Holland & Hart's Climate Change News

Introducing AIA's Guide for Sustainable Projects

By Melissa Orion

Keeping pace with the sustainability push in the construction industry, the American Institute of Architects (AIA) has issued its "Guide for Sustainable Projects."

What is it?
The AIA contract forms, which are updated every ten years, were last updated in 2007. The Sustainable Guide includes proposed language for agreement amendments and supplementary conditions to adapt the existing AIA suite of documents to be appropriate to allocate risk and scope for sustainable projects.

DOE Requires States to Review and Update Energy Efficiency Codes

By Emily Schilling

The U.S. Department of Energy (DOE) published a regulatory notice on July 20 requiring States to review energy efficiency provisions of commercial building codes and within one year, certify that the state codes comply with 2007 standards issued by the American National Standards Institute. In a related notice on July 19, DOE required states to file statements with the agency certifying that they have reviewed energy efficiency provisions of their residential building codes and determined whether they should be updated to conform to the 2009 International Code Council’s International Energy Conservation Code (IECC). 

New Mexico Enacts Tax Provision to Encourage CCS and Construction of Generation Facilities

On April 7, Governor Martinez signed H.B. 440, which amends provisions of the New Mexico state tax laws to provide for the deduction of to “advanced energy costs” from gross receipts.  The purpose of the measure is “to encourage the construction and development of qualified generating facilities in New Mexico and to sequester or control carbon emissions.”  H.B. 440, Sec. 1, 2011 (Amended NMSA 7-9-114.B).  “Qualified generating facility” is defined as a solar facility, geothermal generating plant, a facility that converts heat from stacks to energy and a new or repowered coal-based generation facility and associated coal gasification facility. that begins construction not later than December 31, 2015 .  For a clao facility to qualify, it must emit the lesser of emissions achievable through best available control technology or   .035 Lb./MM Btu of SO2, .025 lb/MM Btu of NOx, and .01 lb./MM Btu of total PM.  H.B. 440, Sec. 1, 2011 (Amended  NMSA 7-9-114.L).  The bill becomes effective July 1, 2011.

ALL: Climate Change Happenings on the Hill

By: Nils Johnson, Director, Legislative & Regulatory Affairs

What does the potential for a shutdown of non-essential functions of the federal government have to do with climate change? A lot, as it turns out.

The Federal Government is currently operating under a continuing funding resolution (CR) that expires March 4, 2011. If the non-essential functions of government (which include just about everything but health and safety spending) are to remain in operation after that date, Congress must pass and the President must sign legislation to either extend government funding on a short term basis or through the end of the current fiscal year that ends midnight September 30, 2011.

CONSTRUCTION, REAL ESTATE: Green Building: Penalty Looms For Builder Who Received Tax-Free Green Bonds

By: Melissa Orien

The biggest green-building dispute to date has arisen with a developer that may be penalized $2.3 million by the IRS for allegedly failing to incorporate required green measure into a project that received tax-free financing for construction. The project, DestinyUSA, was a proposed 4.5 million square feet of retail and entertainment space in Syracuse, New York that was to be powered entirely by renewable resources. The project received $228 million in tax-free Green Bonds and the tax-exempt status saved the developer $120 million on the Project. The developers have a month-end deadline to certify to the IRS that green building promises were met, including the following:

1. 45-megawatt electricity generating plant running on “biofuel” from soybean old and recycled cooking grease;
2. 290,000 square feet of solar panels on roofs;
3. fuel cells to make 7 megawatts of electricity; and
4. LEED certification

The resolution of this investigation may lead to the first significant LEEDigation case to date.

ALL: Wyoming Sues EPA Challenging GHG Permitting Program

By: Jim Holtkamp

On February 10, the State of Wyoming filed petitions for review with the D.C. Circuit Court of Appeals challenging EPA rules authorizing EPA to administer the GHG permitting program in states that do not establish their own permitting programs for GHGs from major sources and major modifications of existing sources of GHGs. Texas filed similar petitions for review with the Fifth and D.C. Circuits late last year. There are seven states which failed to change their permitting programs by specified deadlines. In those states, EPA will implement a Federal Implementation Plan to administer the GHG permitting program.

ALL: New Mexico Supreme Court Orders Governor Martinez to Publish Cap-and-Trade Rules

By: Jim Holtkamp

Last month we reported that New Mexico Governor Susana Martinez had blocked the publication of GHG cap-and-trade rules that had been promulgated by the State environmental Improvement Board (“EIB”), had fired all of the members of the EIB, and appointed former U.S. Senator, astronaut, and vocal climate change skeptic Harrison Schmit as secretary of the New Mexico Energy, Minerals and natural Resources Department.

On January 26, the New Mexico Supreme Court ordered the publication of the cap-and-trade rules, which apply to facilities that emit in excess of 25,000 metric tons of CO2 per year, with the objective of reducing emissions by 3 percent per year from 2010 levels beginning in 2013.

Also on January 26, Governor Martinez announced the appointment of the new members of the EIB.

On February 10, Harrison Schmitt resigned from Governor Martinez’s cabinet rater than submit to the background check required for Senate confirmation.

ALL: California State Court Puts Hold on Climate Change Plan Implementation

By: Jim Holtkamp

On January 21, a California state judge issued a proposed decision holding that the California Air Resources Board failed to com0ply with the California Environmental Quality Act in its adoption of the plan for implementation of AB32, California’s comprehensive climate change law. Ironically (although not surprisingly), the lawsuit was brought by environmental plaintiffs, who argued that the proposed B32 rules fail to require maximum technologically feasible reductions in GHGs. Essentially, they oppose the cap-and-trade program proposed under the statute, as not achieving sufficiently stringent reductions in GHGs.

According a senior industry lawyer familiar with the case, the expectation is that the district court will either withdraw the ruling or that it will be overturned on appeal.

ALL: New Hampshire House Votes to Pull out of RGGI

By: Jim Holtkamp

In a veto-proof vote, the New Hampshire State House of Representatives voted overwhelmingly to end New Hampshire’s participation in the Regional Greenhouse Gas Initiative (“RGGI”), the first regional cap-and-trade program in the Untied States. RGGI currently consists of ten Northeastern and Mid-Atlantic states which have collectively agreed to cap and reduce CO2 emissions from the power sector 10 percent by 2018 using a cap-and-trade program.

The measure now goes to the State Senate, where republicns holde nearly a four to one advantage over the Democrats. Although Governor John Lnch (D) strongly opposes withdrawal from RGGI, it is expected that his veto will be overridden.

ALL - Climate Change Action in the 112th Congress Will Be Limited to Attempts to Rein in EPA

By: Emily Schilling

With a Republican majority in the House, the pendulum on climate change legislation has swung in the opposite direction. Rather than championing comprehensive climate change legislation, EPA and the Senate Democratic leadership are on now the defensive. Senate Environment & Public Works Committee Chairwoman Barbara Boxer, D-CA, has acknowledged as much, noting that she will “stand guard” against attacks against EPA greenhouse gas (GHG) rulemakings by the House. House Republican Fred Upton, MI, the new chairman of the House Energy & Commerce Committee, stated that EPA’s regulation of GHG, which are slated to begin taking effect this year, should be delayed and is planning to hold hearings to explore the impact of such regulation on the economy. Rep. Shelley Moore Capito, R-WV, has introduced a bill in the House that would delay EPA’s GHG rules for stationary sources for two years, but other bills are pending that are far broader.