From the Dispatch

Department of Justice to States: Don’t Sue Polluters

Fabiola Carrion — Thu, 02 Sep 2010 13:18:27 -0400

In a blow to states’ leadership over clean energy, the U.S. Department of Justice has filed a brief before the U.S. Supreme Court arguing that states cannot sue power plant operators that generate pollution. The Justice Department alleges that: (1) the Environmental Protection Agency has already started to regulate greenhouse emissions; and (2) states lack standing to assert a federal nuisance claim.

The brief was filed in connection with litigation where Connecticut and seven other states (New York, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin) as well as New York City sued a group of utilities that emit significant amounts of carbon dioxide. The suit contends that utilities are creating a “public nuisance” through their greenhouse-gas emissions, contributing to global warming, and consequently injuring the states in their capacities as sovereigns or property owners.

States have been able to sue harmful emitters under the nuisance theory since a 1907 Supreme Court decision that required Tennessee copper companies to reduce emissions that were damaging to Georgia farmers’ crops. Should the DOJ’s second legal reasoning of standing be adopted by the courts, the 1907 decision would be trumped and federal nuisance law will not be able to act as backstop against carbon dioxide emissions.

Environmental organizations have criticized the Department’s stance and acknowledge states’ actions to combat climate change in the absence of legislation from Washington DC. Further, they note that although the EPA has adopted regulations to limit greenhouse-gas emissions, the agency has not defined how it expects power plants, factories and other stationary sources to control their greenhouse-gas emissions. Moreover, they point out, EPA’s regulation over greenhouse gas is still not in effect and is only applicable for the largest and newest sources of pollution.

As we have discussed in previous Dispatches, states are often the laboratories where good policies are first created; and clean energy reform is undoubtedly one of them. If the federal government were to prevent states from exercising their authority over environmental policy, this decision could have detrimental effects on further policy innovation at the state level.

Private Tax Filing Firm Lobbying to Scrap Successful State Tax Preparation Services

Altaf Rahamatulla — Thu, 26 Aug 2010 12:17:37 -0400

Intuit, a private firm that manufactures TurboTax, has pushed California lawmakers to eliminate the popular, successful, and cost-effective public tax filing services, ReadyReturn and CalFile. These two programs offer millions of low- and middle-income Californians a free and reliable method to calculate and file taxes. They are also wildly popular - ReadyReturns's user satisfaction rate reaches above 98 percent. The state's Franchise Tax Board estimates that in total, ReadyReturn and CalFile save taxpayers between $4 million and $10 million in filing fees and reduces the state's processing and administrative costs by $500,000 a year. Considering the depth of the state's fiscal and economic woes, these savings are sorely needed.

Intuit has spent over $1.25 million in the past five years on lobbying efforts to kill the programs and provided right-wing politicians with over $2 million in campaign support. Their efforts have had a visible impact: conservative state lawmakers have withheld support for domestic violence shelter and police department funding in an attempt to force the elimination of the programs.

In their crusade against government and public structures, the anti-tax movement is joining the opposition to these types of tax preparation programs because a dependable, popular, and cost-effective government service does not suit their hackneyed and hollow messaging.

As Professor Dennis J. Ventry Jr. of the UC Davis School of Law notes, "[a]bolishing ReadyReturn and CalFile would hurt Californians. Intuit's alternative would cover fewer taxpayers and provide fewer services; it would cost individuals millions of dollars in preparation fees (much of which Intuit wants to pocket); and it would kill two programs that actually save the state money. It doesn't add up for anyone. Except Intuit." Accordingly, this effort to eliminate a successful government program that saves money and assists millions of taxpayers follows the pattern of right-wing behavior at both the state and federal level -- placing the interests of large corporations and the very wealthy over middle class families and effective economic and fiscal policy.

Resources

California Budget Bites - Summer Doldrums Reveal Yet Another Threat to Ready Return
Progressive States Network - Right-wing Budget Hypocrisy: Taking Recovery Funds, Denouncing Deficits and Promoting Costly Tax Cuts
The Los Angeles Times - Intuit just won't quit

CAFTA Trade Lawsuit Highlights Threat To State Regulations From Bad Trade Agreements

Tim Judson — Thu, 26 Aug 2010 11:11:51 -0400

We've detailed in the past the way new international trade deals empower corporations to undermine local regulations. A recent case highlights just how byzantine and dangerous the process is getting:

A Canadian mining company is using a recently established Nevada subsidiary to use the federal Central America Free Trade Agreement (CAFTA) to try and overturn mining regulations in El Salvador.

Earlier this month, a tribunal under CAFTA ruled against the US government’s objections to the mining company's lawsuit and allowed the case to proceed.

Corporate "Investor Rights" Expanding: The case will be a high-profile test of so-called “investor state enforcement” (ISE) provisions which have become a common feature in trade agreements since NAFTA. These same investor rules are a central feature of three pending trade agreements (with Korea, Colombia, and Panama), which the Obama administration plans to finalize in coming months.

First invented as part of NAFTA, ISE rules grant companies which operate in one of the states that are party to the trade pact the right to sue another party country's government if that country’s federal or state laws and regulations impinge upon the company’s investments there. Such cases are heard by private arbitration tribunals outside of the defendant country’s legal system. These extraordinary private-investor rules grant foreign companies greater rights than domestic companies, which may not have legal basis for challenging commonly accepted public interest laws. Between 1994 and 2009, sixty-four cases were brought against countries under NAFTA, costing governments untold millions of dollars in legal expenses and amounting to billions of dollars in potential judgments. In total, governments have been found liable for over $200 million in judgments under NAFTA.

By far, the more significant implications of ISE rules are the threats they pose to the environment, workers, public health, and other public interest constituencies. In addition to the expansive opportunities they afford to multinational corporations to undermine public interest laws, they can drain government resources and create a chilled policy environment in which elected officials and public agencies feel constrained by the threat of investor-state actions. The El Salvador case is exemplary of the danger states face from the investor-state rules included in the proposed Korea-U.S. Free Trade Agreement (Korea FTA), in particular.

The El Salvador Case and the Threat to Local Regulation: The Canadian mining company, Pacific Rim Mining Corporation, is challenging a progressive mine-licensing law passed in 1996 with a two-step licensing process. First, a company must obtain a permit for exploratory mining, which Pacific Rim did in 2002. Before it can initiate commercial mining, the company must next obtain a full-scale exploitation permit, which requires approval of both an Environmental Impact Assessment (EIA) and a financial and technical feasibility study in order to protect El Salvador’s scarce potable water resources. Pacific Rim has not submitted such an application.

Pacific Rim's plans included using two tons of cyanide per day to process the ore, at a site located on El Salvador's largest river and source of drinking water. Due to the dangers posed by such mining practices, a national movement formed against precious metal extraction, and in March 2008, the conservative government led by President Elias Antonio Saca announced that no more permits would be issued until a new, thorough environmental study was completed and a mining reform law was passed.

Faced with this changing political environment, Pacific Rim decided to exploit CAFTA’s investor-state rules. At the time, however, the company had no U.S.-based operations and therefore no standing under CAFTA to sue El Salvador. So in December 2007, it reincorporated a Cayman Islands subsidiary in the state of Nevada, and in April 2008, following President Saca’s announcement, sent a letter to the Salvadoran government threatening to file suit. In December, Pacific Rim filed suit, claiming hundreds of millions of dollars in damages.

The El Salvador government filed for dismissal, but on August 2, 2010, the arbitration panel rejected the government’s position and ruled that the case will move forward. The government has since filed a second set of objections challenging Pacific Rim’s “nationality change” as an abuse of the treaty and claiming that Pacific Rim’s Nevada subsidiary is not the proper interested party, but rather the Canadian parent corporation, which has no significant investment interests in the U.S.

The case could determine how broadly ISE provisions will be extended in practice, and it illustrates the dangers to states’ sovereignty posed by future trade deals. If a multinational corporation can relocate a subsidiary to the US to undermine another FTA country’s laws, then the same could be done to undermine progressive US state laws, such as California’s new vehicle efficiency standards, that have been upheld as constitutional. The Obama administration plans to move first on the Korea FTA, which poses the greatest risk of investor-state suits of any agreement since NAFTA. Korea-based corporations have hundreds of operations located in the US, and as it is written, the Korea FTA would even enable companies to skirt new US financial reforms.

Resources

Public Citizen’s Global Trade Watch -

Progressive States Network - Trade and the States: Promoting Collaboration on Negotiating and Implementing Trade Deals

State Sues BP for Oil Spill Damage

Fabiola Carrion — Thu, 19 Aug 2010 13:40:26 -0400

State governments are finally taking action to address the catastrophic damage caused by the oil spill in the Gulf of Mexico. The Office of the Attorney General of Alabama has filed before a U.S. District Court a complaint against British Petroleum for what it describes as the largest marine oil disaster in the history of the United States.

The state of Alabama also sued co-defendant companies Transocean Ltd., Halliburton Energy Services, Inc., Anadarko Petroleum Corp., Mitsui & Co., and Cameron International Corp. All defendants, the complaint states, "negligently and wantonly failed to take appropriate measures to prevent damages [to the State]." As a result, Alabama is enduring damages to its natural and environmental resources, including the loss of use of state property, taxes, revenues, and other income; which in turn has also incurred damages associated with oil disaster response actions.

The lawsuit has received bi-partisan support in the state, including the two contenders for the gubernatorial post.

In addition to this lawsuit, BP has received 142, 400 claims representing all 50 U.S. States. The claims represent the havoc created upon communities and businesses that we discussed in a previous Dispatch. For instance, in a state that heavily relies on tourism like Florida, hotel operators say visitors are deciding not to travel to the state under the impression that the beaches are tarred by oil. It is evident that states will have to look into various ways to ensure that these corporations are held liable for their grossly negligent actions and that every resident gets compensated for the losses they have and will continue to bear.

As Deportations Soar to Historic Levels Nationwide, Federal Immigration Officials Are Quietly Halting Deportations of Students

Suman Raghunathan — Thu, 12 Aug 2010 15:04:24 -0400

Amid a tightening circle of immigration enforcement by the federal government, officials are quietly halting deportations of some student activists organizing in favor of the federal DREAM Act.

In a rare glimpse of internal immigration policy priorities, the Obama Administration and Department of Homeland Security officials acknowledged over the weekend they have avoided pursuing deportation orders against many undocumented students across the nation who have not committed crimes – an immigration term called 'deferred action'. The acknowledgment comes as the number of deportations continues to reach unprecedented levels under the Obama Administration – nearly 390,000 immigrants were deported in 2009, roughly 20,000 more than in the final year of the Bush administration.

Many undocumented youth have been at the forefront of increasingly public actions calling for comprehensive immigration reform as well as the federal DREAM Act, a bill that would grant eventual legal status to undocumented high school graduates who meet a series of requirements, including being longtime US residents, entering the country before the age of 16, and enrolling in community college, a university, or the armed forces.

Deportation Data Released: These statistics come in response to a Freedom of Information Act (FOIA) request, where the Department of Homeland Security released data this week on the roughly 47,000 immigrants deported over the past 18 months through a controversial federal immigration enforcement program, Secure Communities. Similar to 287(g) agreements and Arizona's now temporarily suspended SB 1070, the program seeks to empower state and local law enforcement authorities to enforce federal immigration laws - an approach that PSN has detailed as ineffective, expensive, and one that erodes community trust in the police.

More specifically, Secure Communities seeks to establish agreements with state and local law enforcement authorities and departments to cross-reference all who are booked on suspicion of committing a crime through immigration databases in a search for undocumented residents. If it becomes clear through such a search that an individual apprehended by the police lacks valid immigration status, they are then transferred to federal immigration officials and often swiftly deported. Immigrant rights advocates have raised numerous concerns about due process violations of immigrants apprehended through the program. The effort, increasingly a focus of the Department of Homeland Security's immigration enforcement priorities, has been touted by officials as a targeted effort to focus on undocumented immigrants who commit violent crimes and single them out for deportation. Secure Communities is also rapidly expanding: the program now operates in 494 jurisdictions in 27 states - a major expansion compared to only 14 jurisdictions just 18 months ago. Federal immigration officials plan on extending the program to every law enforcement jurisdiction nationwide by 2013.

Yet the data revealed via the FOIA request shows the program is in reality a broad immigration dragnet, and one that overwhelmingly sweeps up undocumented immigrants who have committed no crime at all: 79% of those already deported through the program committed no crime or committed only minor offenses such as unpaid tickets or driving with a broken taillight. 28% of those deported through the program had no criminal record at all and were not convicted of any crime, yet were still deported. In addition, jurisdictions that have entered into Secure Communities agreements find it difficult to rescind their participation: San Francisco Sheriff Michael Hennessey noted he is attempting to withdraw his jurisdiction from their agreement, and has not yet been able to do so.

Federal DREAM Act Gaining Support: In the midst of this troubling data on deportations, it appears immigration officials are increasingly recognizing that students seeking college education should not be targets. As federal immigration reform (including the bipartisan DREAM Act) has lagged, DREAM Act lead sponsor Senators Richard Durbin (D-IL and the second-highest ranking Senate Democrat) and Richard Lugar (R-IN) called for a moratorium on deporting students. The Obama Administration and the Department of Homeland Security declined to impose such a moratorium even as they continued to call for passage of the DREAM Act. In the meantime, it appears the Department of Homeland Security is granting 'stays' of students' deportations on a case-by-case basis – yet are generally avoiding deporting student activists.

In Wake of BP Oil Spill, More to Be Done by Gulf States

Drew Harris — Thu, 05 Aug 2010 16:17:57 -0400

Even as officials announce that the oil leak has finally been capped, residents of the Gulf Coast have only just begun what is sure to be a long, difficult period of renewal following April’s Deepwater Horizon disaster. Beyond the tragic loss of life on the rig and the oil spill’s devastating environmental toll, the catastrophe has wreaked havoc upon communities and businesses along the coast that depend on the Gulf’s waters for employment – and they currently lack many of the tools and resources they’ll need to restore the region back to its full potential.

Vacancy on State Leadership: Amidst all this misfortune lies the fact that many public figureheads deny that that there is a role for states to play in the cleanup. Robert Mann, a professor at Louisiana State University, explains, “Everything goes back to looking at BP and the feds to fix the problem. I don’t hear anything, even from [Governor] Jindal. It’s all, ‘How do we force BP to fix it?’” The federal response has been well-coordinated and highly centralized, but so far many state governments along the Gulf Coast have done little on their own to mitigate the effects of the spill.

For example, Louisiana, which has borne the brunt of the spill’s economic fallout, only passed a resolution declaring a statewide day of prayer for those affected by the spill. Passed in isolation, this bill is a slap in the face to those who’ve lost the most from this disaster.
The Mississippi State Legislature, which has been out of session since April, has not reconvened to address the oil spill.
Florida Governor Crist’s proposal for a constitutional amendment to ban offshore drilling in state waters was quickly shot down in a special session.

Job Losses in the Gulf States: Meanwhile, economic conditions along the coast continue to worsen. Recent data from the Louisiana Workforce Commission reveals rising unemployment in Louisiana. In fact, Louisiana was one of only five states nationwide to see an increase in unemployment in June, suggesting that the oil spill has played a role in the state’s employment crisis. More broadly, Moody’s Analytics estimates that up to 100,000 jobs could be lost throughout the coastal region – with up to 17,000 of those lost by the end of this year alone, along with 1.2 billion dollars in output. One study finds that one in five households in Louisiana and Mississippi have seen their income decrease as a result of the oil spill and 8 percent of residents have lost jobs

These economic losses, which have hardest hit the labor-intensive industries of fishing and aquaculture in Louisiana and the tourism industry in Florida, mean that the only thing keeping local workers – many of whom live paycheck to paycheck – solvent is their participation in the cleanup effort. Most fishermen participate by leasing their boats or offering their labor – though BP’s payout policy is itself less than fair. Under current policy, workers who earn money assisting with the cleanup will see that amount deducted from their claim against BP.

Options for State Action: How can states help their coastal regions? One important step is to ensure that the waste contaminated by the spill is disposed of properly. Louisiana’s solid waste response plan for the BP spill was adopted from the Hurricane Katrina plan – except, as Darryl Malek-Wiley, a field organizer for Sierra Club New Orleans, sees it, “an oil spill is not a hurricane, and I feel we’re not disposing of the oil-soaked waste in a proper way.” Not only is the waste toxic, he says, but it is quickly filling up landfills in Mississippi that were meant to last for many more years and will now need to be supplemented at taxpayer expense. Malek-Wiley also suggests that coastal states enact so-called “bounty hunter provisions,” under which citizens are rewarded financially by the state for filing lawsuits against corporations that break environmental laws.

State officials can also support constituents who have experienced property damage by helping them receive proper reimbursement. In Florida, Governor Crist signed an executive order authorizing property appraisers in coastal counties to reassess homes and businesses if a loss of value appears likely. This will help members of coastal communities file claims against BP. If necessary, lawmakers can also consider allowing property taxes to reflect updated (and downsized) property values; under current Florida law, the governor does not have the authority to do this.

To help coastal workers, states can ensure that assistance is available for workers who were paid “under the table” in years past and therefore do not have documentation to show they were working before the oil spill. Without such documentation, it is nearly impossible for them to receive any compensation from BP. Alternatively, states can consider bolstering or emulating local charities, such as Horizon Relief, which do not require documentation.

State Legislators in the Gulf Call for Action: Finally, state lawmakers nationwide can sign the Coastal States Caucus’s letter to President Obama requesting that the federal government:

Ensure responsible parties are held liable;
Lift the cap on liability by drilling companies;
Create a Gulf Coast and Estuaries Restoration Fund that, in the future, can expand its focus to support other coastal, ocean and Great Lakes restoration;
Establish a Dedicated Ocean Trust Fund to support long-term marine and coastal stewardship; and
Finalize and Implement the Interagency Ocean Policy Task Force Recommendations.

You do not need to be a Coastal States Caucus member to sign on. You can add your name at http://tinyurl.com/263lx3p.

Clean Energy Options: In the Wake of the Oil Spill, Energy Alternatives That Will Create Jobs

Fabiola Carrion — Mon, 19 Jul 2010 14:00:58 -0400

With less than 5 percent of the world’s population, the United States produces 25 percent of greenhouse gases, making it the second largest emitter in the world after China. The American public is well-aware of this issue; according to a Pew Research Center Poll, three-fourths of Americans described climate change as a serious problem. Since the oil spill in the Gulf of Mexico, support for off-shore drilling has waned substantially and more Americans want to look for clean energy policies that will avert more ecological disasters. Pew has also noted that the American public overwhelmingly supports (by 87 percent) renewable sources like wind and solar power.

Accompanying this environmental crisis is one of the worst economic periods in the nation's modern history. Overall unemployment rates are just below 10 percent and almost all states are dealing with budget shortfalls. Progressive state legislators, nevertheless, continue to take major steps to lessen our dependence on oil, create jobs that remain in this country, diversify our energy sources, and ensure that these sources are transmitted and distributed through a reliable electrical system.

States have taken an important – and often primary – role in setting the environmental and energy agenda in the United States. A review of state policies, federal policies based on state models, and federal policies where state leaders play a key role in implementation demonstrates that state actions will have reduced carbon dioxide emissions by approximately 536 million metric tons per year by 2020. As Progressive States Network has described in previous Stateside Dispatches, increasing the number of renewable energy systems reduces greenhouse gas emissions, relieves grid congestion, creates jobs, and provides their owners with surplus energy to sell back to the market.

In this Dispatch, PSN will examine clean energy options that contribute to a green economy, including evaluating the great strides that energy supply alternatives have created in the states that have enacted policies that promote them. We will explain how states have established Renewable Portfolio Standards and how these have created the demand for innovative investment, as well as how to promote new sources of renewable energy, including creative financial mechanisms, multi-state agreements, and the upgrade of an electrical grid that will better transmit energy from these intermittent sources. And for states looking for new job creation strategies, one key fact is that the production, installment and maintenance of renewable energy sources create sustainable jobs.

Federal Support for State Action: The 2009 American Recovery and Reinvestment Act (ARRA) assisted continued action by states with the inclusion of a wide array of provisions to spur clean energy generation and energy efficiency. A special package of $85 billion was allocated towards energy and transportation related spending, dedicating $21 billion toward incentives for wind, solar, and other renewable energy manufacturers. ARRA also provides more than $30 billion for direct spending on clean energy programs, including $11 billion to modernize the electricity grid, $2.5 billion for research into renewable energy, and $6 billion for state and local efforts to achieve energy efficiency. In addition to all of these national efforts, ARRA allocates $3.1 billion to the Department of Energy’s State Energy Program, which distributes funds to help state governments improve energy efficiency and expand the use of renewable energy in their states. According to Environment America, programs that have been funded by ARRA are expected to reduce emissions by approximately 10 million metric tons per year by 2020.

Resources
Environment America - America on the Move: State Leadership in the Fight Against Global Warming, and What it Means for the World
American Clean Energy and Security Act
Clean Energy Jobs and American Power Act

Table of Contents:

- Renewable Energy Sources in the States

- Renewable Portfolio Standards: One Key to Promoting Alternative Energy Production

- Putting a Price on Carbon: Regional Greenhouse Gas Emission Agreements

- Clean Energy Financing Options

- Networking the Green Economy: Creating Jobs and Improving the Transmission of Renewable Energy Sources

- Conclusion: A Greener Economy Drives Job Creation

Renewable Energy Sources in the States

Renewable energy sources (used interchangeably here as alternative energy sources) include solar, wind, geothermal, biofuels, geothermal, conventional hydroelectric, and biomass waste. The production of renewable energy largely depends on the geographic location of these resources, the availability and location of infrastructure, and demand for energy. As such, the two most common barriers for the development of alternative energy sources are (1) cost, and (2) lack of infrastructure.

Solar Energy: Pike Research forecasts that the United States will become the largest market for small solar installations by 2011, surpassing Germany, the best known solar energy producer in the world. Unlike fossil fuels, solar energy is clean, safe and everywhere. With higher demand, solar energy is costing less. Thanks to this rapid growth, it is believed that the US can reach the goal of obtaining 10 percent energy consumption from the sun by 2030. One of the drawbacks of solar energy, however, is that it is intermittent and consequently not always available to match demand. It is therefore imperative that we use technologies that can measure the various levels of power that solar energy can generate and transmit them according to on- and off-peak times.

Wind Energy: Wind energy has become the fastest growing source of electricity in the United States. In fact, in 2008, the US surpassed Germany to reclaim the world’s leadership in installed wind power capacity. And in 2009, the wind industry increased by 39 percent. Now, almost two percent of our electricity is coming from wind turbines. Further, about half of components used in wind farms are now made in the US, compared with 25 percent in 2004, meaning that jobs in this sector have increased rapidly.

Thanks to our transition into wind generation, the US Department of Energy attributes approximately 17 million metric tons of the decline in carbon dioxide emissions during 2009 to expanded production of zero-emission electricity compared to 2008 levels. Environment America also concludes that the increase in renewable energy production since 2004 could be assumed to have reduced emissions in 2009 by roughly 44 million metric tons. Texas is currently the nation’s top wind producer, with a total of 9,410 megawatts, about three times more than the second-largest producer, Iowa. They are followed by California, Washington, and Minnesota.

On their own, solar and wind power can significantly reduce the amount of greenhouse gases we normally emit, and together, they can complement each other. Under the right conditions, solar generated energy is at its highest output during the hours when wind resources are least likely to be available.

Resources
Center for Social Inclusion - Solar Energy Generation at the Community Level: Briefing Paper Five of Black, Brown and Green
The New York Times - Wind Power Grows 39% for the Year
US Department of Energy - Short‐Term Energy Outlook Supplement: Understanding the Decline in Carbon Dioxide Emissions in 2009

Renewable Portfolio Standards: One Key to Promoting Alternative Energy Production

A renewable electricity standard (also known as renewable portfolio standard) requires utilities to develop renewable energy resources as part of their energy portfolio. In other words, an RES (or RPS) requires utilities to obtain a certain share of electricity they deliver to consumers from renewable resources. Twenty-nine states and the District of Columbia have adopted minimum standards requiring that a percentage of their electricity come from renewable energy. Five additional states (Florida, North Dakota, South Dakota, Utah, and Virginia) have set voluntary renewable portfolio standards.

Thanks to these standards, about three percent of power generated in the United States originates from renewable energy sources. The Department of Energy attributes state laws as the force behind the use of renewable sources. In concurrence, research by the North American Electricity Reliability Council shows that over 50 percent of the increase in renewable energy capacity occurred in states with mandatory Renewable Portfolio Standards.

These efforts will reduce global warming pollution by 79 million metric tons nationwide. Environment America calculates that 119 million metric tons will be reduced by 2020 thanks to RES policies and the reductions in electricity consumption that will result from other related policies.

Renewable Energy Standards Vary from State to State: The mix of resources eligible for credit varies greatly from one state to the next: some include “carve outs” for particular technologies (most often solar power), and some allow out-of-state resources to count on an equal basis with in-state resources through credit trading. Each state has designed its RES to account for a range of state-specific conditions and policy priorities. These include available wind, solar and other renewable energy potential in a state, reducing greenhouse gas emissions, mitigating other environmental externalities associated with fossil fuels, and lowering electricity costs to consumers. Other goals include diversifying the energy mix to protect against potential fuel interruptions and attracting wind and solar farms, product manufacturers, and research and development facilities to promote economic development and job creation.

The first renewable energy standard was adopted in Iowa in 1983. Massachusetts, Nevada, Connecticut, Maine, New Jersey and Wisconsin followed suit in the late 1990s, all enacting standards in the space of a few years. RES spread even more widely in the 2000s, while many states that had been among the first to adopt the policy updated their legislation to enact more aggressive renewable energy goals and to ease implementation of the policy.

Even when states have already implemented renewable portfolio standards, they are still seeking to expand them. States have expanded compliance dates, raised compliance targets, or added carve-outs for specific technologies.

Oregon’s HB 3039, enacted into law in 2009 two years after the renewable portfolio standard was first signed, includes a solar photovoltaic standard within the state renewable portfolio standard. Oregon state legislators continue to seek to amend existing laws to increase RPS requirements over the years.
In 2002, Nevada enacted an aggressive renewable portfolio standard that required that 15 percent of all electricity generated be derived from renewable resources by 2013. In June 2005, Nevada raised the requirements of the RPS by 20 percent of sales by 2015.
Virginia also increased the state’s renewable portfolio standard to 15 percent during the 2009 legislative session.

We previously highlighted Colorado's leadership in clean energy legislation, including its recent law to expand its renewable energy standards. In one of the most far-reaching environmental initiatives in the country, HB 1001 requires 30 percent of large utilities' electricity to come from renewable energy sources by 2020. In detail, utilities must supply at least 12 percent of their retail electric sales from such sources from 2011 to 2014, 20 percent from 2015 to 2019, and 30 percent for 2020 and beyond. Three percent of this standard must be met by local solar power, leading to the construction and installation of 100,000 solar rooftops, panels, and turbines.

The Undeniable Success of a Renewable Energy Standard: Seventy percent of the fastest growing energy supply -- wind power -- was generated in the US thanks to a renewable energy standard. Between 2004 and 2009, state mandates for renewable energy have averted the release of approximately 44 million metric tons of carbon dioxide pollution in 2009. By requiring utilities to invest in renewable energy, states have established policies that have leveled the playing field for clean energy sources to compete with traditional fossil fuel.

Experts project that the manufacturing renewable sector has the potential to employ many more Americans in green jobs. Of the 18 states that have both renewable portfolio and energy efficiency standards in place, 11 states (61 percent) had more jobs in the clean energy economy than the national average. Similarly, in 12 of those 18 states, clean energy jobs made up a larger share of all jobs when compared to the US average.

Resources
Progressive States Network - Renewable Portfolio Standards (RPS) Advance in the States
Center on Wisconsin Strategy, the Workforce Alliance, the Apollo Alliance - Greener Pathways: Jobs and Workforce Development in the Clean Energy Economy
Stateline - The Rush to Renewables
Center for Social Inclusion - Solar Energy Generation at the Community Level: Briefing Paper Five of Black, Brown and Green
Environment America - America on the Move: State Leadership in the Fight Against Global Warming, and What it Means for the World
Progressive States Network - Colorado Leads Clean Energy Reform
Environment Maryland - Building a Solar Future: Repowering America's Homes, Businesses, and Industry with Solar Energy
Apollo Alliance - As Oil Spill Tragedy Continues, Clean Energy Progress in Missouri and Georgia Points to Hope for the Future
Renewable Energy World - Where the Wind Blows and Sun Shines: A comparative analysis of state renewable energy standards

Putting a Price on Carbon: Regional Greenhouse Gas Emission Agreements

In addition to complying with their own statewide portfolio, twenty-three states are participating in three major regional initiatives seeking to increase renewable energy generation and reduce carbon pollution from power plants that cause global warming. The most famous of these agreements is the Regional Greenhouse Gas Initiative or RGGI, composed of 10 Northeastern states: New York, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, and Rhode Island.

RGGI's 2002 Working Group proposed to keep emissions flat from 2009 to 2015, and then begin to cut the cap by 2.5 percent each following year. By 2018, emissions are expected to be reduced by 10 percent from the program's start date. RGGI holds an auction where the member states sell credits for carbon emissions. The buyers are electric utilities who purchase credits either to be able to emit carbon dioxide or to re-sell those credits to other utilities. Under this cap-and-trade regime, each auction raises on average $80.5 million and in total the auctions have raised $663 million. The money raised in these auctions is supposed to be directed towards projects that promote energy efficiency.

Although some states have used some of the RGGI funds to fill in the gaps of their state's budget, the RGGI still continues to create job opportunities for workers who conduct energy audits and install home weatherization measures. For example, the Center for Ecological Technology, a company that conducts RGGI-funded efficiency efficiency work on behalf of electric utilities has doubled its workforce - from 50 to 100 full-time employees. This increase has also spearheaded the creation of new positions in the IT and customer service departments. Furthermore, thanks to RGGI, carbon dioxide emissions from power plants are below the cap they set. Along with RGGI, the Western Climate Initiative (WCI) has been created to reduce emissions across the region by 15 percent below 2005 levels by 2020. Seven US states (Arizona, California, Montana, New Mexico, Oregon, Utah, and Washington) and four Canadian provinces are part of WCI; the program, to be fully implemented by 2015, will cover close to 90 percent of emissions from the states' and provinces' territories. Also in the Midwest, six US states (Iowa, Illinois, Kansas, Michigan, Minnesota, and Wisconsin) and a Canadian province have joined to form the Midwest Greenhouse Gas Accord in order to reduce their emissions. MGGA's Advisory Group recently published its final recommendations, setting an emissions reduction target of 20 percent below 2005 levels by 2020.

Altogether, 23 states, accounting for half of the US population, are involved in greenhouse gas reduction accords.

Other Ways to Put a Price on Carbon: The most straightforward, and many would argue transparent, method to curtail carbon emissions might be to pay precisely for producing them. A carbon tax is aimed at taxing the actual emissions of carbon dioxide from energy producers. Instituting a tax provides the certainty of compliance, and has been successfully implemented in several countries, including Norway, Sweden and Germany. Carbon tax legislation has been introduced in US cities like Portland, Oregon and Boulder and Aspen in Colorado. According to the Oregon plan, builders that do not construct an energy efficient home must pay a fee. By the same token, the plan gives developers cash rewards if they save at least 45 percent more energy than the Oregon building code would require. The Boulder plan charges on the number of kilo-watt hours used, directing the profits to renewable energy and energy efficiency programs. The idea of taxing for carbon emissions has received a lot of support from environmental and labor activists, and even from Exxon CEO Rex Tillerson.

Please click image above to view a full chart of state Mandatory Renewable Energy Standards for 2010 from RenewableEnergyWorld.com.

Resources
Stateline - The RGGI raid: how cap-and-trade revenues went to fix state budgets
Progressive States Network - Bold Plan for Carbon Tax Introduced in Portland, OR
Environmental Protection - First RGGI 2010 Auction Yields $87.9 M for Member States
Regional Greenhouse Gas Initiative
Western Climate Initiative
Midwestern Greenhouse Gas Reduction Accord

Renewable Energy Financing Options

Through public bonds, pension funds, state-managed investment pools, and leveraging federal dollars, states can direct investment dollars into alternative energy production. These financial incentives are being applied over a long period of time to establish consistent and efficient programs and create a stable market.

Federal and State Funding: Federal monies, principally through the ARRA, are being directed towards bonds that enable local and states to finance renewable energy projects. The US Department of Agriculture, for instance, operates a loan guarantee program for agricultural adoption of renewable energy. States are taking full advantage of the federal government's support. Thirty-two of them have combined federal and state funding to provide residential, commercial, and industrial loan financing for the purchase of renewable energy. The following examples paint a good picture on what states are doing with government funding:

In Colorado, SB 31 was enacted in 2009 to create the Clean Technology Discovery Evaluation grant program for the purpose of improving and expanding the development of new clean technology discoveries at higher education research institutions. The state will also allocate $2 million in grants towards renewable from 2009 ARRA funding through the Governor's Energy Office.
Montana also provides direct funding for renewable energy development through grant and loan programs that typically target generation at the scale of residential and commercial buildings. It offers a grant program to subsidize small-scale renewable installations via a state-mandated system benefits fund maintained by the state’s largest private utility. Montana’s revolving fund loans up to $40,000 per renewable project.

Municipal Financing and Property Assessed Clean Energy (PACE): A model called Property-Assessed Clean Energy (PACE) financing enables municipalities to use their ability to obtain financing at low interest rates to pay for the upfront cost of installing renewable energy parts in businesses and homes. The financing is recouped through a special assessment on the property owner’s taxes, or in certain cases, their utility bill. In most programs, property owners pay back the costs over a period of 20 years. The tax remains with the property; if a property owner sells the property during the period of financing, the responsibility to pay back is transferred to the new owner. Hence, PACE absolves the homeowner of the risk that they will move out before they receive the full benefits of the system. Two barriers to making energy upgrades are therefore eliminated: (1) the up-front costs, and (2) the question of who pays for ongoing costs for upgrades when properties are sold.

The White House has estimated that if only 15 percent of residential property owners in the US took advantage of PACE related programs, the resulting emissions reductions would contribute to four percent of the savings needed for the US to reach 1990 emissions by 2020. In addition to reducing greenhouse gas emissions, PACE programs promise to lower energy bills for consumers and create jobs in home weatherization and renewable energy installation. So far, PACE programs have been authorized in 23 states.

Source: Pew Center on Global Climate Change

California enacted AB 811 in 2008 to allow cities and counties to offer PACE financing. Under the California program, property owners seeking funding for energy efficiency improvements must have a clear property title and be current on property taxes and mortgages. Financing may originate from bonds, local government funds, and third-party lenders. Under Minnesota law, loan amounts may not exceed 10 percent of the assessed value of the property and may include costs related to the required energy audit or feasibility study, equipment and labor costs, and performance verification. A recently enacted New York law (AB 40004A) allows counties, towns, cities and villages to offer sustainable energy loan programs that can pay for energy audits, cost-effective, permanent energy efficiency improvements, renewable energy feasibility studies, and the installation of renewable energy systems. The local program determines the sectors eligible for financing, and qualification for the loan is contingent on energy audits or renewable energy feasibility studies that meet New York State Energy Research and Development Authority (NYSERDA) or equally stringent standards. Energy efficiency improvements must meet cost-effectiveness criteria as established by NYSERDA. Land-secured financing districts for PACE programs have been created in Florida, Georgia (HB 1388-2010), Hawaii, Louisiana (SB 224-2009), Nevada, Vermont (HB 446-2009), and New Mexico (SB 647-2009).

Also last year, Oregon established the Energy Efficiency and Sustainable Technology loan program to provide state loans for residential and commercial energy efficiency and renewable energy projects. The 100 percent upfront long term, low-interest loans can be paid back on the utility bill. The program is financed through state bonding and private loans.

This year, Maine enacted LD 1717 to implement a loan program through a local ordinance that provides financing for property owners who want to put clean energy improvements in their homes. This legislation is unique in two ways: (1) municipalities will be able to use federal grants or any other funds available for the purpose of funding PACE programs; and (2) PACE assessments will be considered subordinate liens, secondary to mortgages. Further more, Efficiency Maine Trust was directed to promulgate rules for Maine's PACE program, including eligible efficiency improvements and renewable energy installations, standards for underwriting requirements, and truth in lending provisions which are to guide the consumer disclosure that must be included in PACE agreements.

Another eight states have introduced PACE bills in 2010 in their legislatures, including Hawaii (SB 2865 and HB 2643), Missouri (HB 2178, HB 2298 and SB 1037), Michigan (HB 5640), New Jersey (AB 2500), Illinois (SB 2505).

Georgia also approved legislation this year (HB 1388) to help residential and commercial property owners make energy efficiency and renewable energy improvements to their properties through voluntary property assessments.

PACE Programs Under Challenge: Recently, Fannie Mae and Freddie Mac asserted that because PACE programs' liens take priority over existing mortgages, this poses a risk to lenders and secondary market entities, as well as alter valuations for mortgage-backed securities. Consequently, the Federal Housing Finance Agency (FHFA) and the US Treasury Department have instructed banks to place additional restrictions on home loans to borrowers in jurisdictions that have PACE programs. In response, cities and states have taken action to save PACE.

For instance, the state of California has filed a complaint against Fannie Mae and Freddie Mack for blocking PACE programs; California Attorney General Jerry Brown argues that PACE funding is an assessment, not a loan, and that Fannie and Freddie have long accepted local governments' use of assessments in California to finance improvements that serve a public purpose. The city of Babylon in New York will likely follow California's action; its leaders joined more than 50 local workers at a rally last Tuesday to announce the town's plans to sue the FHFA. As these leaders note, programs like those in California actually work to reduce the risk of default by requiring a clean record on property taxes and mortgages. In New York, stringent standards have to be met in order to obtain financing under PACE. And in Maine, the Efficiency Maine Trust is creating standards for underwriting requirements and truth in lending provisions to guide consumer disclosure. Further, more federal money is being allocated to fund and guarantee the success of PACE programs. Last year, the US Department of Energy announced funding for PACE projects and is apportioning $80 million as upfront capital for PACE-type programs. PACE programs can also apply for competitive grants under the Energy Efficiency Conservation Block Grant Program.

Feed-In-Tariffs: One other funding source for renewable energy is where a company that installs and maintains a renewable source device receives a Power Purchase Agreement or Feed-In-Tariff with a customer. Here, the customer pays no upfront costs while the energy provider pays for the entire project including installation, maintenance, and trouble shooting. Also, this relationship guarantees that the installation can take place quickly, the service is predictable, and the rate is at parity with other retail electricity rates. Feed-in tariffs have played a role in the development of Germany’s world-leading solar power industry. In the United States, feed-in-tariffs have been adopted in Vermont and Washington.

The Vermont feed-in-tariff law was designed to ensure that homeowners or businesses receive the same return on equity for their investment. Vermont's legislation bases the tariffs on the cost of generation plus a reasonable profit. Vermont's feed-in tariff program contains the key elements of the successful policies found in Europe: tariffs are differentiated by technology and size; tariffs are set on the cost of generation plus profit; and profit is set by a reasonable rate of return, loan contracts terms, and a regular program review.

Rebate Programs: By providing cash incentives, more homeowners and businesses will install renewable devices and technologies in their buildings. States have taken note of this efficient strategy. Twenty-three of them and the District of Columbia offer rebate programs to promote the installation of renewable energy systems and energy efficiency measures such as solar water heating and photovoltaic systems. We highlight a few of them:

California's Million Solar Roofs Initiative provides grants to homeowners who install solar systems, with the amount of the rebate declining over time to reflect the anticipated declining cost of solar power.

Thanks to ARRA funding, Minnesota offers rebates of $100 to $250 on refrigerators, dishwashers, and clothes washers, and New Jersey residents will be able to receive rebates worth $25 to $ 100 on the purchase of those same items. Similar rebate programs for home appliances exist in Louisiana, North Carolina, and South Carolina.

Net Metering: Net metering allows customers who generate electricity through renewable sources to receive credit for electricity they put on the grid. In other words, net metering customers buy electricity when they need it, use the electricity they produce, and sell any excess to the utility. This provides an incentive for consumers to invest in small renewable generation systems. More than 40 states and the District of Columbia have adopted net metering laws.

Last year, Nebraska's LB 436 was enacted to provide net metering for electricity. It includes one to one credit for energy generated up to the amount used, protection against additional utility charges and fees, protection against unnecessary safety or performance standards, and prohibition of additional liability insurance.
Newly enacted AB 510 in California raises the cap set on the number of homes and businesses that can take advantage of net energy metering. Current law caps the amount of electricity that can be generated under the net metering program to 2.5 percent of a utility’s peak demand. AB 510 raises the net metering cap to 5 percent and will help meet projected demands received under the California Solar Initiative program. The law further allows the rate-making authority to compensate net energy producers for the value of the electricity itself, and the value of the renewable attributes of the electricity. Moreover, net energy producers will receive a bonus if the renewable attributes of the energy production add indefinite or unforeseen benefits. Environmental advocates claim that the law, which was introduced last year but died in committee, finally balances the interests of utilities, customer-generators, and non-participating customers. This is a great win for the more than 50,000 customers, including schools, community colleges, cities and counties and homeowners in California who participate in net metering.
New Jersey has one of the most comprehensive net metering and interconnection laws in the United States. It includes a wide array of renewable sources: solar technologies, wind, fuel cells, geothermal technologies, wave or tidal action, and methane gas from landfills or biomass facilities. This program has been praised for standardizing the interconnection procedures for residential and small-commercial customers, who pay at the end of the each year for every excess Kwh they produce.

Protecting the Ability to Install Renewable Energy Sources: States are also enacting rules to protect access to renewable energy. Last year, Virginia enacted SB 320, which voids covenants that restrict installation of use of any solar energy collection device on private property.

Resources
Progressive States Network - Colorado Leads Clean Energy Reform
The Pew Charitable Trusts - The Clean Energy Economy: Repowering Jobs, Businesses and Investments Across America
The Apollo Alliance - As Oil Spill Tragedy Continues, Clean Energy Progress in Missouri and Georgia Points to Hope for the Future
The White House - Policy Framework for PACE Financing Programs
Environment America – America on the Move
Center for Social Inclusion - Solar Energy Generation at the Community Level: Briefing Paper Five of Black, Brown and Green
Progressive States Network - Green Buildings: Multi-State Agenda Campaign Update
Apollo Alliance - Efforts Underway to Save Property Assessed Clean Energy (PACE) Programs
The White House - Policy Framework for PACE Financing Programs
Center on Wisconsin Strategy, the Workforce Alliance, the Apollo Alliance - Greener Pathways: Jobs and Workforce Development in the Clean Energy Economy
Environment Maryland - Building a Solar Future: Repowering America's Homes, Businesses, and Industry with Solar Energy

Networking the Green Economy: Creating Jobs and Improving the Transmission of Renewable Energy Sources

Renewable sources present unique and serious transmission challenges due to their intermittency (solar and wind) and the remoteness of the site of generation. For renewable energy production to maintain its current rate of growth, it must overcome significant obstacles, including the lack of capacity and connectivity in the regional electrical infrastructure. The only way that we can fully maximize the use of renewable energy sources is by upgrading the current electrical system. With an upgraded, or smart, grid, renewable energy production overcomes significant obstacles including lack of capacity and connectivity. Improving the electric grid will expand the ability of renewable energy and energy conservation to meet the nation’s energy needs.

The smart grid is an aggregate term that refers to a distribution system that allows the flow of information to the consumer and to the utility company through thermostats, Web based programs, appliances, and other devices. Establishing smart grids at the transmission level will enable digital controls and high-voltage transmission lines to transport energy from renewable energy sources. A smart grid improves the management of the distribution and consumption of energy that results in the integration of various sources of renewable energy into our power system. In this manner, it facilitates more efficient energy use and reduces the amount of emissions from harmful greenhouse gases.

The American Recovery and Reinvestment Act apportioned $4.5 billion on smart grid demonstration projects. Beyond this, $11 billion will be invested in general improvements to the grid, another important step towards a grid that will allow for more flexible and efficient generation and use of power.

Last year, California enacted SB 17/AB 238 to declare that new and modified electric transmission facilities, including the employment of smart grid technologies, are necessary to facilitate the state's energy efficiency goals and renewable portfolio transmission facilities. This is the first smart grid state law in the country, as it promotes the installation of smart meters, data networks and other infrastructure for a cleaner, more efficient electrical grid by — by July 1, 2010. Under this law, the Public Utility Commission is required to report on a yearly basis, starting on Jan. 1, 2011, to the governor and legislature on the progress being made in improvements to the electrical grid.
Vermont and Maryland have each provided funding to study smart metering and/or smart grids, as a means of reducing energy use.
The Pacific Northwest National Laboratory (PNNL) has teamed with utilities in the states of Washington and Oregon to test new energy technologies designed to improve efficiency and reliability, while at the same time, increasing consumer choice and control.
In North Carolina, 100 Lafayetteville residents and businesses cut energy use an average of 20 percent during a six-month pilot last year. The customers were equipped with software that enabled them to check their energy use from the Internet.

By using applications and devices supported by digital infrastructure, such as broadband and information communication technology, we can build a green economy:continuing our economic growth and creating new jobs while decreasing our energy consumption and greenhouse gas emissions.

Resources
Progressive States Network - Networking the Green Economy: How Broadband and Related Technologies Can Build a Green Economic Future
Progressive States Network - Green Jobs Programs to Drive Economic Recovery
The Apollo Alliance - Make It in America: The Apollo Green Manufacturing Action Plan
Progressive States Network - Networking the Green Economy: How Broadband and Related Technologies Can Build a Green Economic Future

Conclusion: A Greener Economy Drives Job Creation

Nearly six out of ten jobs in the green economy fall specifically in the area of energy generation, which includes jobs responsible for producing clean forms of energy such as wind, solar and geothermal. Jobs responsible for solar power generation dominate this subgroup: 62.5 percent of all energy generation jobs in 2007 were in the solar industry. Jobs in wind power were second overall, making up 9.7 percent of energy generation jobs in 2007, but they grew more rapidly – by 23.5 percent between 1998 and 2007, compared to 19.1 percent growth for solar power jobs during the same period. Since the ARRA was enacted, an estimated 150,000 jobs were saved or created in the construction of solar panels and wind turbines.

Industry sector experts have cited state policies such as renewable portfolio standards as important factors in driving investments, attracting companies and growing new industries and jobs because they help create market demand for clean energy technologies, products, and services. However, without key policies such as renewable electricity standards, the market will be slow to grow. The Union of Concerned Scientists agree; they have estimated that a national RPS requiring 20% in renewable energy sources by 2020 could generate 355,000 jobs across the country. Also by this time, the domestic market for renewable energy supplies is likely to reach $226 billion annually.

Potential Federal Action: While states are still making progress on their own, a stronger federal partner would help. Last year, US Representatives introduced the American Clean Energy and Security Act, which requires that 20 percent of the country’s electricity be generated by renewable energy by 2020. This year, the Clean Energy Jobs and American Power Act (also known as the APA) was unveiled in the Senate. The APA includes: a cap and price on greenhouse gas emissions, similar to a cap-and-dividend already considered at the state-level, a target for reducing those emissions to 17 percent below 2005 levels by 2020 and 80 percent below 2005 levels by 2050, and a fee for “carbon leakage” of imports in order to level the playing field between American manufacturers and foreign competitors that emit carbon. Not included in the Senate bill is a national renewable portfolio standard. Although the APA offers support for renewable energy sources, a federal mandate is needed in order to push the remaining 20 states to seriously commit to the use of alternative sources of energy. In the absence of renewable energy standards in the American Power Act, states can and must continue to fill in gap by continuing to mandate the use of renewable energy.

State Policy Program: Whatever the feds ultimately do, states are taking action to ensure that the future is bright -- literally and metaphorically -- for alternative energy production in the United States. With more than half of states having enacted renewable portfolio standards we are well under way to achieving our environmental and economic goals, but much more needs to be done. States should continue to build on their track record of innovation in clean energy policy by continuing to enact and renew their renewable energy goals. Specifically, as this Dispatch has demonstrated, states should:

Enact RPS standards, and for those that have enacted them, to find ways to set higher goals that can be accomplished and are meaningful;
Provide financial support -- in the form of bonds, rebates, or other innovative financing mechanisms -- to accelerate the deployment of more renewable energy technologies;
Integrate renewable sources into an upgraded, “smart” grid, and;
Create good, sustainable green jobs that will enable those employees to develop, manufacture, deploy, and maintain the various elements of renewable sources and smart grid infrastructure.

The key is not only promoting renewable energy supplies, but also of creating actual incentives that spur their use. These incentives come in the form of mandating goals for renewable use, as was the case in Colorado, and placing financial incentives for clean energy investment. As more and more renewables are manufactured, installed and used, it is imperative that our electrical grid also undergoes a drastic reformation.

Resources
Environment America - America on the Move
Headwaters Economics - Clean Energy Leadership in the Rockies: Competitive Positioning in the Emerging Green Economy
Pew Research Center Publications - An Increase in GOP Doubt About Global Warming Deepens Partisan Divide
The Pew Charitable Trusts - The Clean Energy Economy: Repowering Jobs, Businesses and Investments Across America
Center for Social Inclusion - Solar Energy Generation at the Community Level: Briefing Paper Five of Black, Brown and Green

Green Economy Roundtable Law Enacted in Rhode Island

Fabiola Carrion — Thu, 08 Jul 2010 13:06:30 -0400

Rhode Island’s HB 7407, now Public Law No. 2010-203, creates the Green Economy Roundtable to advise and assist the Governor and General Assembly in advancing Rhode Island’s green energy economy by developing a statewide action plan.

The bill redefines the composition of Rhode Island’s Green Economy Roundtable in order to ensure a balanced representation of government efforts in advancing the green economy. Roundtable members will ensure that green economy decisions originate from the community as well as from business perspectives so that prosperity is shared by all residents of Rhode Island.

Similar to parts of Progressive States Network’s Green Building model legislation, such a roundtable ensures that community-based leaders, including union organizers, work in conjunction with representatives from the business sector in a task force that will promote, create and retain sustainable green jobs.

Resources
Progressive States Network - Green Building Model Legislation
Rhode Island - Green Economy Roundtable (HB 7407/Public Law No. 2010-203)

Supreme Court 2009-2010: Pro-Corporate, But Continued Trend Towards Deferral to State Authority

Nathan Newman — Tue, 29 Jun 2010 11:26:57 -0400

Yesterday, the Supreme Court ended its term with a bang with a ruling in McDonald v. City of Chicago that state gun control regulations can be struck down by federal courts based on the Second Amendment. While the number and scale of blockbuster decisions was not so high this session, the singular impact of the Citizens United case earlier in the term unleashing unregulated corporate money on elections, combined with the dangerous implications of the Rent-A-Center, West v. Jackson arbitration decision, emphasizes the pro-corporate bias the Supreme Court has increasingly exercised in recent years.

As detailed below, other decisions on public university governance of student groups, property rights challenges to beach restoration programs and regulation of ballot initiative processes, did continue the trend in recent terms of the Supreme Court deferring to state authority in major cases. And criminal justice cases continued to be a mixed bag of protecting individual rights versus upholding state discretion.

Table of Contents:
- Citizens United and the Supreme Court’s Pro-Corporate Bias
- Supreme Court’s Deferral to State Authority
- Criminal Justice
- Conclusion

Citizens United and the Supreme Court’s Pro-Corporate Bias

There is little question that Citizens United will be one of the major cases that defines this year’s term—and in many ways will frame the legacy of the rise of Chief Justice John Roberts and Justice Samuel Alito whose presence on the court has led to the dismemberment of campaign finance regulation.

"A Massive New Threat of Corruption and Corporate Control": With Citizens United, the Supreme court has given corporations the same free speech rights as individuals and allowed unlimited election spending by corporations when not coordinated with candidates.

U.S. Senator Sheldon Whitehouse of Rhode Island said recently,

The Citizens United decision -- yet another 5-4 decision [opens] our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

To emphasize its hostility to restrictions on the power of the wealthy over our elections, the Supreme Court ordered a freeze of Arizona's public financing matching funds system which gives candidates participating in public financing additional funds when opponents spend above benchmarked levels of spending. This means that publicly-financed candidates will be eligible to receive only one-third of the money to which they'd otherwise be entitled.

Letting Corporate Arbitrators Decide if Their Own Decisions are Unfair: In Rent-A-Center, West v. Jackson, the Supreme Court - by the same pro-corporate 5-4 vote lineup of Justices - further closed the courthouse door for individuals abused by their employers. The Court held that employees cannot only be forced to have complaints about racial discrimination or other employer abuses decided by private arbitrators (a reality decided in previous terms), but also that where an employee feels the terms of the arbitration agreement are unfair and unconscionable, it is up to the corporate-chosen arbitrator to decide if the arbitration agreement is unfair. In this case, for example, the arbitration agreement limited claims an employee might bring against the employer, while exempting those claims that Rent-a-Center might raise, and restricted an employee’s ability to gather evidence.

Instead of allowing a judge to decide whether the agreement to arbitrate could be enforced, the Supreme Court majority leaves it to the arbitrator chosen by the agreement alleged to be unfair to decide the issue, cutting off access to the courts even for the most basic threshold issue of whether these arbitrators and the rules imposed are a fair substitute for a day in court.

Privatizing Democracy: So just as corporations now have unlimited rein to use their money without regulation to dominate elections, those same corporations now have de facto have authority to run private courts to decide the legal rights of their own employees without little or no judicial restraint.

Supreme Court’s Deferral to State Authority

However, beyond these pro-corporate decisions, the Supreme Court, often with surprising configurations of majorities, continued its trend in recent years of deferral to state authority in more cases where core corporate interests are not at stake.

States and the Second Amendment: The exception to the trend this year was McDonald v. City of Chicago, which extended the Second Amendment to restrict state gun regulations. But even in that case, the majority went out of its way to affirm that many traditional gun control regulations will still be upheld even where an individual right to keep firearms for self-defense in the home is protected. Since most states have their own constitutional and statutory reasonableness test for gun regulations, the practical effects of McDonald may end up being relatively limited.

Rejecting “Takings” Doctrine: While right-wing constitutional lawyers for years hoped to create a majority to limit most local government land regulations as illegal “takings” under the Constitution, the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection not only rejected a property rights challenge to a state beach-erosion statute, but Justice Anthony Kennedy refused to even give a fifth vote to the proposition that a court ruling could ever constitute a “taking” of private property, a sign that most reasonable land use regulations will be protected from federal judicial second-guessing in the future.

Universities and Groups Excluding Gay Students: In Christian Legal Society v. Martinez, state universities retained their authority to deny funding to student groups that exclude certain students, such as gay and lesbian students, from membership. The Court upheld the University of California-Hastings' policy of requiring student groups to take on "all comers" as a prerequisite to official school recognition as a reasonable and viewpoint neutral restriction.

Public Disclosure of Ballot Initiative Signers: Given increasing use of fraud by those promoting right-wing ballot initiatives, progressives won an important victory in Doe v. Reed, in which the Court held that disclosure of signers of political ballot initiatives did not generally violate the First Amendment (although they might be able to in the future argue that specific harms could lead to some restriction on disclosure in a future case). In a strong argument for respecting state regulation of ballot initiatives, Justices Sotomayor, Stevens and Ginsburg wrote:

These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action. States enjoy “considerable leeway” to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access (e.g., the number of signatures required, the time for submission, and the method of verification).

Reviewing Public Employee Text Messages: In a slightly idiosyncratic case, the Court in City of Ontario v. Quon unanimously held that a police department’s decision to review the text messages of employees who exceeded the monthly limit on their office pagers in order to determine whether the monthly limit should be raised was reasonable under the Fourth Amendment.

Criminal Justice

Criminal justice decisions by the Supreme Court invariably combine a combination of invocation of individual rights, discussions of state authority and obscure procedural explorations. While cases this term had few singular disruptions of previous principles, they had a number of clear incremental changes effecting state criminal proceedings. (See this ACLU writeup for an extended list of additional cases).

State Convictions and Immigration: Of import for current debates on the role of states in immigration policy, the court ruled in two cases that courts had to carefully weigh how state criminal statutes interact with federal deportation rules:

In Padilla v. Kentucky, the Court held that attorneys have an obligation to carefully advise their clients of the immigration consequences of pleading guilty. In this case, the defendant– a lawful permanent resident for 40 years who pled guilty to drug trafficking – was incorrectly advised by his lawyer that he was unlikely to face deportation because of his long stay in the United States.
In Carchuri-Rosendo v. Holder, a unanimous Court ruled that defendant’s conviction for possession of a single Xanax tablet without prescription, following an earlier state court conviction for possession of less than two ounces of marijuana, could not qualify as an aggravated felony under federal immigration law, and thus did not render the petitioner ineligible for potential discretionary relief from deportation.

Restricting Miranda: The Court significantly limited restrictions the Miranda “right to remain silent” in a series of cases limiting the Miranda ruling:

In the most critical case, in Berghuis, Warden v . Thompkins, a 5-4 decision of the Supreme Court affirmed that a suspect did not properly invoke his right to remain silent, so statements were properly admitted in court. Justice Sotomayor, writing for four dissenters said, “the Court today creates an unworkable and conflicting set of presumptions that will undermine Miranda’s goal.”
In Florida v. Powell, the Court held that police warnings that a suspect had a right “to talk to a lawyer before answering any questions” adequately complied with Miranda, since the right does not require a particular set of words for police compliance.
In a 6-3 Graham v. Florida decision authored by Justice Kennedy, the Supreme Court found a Florida law unconstitutional under the Cruel and Unusual Punishments Clause where juvenile offenders could be sentenced to life in prison without parole for a non-murder.
In Maryland v. Shatzer, the Court held that police did not violate the law by collecting incriminating statements from a person who had invoked his Miranda rights two and a half years earlier, and that the right against interrogation lasts only 14 days after invocation.

In other key decisions effecting state proceedings:

In Bobby v. Van Hook, Wong v. Belmontes and Porter v. McCollum, the court created a series of new standards for when counsel is so ineffective as to warrant a new trial.
In Presley v. Georgia, the Court concluded that a defendant’s Sixth Amendment right to a public trial had been violated when the public was excluded from the jury voir dire proceedings.
In Holland v. Florida, a 7-2 decision authored by Justice Breyer, the Court agreed that an attorney could harm his client so badly that the defendant’s time to seek habeas must be extended.

Conclusion

Elana Kagan’s likely replacement of Justice Stevens on the Court is unlikely to change the broader trends on the Court and states will continue to face the challenge of reining in the corporate election spending unleashed by Citizens United and protecting access to justice in the courts eroded by the Rent-a-Center case. As People for the American Way wrote in a recent report, Rise of the Corporate Court: How the Supreme Court is Putting Businesses First, “the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations.”

While deferral to state authority has emerged as an increasing consensus among the Justices on a number of issues, lurking in the dissents of the most conservative Justices are even more extreme pro-corporate and right-wing views that with one more ally could push legal doctrine in ways that would completely erode democratic decision-making over economic and social policy. So even the more positive trends on the Court warrant only partial relief, since small changes in personnel in the future could readily enable the more activist impulses of the block of the four most right-wing members of the Court.

Resources:
Progressive States Network - The Supreme Court and the States 2008-2009: Trend Defending State Authority Emerges this Term
Scotusblog - Everything you read about the Supreme Court is wrong
ACLU - ACLU Summary of the 2009 Supreme Court Term
People for the American Way - Rise of the Corporate Court: How the Supreme Court is Putting Businesses First
Alliance for Justice - The Corporate Court

Landline Phone Deregulation to Deny Protection to Illinois Consumers

Fabiola Carrion — Thu, 24 Jun 2010 13:19:02 -0400

Illinois has enacted a law that will take away a necessary protection for landline phone consumers. SB 107 strips away the authority of the Illinois Commerce Commission to ensure that landline phone users – residing in 78 percent of households in the state - receive reliable and affordable phone service.

Under the law, Internet-based phone services would be completely unregulated. The ICC has been instrumental in promoting universal access to telecommunications services in the state, as mandated by the state’s Telecommunications Act that was last updated in 2001. It required a service provider to offer high-speed Internet access to at least 90 percent of homes outside of the Chicago Metropolitan area. This newly enacted law eliminates such requirement and the ability of Illinoisans to access affordable High-Speed Internet services. Consequently, the law threatens to reduce investment in broadband that could make the state more competitive in the global market.

Supporters of the law say that it will create competition and profits that will in turn translate into the creation of new jobs and services. However, a review of the bill reveals that employment generation is nowhere in its contents. Labor representatives in other states have confirmed that deregulation of telephony has driven down employment in the industry.

Moreover, a decrease in oversight is likely to result in higher costs for phone usage. Even supporters have acknowledged that prices for services could increase. Quality will also be affected by the law. Instead of requiring repair of landline service within 24 hours, the waiting window will be extended to 30 hours. Further, consumers will be unable to lawfully demand service quality standards from telecommunications companies.

Other Deregulation Attempts Blocked in Colorado and Wisconsin: A similar bill in Colorado, which was thankfully vetoed by the Governor, threatened to deregulate basic telephone service and negatively affect pricing and service quality. HB 1281 would have removed all authority from the Colorado Public Utilities Commission to regulate phone services. The bill would have also stripped away price and service-quality guarantees overseen by the Colorado PUC. In Wisconsin, SB 469 was introduced to also deregulate landline telephone business and leave residents, especially from rural areas, without adequate service. Consumer groups in Wisconsin have also voiced their concern that less regulation could lead to less investments in broadband infrastructure.

Massive Rate Hikes in California Following Deregulation: After abandoning oversight of the telecommunications, California consumers experienced hikes ranging from 50 to 276 percent in the following features: select custom calling services, local directory assistance, fees for returned checks, local toll rates, fees for having an unlisted numbers, and fees for late payments. And the promise to a competitive playing field that would create jobs and increase customer choices has not occurred.

Resources:
Citizens Utility Board - Talking points on rewriting Illinois’ Telecommunications Act
Chicago Tribune - New Illinois Law Relaxes Phone Regulations
Denver Post - Consumer Group Fears Bill May Spur Phone-Service Deregulation
Public News Service - AARP Blasts “Future of Phone Service” Deregulation Bill on Gov’s Desk
Utility Consumers' Action Network - California's Telco Deregulation Fiasco: Finding Alternative Phone Service in a Competitive Wasteland
Stop the Cap! - Wisconsin Deregulation Follies: AT&T Wants State to Make the Same Mistake All Over Again