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Complicating "Coal By Wires" Regulation, Minnesota Court Strikes Down Greenhouse Gas Regulation

April 21, 2014

In a ruling with potentially far-reaching consequences for state-level attempts to regulate greenhouse gases, the U.S. District Court for the District of Minnesota on April 18 issued a ruling striking down key elements of Minnesota's Next Generation Energy Act ("NGEA"). For the Pacific Northwest, in particular, the ruling could complicate efforts by Washington, Oregon, and California to limit "coal by wires" -- the importation of coal-generated electricity from plants located in states like Montana and Arizona. State of North Dakota et al. v. Heydinger et al., No. 11-cv-3232 (SRN/SER) (issued April 18, 2014).

Passed by Minnesota's legislature in 2007, the NGEA is aimed at reducing the carbon footprint of electricity consumed in the state. The statute prohibits new power plants within Minnesota that "would contribute to state power sector emissions." To address the "coal by wires" problem, the statute also broadly prohibits importing power generated outside Minnesota if that generation "would contribute to statewide power sector carbon dioxide emissions," and also prohibits long-term power purchase contracts from facilities larger than 50 MW that would contribute to Minnesota's power sector carbon dioxide emissions.

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Pacific Coast Action Plan Sets Framework for Regional Climate and Energy Action

November 7, 2013

Last week, the governors of the three West Coast states and the Premier of British Columbia signed the Pacific Coast Action Plan on Climate and Energy. While not legally binding, the Action Plan is important because it lays out a regional framework on climate and energy policy that is likely to be reflected in specific legislation and other measures adopted in each of the four jurisdictions, as well as in coordinated actions among the jurisdictions. Notably, the Pacific Coast regional economy produces a combined U.S.$2.8 trillion in GDP, making it the world's fifth largest economy when considered as a unit. Because the Action Plan charts a course for the future of this huge economy, the Plan is worthy of careful attention.

Issued under the auspices of the Pacific Coast Collaborative, the Action Plan lays out a series of policy goals in three areas, including climate policy, clean transportation, and clean energy infrastructure. Among these policy goals, several are particularly noteworthy:

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Energy Trust of Oregon Issues RFP to Support Early Stage Renewable Development

May 7, 2013

The Energy Trust of Oregon recently released an RFP for Renewable Energy Project Assistance Funding. The Energy Trust will provide $40,000 to $150,000 to selected projects to support early-stage development of non-solar renewable energy in Oregon. Funding will support such early-stage development activities as feasibility studies, permitting, interconnection studies, engineering and design, and financing. The response deadline is June 3, 2013.

The Energy Trust is a non-profit organization supported by public-purpose charges imposed on the customers of Portland General Electric, Pacific Power, Northwest Natural Gas, and Cascade Natural Gas.

PacifiCorp Issues Oregon Solar RFP

May 1, 2013

PacifiCorp late yesterday issued a Request for Proposals ("RFP") for Oregon solar photovoltaic projects. The RFP is intended to help PacifiCorp comply with Oregon's Renewable Portfolio Standard, which includes a requirement for utilities to acquire solar power.

The RFP seeks bids from solar systems with a capacity of between 500 kW and 5 MW. PacifiCorp aims to acquire a total of up to 6.7 MW of solar capacity. Projects must interconnect directly with PacifiCorp's system or have firm transmission capacity to deliver power to the PacifiCorp system. Responses to the RFP are due on June 11, with final selection of winning bids scheduled for October 4, 2013. The project must achieve commercial operation by December 31, 2014.

If you have any questions about the RFP, PacifiCorp, the Oregon RPS statute, or other matters concerning renewable energy development, please contact a member of GTH's Renewable Energy practice group. We have decades of experience in all aspects of renewable energy development, including siting, permitting, contracting, financing, state and federal tax issues, transmission and interconnection.

U.S. Supreme Court Rules That Logging Roads Do Not Require NPDES Permits; Scalia Dissent Suggests Major Change Afoot in Administrative Law

March 26, 2013

On March 20, the U.S. Supreme Court ruled that the discharge of channeled stormwater runoff from logging roads is not a "point source," and logging operators therefore are not required to obtain a permit from the Environmental Protection Agency ("EPA") under the Clean Water Act ("CWA"). Although important to a key Northwest industry, the decision is not unexpected. Under its "Silviculture Rule" (40 C.F.R. Sec. 122.27(b)(1)), an administrative interpretation of the "point source" requirement, EPA has long held that stormwater runoff from logging roads is not a point source, and timber harvesters are therefore not required to obtain an NPDES permit before constructing roads. The decision, Decker v. Northwest Environmental Defense Center, also follows a pattern that has become almost routine in recent years -- the Supreme Court reversing the Ninth Circuit in an environmental case where the Ninth Circuit embraces a novel reading of the relevant statute. In fact, as previously noted here, the Supreme Court this term has already reversed a Ninth Circuit decision on the "point source" question in a case with strong implications for operators of dams, flood control facilities, canals, and other kinds of water works.

More surprising are strong suggestions in the concurring and dissenting opinions that the Court's conservative wing may be ready to re-examine one of the foundational principle of administrative law -- that an agency's interpretation of its own regulation is entitled to deference from the courts. Justice Scalia's dissent in Decker attacks this rule as an affront to "a fundamental principle of separation of powers -- that the power to write a law and the power to interpret it cannot rest in the same hands." Stepping past the EPA's interpretation, Justice Scalia sides with the environmental plaintiffs (and the Ninth Circuit), concluding that runoff from logging roads that is channeled into ditches and culverts is a "point source" under the statutory definition, which includes any "pipe, ditch, channel, tunnel, [and] conduit."

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Ocean Energy On the Move in the Northwest: Oregon Adopts New Rules, FERC Finds No Significant Environmental Impacts for Snohomish PUD's Admiralty Inlet Tidal Project

January 30, 2013

Several recent developments in Oregon and Washington suggest that ocean energy -- electric generation driven by wave and tidal action -- is about to step onto the renewable energy stage in the Pacific Northwest. These developments include important policy changes in Oregon and the achievement of a major milestone for Washington's most important tidal energy project.

In Oregon, the state's Land Conservation and Development Commission on January 24 adopted a major amendment of the Oregon Territorial Sea Plan that identifies four areas off the Oregon Coast where renewable energy development will be preferred. The sites, off Camp Rilea, Nestucca, Reedsport, and Lakeside, comprise approximately 25 square miles, about 2% of Oregon's territorial sea. Two of the sites are thought to be ideal for shallow-water technologies and two for deep-water technologies. The Plan also identifies areas where renewable energy development might be permitted if conflicts with existing uses can be avoided or mitigated. These areas comprises roughly 163 square miles, about 11% of Oregon's territorial sea. Finally, the Plan identifies areas that will remain off limits to ocean energy development due to potential conflicts with existing uses, sensitive ecosystems, and similar concerns.

The amendment has been in the making since 2008, when, faced with a proliferation of FERC preliminary permits for ocean energy exploration and development, then-Gov. Ted Kulongoski declared a moratorium on such development. Since that time, Oregon's Land Development and Conservation Commission has been engaged in an extensive public process to identify existing uses, environmentally-sensitive areas, and important scenic and recreational areas, with the aim of ensuring that ocean energy development does not compromise any of these values. The new amendment is the culmination of that process.

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Oregon Releases 10-Year Energy Plan, Emphasizing Conservation, Renewables, Infrastructure Investment, and Alternative Fuels

December 19, 2012

On December 17, Oregon Governor John Kitzhaber released Oregon's "10-Year Energy Action Plan," which sets out a long-term framework for Oregon's energy policy. While not binding, the Plan is likely to catalyze action by both the Oregon legislature and Oregon state agencies to carry out the plan's recommendations. Renewable energy producers, utilities, and others in the energy industry will be particularly interested in recommendations that would change Oregon's Energy Facility Siting process, restructuring financing for renewable energy projects, and increase funding for energy-related research and innovation.

The plan is built around three core objectives: (1) to meet 100% of Oregon's electric load growth through energy conservation and efficiency measures; (2) to remove financial and regulatory barriers to development of the infrastructure needed to encourage renewables; and, (3) to transition Oregon's vehicle fleet to electricity or alternative fuels. Many of the specific recommendations to carry out these objectives should be of great interest to those working in the energy industry.

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