Green Counsel

3 Major Energy Trade Associations Groups Now Support Carbon Reductions

In a major shift in policy, three major energy lobbying groups -- the Edison Electric Institute, the American Gas Association, and the Electric Power Supply Association -- have reversed their position and now support compulsory controls on their carbon emissions. Members of the largest group, the Edison Institute, are responsible for 60 percent of the nation's electricity.

The good news is that this is a sure sign that there will soon be global warming legislation passed by Congress. The bad news is that there will be enormous pressure for a watered down bill that will preempt more meaningful state action.

An article in the Wall Street Journal indicates that the groups' shift in policy was a pragmatic decision to ensure they have places at the table when inevitable national policy on climate change is developed. The American Gas Association, which was publicly against any federal climate change legislation and that represents 200 utilities that distribute natural gas, reportedly "reversed itself because of growing signs that Congress could pass mandatory controls."

Let's see -- if I was one of Dick Cheney's duck hunting buddies would I want a law that I could control now, or take a chance with a unknown Democrat or Republican like John McCain?

TXU to Replace Coal with Wind and Energy Efficiency

Fred Krupp from Environmental Defense was interviewed on NPR on the TXU deal. As part of the deal, TXU's prospective purchasers agreed to reduce the number new coal plant applications from eleven to three, and to reduce their C02 emissions to 1990 levels by 2020.

When asked how purchasers would meet the increased energy demand that the new coal plants were supposed to meet, Krupp said that they would go a long way toward meeting this demand by doubling its investment in wind power and doubling its investment in energy efficiency. Krupp said this "is becoming a new model, where utilities are understanding that they can make money by helping customers save energy."

"Comply is Not a Vision"

Thanks to Craig Mackintosh from Celias for posting this inspiring interview with Ray Anderson, founder of the furniture company Interface, former "plunderer of the earth," now with zero footprint. Having climbed "Sustainability Mountain," Anderson says: "I knew it was the right thing to do ... [but] I was surprised how good it was for business."

A Legally Enforceable Triple Bottom Line -- Nau!

In a post last year, I advocated that companies put sustainability and triple bottom line language into their articles of incorporation and bylaws to make these commitments legally enforceable and more meaningful. I have been on the lookout for companies that have done so, but have been unsuccessful. Until Nau.

No, that's not a typo, that's Nau -- an outdoor apparel company committed to "inspiring and affecting positive change through a holistic approach to design." I learned recently that Nau actually did this, so when I found out that Eric Brody, Nau's Sustainability Manager, was the Interactivist this week on Grist, I posed this question: "I advocate that companies put a legally enforceable commitment to
sustainability and a triple bottom line in their articles of incorporation or bylaws. I have read that Nau has language to this effect in its bylaws. What is the language? Has this language helped or hindered Nau in raising capital?"

Grist asked Brody my question, and here is his interesting response (see all questions and answers here):

Even before Nau had raised any money to fund its efforts or had designed a single product, the team began to examine how to set the company on a deliberate social and environmental trajectory.

Corporate attorney Robert Hinkley influenced Nau's founders. Hinkley incorporated the work of management expert W. Edwards Deming and systems theorist Peter Senge to develop new ideas pertaining to the notion of a corporation as citizen. Deming had written that "most of the time it's the system that causes the problem, not the people in the system." He combined this idea with the insight of Senge, who said that to change any system you should "look to make the smallest change possible that will generate the biggest effect." From these theories, Hinkley created a code for corporate citizenship. In only 28 words, it stated that henceforth the "duty of directors shall be to make money for shareholders but not at the expense of the environment, human rights, public health and safety, dignity of employees, and the welfare of the community in which a company operates." Nau chose to follow Hinkley's guidance and include similar language in its corporate bylaws.

This issue has come up in the process of raising capital to fund the company. In fact, people have advanced the point of view that the language suggested a greater degree of responsibility and therefore could lead to the company being devalued. We have taken the opposite point of view and have been able to resolve any objections that we have received to date.

If you would like to see the exact language of Nau's Rules of Corporate Responsibility, please see the March/April '07 issue of GOOD magazine. Subscribe to GOOD magazine for a year and they will give 100 percent of your subscription fee to the nonprofit organization of your choice.

This is an extremely bold move by Nau. As Brody notes, some have indicated that Nau might be less valuable because it is taking on a greater degree of responsibility. And indeed, in a very real sense, Nau has agreed to internalize the societal costs of things such as the emission of carbon dioxide, for example, that almost every other corporation is free to externalize with almost complete impunity. And we are all the better. By taking this step, Nau creates a more valuable world, and its efforts should be widely recognized and applauded.

But we need to go futher. States should create a mechanism to encourage businesses to follow Nau's lead. New York, for example, could amend its Business Corporation Law to permit creation of a new corporate form, a "Sustainable Corporation." If the Sustainable Corporation includes statutory "sustainability" language in its charter documents requiring the business to comply with a set of specific environmental standards much higher than otherwise required (e.g., carbon neutral, commitments to waste reduction and recycling, green purchasing, etc.), the business would be entitled to a very specific set of benefits (tax credits, expedited permitting, business assistance, etc.). The "sustainability" commitments could be enforceable not just by the shareholder, but by the state's Attorney General as well, similar to how Attorneys General currently have oversight authority over charitable corporations.

Businesses such as Nau increase the value of the commons, and we must help them succeed.

Photo Credit: Nau, Inc.

Tipping Point on Climate?

Jared Diamond, author of "Collapse: How Societies Choose to Fail or Succeed," recently stated that he is cautiously optimistic about the state of the world, because: 1) big businesses sometimes conclude that what is good for the long-term future of humanity is also good for their bottom line; and 2) voters in democracies sometimes make good choices. (For other reasons big thinkers are optimistic, see Edge's survey here.)

Jared's first reason was given huge support by the announcement (see NY Times story here) that ten major companies with operations across the economy — utilities, manufacturing, petroleum, chemicals and financial services — joined leading environmental groups to call for a firm nationwide limit on carbon dioxide emissions. Their call would lead to reductions of 10 to 30 percent over the next 15 years. Significantly, the companies included four utilites -- Duke Energy, PG&E of California, the FPL Group, and PNM Resources -- as well as BP, Lehman Brothers, G.E., Alcoa and Caterpillar.

Corporatism in America

The liberty of a democracy is not safe if the people tolerate the growth of private power to the point where it becomes stronger than the democratic state itself. That in its essence is fascism - ownership of government by an individual, by a group or any controlling private power. -- Franklin Roosevelt

An op-ed in the the New York Times today by law professor Nina Mendelson outlines three instances where the federal government is attempting to trump state and local laws that protect health and environment. Mendelson wonders why the "federal government is suddenly trying to block state efforts to protect public health - through bureaucratic actions largely outside public view" while "big businesses' revenues are being shielded [and] protections for consumers and the environment are being stripped away. She notes the following events:

1) In March, the House of Representative passed, and the Senate is now considering, the "National Uniformity for Food Act," that would prevent states from addressing food hazards and leave food protection solely to the FDA. The proposed law would, for example, prevent California from applying its Proposition 65, a law that protects against carcinogens, and prevent Michigan and Connecticut from requiring labels on dried fruit containing sulfites. [The op-ed piece cites a report from Rep Henry Waxman showing that since 2001 Congress has enacted 27 laws that preempt state authority in areas including health, safety, the environment and consumer protection.]

2) The Bush Administration is trying to trump the State's ability to regulate greenhouse gas emissions. Since 1967, California has been allowed to set its own automotive pollution limits, subject to limited review by the EPA, and California has set limits (which ten other states intend to adopt) on greenhouse gas emissions from cars. This spring, the US Dept. of Transportion (in its new fuel economy standards for light trucks) stated that the exclusive federal authority to set fuel-economy standards bars California's emission limits, because car manufacturers might comply with emission limits by increasing fuel efficiency. [Go here for more info.]

3) The FDA recently released standards that say that state agencies and courts cannot require any safety information on drug labels beyond what the F.D.A requires.

Mendelson notes that federal environmental and health regulations have historically provided a floor of minimum protection, whereas the States have frequently provided higher groundbreaking health and consumer laws. She does not answer her question that asks why the federal government is suppressing State regulations, but here's a possibility:

Corporations will do what they can, and where they can, to challenge laws that challenge their profits. In today's political climate, it's easier for corporations to influence policy in Washington where at least two branches of government are captured by corporate interests. It's much harder to control fifty messy statehouses (especially the unruly ones, like California) which, while far from perfect, are smaller, closer and currently more responsive to the People -- the once and future source of power in our democracy.

Tax Exempt Status for Businesses With A Triple Bottom Line

At the conference last week in Burlington, VT, for the Business Alliance for Local Living Economies, there was much talk about companies with a Triple Bottom Line. Profits, yes, but also people and planet.

I wonder: what would it mean for our planet if businesses truly had a legally enforceable Triple Bottom Line? What if businesses were legally required, or agreed, to internalize all the costs that many now externalize? What if manufacturers incorporated the true life-cycle costs of their products (production and waste) as part of their business expenses? What if businesses valued their employees as much as they now do their shareholders?

Is it possible?

While it's unlikely -- at the moment, at least ;-) -- that government would legally require businesses to adopt a Triple Bottom Line, there is no legal reason why a business could not voluntarily create such a legally binding commitment in its articles of incorporation and bylaws.

And what should society do for a corporation that puts people and planet on a par with profits? Given the tremendous saving that accrues to society from a business that internalizes its environmental and societal costs, I'd say the business should be given a whopping tax benefit including, at least, tax exempt (or extremely reduced) status for profits, distributions and employee incomes.

To quote Gary Snyder: "We are defending our own space, and we are trying to protect the commons. More than the logic of self-interest inspires this: a true and selfless love of the land is the source of the undaunted spirit of my neighbours."

Can Public Companies Be Truly Green?

Jeff from Sustainablog will be hosting a a Green Business Chat tonight from 930-11pm EDT (630-8 PDT), and the topic will be "Green Business: Is Bigger Better?" Among other things, there will be discussion about what the the new green initiatives of GE, Wal-Mart and Ford mean for sustainability, and what do they mean for smaller start-up green businesses?

One interesting legal question, especially for public companies, is whether they can have a strong green ethic and simultaneously protect the interests of their shareholders (as they are required legally to do)? What happens when the shareholders' interests conflict with sustainability concerns? In order to be truly green, do we need laws that mandate that corporations "act green," or do corporations need to explicitly spell out their green ethic in their corporate charter?

If you want to participate in the chat, contact Jeff for an invite.

Blogs Against the Empire

Call me paranoid.

After September 11, I became active in the efforts to close the two Indian Point nuclear reactors in Westchester County, NY. Having seen the impossible two blocks from my office in lower Manhattan, I imagined the unthinkable at the plant, near my home, just 40 miles from Ground Zero in the most densely populated region of the country (20 million people within 50-mile radius of the plant).

Others were paranoid too, realistic even. The Indian Point Safe Energy Coalition (IPSEC), a coalition of more than 70 groups, formed to close the plant and promote safe and renewable energy. In his State of the Union address in January 2002, President Bush said that diagrams of U.S. nuclear plants had been found with terrorists in Afganistan. IPSEC rallied support from citizens and officials in the Hudson Valley, NYC, Connecticut, and New Jersey; 52 municipalities, 13 community boards, and over 400 public officials (including 11 members of Congress), have called for the closure of Indian Point. A report commissioned by NY State in 2002 and conducted by former FEMA head James Lee Witt and Associates concluded that the Evacution Plan's "system and capabilities . . .are not adequate to . . .protect the people from an unacceptable dose of radiation in the event of a release from Indian Point." Hardly a suprise to anyone who's tried to escape from Westchester during rush hour, even without a radiation release.

Entergy, the owners of the plant, felt threatened. Their income -- reportedly $2.3 million per day -- was at risk. What do large corporations do when their core business is at risk from political and public pressure? They turn on the public relations machine, and Entergy has used all the tricks. They:

1) Hired PR powerhouse Burson-Marstellar, best known for defending Union Carbide after Bhopal, as well as human rights violations by totalitarian regimes around the world;
2)Spent millions on campaign contributions and lobbying (see this report by Common Cause and this article,"Radioactive Money 2005," by Daniel Wolff);
3) Hired 9/11 hero Rudy Giuliani as a security consultant even though he had no expertise in nuclear reactor security;
4) Sponsored forums, contributed to various charities, and began massive advertising campaign including NY Yankees radio targeting general public -- even though consumers do not buy directly from Entergy;
5) Created a phony "grass roots" campaign using a front group that was targeted at black, hispanic and low-income communities;
6) Removed "nuclear" from the plant's name and began calling it the "Indian Point Energy Center" (not suprising from an industry that calls nuclear power "clean" even though it creates perhaps the most toxic waste on the planet); and
7) Claimed the plant was "safe" even though it has been plagued with safety issues since it went online in the 70's, and it currently has radioactive leaks from unknown sources.
(For more details on Entergy's public relations efforts on Indian Point, see this excellent article by Riverkeeper's Lisa Rainwater van Suntum)

* * *

So last week, I blogged a story about a new solar panels on Town Hall and a Green Energy Fair in the Town of Greenburgh, where I live. The Town and people of Greenburgh have been extremely supportive of the efforts to close the plant. I posted the story also last Tuesday to the several listservs for people interested in closing the nuclear plant (which apparently have some Entergy molelurkers). On Wednesday, I looked at my web tracking software and I noticed a curious notation:

"(Entergy Corporation)
Arkansas, Russellville, United States, 0 returning visits
10th May 2006 09:58:37 AM nylawline.typepad.com/greencounsel/
[Arriving From:] www.alltheweb.com/search?advanced=1&cat=web&jsact=&_stype=norm&type=phrase&q=stephen filler&itag=crv&_b_query=&l=en&ics=utf-8&cs=utf8&wf%5Bn%5D

Hmmm, apparently someone from an Entergy Corporation office in Arkansas (their headquaters are there) had used my name as search parameters from the "Alltheweb.com" search engine.

I also had sent my post about the Greenburgh Energy Fair as a letter to the editor to the Journal News, the local Gannett paper that has devoted a large amount of coverage, editorials, and letters on Indian Point over the years. I was told that on Thursday my letter would run, and so it did. The Journal News posts letters on line, and when I found mine, in small print on the left part of the screen, I smiled. But then I saw it, the large lumbering animated gif to right (you can see it to the right and above, on this page right now) drawing it's attention away from my words, just telling me, assuring me, italically insisting how safe I feel (if you visit the site, you may have to "refresh" a few times to see it, the ads alternate).

Coincidence? Well, I don't think Entergy targeted my specific letter to the editor, but they know that the letters to the editor section has had dozens, maybe hundreds, of letters from people who want the plant closed. Clearly Entergy is placing their ads in places that might negate the sentiment of the writers.

So how about it, now that you know more, do you feel safer? Or is really time to renew the xanax prescription?

IPSEC is gathering forces to stop Entergy’s anticipated bid to re-license Indian Point for an additional 20 years. To contribute, write letters, or join the efforts, go here.

No Big Boxes in My Back Yard

The New Rules Project Institute for Local Self-Reliance reports on three recent developments where localities have succeeded in keeping out big box stores:

1) A California appeals court upheld (against a challenge by Walmart) a local ordinance that banned supercenters on the grounds that the ordinance was reasonably related the city's efforts to maintain stores throughout the community to support neighborhoods, and to avoid excessive driving and air pollution. (Anti-Supercenter Ordinance Upheld).

2) A Montana County unanimously adopted a 60,000-square-foot size store cap following a public hearing (Crowd of 1,400 Turns Out as Montana County Bans Big Boxes).

3) A Maine town adopted a 35,000 sq. ft. limit in an election that may have been the largest turn-out in the town's history, and three nearby towns are considering similar legislation (Damariscotta, Maine, Rejects Wal-Mart and Endorses Size Cap).  The ordinance was enacted in spite of a study, issued two weeks before the election, that was comissioned by the town and paid for by Wal-Mart, and concluded that the supercenter would be a boon to the local economy and would raise wages in both the retail and non-retail sectors. The citizens group supporting the ordiance quickly issued two rebuttals to the study, one produced by the Institute for Local Self-Reliance.