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Join GTH at the Washington Future Energy Conference

September 9, 2014

Please join us at the Washington Future Energy Conference on November 5. Gordon Thomas Honeywell is proud to be a major sponsor of this event. Now in its fifth year, the Future Energy Conference brings together energy innovators, utilities, scientists, investors, and many others to discuss the future of the energy industry in our state.

Speakers include GTH partner Eric Christensen, who will moderate a panel discussing the electrification of Washington's transportation system. The panel will include Steve Marshall of the Center for Advanced Transportation and Energy Solutions, Charles Knutson, Senior Policy Advisor to Washington Governor Jay Inslee, and John McCoy, Legislative Director for the Seattle Electric Vehicle Association.

We look forward to seeing you November 5.

Department of Energy Offers $4 Billion in Loan Guarantees for Energy Efficiency, Renewables, and Energy Storage

July 24, 2014

The U.S. Department of Energy's Loan Programs Office recently announced a new solicitation for federal loan guarantees to help promote renewable energy, energy storage technology, and energy efficiency projects. The loan guarantees are aimed at promoting greenhouse gas-reducing technologies where DOE support will be "catalytic" -- that is, support of a particular project will help catalyze widespread adoption of the technology -- and the technology is replicable and market-ready.

Specific categories of projects eligible for loan guarantees include renewable energy projects that incorporate energy storage, smart grid and energy storage projects that promote renewables integration, and microgrid projects if they reduce carbon dioxide emissions. In addition, biofuels, waste-to-energy projects, and a variety of energy efficiency processes and technologies are eligible. Finally, loan guarantees can be used to retrofit existing non-powered dams with hydroelectric generation and to install variable speed pump-turbines into existing dams. As recently noted here, Congress also recently appropriated money to provide production incentives for hydroelectric power produced by new generators installed on existing non-powered dams and conduits.

DOE will being receiving initial applications October 1, 2014, and will begin receiving supplemental applications for those projects passing the initial screen on January 14, 2015. The solicitation provides for four additional rounds of applications.

If you have any questions about the DOE's loan program, energy project construction or finance, or other matters involving energy or environmental law, please contact a member of GTH's Energy, Telecommunications, and Utilities or Environment & Natural Resources practice groups. We're proud that our partner Jim Waldo was recently named 2013 Lawyer of the Year for Energy and Natural Resources Law, and six practice members were recently recognized as Washington Super Lawyers.

Bully for Biomass: Washington Supreme Court Rejects Greenhouse Gas Claims, Upholds Finding of No Significant Environmental Impact for Biomass Facility

February 27, 2014

The Washington Supreme Court today rejected claims that the potential for greenhouse gas ("GHG") from a biomass facility triggers the requirement to prepare a full Environmental Impact Statement under Washington's State Environmental Protection Act ("SEPA"). Today's decision promises to greatly simplify the permitting process for projects planning to use woody biomass and should help clarify how GHG emissions are treated for biomass-fired facilities, a question that has bedeviled courts and regulators in other contexts. PT Air Watchers et al. v. State of Washington et al., No. 88208-8 (issued Feb. 27, 2014).

The controversy arose from Port Townsend Paper Company's plans to modernize the boiler at its paper mill by increasing the use of woody biomass to fuel the boiler, increase the boiler's firing efficiency, and adding a 25 megawatt generator to produce electricity. The paper company prepared a SEPA "checklist" in accordance with WAC 197-11-960. The checklist concluded that, because the project would reduce burning of fossil fuels by burning woody biomass instead, it would produce a net reduction in GHG emissions. The Department of Ecology agreed, concluding that no EIS was required because the project would not produce significant environmental impacts. A coalition of local environmental groups challenged this finding, but the challenges were rejected both in an administrative appeal and by the reviewing courts. The Washington Supreme Court accepted review and today affirmed Department of Ecology's finding that no significant environmental impacts requiring preparation of an EIS would result from the project.

Continue reading "Bully for Biomass: Washington Supreme Court Rejects Greenhouse Gas Claims, Upholds Finding of No Significant Environmental Impact for Biomass Facility" »

Pew Study Documents Progress in Military Renewables, Reliability and Efficiency Efforts

January 28, 2014

The U.S. military is making substantial progress toward its goals of acquiring 3 GW of renewable energy by 2025, substantially reducing energy use, and improving the reliability of power delivery to military bases, according to a recent report from the Pew Charitable Trusts. The progress attained so far demonstrates the seriousness of the military's commitment to renewable energy, energy conservation, and reliability, and confirms that the Department of Defense ("DOD") energy initiatives represent a huge opportunity for private-sector energy developers.

The DOD initiatives arise from both Congressional mandates requiring increased use of renewable fuels and from recognition within the armed services that continued reliance on fossil fuels and an aging electric infrastructure creates unacceptable security vulnerabilities. For example, the Defense Science Board's influential 2008 report, "More Fight, Less Fuel," identified the military's continued reliance on fossil fuels, and the fragile supply lines associated with that dependence, as a major security problem for military operations around the world. "Unleashing the tether" that ties troops to vulnerable fuel supplies therefore became a major strategic objective. Similarly, the report concluded that serious security risks arise from the dependence of U.S. military bases on an aging electricity infrastructure that exposes bases to increasingly frequent power outages.

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Over Heated Dissent, Ninth Circuit Rejects Rehearing in Low Carbon Fuel Standards Challenge, Setting Up Possible Supreme Court Commerce Clause Showdown

January 23, 2014

The U.S. Court of Appeals for the Ninth Circuit today rejected petitions for rehearing of its decision in Rocky Mountain Farmers Union v. Corey, the opinion issued last September which rejected constitutional challenges to California's low-carbon fuel standard. Seven judges dissented from the decision and took the unusual step of publishing their dissent which, in strongly-worded language, accused the majority of disregarding "longstanding dormant Commerce Clause doctrine" and placing the circuit "squarely at odds with Supreme Court precedent." This prompted Judge Ronald Gould to take the equally unusual step of issuing a written opinion defending the majority's decision to deny the petitions for rehearing.

As we have previously discussed, last fall, the Ninth Circuit, in a 2-1 split decision, upheld California's low-carbon fuel standard against challenges brought by out-of-state ethanol manufacturers, farmers, and allied interests. The challengers argued that, by using a geographically-based system for assessing the carbon footprint of different sources of ethanol and assigning higher default scores to Mid-Western producers than to California producers, California's system discriminated on its face against these out-of-state producers, and therefore violated the Commerce Clause of the U.S. Constitution. Under a doctrine known as the "dormant Commerce Clause," the courts have long held that states are prohibited from imposing constraints on interstate commerce that discriminate against out-of-state economic interests and artificially favor in-state interests. The panel's majority concluded that the low-carbon fuel standard is not facially discriminatory because California's system for assessing the carbon footprint of different ethanol sources is based on objective scientific evidence rather than on impermissible discrimination against out-of-state producers. Nonetheless, the Court remanded the case to the trial court to review evidence that might prove whether the low-carbon fuel standard discriminates against out-of-state producers in practice.

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Getting a CLEW About Climate Legislation: Report to Governor's Climate Workgroup Suggests Future Course of Greenhouse Gas Regulation in Washington

October 18, 2013

Earlier this week, Leidos (formerly SAIC International) delivered its final report evaluating greenhouse gas ("GHG") reduction policies from other jurisdictions to the Climate Legislative and Executive Workgroup ("CLEW"). The CLEW was created by ESSB 5802, the first piece of legislation sponsored by Gov. Jay Inslee, which is intended to establish the future legislative agenda for climate issues in our state. Leidos was retained as the CLEW's technical consultant. This week's Leidos report aims to help the CLEW quantify both the need for new climate legislation and the effectiveness of several approaches taken in other jurisdictions. The CLEW is scheduled to release its final report and recommendations at the end of 2013.

The Leidos report incorporates the GHG emissions reduction targets adopted by the legislature in 2008. Those targets are: (a) to reduce Washington's GHG emissions to 1990 levels by 2020; (b) to reduce GHG emissions to 25% below 1990 levels by 2035; and, (c) to reduce overall emissions to 50% below 1990 levels by 2050, or 70% below the state's expected emissions in that year. Evaluating current policies at both the state and federal level, the report concludes that existing policies (for example, Initiative 937 and policies encouraging energy efficiency) will achieve substantial reductions in Washington's GHG emissions, but will fall well short of the 2008 targets.

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Come To The 4th Annual Washington Future Energy Conference

September 27, 2013

Please join us at the Washington Future Energy Conference on October 30. Gordon Thomas Honeywell is proud to be a premier sponsor of this event. Now in its fourth year, the Future Energy Conference brings together energy innovators, utilities, scientists, investors, and many others to discuss the future of the energy industry in our state. The conference will feature keynote addresses from Washington Gov. Jay Inlsee and Graham Richard, CEO of Advanced Energy Economy, a business coalition advancing secure, clean and affordable energy.

Speakers also include GTH partner Eric Christensen, who will discuss the current state of the renewable energy markets, and GTH-Government Affairs Vice President Maj. Gen. (ret.) Tim Lowenberg, who will discuss the major expansion of renewable energy now underway in the Department of Defense.

We look forward to seeing you there.

A Pair of D.C. Circuit Decisions Portend Increased Regulation of Sewage Treatment Plants, Biomass Energy, and Other Stationary Sources of "Biogenic" Carbon

August 23, 2013

A recent decision of the U.S. Court of Appeals for the District of Columbia Circuit (more popularly known as the D.C. Circuit) portends increased regulation of biomass power plants, as well as landfills, sewage treatment plants, and similar facilities that produce greenhouse gases ("GHG") through "biogenic" processes. The decision is critical both to the forest products industry, which frequently burns wood waste and other byproducts to produce energy, and the owners of landfills, sewage treatment plants, wastewater treatment plants, and similar facilities, both public and private. A second recent D.C. Circuit decision, although narrower in scope, similarly upholds stricter regulation of sewage treatment plants under the Clean Air Act.

Considered together, the decisions underscore the importance of "thinking outside the box," to escape treating wastes as a traditional regulatory problem, and exploring ways to, for example, convert waste into valuable commodities. One innovative solution was recently undertaken by Pierce Transit, the public transit agency for Pierce County, Washington, which is now using methane produced from the Cedar Hills landfill to fuel its bus fleet. Another approach is the advanced waste-to-energy technologies now widely adopted in Europe, which simultaneously maximize recover of useful materials, convert the remaining materials to useful energy, and minimize emissions of GHG and other pollutants. Innovative approaches like these can turn expensive and burdensome regulatory and waste treatment problems into economic and environmental assets.

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California, Climate Change, and the Commerce Clause: Ninth Circuit Expresses Skepticism in Argument Involving Low-Carbon Fuel Standard

October 25, 2012

The U.S. Court of Appeals for the Ninth Circuit last week heard oral argument in a challenge brought by a number of out-of-state biofuel producers who assert that California's Low-Carbon Fuel Standard ("LCFS") violates the Commerce Clause of the U.S. Constitution because it discriminates against out-of-state producers and artificially favors in-state producers. The three-judge panel appeared, at times, perplexed, and at other times, to be highly skeptical of the LCFS.

For example, Senior Judge Dorothy Nelson, citing comments from California officials stating the LCFS will increase employment and tax revenue in California, asked, "Isn't this unambiguous evidence that the board was motivated by protectionism?" Similarly, observing that electricity is a major factor in the carbon intensity calculations used by California and that biofuels producers have no control over how the electricity they use is produced, "isn't this the equivalent of discriminating against producers with the 'dirtiest' electricity," who are generally located in the Midwest. Similarly, Judge Mary Murguia, seemed particularly troubled with LCFS regulations that, on their face, apply a higher carbon intensity score to Midwestern biofuels producers than to California producers. The third judge, Senior Judge Betty Fletcher, did not participate heavily in the argument, but observed that she followed the argument closely and, found some of the answers provided by the attorneys "very satisfactory, others not so much." An audio tape of the argument is available here.

(Sadly, Judge Fletcher passed away just five days after the argument. A native of Tacoma, Judge Fletcher had a highly successful legal career here in Seattle, where, among other achievements, she became the first female partner at a major Pacific Northwest law firm. She was appointed to the Ninth Circuit by President Carter in 1979. She will be missed.)

Continue reading "California, Climate Change, and the Commerce Clause: Ninth Circuit Expresses Skepticism in Argument Involving Low-Carbon Fuel Standard" »