture, and/or industrial buildings;
  • Land use, transportation, or community master planning;
  • Reduction of vehicle miles traveled;
  • Solid waste management;
  • Agricultural, aqua-cultural, and natural resource management;
  • Heat island management;
  • Removal of barriers for greenhouse gas management, through the development of effective programs, policies, or outreach; or
  • Other innovative activities which generate measurable reductions of greenhouse gases

The EPA expects to award up to 30 cooperative agreements.  Individual awards can be as high as $500,000, but most awards will range in value from $300,000 to $500,000.  Eligible entities include local governments, Indian tribes, and intertribal consortiums.

Applicants must submit an informal notice of Intent to Apply by July 1, 2009 and full applications are due July 22, 2009 at 4:00 p.m. EDT.

Show me the Money: $6.97 Million for Sequestration Training

The Department of Energy is requesting proposals for regional sequestration technology training.  The funding is available to develop regional training that promotes the transfer of knowledge and technologies related to carbon capture and sequestration technologies. 

Up to $6.97 million in Recovery Act Funding as available for up to 7 individual awards.

Proposals must be submitted by July 22, 2009.

Show me the Money: Carbon Capture and Benficial Carbon Dioxide Use

On June 8, 2009, the Department of Energy (“DOE”) issued a Funding Opportunity Announcement (“FOA”) to deploy over $1.4 billion from the American Recovery and Reinvestment Act (“Recovery Act”) to be used to lower our nation’s carbon emissions. The FOA will support projects in two areas: (1) the capture and sequestration of carbon dioxide emissions from industrial sources, and (2) demonstration of innovative concepts for beneficial CO2 use. 

Applications under this FOA are Due August 7, 2009.

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: $256 Million Investment to Improve Energy Efficiency

On June 1, 2009, the Department of Energy ("DOE") announced plans to deploy $256 million from the American Recovery and Reinvestment Act ("Recovery Act") to be used to improve the energy efficiency of the American economy. Three recent DOE Funding Opportunity Announcements ("FOAs") have been issued in conjunction with this Recovery Act announcement. Additionally, a related FOA has been announced using funds appropriated outside of the Recovery Act. The recently announced funding will support projects in three areas: (1) sustainable energy infrastructure and energy efficient industrial technologies, (2) improved energy efficiency for information and communication technology and (3) advanced materials in support of clean energy technologies and energy-intensive processes.

Click here for more complete details.



Evaluating Climate Change Impacts under the California Environmental Quality Act: Center for Biological Diversity v. Town of Yucca Valley

Query this:  the California legislature has passed the California Global Warming Solutions Act (AB 32) and Senate Bill 97, making it clear that the impact of a project’s greenhouse gas (GHG) emissions has to analyzed under the California Environmental Quality Act (CEQA).  Your project is one GHG source among literally thousands of sources in California contributing to global climate change.  There is no recognized CEQA threshold of significance for GHG emissions. We’re months away from having new CEQA Guidelines adopted under SB 97, but, in any case, the proposed draft amendments to the CEQA Guidelines do not establish a threshold of significance. And yet, you, as a project developer, need to analyze and reach a definitive (and defensible) conclusion on the cumulative impact of your project on climate change. What do you do? 

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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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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.


More on The Oregon Public Utility Commission's Decision in Honeywell

For those who have been tracking the Oregon Public Utility Commission's In re Honeywell proceeding, Stephen Hall and Pat Boylston have just released a Stoel Rives Energy Law Alert explaining the significance of the decision for third party "on site" solar and wind generation and net metering. 

Gail Kinsey Hill reported on the decision and its importance for solar development in a story entitled "Ruling gives solar energy projects in Oregon a big boost", which appeared in The Oregonian on August 1.

Although the OPUC's ruling is a big win for the solar industry in Oregon, the same principles would apply to third "on site" wind generation (although it would not apply to other renewable energy sources).

More Good News for Solar!

Coming on the heels of the Oregon PUC's decision in the Honeywell case (see Steve Hall's blog below), scientists at MIT announced today that  they had discovered a cheap way to separate oxygen from hydrogen using techniques learned from studying plant photosynthesis.  Once separated, the hydrogen and oxygen can be used to power a fuel cell.  During the daytime, a home would run on solar power--at night, it would draw energy stored in the fuel cell.

Could this development be a game changer?  The full story is to be published in Science today--in the meantime, check out ScienceDaily.



The New (2nd) Edition of the "Law of Biofuels"

Stoel Rives has now published seven original Law of books covering various topics in the renewable energy industry.  To write these books, our attorney-authors draw on over 20 years of legal and business experience in wind, geothermal, biofuels, and other renewable energy resources.  The books are intended to provide a succinct but thorough overview of industry segments in a way that is practical, business-oriented and not overly legalistic.

Of course, the renewable energy world is changing constantly.  This Renewable + LawSM Blog is our effort to stay on top of these issues as quickly as they emerge.  But at least once each year, we also update our Law of books.  The update process helps us develop a deep and immediate understanding of complex issues, and it's a great way to build a proficient team of lawyers who know how to work efficiently together. 

The Law of Biofuels (2d Ed) will be making its debut at the Stoel Rives booth (No. 718) at The American Coaliton for Ethanol (ACE) conference on August 12-14 at the Qwest Center in Omaha, Nebraska .  You can also order it or download it online.  The new book includes a chapters on Next Gen Biofuels, technology and licensing, financing, tax, siting and permitting, construction, commercial contracts, and real estate.  Biofuels attorneys from all of Stoel Rives' contributed their insights to this book

At the ACE conference, my partner David Quinby, an old hand at biofuels and energy M&A,  will be speaking on a panel addressing "Ethanol Today & Tomorrow: Growing and Selling Considerations,"  in which he will explain how biofuels plants can grow, diversify, recapitalize or sell in today's world of narrow margins and volatile markets.  Dave promises an exciting presentation, a little like "The Dark Knight" but with more humor.

Oregon Public Utility Commission Gives Green Light to Third-party Ownership Model for Distributed Generation

Now for some good news. Today the Oregon Public Utility Commission (OPUC) issued an important decision giving a green light to companies seeking to own and operate solar and wind-powered distributed generation facilities. Third-party ownership of renewable distributed generation—especially solar—has really taken off in the past few years because it allows a utility customer to enjoy the benefits of on-site renewable energy, but pay the facility owner only for the electricity generated by the facility.  Continue Reading...

Green Building Standards Adopted in California

The California Building Standards Commission has adopted the nation’s first state-wide Green Building Standards Code.  California’s new green building standards will be phased in from 2009 to 2011 and include provisions on:

  • Energy efficiency
  • Water efficiency and conservation
  • Use of recycled and sustainable materials in construction
  • Recycling of construction waste
  • Indoor air quality

The Green Building Standards Code contains numerous optional green building measures, but some standards will soon be mandatory for all new buildings constructed in California.  For example, beginning about January 2011, at least 50% of construction waste generated at any given construction site must be recycled or salvaged.  Starting in July 2011, indoor water use must be reduced by 20%, for instance by using water saving fixtures and flow restrictors.  Low or no-volatile organic compound adhesives, paint, carpet, and other materials will also be mandatory in 2011. 


The mandatory and recommended green building standards in the Green Building Code could have a significant positive impact on energy consumption, water and resource use, and waste generation, considering the amount of resources associated with buildings in the U.S.  The U.S. Green Building Council notes that buildings nationwide account for 70% of electricity consumption, 39% of energy usage, 12% of potable water consumption, 40% of raw materials usage, and 30% of waste output.  The U.S. Green Building Council is the developer of the LEED (Leadership in Energy and Environmental Design) Green Building Rating System, which is considered the leading global standard on sustainable green building and development practices.


A Darker Shade of Green: Stoel Rives Announces Firmwide Sustainability Campaign

Our renewable energy team here at Stoel Rives has been a big fan of purchasing green power for years--we were one of the first US law firms to purchase green tags to offset a portion of the firm's electricity use.

In 2008, we kicked off an even more ambitious firmwide GO GREEN campaign that goes beyond buying green power. In many of our offices, we have removed garbage cans from individual offices and now walk our garbage to a central location on each floor where the waste can be recyled, composted or, as a last resort, thrown away.  (Needless to say, the sudden disapperance of office garbage cans stimulated a lot of discussion, but it certainly taught us how many things could actually be composted or recycled if we tried hard enough.).  We've logged enough alternative commuting miles in the past 6 weeks to drive round trip from Portland, Oregon to Miami, Florida over 15 times.  We also learned that we we can save over $70,000 a year in costs by just changing the firm's printers to a default duplex mode.  We're now one of only seven law firms in the United States  to qualify as a leader in the EPA/ABA Climate Challenge.

To learn more about the things we're doing here at Stoel Rives to reduce our impact on the earth and support renewable energy, check out our Go Green Press release