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2024.
GEI welcomed the new year ready to get to work. In late 2023, the Oregon Court of Appeals issued its decision concluding Oregon's Climate Protection Program—the cap and reduce program GEI helped design and support—failed to provide the requisite notice to a subset of entities impacted by the rules. As a result of this technical and minor flaw, the court invalidated the Climate Protection Program rules. Several weeks later, the Department of Environmental Quality issued a press release indicating that it would not appeal the decision. Instead, it will initiate a new rulemaking expected to conclude by the end of 2024. GEI looks forward to the opportunity to craft strong rules matching the urgent need to act expeditiously and ambitiously on Oregon’s climate goals.
In January, the Ninth Circuit denied the City of Berkeley's petition for rehearing en banc. The City of Berkeley had sought review of the Ninth Circuit’s ill-conceived opinion that concluded the federal Energy Policy and Conservation Act precluded it from restricting fossil fuel piping at the meter in new buildings. On the bright side, the panel issued an accompanying amended opinion clarifying some of the overly broad language in its initial April 2023 opinion.
Judge Friedland's dissent, joined by seven judges, inspires GEI to continue supporting local government efforts in addressing and reducing the impacts of the climate crisis. Accordingly, following the Ninth Circuit’s decision, GEI participated in an interview and a webinar hosted by Safe Cities at Stand.earth about the implications of the Berkeley decision and the remaining pathways available to restrict natural gas. Now more than ever, cities around the Pacific Northwest and beyond are seeking answers about how to implement decarbonization policies. And, due in large part to the Inflation Reduction Act, opportunities to engage with our utilities, while simultaneously supporting the transition off of fossil fuels, are more meaningful than ever before.
Also in January, the Oregon Public Utility Commission declined to adopt GEI's position that Oregon's “100% Clean Energy for All” law, also known as HB 2021, requires the retirement of renewable energy certificates (RECs) when the utilities simultaneously deliver the associated clean, nonemitting, renewable electricity to ratepayers. The Commission’s order, and its impact, are described below. Following the Order, GEI and other advocates asked the Commission to direct PGE to include a section in its Clean Energy Plan update informing readers about RECs and claims under HB 2021. GEI will engage in this CEP update.
In addition to lots of work, 2024 also brings new opportunities to GEI. Our smart and committed colleague, Caroline Cilek, is off to use her sharpened skills to support renewable energy developers. Our staff attorney job posting is live, and we welcome applications until February 23, 2024. Either Caroline or Alex will happily discuss GEI's collaborative, intellectually stimulating, pet-friendly, and engaging work environment. Luckily, GEI will also benefit from law clerk support to help us through the staffing transition, while providing them with the experience necessary to excel in the climate policy and energy law fields. If you are a law student interested in our work, check out our law clerk posting here.
Thanks, as always, for all you do to support us.
Carra Sahler
Director and Staff Attorney, Green Energy Institute
Lewis & Clark Law School
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HB 2021: Electric Utilities and the Commission that Regulates Them Fall Short
In January, the Public Utility Commission determined that Portland General Electric’s (PGE) inaugural Clean Energy Plan (CEP) fell short of HB 2021’s criteria for acknowledgment. Although the Commission commended the utility for its efforts, it adopted PUC Staff’s recommendation, supported by stakeholders, to decline acknowledgment of the plan. The denial of CEP acknowledgment was due to the utility’s “overly optimistic assessment” of reliability in meeting customer electricity needs and emission reduction targets based on the plan’s portfolio of energy resources. PUC staff pointed out that PGE’s modeling was overly simplistic and did not align with existing industry-standard approaches. As part of its non-acknowledgment, the Commission asked PGE to address these modeling concerns and to complete a technical study on transmission alternatives in its clean energy plan update. In addition, the Commission directed PGE to work with stakeholders to prepare a disclosure in the CEP to inform readers about renewable energy certificates (RECs) and claims under HB 2021. PGE will likely engage with stakeholders in 2024 and file its CEP update in early 2025.
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In a separate Public Utility Commission proceeding, UM 2273, GEI asked the Commission to determine whether RECs generated or procured from renewable energy used to comply with HB 2021 (beyond Oregon's Renewable Portfolio Standards) must be retired by the utilities under the law. GEI’s position would have allowed Oregon retail electricity customers to say their electricity is “clean” based on HB 2021’s text, context, and legislative history of the law. However, the Oregon Public Utility Commission determined that HB 2021 requires the retirement of RECs for neither HB 2021 compliance nor public interest reasons. Based on the order, Oregon’s retail electricity customers cannot say they “use” renewable energy under HB 2021. This means that if PGE and Pacific Power sell the RECs produced from the renewable energy used to meet HB 2021's clean energy targets, they must disclose that fact to buyers. To ensure that PGE and Pacific Power’s public statements about HB 2021 do not mislead customers, they should include disclosures on their websites and other communications consistent with federal consumer protection guidance. To dive deeper, please read GEI’s breakdown of the Commission’s order and its implications here.
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|  | Photo by Chris LeBoutillie on Unsplash
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Wild wildfire response from PacifiCorp (aka Pacific Power).
GEI has partnered with the Sierra Club to intervene in UE 428, a contested case proceeding before the PUC in which PacifiCorp is requesting to amend its tariffs under Rule 4 to limit the company's liability for damages arising from the provision of electric services, including wildfires. PacifiCorp's filing represents an unprecedented change to the scope of utility liability and would limit damages arising out of the Company’s provision of electric services to only actual damages, excluding recovery for all atypical damages (including special, noneconomic, punitive, incidental, indirect, or consequential).
GEI and Sierra club's Petition to Intervene was granted by the ALJ and PacifiCorp has filed its opening brief. GEI and the Sierra Club will continue to work together on this important issue in its briefing to address the legal landscape for limitations on liability and why PacifiCorp's request both conflicts with the law and is bad public policy given the continued threat of wildfires in Oregon and the importance of utilities hardening their electrical systems in the face of that threat.
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|  | Carra Sahler meets with students about GEI's work
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GEI is Hiring a Staff Attorney!
GEI seeks an attorney committed to and passionate about climate policy and energy law. The role will include working on climate policy and energy law-related proceedings before the Oregon Public Utility Commission and other state agencies. GEI is at the cutting edge of Oregon policy development and implementation in Oregon. We offer a fun, intellectually-stimulating, engaging, and pet-friendly atmosphere.
Please share this exciting opportunity with your colleagues. Check out the posting here.
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| Thank you for your continued support,
Carra Sahler, Caroline Cilek (for one more day!), and Alex Houston
The Green Energy Institute Team
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