Wednesday, August 5, 2020

A Bright Opportunity in the Downfall of Coal: How Former Coal Plants and Mines are Transitioning to Solar Energy

By Rachel Pemberton, Law & Policy Clerk


The TransAlta Centralia coal mine in Washington State.
Image: Erichwtl at English Wikipedia. 
As coal continues to become less economical, utilities across the country are accelerating the retirement of coal plants in favor of more affordable natural gas and renewable energy technologies. In 2018, coal use in the United States fell by 18%, while so far this year the amount of coal used for electricity has dropped 40% (in part due to economic hardships brought on by COVID-19). Over the past decade, the U.S. has seen the closure of 289 coal plants—more than half of the 530 coal plants online in the U.S. prior to 2010. These closures signal a significant, and likely permanent, shift away from coal.


But what happens to coal facilities once they’ve gone offline? Abandoned coal mines frequently pollute groundwater and emit toxic waste, harming public health and the environment. The National Institute of Environmental Health Sciences defines abandoned mines, including abandoned coal mines, as “mines that have been deserted and are no longer being maintained, and in which further mining is not intended.” (Orphaned mines, on the other hand, are “abandoned mines for which no owner or responsible party can be found.”) As of 2015, there were over 48,000 abandoned coal mines in the United States. Even accounting for the nearly 800,000 acres of coal-damaged lands and waters that have been remediated or reclaimed since the passage of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), there remains an estimated 6.2 million acres in need of remediation.


Retired Coal Plants and Abandoned Coal Mines Offer New Opportunities for Solar Energy


Some former coal facilities are using the downfall of coal as an opportunity to transition towards solar energy. One facility, known as the Mount Tom Energy Storage System, lies on the outskirts of Holyoke, Massachusetts. The site that is now home to this facility was previously occupied by the Mount Tom Station coal-fired power plant, which closed down in 2014 following its fifth year without profits. In a dramatic transformation of the site, the former coal facility has been replaced with a solar farm composed of 17,000 solar panels as well as a three-megawatt (MW) battery storage system. Prior to its transition, the coal plant had long been a source of complaints from local residents who attributed numerous health problems to the plant’s emissions. Now, the solar farm that occupies the site, which came online in 2018, is helping Holyoke transition to a carbon-neutral energy future.


On the other side of the country, the Navajo Nation—whose reservation spans over 27,000 square miles across parts of Utah, Arizona, and New Mexico—has also used the retirement of a local coal mine and power plant as an opportunity to continue their transition towards renewable energy. The former Navajo Generating Station and Kayenta coal mine were permanently closed in early 2019, after a bill to purchase those facilities to keep them operational failed to pass a vote by the Navajo Nation Council. Instead, one councilmember proposed that the tribe focus on harnessing the abundant solar energy available in the region.


Indeed, those efforts were already proving successful. Two years earlier, the Navajo Tribal Utility Authority had begun work on phase one of the Kayenta Solar Project. Prior to the August 2018 groundbreaking of this 27.3 MW system, construction had already generated over $15 million in regional economic activity. After the Council’s vote in March of 2019, the Navajo Nation was able to utilize the former Navajo Generating Station site to continue the Kayenta Solar Project into its second phase. Phase two was successfully completed in September of 2019, adding another 27.8 MW to the now substantial 55 MW solar facility and producing enough energy to power an additional 36,000 homes.


Like defunct coal-fired power plants, abandoned coal mines offer opportunities for renewable energy development. In 2018, TransAlta unveiled plans to turn its abandoned Centralia Mine, located in Washington State, into a nearly 1,000 acre solar project. Upon ceasing active mining operations in 2006, TransAlta began to reclaim the former strip mine in 2007 with the goal of restoring forest and pasture land to the site. The Centralia Mine formerly supplied coal to TransAlta’s nearby power plant, which is Washington’s only coal-fired power plant and the largest single source of greenhouse gas emissions in the state. Without a supply of coal from the former Centralia Mine, however, TransAlta reached an agreement with the state in 2011 to shut down the plant over the following decade. 


Today, the plant’s first coal-fired burner is scheduled to close by the end of the year, with the second scheduled to close in 2025. The proposed Tono Solar project at the former mine site would have a generating capacity of nearly 180 MW of electricity, becoming one of the largest solar projects in the state. According to TransAlta, a solar project that is built on a site formerly occupied by coal infrastructure comes with the benefit of existing transmission lines, which were placed on-site when TransAlta acquired the mine in 2000.


In March of 2018, when the Tono Solar project was first announced, it was expected to come online as soon as late 2020. The two-year turnaround of this proposed project is made possible in part by the timeline of the Centralia Mine site’s closure. When TransAlta announced their plans for the Tono Solar project in 2018, the former Centralia Mine had only been abandoned for 12 years. This is in stark contrast to the many mines across the country that have sat abandoned since the mid 1900s or earlier. Many of the challenges associated with remediating former coal mines are time sensitive; the longer these mines sit abandoned, the more damage they do to the surrounding environment. 


Like abandoned coal mines, retired coal plants are not closely regulated. However, retired coal plants undergo a process of decommissioning, remediation, and redevelopment. Abandoned coal mines, on the other hand, continue to pollute groundwater and soil with acid mine drainage for centuries following their closure. Moreover, abandoned coal mines continue to emit methane, which makes the surrounding air unsafe to breathe for decades (and possibly centuries) after operations cease. This begs the question: given the potentially exorbitant costs associated with reclaiming long-abandoned coal mines, is it economically feasible to develop renewable energy projects at those sites?


Funding the Reclamation of Long-Abandoned Coal Mines


The Abandoned Mine Land (AML) Reclamation Program offers one potential funding opportunity for states and tribes to reclaim long-abandoned mine sites. The AML Reclamation Program was created upon the passage of the SMCRA in 1977 and is housed within the United States Department of the Interior (DOI). This program “uses fees paid by present-day coal mining companies to reclaim coal mines abandoned before 1977.” Funding is allocated according to a three-priority scale, which measures the level of danger posed by a given site. In 2017, the five states that received the most funding under this program were Illinois, Kentucky, Pennsylvania, West Virginia, and Wyoming, which collectively received a total of over $121 million. In addition to the AML reclamation program, the DOI’s Office of Surface Mining Reclamation and Enforcement currently administers an AML Economic Development Pilot Program to the states and tribes with the most remaining unfunded high-priority sites. Under this pilot program, additional funding is provided to Alabama, Kentucky, Ohio, Pennsylvania, Virginia, and West Virginia, as well as the Crow Tribe, Hopi Tribe, and Navajo Nation.


One solar power project developer in Virginia has proposed using AML pilot program funds to reclaim an abandoned coal mine in Wise County, which is located in the southwestern portion of the state. The mine, which has sat abandoned for over 60 years since it was last mined in 1957, would be reclaimed and repurposed into a 3.5 MW direct-current solar farm. In addition to providing clean energy, this project has the potential to spur the revitalization of a community that has faced economic struggles as the coal industry has declined. If successful, this would be the first project using AML pilot program funds to convert an abandoned coal mine into a solar farm.


How We Move Forward: Creating Incentives and Maintaining Funding Availability


The successful Mount Tom Energy and Kayenta Solar projects are evidence that creative innovation and a push towards renewable energy offer a promising solution to the economic hardships and environmental blight that accompany abandoned coal facilities. Similarly, the ongoing Tono Solar project is evidence that building renewable energy facilities around existing transmission infrastructure may offer opportunities for a quicker transition away from fossil fuels. Siting renewable energy resources based on the proximity of existing transmission infrastructure, as opposed to siting those resources according to the abundance of solar, wind, or hydroelectric energy available, may not allow for optimal efficiency; nonetheless, it is imperative that we work swiftly to address the threats posed by abandoned coal facilities and climate change. 


The U.S.’s 48,000 abandoned coal mines should serve as an impetus for the creation of new incentives for investments in renewable energy technologies. Given the presence of existing transmission infrastructure at abandoned coal plants and other facilities, these sites hold potential for utilities to invest in renewable energy technologies while making use of the infrastructure that remains. By combining the vast availability of existing transmission infrastructure with the environmental and financial benefits of solar, we can speed along the processes of (1) remediating and reclaiming some of this country’s most blighted landscapes as well as (2) transitioning away from fossil fuels in favor of clean, renewable energy.


Creating these incentives cannot be achieved, however, unless the federal government makes public and environmental health strong priorities. Right now, the reauthorization to collect fees from current coal mining companies to fund projects under the AML Reclamation Program is set to expire in 2021. Absent intervention at the federal level, this expiration will leave millions of acres of coal-damaged lands in need of remediation and without the necessary funding—estimated to be in the tens of billions of dollars—to do so. This country is long overdue for creative solutions that address multiple facets of our problematic dependence on fossil fuels. We cannot afford to lose a valuable mechanism in that fight.


The posts published on Charged Debate reflect the writers’ opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute at Lewis & Clark Law School, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any legal information presented on Charged Debate is meant purely for general educational purposes and is not intended to provide legal advice and should not be relied upon in any legal matter. 

Monday, July 13, 2020

Eliminating Natural Gas Cannot Wait (Even in the Age of COVID-19)

By Elena Itameri, Law and Policy Clerk
The Negishi LNG Terminal in Yokohama, Japan.
While the current national conversation is rightly focused on two constantly evolving conflicts involving racial inequities and the global pandemic, safeguards to protect the environment are being bulldozed—including those safeguards in place to regulate natural gas. Naomi Klein has named the strategy being implemented by the fossil fuel industry the “shock doctrine.” According to Klein, times of crisis often spur efforts to push through deregulation while the nation’s focus is elsewhere. The fossil fuel industry is now taking advantage of the public focus on the pandemic and the Black Lives Matter movement to push through policy changes that will expand natural gas development. The industry’s efforts have been quite successful so far, and there are currently actions being taken at the federal, state, and local levels. While we do not know how long the pandemic will last, we do know how quickly we must act to prevent irreversible loss as a result of climate change. The timeline is short. Eliminating natural gas is an essential piece of decarbonization, and we must stay the course even in this tumultuous time.

In Oregon, the Federal Energy Regulatory Commission (FERC) reaffirmed its approval of the Jordan Cove liquefied natural gas terminal and its accompanying pipeline, despite protests from the state. Meanwhile, in a purported effort to increase efficiency, the U.S. Department of Energy (DOE) proposed a rule change in May that would remove NEPA-mandated environmental reviews for natural gas imports and exports. This would eliminate any consideration of environmental impacts resulting from natural gas infrastructure. In Kentucky, a new law has defined natural gas as “key infrastructure,” which now makes it a felony offense to cause more than $1,000 worth of damage to a gas pipeline “in a manner that renders the operations harmful or dangerous.” In a similar vein, Massachusetts designated natural gas construction projects as “essential” under the state’s stay-at-home orders, allowing construction to continue while many other industries came to a halt. And, earlier in June, Louisiana became the latest state to preempt local natural gas bans, following in the footsteps of Arizona, Oklahoma, and Tennessee, by preventing communities from making their own decisions about fossil fuel reliance.

The need to prevent construction of new natural gas lines lies in the longevity of this infrastructure. Natural gas infrastructure is expensive to construct, and in order to maximize profits, companies build natural gas lines and terminals with the intent to operate the infrastructure for many decades. This means that natural gas lines constructed today could reasonably be expected to still be in use in 2070—well past the 2050 deadline that many communities use to set their decarbonization goals. Natural gas lines also produce fugitive methane emissions throughout their installation and distribution processes, which has severe implications for climate change. Over the near-term, methane has a far higher warming potential than other greenhouse gases—between 84 and 87 times that of carbon dioxide over the course of twenty years. On average, methane molecules stay in the atmosphere for approximately twelve years, as compared to carbon dioxide, which stays in the atmosphere for anywhere between 300 and 1,000 years. Reducing methane emissions therefore can produce more immediate reductions in warming, which is beneficial both to combatting the effects of climate change overall as well as increasing momentum in the climate movement. People will be more likely to continue efforts to reduce emissions if they are seeing the fruits of their labor. The long timelines associated with climate change is one of the factors that makes it such a difficult problem for society to tackle— there will always be issues that are more pressing to address because the worst impacts from climate change are expected to occur years in the future. 

On a local scale, transitioning away from natural gas can benefit communities in several ways. All-electric buildings can be constructed more quickly than gas-heated buildings because they do not require the installation of gas lines and meters, which necessitates utility professionals to inspect the construction site. Removing natural gas from homes also boasts health and safety benefits. For example, burners on gas stoves are estimated to add between 25% and 39% more nitrogen dioxide to indoor air and therefore can aggravate respiratory conditions such asthma. Beyond the home, reductions in the development and/or operation of natural gas lines reduces the risk of fatalities associated with gas leaks and explosions. Since 2000,280 people have died in association to natural gas distribution.

Despite industry claims, natural gas is not a necessary “bridge fuel” as we decarbonize our energy sector. Similar to those related to coal, the decisions we make today regarding natural gas will impact our health and climate for decades to come. The United States cannot slow down or compromise on climate action; we simply do not have the time. The fossil fuel industry has seen the nation’s focus fall elsewhere, and they have been quick to take advantage of this opportunity to push through deregulatory actions that threaten the future health and wellbeing of communities across the country. Climate change is continuing to manifest across the globe, and decarbonization efforts must continue as the world grapples with disease, migration, and war in the coming years. At its foundation, climate change is the result of the exploitation of resources, labor, and wealth inequality. If we truly remedy the problem, we will see equity on all these fronts—a transformed world at every level. Let us not allow the COVID-19 pandemic to be a time of shock and stagnation. Rather, let us use the momentum that we have seen ripple through the United States to broaden our perception of what is possible.

The posts published on Charged Debate reflect the writers’ opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute at Lewis & Clark Law School, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any legal information presented on Charged Debate is meant purely for general educational purposes and is not intended to provide legal advice and should not be relied upon in any legal matter. 

Thursday, July 9, 2020

Green Energy Transitions: The Curious Cases of Iceland and China

By Dan Polkow, Law & Policy Clerk

Iceland's Krafla geothermal power plant.
Image by Andreas64 from Pixabay
China and Iceland. These two countries are vastly different in size, population, and cultural makeup but they do have one thing in common: these countries have shown the possibilities of green energy technology markets and solutions. Iceland and China transitioned to renewable energy technologies out of necessity. The 1973 oil crisis forced Iceland to find alternative sources of energy and be creative in utilizing their unique landscape, and as of 2020, 100% of the electricity used in the country is renewable.  In contrast, China was forced into the green energy market because of continuing political unrest created by the smog pollution that has plagued the country. China now the leads the world in developing renewable energy technologies, accounting for 29% of all global patents, and shows how green energy companies can compete step for step with their fossil fuel competitors. Though the energy transitions in Iceland and China were each motivated by unique factors and circumstances, both countries help exemplify the benefits of investing in and transitioning to robust green energy economies.  

Iceland’s electricity grid carries 100% renewable energy that is generated exclusively from hydro and geothermal power sources. In addition to generating electricity, Iceland also uses geothermal energy for space heating. Geothermal heating in Iceland decreases dependency on fossil fuels by reducing the demand for electricity consumption for heating purposes. The geothermal energy sector in Iceland produces about 27% of the country’s electricity, while hydropower accounts for the rest. From these two sources alone, Iceland produces more energy than its residents use. In 2017, for example, Iceland generated four times more energy than it consumed. The Icelandic green energy market will grow further once the country invests in wind energy infrastructure, which is currently an underutilized resource in the island nation.  The potential for harnessing wind energy and the existing surplus of energy produced show the vast amount of renewable energy resources available in Iceland, as well as the possibility to export excess green energy.  Although there is no current way to export Iceland’s surplus green energy to other parts of Europe, NorNed, a 580 kilometer submarine power cable connecting Norway and the Netherlands, illustrates the possibilities for Iceland to export renewable energy across Europe.  While Iceland is now a model of clean energy innovation and finance, only fifty years ago the United Nations considered Iceland to be a developing nation. Iceland’s clean energy transition was brought on by the 1973 oil crisis, which forced Iceland to build out energy infrastructure that could take advantage of the country’s available renewable resources. Although Iceland still has a lot of progress to make in implementing renewable transportation solutions, the country illustrates how quickly a nation can transition from being a developing economy to a global clean energy leader.  

In contrast to Iceland, China is an example of how a country may use renewable resources to supply electricity in a more robust energy market. China leads the world in total renewable energy production, specifically in wind and solar energy generation. China now invests more money than any other country in the renewable energy sector and also installs solar power systems at lower cost than comparable fossil fuel-powered facilities. China’s interest in renewable technologies was spurred on by the country’s smog crisis and the costs incurred from air pollution. In 2012, air pollution cost China $535 billion, which represented 6.5% of the country’s GDP at that time.  Pollution also contributed to approximately 1.6 million deaths, representing about 17% of all deaths in the country. Environmental issues were a major driver for mass protests because pollution imposed significant economic and social costs on Chinese citizens. In an effort to maintain domestic stability and to minimize protests, the Chinese government pushed to transition the country to renewable technology. China focused on renewables because by alleviating dependence on fossil fuels, the nation was able to mitigate geopolitical tensions associated with China’s deployment of military forces in securing fossil fuel trade routes. In harnessing their own renewable energy, China has been able to reduce their investments in protecting trade routes. To date, the Chinese government has invested more than $360 billion into renewable energy projects and has created 13 million jobs in the sector, which far outpaces the 800,000 workers in the same sector in the United States. China’s private sector has also embraced the country’s transition to clean energy. China’s continued investment and commitment to green energy technology have sent positive signals to the world that the nation is taking action to address its climate impacts as called for under the 2015 Paris Agreement. Although China has a long way to go in transitioning their energy system and still remains the world’s largest polluter, they are demonstrating how a large industrialized nation can successfully transition to renewable energy.  

Timely implementation of sustainable energy solutions on a global scale requires long term commitment and cooperation from all nations. Governments cannot afford to wait until crises hits befire they implement green energy initiatives, as Iceland and China did. In 2015, there were 1.3 billion people in the world who lacked access to electricity and another 2.6 billion people who relied on energy produced from polluting sources like wood, coal, charcoal and animal waste. As nations expand their electric systems, they must simultaneously incorporate renewable energy solutions into their grids. China is now demonstrating that incorporating renewable energy solutions can be economical on a national scale. The country’s 2019 Frontrunner solar project was the first solar installation in China to not receive government subsidies and still come in at a lower cost than competing fossil fuel resources.  

The subsidization of traditional fossil fuel resources continues to present a major roadblock to deploying renewable energy infrastructure across the globe. The International Monetary Fund (IMF) has suggested that fossil fuel subsidies need to be phased out over time because they primarily benefit upper-income groups and mask spending and economic inefficiencies in the fossil fuel market. To address these issues, the IMF recommends creating long term objectives and plans, increasing transparency and communication about the scale of subsidies across countries, phasing in incremental price increases to fossil fuel energy sources, creating targeted efforts to protect the poorest parts of the global population, and creating reforms to depoliticize energy pricing. These lofty IMF goals show that significant international collaboration is necessary to successfully transition to renewable energy and address the inequitable impacts that the transition may have on the world’s most vulnerable populations. Despite these challenges, the cases of China and Iceland show that creative energy solutions are available and can create domestic benefits beyond simply producing “cleaner” electricity. The transition to renewable energy can produce economic benefits, help increase domestic security, spur the development of new industries, create jobs, save lives, and revitalize national economies. Other countries should not wait until change is necessary, like Iceland and China did. Rather, it is imperative that the nations of the world view those two countries as examples of what is possible and embark on their own energy transitions.

The posts published on Charged Debate reflect the writers’ opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute at Lewis & Clark Law School, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any legal information presented on Charged Debate is meant purely for general educational purposes and is not intended to provide legal advice and should not be relied upon in any legal matter. 

Monday, July 6, 2020

A Sisyphean Struggle: An Account of Oregon’s Struggle to Enact Campaign Finance Reform and its Link to Environmental Protection

By Colin Reynolds, Law and Policy Clerk

Nationally, Oregon is perceived as a leader in environmental protection and regulation. However, The Oregonian's Rob Davis exposed the dark truth in his 2019 series “Polluted by Money” that Oregon is, in fact, a state with relatively lax environmental laws; a state where industry lobbyists frequently leverage lawmakers to kill environmental initiatives and; a state that, overall, has “betrayed its [bipartisan] environmental legacy.” According to Davis, “Oregon’s failure to regulate campaign cash has made it one of the biggest money states in American politics [that] created an easy regulatory climate where industry gets what it wants, again and again.” And what industry got was “weakened or stalled efforts to deal with climate change, wolf recovery, disappearing bird habitat, cancer-causing diesel exhaust, dwindling groundwater, industrial air pollution, oil spill planning and weed killers sprayed from helicopters.”

Overall, Oregon is one of the few states that allow people and corporations to give as much money as they want to political candidates. Consequently, logic dictates, if Oregon enacted and enforced campaign finance restrictions, corporations will have less influence over the legislative process and the legislature will therefore pass more environmental protections into law. However, in order to do so, we must reckon with the state’s long history of failed campaign finance reform. 

1970’s Oregon Post-Watergate Campaign Finance Laws and Deras v. Myers

After Watergate, the Oregon legislature passed two statutes imposing a monetary limit on the total expenditures that a person or political committee can make in support or in opposition to a candidate for public office. In response to these statutes, Warren Deras, a candidate for State Representative, sued the state, arguing the statutes infringed upon his right to free expression and that any limitation on his ability to spend unlimited money on his behalf violated the freedom of speech protections found in Article I, Section 8 of the Oregon Constitution. In 1975, the case Deras v. Myers made its way to the Oregon Supreme Court, where Oregon Attorney General Lee Johnson argued that the free expenditure of funds in political campaigns threatens the integrity of government. The court, however, disagreed and struck down the statutes, holding that the Oregon Constitution’s Article I, Section 8 freedom of expression protections outweighed the public interest in stemming the free expenditure of funds served by statutes.

1994’s Measure 9 and Vannatta v. Keisling

Nearly 20 years later, Oregonians voted overwhelmingly in favor of Measure 9 (72% to 27%), a ballot initiative that limited campaign contribution and spending limits. Fred van Natta, the President of the Center to Protect Free Speech, subsequently sued the state, arguing that the sections in Measure 9 that “limit or ban certain political campaign contributions and coerce political candidates to agree to limit their campaign expenditures” violated Article I, Section 8 of the Oregon Constitution. In 1996, the case made its way to the Oregon Supreme Court as Vannatta v. Keislingin which the state and other advocates defended the measure, arguing that Measure 9’s restrictions on campaign contributions was designed to prevent a particular harm – “the existence of undue influence in the political process.” However, the Oregon Supreme Court rejected the state’s argument and voided Measure 9, holding that “there is no necessary incompatibility between seeking political office and the giving and accepting of campaign contributions.” According to the court, “those who are elected will put aside personal advantage and vote honestly and in the public interest.” 

2006’s Measure 46 & 47 and Hazell v. Brown

Ten years later, advocates tried to enact campaign finance reforms through two ballot initiatives. The first, Measure 46, would have amended the Oregon Constitution to authorize the adoption of laws regulating election contributions and expenditures, thus nullifying the Vannatta decision. The second, Measure 47, would have revised campaign finance laws to limit or prohibit campaign contributions and expenditures. In contrast to the resounding public support for campaign finance reform in 1994, voters paradoxically rejected Measure 46 while approving Measure 47. This split vote effectively resulted in an enactment of an unconstitutional law, because Measure 47 needed Measure 46’s constitutional amendments to be valid. Consequently, the Oregon Department of State, acting on advice from the Department of Justice, decided the state could not implement Measure 47. 

Despite the constitutional implications, Measure 47 supporters sued the state to compel enforcement of the initiative. In 2012’s Hazell v. Brown, the Oregon Supreme Court ruled that Measure 47 would not become operative until either (1) voters approved a constitutional amendment allowing laws that would otherwise violate “free expression rights” guaranteed by Article I, Section 8 (in other words, essentially approving the constitutional amendments previously proposed by the unsuccessful Measure 46); or (2) the Oregon Supreme Court overturned its holding in Vannatta that campaign finance limitations are unconstitutional.

2016’s Multnomah County Measure 26-184 and Multnomah v. Mehrwein

The present state of Oregon’s campaign finance dynamics began in 2016 when Multnomah County voters approved Measure 26-184, which directed the county to restrict campaign contributions, limit campaign expenditures, and require campaign disclosure rules. After the election, Multnomah County adopted new campaign finance ordinances mirroring those in the voter initiative. In May 2017, the county subsequently sought judicial review of the ordinances’ legality under both the Oregon and U.S. Constitutions. A group of citizens, including Alan Mehrwein of the Portland Business Alliance, intervened in the matter in opposition to the county. By 2019, Multnomah County’s “validation action” made its way to the Oregon Supreme Court. In its Multnomah v. Mehrwein decision issued on April 23, 2020, the court held that the county’s campaign contribution limits did not facially violate the Oregon Constitution, thereby overruling its previous holding in Vannatta. However, the court also held that the county’s campaign expenditure limits were invalid under the state constitution. Before exploring whether the court’s overruling of Vannatta was sufficient to activate Measure 47, it's helpful to examine how the Mehrwein court arrived at its decision. 

Revisiting Vannatta

The court began its Mehrwein analysis with a discussion of the so-called Robertson framework, which the court had developed in a 1982 case involving the constitutionality of a state law that created and defined the crime of “coercion.” The Robertson framework groups laws that restrict speech into three categories. Broadly speaking, the first two categories include laws that expressly restrict speech, and the third category includes laws that as applied may have the effect of prohibiting or limiting speech. An example of a valid third category rule is a prohibition of the overnight use of steps in front of the state capital, even though it might affect protestors conducting a vigil on the steps at night. From a legal standpoint, the difference between category one and three laws is important because a category one law is nearly always unconstitutional, except in specific situations,whereas a category three law is constitutional but subject to as-applied challenges. 

Applying the Robertson Framework to Campaign Contributions  

When the court applied the Robertson framework in its 1997 Vannatta decision, it held that the ballot initiative’s limits on campaign contributions and spending fell into the first Robertson category of laws that expressly violate free speech, and were therefore unconstitutional – except under narrow circumstances. In Mehrwein, however, the court revisited its analysis and concluded that the ballot initiative at issue in Vannatta did not actually fall within the first Robertson category. According to the court in Mehrwein, the Vannatta court’s holding that limits on campaign contributions and spending expressly restrict free speech conflicted with other prior and later court decisions. Consequently, the Mehrwein court rejected Vannatta’s reasoning and concluded that Multnomah County’s campaign contribution limits did not violate the Oregon Constitution. 

Campaign Expenditures vs. Contributions 

While the Mehrwein court held that Multnomah County’s campaign contribution limits were permissible under the Oregon Constitution, the court remanded that issue to the trial court to determine whether the contribution limits were also permissible under the First Amendment of the U.S. Constitution. Additionally, the Mehrwein court also held that while the county’s limits on campaign contributions were valid under the Oregon Constitution, the county’s limits on campaign expenditures “unambiguously” violated the First Amendment and were therefore invalid. Consequently, the court declined to reconsider the Vannatta holding that campaign expenditure limits were unconstitutional. 

Mehrwein’s partial overruling of Vannatta therefore created significant uncertainty around the constitutionality of Measure 47. Specifically, is the court’s overruling of Vannatta’s campaign contributions holding enough to trigger the enactment of Measure 47, even though the contributions issue in Mehrwein was remanded to the lower court and expenditure limits – which are similar to those contained in Measure 47 – were held to be unconstitutional?

“Constitutionality of Campaign Finance Limits Still in Limbo” 

On April 23, 2020, Misha Isaak, Governor Kate Brown’s former general counsel, predicted Measure 47 would remain dormant because Vannatta’s expenditure limits holding still stands. This view implied that adopting Measure 47 is an all or nothing proposition. Isaak’s prediction proved accurate. On May 1, the Oregon Secretary of State issued a statement that Measure 47 was “not made operative by the decision in Multnomah County v. Mehrwein, and as such there is no change in current state election laws.” However, Hillary Borrud reported in TheOregonian that at least one of the Mehrwein appellants is considering whether to seek further clarification on the court’s ruling.

In the 2020 general election, Oregonians will have another opportunity to achieve campaign finance reform through a ballot measure called the “Oregon Campaign Finance Limits Amendment.” If approved, this ballot measure would amend the state constitution to give the Oregon Legislature and local governments the ability to limit political contributions. Put simply, this new ballot measure is a repackaging of Measure 46, but without the expenditure limitations. If the initiative succeeds, it’s unclear if the new constitutional amendment would animate Measure 47. Consequently, any further Mehrwein proceedings may be rendered moot if voters approve this measure.  

However, for the time being, Multnomah County’s campaign contribution laws remain under court review and Oregon’s Measure 47 remains dormant. Meanwhile, Oregon politicians can continue to rake in unlimited campaign contributions from corporate interests, while the inadequacies of Oregon’s environmental laws remain. Consequently, if you accept the logic that more corporate campaign cash leads to weak environmental protections, don’t expect Oregon environmental legacy will change anytime soon. 

The posts published on Charged Debate reflect the writers’ opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute at Lewis & Clark Law School, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any legal information presented on Charged Debate is meant purely for general educational purposes and is not intended to provide legal advice and should not be relied upon in any legal matter. 

Wednesday, June 10, 2020

Collective Solar Purchasing Campaigns: Addressing Socioeconomic Barriers to Residential Solar Power

By Rachel Pemberton, Law & Policy Clerk

Solar power has been touted as the future of energy, but its high upfront costs have long been one of the largest barriers to the spread of residential solar energy systems in the United States. Only a decade ago, the cost for installing solar panels on a residential home could easily spiral into the tens of thousands of dollars before tax credits, and energy savings that helped defray those costs would take several years to offset the homeowner’s upfront costs. While solar panels have become more affordable in recent years, they remain a significant financial investment for most Americans.

In addition to hampering the deployment of residential solar power in general, the high upfront cost means that low-income communities—often those who spend the highest portion of their incomes on energy bills—are less likely to be able to afford a solar energy system. This means that those who could most benefit from the long-term cost savings and environmental perks associated with solar power usually are not able to do so. Even for those who care about the environment, making such a large financial investment may simply not be feasible. This is especially true in communities where food insecurity and concerns about paying for healthcare are routine.

Access to solar power and renewable energy in general remains a luxury that is largely afforded to only the most privileged among us, although this is changing. Still, in addition to low-income communities, minority communities are far less likely than white communities to have widespread use of rooftop solar systems. This may bebecause people of color are less likely to know someone who works in the solar industry, or because they simply don’t see many solar panels in their communities.Whatever the cause, even after accounting for differences in income and homeownership, minority communities—those where at least 50% of the population is African American and/or Latino—have 30% - 69% less rooftop solar than communities that are primarily white or have no racial or ethnic majority.

So, how do we address the socioeconomic barriers to solar power for low-income and minority communities (and for the American people in general)?

Collective solar purchasing campaigns offer a promising opportunity to substantially reduce the procurement and installation costs of residential solar energy systems for millions of Americans. These campaigns not only reduce our country’s dependence on fossil fuels, but also save participating homeowners hundreds, if not thousands, of dollars in energy bills every year. One of the first of these campaigns arose in Southeast Portland, Oregon, in 2009 as a grassroots effort among homeowners who wanted to confront the financial and logistical barriers associated with residential solar power. Within its first six months, the “Solarize Southeast!” campaign had installed solar systems on 130 homes. While the market price at the time for a single three kilowatt (kW) system was about $27,000, after bulk discounts and state and federal tax credits and incentives, each household paid only $2,000 to $3,000 for their system. The bulk discount alone was responsible for about $9,000 in reduced costs per residence.

Collective solar purchasing campaigns have had similar success across the country. In San Diego, about half of the 192 homes that make up the Broadway Heights neighborhood have rooftop solar systems. Residents in this predominantly African American community have seen their energy bills fall from $200 to $300 per month to $50 or less. In Washington D.C., more than half of the townhomes in the affordable Southern Homes and Gardens cooperative have rooftop solar systems. Another predominantly African American community, residents here have seen reduced energy bills to the tune of less than $20 per month.

Neighborhoods like Broadway Heights and Southern Homes and Gardens illustrate that in addition to overcoming cost barriers, collective solar purchasing campaigns built around community engagement can make access to solar power more attainable for minority communities. In Broadway Heights, with the help of the nonprofit GRID Alternatives, the neighborhood was able to incorporate community volunteerism and job training for local youth of color into their solar campaign. Additionally, at a majority-black and low-income high school in Nashville, Tennessee, clean energy advocates of color have built a solar array to serve as an educational model and engage the community in discussions about residential solar energy systems. Thus, regardless of what “engagement” looks like in a given community, using creative outreach strategies to increase participation in solar purchasing campaigns can help to overcome the racial and ethnic disparities currently associated with solar energy.

With solar panel prices continuing to fall, collective purchasing campaigns, especially when combined with tax credits and other incentives, offer homeowners the opportunity to invest in solar power for a fraction of the cost. Campaigns designed around community engagement are particularly effective at increasing participation and help empower marginalized communities to realize near-energy-independence. The reduced upfront cost of solar also means that homeowners can offset the cost of installing solar power with energy savings in as little as one to two years, and once the system has paid for itself, those homeowners will continue to enjoy savings on their energy bills for decades to come.

Thursday, April 23, 2020


By Wanter Uja, Law Clerk

COVID-19, which had not previously been identified in humans, recorded its first outbreak in December 2019 when authorities identified it as the cause for acute respiratory syndrome in Wuhan China. COVID-19, which was declared a pandemic by the World Health Organization, is affecting more than the health and safety of the world; it is also putting a severe strain on commerce and industry- including that of the energy sector. For example, due to less demand, the energy sector might experience new coal retirements as fossil fuel generators are running less. The emergence and unprecedented nature of this pandemic has created uncertainties and raised a lot of questions, including how it has affected pollution levels, electricity production, energy efficiency and transition to clean energy. This blogpost gives an overview of some salient issues in the energy sector, brought on by COVID-19.

In the US, utilities are doing their part in supporting customers through this pandemic. Acknowledging that the pandemic has not only affected the health and safety of its customers but also caused significant economic impactsmany power companies like Xcel Energy have decided not to disconnect electricity from its residential customers who are having a hard time paying their bills. In Oregon, Pacific Power has also stated it will temporarily suspend disconnections and late fees for non-payment of bills when due. However, these charges are not going away; these utilities will simply defer their costs for future ratemaking treatment. The question of the financial viability of energy companies after the pandemic, especially renewable energy facilities, is one that cannot be ignored. Research shows that as at March 31st 2020, solar installers in the US saw up to 30%cancellation or booking postponement. Whether it is because of social distancing, since installation requires face to face contact with customers, or financial uncertainty, it is troubling for renewable energy projects.

According to analysts, COVID-19 has further plagued the energy sector by causing supply chain disruptions. Projects have been stalled indefinitely because major equipment like transformers, batteries and solar modules originate from China. Even though china seems to be past this pandemic and is opening back up, existing tariffs on Chinese solar panels for example will likely contribute to more disruptions. In addition, because there are no viable alternatives, these delays could particularly be difficult for wind developers because it means they could be ineligible for the full value of their production tax credits. One question flowing from the above is, why the supplier base in the US not more diversified? Sad as it is, COVID-19 should be the dark horse that both drives regulatory change and forces the electricity sector to reduce its over dependence on China and create a new supply chain model going forward.

Lastly but by no means the least, the pandemic has caused utilities within the US to halt all retrofit programs and non-essential services, threatening over 2 million jobs and billions in capital created by the energy sector, according the American Council for an Energy-Efficient Economy. Businesses are shut down, oil prices are dropping daily and delayed construction of renewable energy projects due to both social distancing and global supply chain disruptions, raises the question of which will be more cost-competitive after the pandemic, fossil fuel or renewable energy. Regardless of the fact that clean energy jobs currently outnumbers those of fossil fuel, it is estimated that about half a million of these jobs will be lost by the end of the second quarter, as energy efficiency, renewable energy generators and clean fuel  companies have been hit he most by this pandemic. Clean energy appears not to be a priority to this Administration and the current Congress, since it was not included in the $2.2-trillion relief package signed by the President just last month. Shouldn’t the government be doing more to save as many jobs as possible and provide the much-needed support to the industry? The funding of clean energy that supports renewable energy growth, investment and other similar initiatives, as was done in the Obama era under the American Recovery and Reinvestment Act, is a possible direction in which governmental efforts should be channeled.

Although this is in no way a sustainable, effective or welcome means of reducing emissions permanently, COVID-19 has contributed greatly to the reduction of greenhouse gas emissions. With travel restrictions, and mandatory shutdown/stay at home orders in many parts of the globe, pollution levels have plummeted a great deal. New York, the state most hit by the pandemic in the US, has experienced a 50 percent  reduction in carbon monoxide from cars, while an estimated reduction of carbon emissions was seen in China of 25 percentin just four weeks. The curve will eventually flatten, the economy will open back up, things will return to normal and just like that there will be a surge in greenhouse gas emissions. The question is how to achieve sustainable goals for clean energy moving forward, as experts have determined that the pandemic won’t reverse the current high levels of carbon emissions or help the world meet its climate targets. This is made clearer by the EPA’s current pandemic policy, which essentially gives power plant operators an “open license to pollute” if their  environmental violations are tethered to the pandemic.

COVID-19 was unexpected, and most of the world was unprepared for anything of this magnitude. In the unlikely event of a future occurrence such as this, how will the energy sector survive? What are the lessons? What are the necessary next steps? These and many more questions must be answered. One thing is undeniable, governments must work hard to support the continued growth and development of clean energy including backing industry efforts to permanently cut emission levels, if there is to be any hope of first maintaining then lowering current pollution levels, reaching the world climate goalsand minimizing additional severe harm to health and the economy

The blogs posted on Charged Debate reflect the writers’ opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any legal information in any blog on Charged Debate is meant purely for general educational purposes, does not provide legal advice and should not be relied upon for any purpose. No representations or warranties, express or implied, are made with respect to any content in any blog posted on Charged Debate.

Tuesday, April 7, 2020

Let’s Not Wait for Covid-20 to Do the Right Thing

By: Eric Ini

Covid-19 has shut down the social and economic life of the entire world. Stock prices are down, interest rates are down, schools are suspended, and movement across the globe is restricted. Humanity seems helpless. Even the best public health systems, like those in the North of Italy, are failing.

The most widely affected countries are superpowers – along with Italy, the top of the list includes China, the USA, Germany, France, and Spain. But even the biggest powers cannot threaten the microscopic virus with nuclear weapons or discipline it with economic sanctions. Coronavirus knows no super power and respects none.

In China, where the virus was first discovered, manufacturing and services sectors plunged to a record low in February, automobile sales sank a record 80% and exports fell 17.2% in the past two months. Japan and the European Union are likely rushing into a recession. The Organization for Economic Co-operation and Development (OECD) predicted that COVID-19 will lower global GDP growth by one-half of a percentage point for 2020 (from 2.9 to 2.4 percent); Bloomberg Economics warns that full-year GDP growth could fall to zero in a worst-case pandemic scenario.

Coronaviruses (CoV) are generally zoonotic diseases, meaning they are transmitted between animals and humans. They are part of a large family of viruses that cause illness, ranging from the common cold to more severe diseases such as Middle East Respiratory Syndrome (MERS-CoV) and Severe Acute Respiratory Syndrome (SARS-CoV). The new strain of coronavirus disease (also known as COVID-19) is a strain that was discovered in 2019 and had not been previously identified in humans.

If Covid-19 will finally be confirmed as having originated from a zoonotic disease, it might have originated from forests in China that are not so different from those I grew up next to in Cameroon. In pristine forests, wildlife is often poached and consumed by local communities and Indigenous People as a vital and possibly only source of protein. In the decades that followed my childhood, such forests have become ever more accessible through logging, mining and road building, bringing more people in close contact with such animals as rodents, pangolins, and monkeys. This new reality is exacerbating the first mass extinction since the time of the dinosaurs—and significantly increases the risk of exposing humans to viruses for which they have no immunity, and therefore the risk of pandemics.

If Covid-19 will finally be confirmed as having originated from a zoonotic disease, it will be a painful wake-up call to the high-income countries, which are also responsible for the planet’s highest outputs of pollution, highest-emissions of Greenhouse Gas (GHG) and highest rates of deforestation.

Those countries have operated under the assumption that whatever the impacts of climate change caused by their economies, they will have the resources and capabilities to contain the impacts. They even have a new buzzword for it - “climate adaptation”.

For many high-income countries, it has been comfortable to believe that mostly poorer and so-calleddeveloping nations like mine will carry the burden: "we will adapt, and would also support them (people like me, E.I.) with aid payments." Who knows, maybe they will even pledge to plant a trillion trees to offset their emissions? Well, the coronavirus might be the proof that this wishful selfish thinking-- that rich countries can simply open their wallets and make global problems go away, or at least protect their own comfortable quality of life-- simply doesn’t have a chance.

Covid-19, the specific strain of Coronavirus that is causing so much misery now, can and most likely will be ultimately defeated. There are important preventive measures like social distancing and washing hands and the world’s leading scientists are united in finding a vaccine.

However, if Covid-19 comes from the wildlife that was until a few decades ago only to be found far from large population centers, that means the pandemic is actually just a symptom of a larger problem. Deforestation and the use of fossil fuels are drivers of climate change. The impact of climate change could make the relatively brief impacts we can expect from Covid-19—grounding aircraft, crashing the stock markets, crushing small business and suspending social and economic life—seem like minor mishaps. The impacts of climate change will be far more severe, and far longer lasting.

As governments prepare recovery plans, they should take this opportunity not just to stimulate the economy, but to move from the past. We should be forward looking, increasing investments in sectors like renewable energy that could help not just by providing jobs and revenue, but by reducing greenhouse gas emissions and the risk of harm from future climate crises.

The coronavirus may end up sparking the systemic shift we need through very tragic circumstances, which countless peaceful marches for the planet did not. Super powers and low-income countries are all in this together. We are all in this together. Let’s move to 100% renewable energy. Let’s move towards protecting our forests, wildlife and biodiversity. Let’s not wait for Covid-20 to do the right thing to ensure a better future for everyone.

Eric Ini received an LLM in Environmental and Natural Resources Law from Lewis & Clark Law School in 2011. He has worked for Greenpeace in the Congo Basin  since 2014, and is currently on sabbatical from his position as S
enior Forest Campaigner.

The blogs posted on Charged Debate reflect the writers' opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any information in any blog on Charged Debate is meant purely for general educational purposes, does not constitute legal advice and should not be relied upon for any purpose. No representations or warranties, express or implied, are made with respect to any content in any blog posted on Charged Debate.