Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

You are a good green company.  You have dutifully installed a solar array on your facility, and use the energy it produces to power your manufacturing process. 

You proudly proclaim on your website, in your SEC filing or on your product packaging that you "use renewable energy."  You calculate your Carbon Footprint and deduct the emissions that would have been generated using conventional fuel.  

If, like most companies, you have sold the renewable energy credits (RECs) attributable to the renewable energy, you will potentially be in violation of Section 5 of the FTC Act (15 U.S.C. Sec. 45) (“Section 5”), which prohibits “deceptive acts or practices in or affecting commerce.” 

The Federal Trade Commission released the long-awaited fourth edition of the "Green Guides" on October 11, 2012. The purpose of the Guides is to provide a framework for companies to truthfully and non-deceptively market environmental and “green” products, packages, and services. A copy of the Guides is available here.

The Guides address green marketing in general and specific applications, including renewable energy (Section 260.15).  In one of the more controversial aspects of the Guides, the FTC advises that:

If a marketer generates renewable electricity but sells the renewable energy certificates for all of that electricity, it would be deceptive for the marketer to represent, directly or by implication, that it uses renewable energy.

Guides at § 260.15(d).

The FTC has concluded that renewable energy stripped of its carbon reduction and other environmental benefits is just energy. Thus, even if a company has a renewable energy installation on its facility, and uses the energy from that facility to power its manufacturing process, if it sells the renewable energy credits, it still would not be able to represent that it used renewable energy. In addition, any carbon offsets or emissions reductions could not be included in the company's calculation of its environmental impact.

This counter-intuitive result was roundly criticized in comments on the Guides:

Most commenters agreed that it would be deceptive for a marketer to represent that it uses renewable energy if it sold all the renewable attributes of the energy it uses. Most who addressed this issue, however, disagreed with the Commission’s proposed guidance. They argued that, even when a firm sells RECs, it should be able to market its role in generating renewable energy.

The FTC, in its response, defended its position regarding RECs, but said that a company hosting a renewable energy facility and selling the RECs would not be violating the FTC Act if it describes fully and accurately its role in the transaction.  Most companies, however, are not doing this. 

There is some evidence that the FTC is increasing its enforcement of false environmental claims. The FTC brought claims against four national retailers, including Amazon, Macy’s and Sears, that were allegedly selling textiles as made of bamboo when they were actually made of rayon. The companies settled with the FTC on or about January 3, 2013, paying a total of $1.26 million in penalties for the false advertising.

The FTC brought claims against Sherwin Williams and PPG for deceptively marketed their paints as free from volatile organic compounds (VOCs). According to the FTC, the base paints were VOC free, but tinted paint (which most customers buy) contained VOCs. The FTC settled the claims in October, 2012, and the companies were forced to change their marketing practices.

Given the frequency with which the Renewable Energy/REC rule is broken, it would be impossible for the FTC to police all of the violators.  However, In the context of other green marketing claims, the FTC may scrutinize a companies' representations about renewable energy and greenhouse gas reductions.  For companies that make public disclosures in Securities and Exchange Commission filings, this could be of even greater concern.

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The wild west is alive and well, and in New Jersey. 

I have a client there who consults with farmers who own wide swaths of land and with renewable energy companies that are looking to develop solar farms on that land.  He describes the phenomenon as a "land grab," where the renewable energy companies are trying to tie up the land available for large scale renewable projects, and landowners are trying to find the best deal for their land.  The land grab is fueled, in part, by the favorable incentives New Jersey provides for solar projects, and a renewable energy portfolio standard of 22.5% by compliance year 2020-2021.

California--the site of the original gold rush--is primed to see another one.  On September 24, California regulators raised the state's renewable energy portfolio standard, the requirement that power companies obtain a certain percentage of their power from renewable sources,  to 33 percent by 2020.  California's renewable energy portfolio standard was already 20%. 

The fever for gold in them there hills (and valleys and rooftops) could soon spread nationwide.  Sens. Jeff Bingaman (D-N.M.), Sam Brownback (R-Kan.), Byron Dorgan (D-N.D.), Susan Collins (R-Maine), Tom Udall (D-N.M.), and Mark Udall (D-Colo.) introduced the Renewable Electricity Promotion Act on September 23, which would: 

install a renewable portfolio standard (or renewable electricity standard, in D.C. parlance) requiring states to generate at least 15 percent of their electricity from renewable sources by 2021

 DSIRE has a nice map with all the portfolio standards for states nationwide.

What does this mean? 

Where green buildings are concerned, higher renewable energy portfolio standards will mean that utilities are looking for additional sources of reneable energy, so it will pay for large scale projects like big box stores, hospitals and manufacturing facilities to incorporate solar into their designs.

Also, because the real estate market has been largely dead for big projects, open space that might have once been yet another shopping mall or housing development may be more likely to go to solar farms and other large scale renewable energy projects. 

But, optioning land for renewable energy projects does not mean that all the renewable energy potential will be realized.  For example, Goldman Sachs, no stranger to the speculation business, has tied up land in Nevada for solar farming:

A Goldman Sachs & Co. subsidiary with no solar background has claims with the BLM on nearly half the land for which applications have been filed, but no firm plan for any of the sites.
 

For the policy makers, the key will be to incentivize projects coming to fruition, not to facilitate  pyramid scheme of tying up land with the hopes of flipping it to later developers of power projects. The task is to balance spurring the growth of the renewables market without creating a solar bubble in the process.  

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