California Renewable Energy Goals -- Real or Moving Goalposts?

California's legislative Assembly is supposed to vote this week on a measure to increase the state's renewable energy target to 33% by 2020, a goal the utilities commission calls "highly ambitious." Two bills, SB 14 and AB 64, would raise the existing target of 20% by 2010. Backers say that passage of the measures will demonstrate that California is serious about reducing greenhouse gases. Indeed, it would have to be since the projected cost is upwards of $115 billion.

While the basic goal has widespread support, its the details that are causing the most heartburn. One issue is that the three investor-owned utilities (IOUs), Southern California Edison, Pacific Gas & Electric and San Diego Gas & Electric, aren't likely to meet the current 20% by 2010 goal. The last quarterly status report indicated that renewables accounted for 13% of all IOU electric retail sales in 2008 and probably won't reach the 20% goal until 2013 or 2014. Moving the goalposts out to 33% by 2020 would require nearly tripling the amount of renewable energy sources from what existed at the end of 2007, and its hard to imagine the IOUs being able to meet that target as well. The bills propose building in some pad for missing the 2020 deadline, but even that may not be enough.

Other problems include all the new transmission lines needed to carry the additional power, how much of the renewable power will be generated in state, and what to do about other sources that might not be considered "renewable" and yet are highly efficient.

A draft implementation analysis by the California Public Utilities Commission (CPUC) said that achieving the 33% target by the year 2020 "is highly ambitious, given the magnitude of the infrastructure buildout required." As it is, meeting the 20% by 2010 target will require four major new transmission lines costing $4 billion total, although three of those lines already are underway. But reaching the higher goal by 2020 will require seven additional lines at a total cost of $12 billion. SB 14 and AB 64 both have mechanisms for speeding up approval of new transmission lines, but are not expected to substantially shorten the current 18-month average because of built in delays, such as requiring data for all four seasons necessary for project review under the California Enviromental Quality Act.

Certainly the 33% mandate could be a boon for California job creation, but California alone probably can't build enough wind, solar, geothermal or biomass projects to meet the target, so it will have to turn to outside sources. At issue in the two measures is whether there should be limits on how much renewable energy IOUs can buy out of state, or even out of the country. States like Oregon and Washington have been building wind farms in anticipation that some of the generation will go to help California IOUs meet the renewable goals, and British Columbia is hoping to sell some of its hydro power. However, Oregon and Washington have their own renewable energy targets and will want assurances that projects built in their state primarily benefit their states' consumers. SB 14 and AB 64 also would require that out-of-state projects meet California environmental management standards, and there is some question whether, for example, a hydro project in Canada would qualify.

Finally, and this is something that doesn't get a lot of attention in the popular press, is whether the emphasis should be on a "renewable" portfolio or broadened to energy efficiency resource standards so that technologies such as combined heat and power (CHP) could be included. CHP, which also is known as co-generation, takes a single fuel source and simultaneously produces electricity and heat, resulting in much higher efficiencies than do separate heat and light systems. Right now California doesn't include CHP, even a biomass fuel source CHP, in the mix of eligible renewable energy sources. While the IOUs in California have never been big fans of CHP (having had CHP power forced on them by the federal Public Utility Regulatory Policies Act of 1978), inclusion of CHP might actually help the IOUs meet the 33% target. Exclusion of CHP, however, would increase regulatory barriers to the detriment of an existing technology that reduces air pollutants, including greenhouse gases, has lower operating costs and high reliability.

Consequently, it may be one thing to change the goals, but an entirely different matter of making the goals happen. How California deals with all this is sure to have impacts not just within the state, but throughout the West.

British Columbia's First Wind Project Comes On Line

British Columbia's first wind power project began generating electricity to the grid on July 23, 2009, when the first two turbines of the Bear Mountain Wind Park came on line. The project is located near Dawson Creek, BC, in the Peace Region of the province, a jumping-off point for the Alaska Highway. The 34-turbine, 102-megawatt park is expected to be fully operational by November 2009.

What's remarkable about this project is that its the first utility-scale wind park in a province that has identified as many as 69 projects with an installed capacity of nine GW as "readily available," meaning there are sufficient winds, proximity to existing transmission and appropriate terrain. When it comes to wind, however, B.C. seems to be lagging behind not only its U.S. neighbors to the south (for example, Washington has 1575 MW and Oregon 1406 MW of installed wind generating capacity), but also its fellow provinces.

So what's the deal? First, BC has had an abundant supply of water for hydroelectric generation. Indeed, the Crown-owned utility, BC Hydro, serves approximately 95% of the province's customers by generating all but 10% of its power from hydroelectric sources. Second, BC also has large reserves of natural gas and, being next door to Alberta, another large source of natural gas, makes investing in wind less attractive.

Third, a 2002 provincial Energy Plan barred BC Hydro from developing wind and other new generation. While it created various incentives for private interests to build and operate wind farms and other renewable sources -- giving wind developers a strong incentive to bid on the type of long-term Energy Purchase Agreements that make a project viable -- the provincial utility regulator cast a cloud on the most recent round of bids when it rejected BC Hydro's long-term acquisition plan that called for purchase of up to 3,000 GWh/year from renewable sources. Apparently the utility will go back to the drawing board and re-submit its plan, but that doesn't help wind developers who were waiting for approval of the plan to move forward on contracts. Paradoxically, in the same decision the utilities commissioner approved BC Hydro's plan to spend CDN $140M to upgrade a natural-gas fired plant near Fort Nelson and CDN $1.6M to ensure the reliability of the Burrard Thermal Generation gas-fired plant at Port Moody, near Vancouver, B.C.

Consequently, with such mixed signals, its no wonder that wind power generation hasn't taken hold in B.C. and the forecast looks like continued strong headwinds.

Who Knew Iowa Is #2 in U.S. Wind Power?

After seven days riding into frequent headwinds as part of the 37th edition of the Register's Annual Bike Ride Across Iowa (RAGBRAI) and not seeing any wind turbines, it came as a surprise to see these turbines along I-80 east of Des Moines. All along the 442-mile southern Iowa route for RAGBRAI I had been wondering (among other things) why no wind power out here? There was plenty of corn, making ethanol a huge deal there, but it turns out that Iowa also is a major player in wind generated electricity.

According to the American Wind Energy Association, Iowa actually ranks second in the nation in wind generation capacity, ahead of California, Minnesota, Washington (my home state), Oregon, New York and Colorado. (Texas is first by more than double Iowa's capacity.) Indeed, Iowa leapfrogged from 4th to 2nd in the space of just two years.

The jump in wind generation is partially attributable to a state mandate that the two investor-owned utilities, MidAmerican and Alliant Energy Interstate Power & Light, obtain a combined total of 105 MW of renewable energy. In addition, the governor in 2001 established a secondary voluntary goal of 1000 MW of wind by 2010. Clearly those goals have been exceeded.

Iowa seems ideal for wind power. Not only is there frequent wind (and seemingly constant if you're on a bicycle), but the state also is close to major load centers -- Chicago is 300 miles and St. Louis 270 miles from Des Moines. Apparently some developers are offering higher lease rates for turbine locations, giving landowners a powerful economic incentive to site turbines on their property.

But, of course, wind power isn't without its pitfalls, as this article last year describes. The Adair project had its detractors, but it appears that Iowa already is thinking big when it comes to generating power from the wind.

N.J. Blogger Shield Law Case

The New Jersey court decision denying shield law coverage for blogger Shellee Hale is getting a lot of attention in the blogosphere, but if you dig just below the surface you'll find its not actually a blogger case, but is a more garden-variety message board commenter case. Consequently, its hard to expect a court to expand the shield law to cover a commenter, even if they happen also to be a blogger. Nor should bloggers want this case to go up on appeal because its not at all certain that it would be flipped.

According to Mary Ann Spoto in the Star-Ledger article, http://bit.ly/DEO9N, the lawsuit involved posts Ms. Hale made on a message board. The court apparently analogized Ms. Hale's comments to those that appear at the end of an online article rather than actual reporting and I think that's a better analogy than to a blog post.

There is a wide range of reactions, none of which point out what I see as the crucial distinction between a message board post and a blog. TechDirt focused on what it viewed as the judge's lack of understanding about the Internet, http://bit.ly/PIqaG; while on law.com's LegalBlogWatch, Carolyn Elefant commented: "It seemed as if Hale filed irresponsible comments and invoked the shield law to defend against a defamation claim. It did not seem from the description that she was operating as a journalist under any sense of the word." http://bit.ly/1HX7L. Law and More, http://bit.ly/JBIbh, described the decision as one reflecting the the need for the law to catch up with the technology. Wendy Post in the Daily Online Examiner commented that the case should be appealed to "fix the ruling and make sure that news reporting is news reporting." http://bit.ly/IREjG.

My take on this (based on 12 years as a t.v. reporter and now 21 years as a lawyer who stays in touch with defamation issues) is that this really isn't reporting. An online comment to an article, like a message board posting, is usually brief and without citation to any independent facts. Where is the reporting in that? It seems that proponents of shield law coverage for bloggers are focusing more on Ms. Hale's status as a blogger,whether or not the posts at issue occurred in a blog. I'm not arguing that bloggers aren't journalists; in many situations these days they do act as reporters and one need only look at dailykos, talking points memo, or more locally horsesass.com, to see real reporting going on. But you also don't have to look too deep in the message boards to see that what's happening there is more commentary and opinion than actual reporting.

Bad facts often make bad law and I'm not sure that bloggers want this case to go beyond the trial court level. Right now, its not precedential for anyone but the parties. But take this up to an appellate court with these facts and a reported opinion, even by an intermediate appeals court, might not come out the way bloggers want. As any good appellate lawyer will tell you the best way to win on appeal is to represent the respondent, i.e. the party that isn't bringing the appeal.

House Passes Climate Change, Energy Bill

Some drama and a little bit of theatre of the absurd during the lenghty House floor debate on the American Clean Energy and Security Act of 2009 ("ACES"), all of which C-SPAN helpfully streamed on-line. The Twitterverse also proved to be a good tool for staying on top of the minute-by-minute proceedings. When it was over the bill passed by a narrow margin of 219-212. http://bit.ly/1ajUjX. Eight Republicans, including my own Congressman, Dave Reichert, voted in favor; while 42 Democrats voted against.

At 1500-pages the extremely complex ACES will make for good bedtime reading for anyone with insomnia. A short summary is here: http://bit.ly/2O9py. ACES now goes to the Senate where it will take 60 votes to pass. Given the narrowness of the vote in the House there's no guarantee the measure will make it to President Obama's desk.

Waxman-Markley Bill Vote Coming Up

Word that the Waxman-Markley climate change bill, also known as American Clean Energy and Security Act of 2009 (ACES), will come up for a vote on the House floor this Friday certainly has made my Tweetdeck and e-mail a lot more full as the cyberspace lobbying effort heats up, so to speak. I won't even attempt to go into all the Tweets about the subject, although a quick search on #ACES should give you an idea of the volume of traffic there. And in the e-mail arena, so far just in the space of an hour this afternoon I've gotten a message from the Pew Center for Climate Change advocating for ACES and one from the Associated General Contractors opposing the bill.

AGC sent out an Issue Alert saying the bill will increase the cost of construction and make U.S. investments in manufacturing and industrial facilities less economically attractive and, by regulating smaller emitters the market for commercial construction could be adversely impacted by these regulatory regimes. AGC cites the American Petroleum Institute critique that the bill would increase the cost of a gallon of gas by an estimated 77 cents over the next ten years through additional refinery costs and that those increased costs would likely crowd out efforts to raise the motor fuels tax to fund infrastructure that could reduce congestion and save fuel. AGC also says the bill adds new and onerous "planning" requirements for states and metropolitan regions that will further slow an already comprehensive and arduous federally-mandated transportation planning process. Finally, AGC says the new requirements would create disincentives to state and local planners to include new highway and bridge capacity in their transportation plans.

Meanwhile, Pew's e-mail contains a letter from its president to members of Congress urging passage, and a link to a webpage that lists and refutes eight myths about ACES, http://www.pewclimate.org/acesa/eight-myths/June2009. I won't go into all of them here, but among the issues that Pew addresses is the claim about the projected per gallon increase in gas, citing an EPA study that ACES would result in only 25 cents per gallon over the next 20 years.

So my e-mail box probably is a micro-microcosm of what must be a fairly intense back-and-forth on ACES that members of Congress are encountering. We'll see what happens on Friday.

LEED for Existing Buildings -- A Whole New Ballgame

A requirement of the U.S. Government for renewing its lease of the EPA's Region 10 office in downtown Seattle is that the building obtain the U.S. Green Building Council's Leadership in Environment and Energy Design (LEED) Silver* certification for existing buildings (LEED-EB). According to the Puget Sound Business Journal, http://bit.ly/QItPb, the owners of 1200 Sixth Avenue in Seattle are planning to go two better and seek LEED-EB Platinum, which would make it the first such LEED-EB in Seattle with that designation and only the 14th in the world.

This is an important step since buildings account for nearly 40% of the greenhouse gas emissions in the U.S. While most of the attention on the LEED rating system has focused on new construction, bringing LEED concepts to the five million existing commercial buildings in the U.S. represents a much bigger carbon footprint reduction bang for the buck, although one that comes with its own challenges. Some of those issues were addressed by last year's revisions to the LEED-EB criteria to make them fit better with existing buildings. This article from an issue of "Greener Buildings" provides a good summary of the changes. http://bit.ly/ujGqv.

Other issues remain, not the least of which are the frozen credit markets and stalled commercial leasing that make it difficult for building owners to consider the expense of upgrading to LEED-EB when their bigger problem right now is hanging on to tenants who can pay the current rent. When the economy improves, however, the LEED-EB path could prove to be a whole new opportunity for both commercial real estate and the environment.

*[6/9 update -- Correcting the lease requirement for LEED Silver, not Gold]