Kristina Tridico is a partner at Ice Miller LLP.  Her primary areas of concentration are corporate transactions, environmental and sustainability law.  Kristina is chair of Ice Miller's Green Industries Initiative.

Will a "one stop shop" on climate change really make it easier for us to get accurate and up to date information?  Dr. Jane Lubchenco, head of the National Oceanic and Atmospheric Administration (NOAA), announced on February 8 that NOAA will set up the new Climate Service to operate in tandem with NOAA's National Weather Service and National Ocean Service. The Climate Service, and its new NOAA climate portal on the Internet used to collect a vast array of climatic data from NOAA and other sources, is intended to provide "one-stop shopping into a world of climate information," noted Lubchenco. The new agency will initially be led by Thomas Karl, director of the current National Climatic Data Center. I'm for anything that is intended to incorporate a longer view of climate than just watching the weather.  According to MSNBC, Lubchenco said she anticipates growth of private climate-related business around the new agency. No word on whether any job creation in this business would count as green jobs.  Visit http://www.climate.gov for more information.

I guess my upcoming presentation on Climate Change Disclosures for the University of Kentucky College of Law Securities Law Conference this Friday, February 5, 2010, is more timely than I could have anticipated. While not opining on the science of climate change, the Securities and Exchange Commission (SEC) issued interpretive guidance (guidance) Tuesday, February 2, 2010, on existing SEC disclosure requirements as they apply to business or legal developments relating to the issue of climate change.  Proxy activism, investors interest on the impact of climate change on their investments, and the recent regulatory and legislative developments prompted the SEC to recognize that, for some companies, these developments could have a "significant effect on operating and financial decisions, including those involving capital expenditures to reduce emissions and, for companies subject to 'cap and trade' laws, expenses relating to purchasing allowances where reduction targets cannot be met."  The SEC noted that even companies that may not be directly affected by these developments could be indirectly affected as prices change for goods and services. Given this diverse and shifting regulatory landscape, what's a reporting company to do?  The intent of the guidance is to provide the reporting roadmap. The guidance does not change the landscape and notes specifically that a number of SEC rules and regulations may be the source of disclosure obligations for registrants under the federal securities laws.  However, the guidance identifies topics that are some of the ways climate change may trigger disclosures required by those rules and regulations:

• Impact of legislation and regulation - Developments in federal and state legislation and regulation regarding climate change, and provisions which relate to greenhouse gas emissions, may trigger disclosure of material estimated capital expenditures and specific risks registrants face as a result of the changes. The guidance advises registrants to "consider specific risks they face as a result of climate change legislation and avoid generic risk factor disclosure that could apply to any company."
   
• International Accords - Consider and disclose, when material, the impact on a registrant's business of treaties and international accords relating to climate change.
   
• Indirect consequences of regulation or business trends - Think increased or decreased demands for goods, services, products and energy sources depending on their greenhouse gas emissions. The guidance directs a registrant to assess its business and its sensitivity to public opinion.  A registrant may have to consider whether the public's perception of any publicly available data, relating to its greenhouse gas emissions, could expose it to potential adverse consequences on its business operation or financial condition resulting from reputational damage.
   
• Physical impacts of climate change - How do the physical impacts of climate change, (such as effects on the severity of weather [floods, hurricanes] or sea levels, arability of farmland or water availability or quality) affect a registrant's operations and results?  Registrations whose businesses may be vulnerable to severe weather or climate related events should consider disclosing material risks of, or consequences from, such events in their publicly filed disclosure documents.

See http://www.sec.gov/rules/interp/2010/33-9106.pdf for the text of the guidance.

The U.S. Department of Agriculture (USDA) made two announcements in recent days from Copenhagen, Denmark as the United States and delegates from 191 other countries meet at the United Nations Climate Summit. Secretary of Agriculture Tom Vilsack released a USDA report outlining the agency's calculated impact of climate change on U.S. ecosystems. "The Effects of Climate Change on U.S. Ecosystems" report concludes that climate change affects U.S. agriculture, land resources, water resources and biodiversity and describes in some detail more specific projected impacts on grain and oilseed crops, horticultural crops, and livestock, among others. Vilsack referenced carbon offset markets as a means to help the country become energy independent, to reduce greenhouse gas emissions and to create income generating opportunities for rural America. USDA's analysis of the climate change legislation passed by the U.S. House of Representatives shows it provides a net gain for farmers and ranchers, with revenue from a carbon offset market offsetting increased farm expenses.

A complete copy of the report is available at the following link: http://www.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_1OB?contentidonly=true&contentid=2009/12/0611.xml.

Over the last several months, many of the leading agriculture commodity organizations have challenged this specific analysis by USDA, arguing the costs to farmers and ranchers far outweigh the calculated revenue from carbon markets. Today, though, USDA announced a unique partnership with U.S. dairy producers who have agreed to accelerate their adoption of waste to energy technology projects. The Memorandum of Understanding, signed by Dairy Management Inc.'s Innovation Center for U.S. Dairy and USDA, committed the industry to reach a 25 percent reduction in greenhouse gas emissions by 2020. The partners will increase the number of anaerobic digesters (which convert manure into electricity) supported by USDA programs and also encourage research and development of new technologies.

Just days before the United Nations Climate Change Conference in Copenhagen, Denmark, the U.S. Patent and Trademark Office (USPTO) initiated the Green Technology Pilot Program on December 8, 2009 to expedite the examination of "green technology" patent applications. By offering the program, the USPTO hopes to accelerate the development and deployment of green technologies, help create green jobs, and promote U.S. competitiveness in the clean technology sector. In the press release announcing the Pilot Program, the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, David Kappos explained "Every day an important green tech innovation is hindered from coming to market is another day we harm our planet and another day lost in creating green businesses and green jobs."

According to its own statistics, the USPTO takes on average 30 months to issue an initial office action for green technology patent applications and approximately 40 months to make a final determination on the patentability of such applications. In the normal process, applications are taken up for examination based on their filing date. Recognizing that over a three and half year wait is too long in the green technology sector, the Pilot Program provides a mechanism for green technology patent applications to be advanced, out of turn, to examination without having to pay any additional fees or provide any additional examination support documentation. The USPTO estimates that this Pilot Program will reduce the examination time of these applications on average by one year.

The Pilot Program broadly defines the term "green technologies" as technologies that pertain to environmental quality, energy conservation, development of renewable energy resources, or greenhouse gas emission reduction. Despite this broad definition, the USPTO currently requires that a patent application be classified in one of 79 specific U.S. patent classifications outlined in the Pilot Program to be eligible.

The Pilot Program only applies to non-provisional utility applications filed prior to December 8, 2009 that have yet to be examined. Applications that are either filed after December 8, 2009 or already being examined are not eligible for the Pilot Program. The Pilot Program is set to expire on December 8, 2010 and the USPTO only guarantees that it will accept the first 3,000 petitions to make an application special under the Pilot Program. Thereafter, the USPTO will evaluate whether the Pilot Program should be extended based on the USPTO's workload and available resources. Thus, time is of the essence for those wanting to take advantage of the Pilot Program.

While there are limitations on the number and type of claims that can be included in the application and a requirement that an applicant waive its right to object to a restriction requirement, the Pilot Program does provide an inexpensive mechanism to expedite the examination of a green tech patent application. Such an expedited examination can prove beneficial to those looking to enforce their patent rights as quickly as possible and/or those looking for funding options.

The Official Notice of the Pilot Program can be found at 74 Fed. Reg. 64666 (Dec. 8, 2009) (See http://www.uspto.gov/patents/law/notices/74fr64666.pdf ) and the USPTO Press Release for the Pilot program can be found at www.uspto.gov/news/pr/2009/09_33.jsp.

If you have questions about the Green Technology Pilot Program, you can contact Alex Forman or Bill Lyon, members of Ice Miller's Intellectual Property Group.

Saying "[w]ith respect to climate pollution, we will act," and that "[t]he Clean Air Act does in fact allow us to do so" Administrator Jackson today announced that greenhouse gases threaten the public health and welfare of the American people.
 
Administrator Jackson indicated at the press briefing that the agency's intention with regards to the finding was to "release the science and reduce the questions." Stressing that "we'll continue to work under the Clean Air Act" Administrator Jackson also stated that the agency is "compelled" to address climate change pollution.
 
She fielded questions on the legislative timeline and agenda and stressed that EPA's and the legislative initiatives are independent.  Administrator Jackson did emphasize that the agency would move forward with work that the EPA had planned, and that there is no reason to delay.  A common question at the briefing was what EPA's timeline is on additional rules for stationery sources and additional rulemaking for reductions in light of the greenhouse gas reporting rule. Administrator Jackson said that there was no timeline for the next rules on emissions, including next steps on the tailoring rule, and stated that "I have no additional information on timelines." 
 
So why issue this rule now, and not concurrent with the transportation rule?  She stressed again that this is a unique situation and responded that this finding itself was the subject of a U.S. Supreme Court Case and that they wanted to project the image that the "EPA is on the job and is about doing the job."  She said that they intend to "keep the ball moving."
 
The overall message from the press conference was, "with respect to climate pollution, we will act."

To view a full transcript of Administrator Jackson's remarks, click here.

The Environmental Protection Agency (EPA) issued the Final Mandatory Reporting of Greenhouse Gases Rule today.  The rule requires reporting of greenhouse gas (GHG) emissions from large sources and suppliers in the United States. According to EPA, it is intended to collect accurate and timely emissions data to inform future policy decisions.  EPA's Web site provides: 
 See http://www.epa.gov/climatechange/emissions/ghgrulemaking.html for the rule.

The following post was authored by Paul Jones.

The American Recovery and Reinvestment Act (Act) established a new 30 percent investment tax credit for clean technology and advanced energy manufacturers.  On August 13, 2009, the U.S. Treasury Department and the U.S. Department of Energy (DOE) announced that the application period for companies to apply for $2.3 billion in tax credits opens on August 14, 2009.  Applicants must file the preliminary application by September 16, 2009, followed by final applications by October 16, 2009.

According to the announcement, the Internal Revenue Service (IRS) will certify or reject applications by January 15, 2010, and notify the certified projects with the approved amount of their tax credit.  Award recipients can expect to receive acceptance agreements from the IRS by April 16, 2010.

So, what types of businesses might be eligible for this credit?  Essentially, manufacturers of clean technology (including wind turbine gears, carbon sequestration property, solar panels, energy storage systems, etc.).

Read the entire alert regarding the tax credit for advanced energy manufacturers.

Incentives are on the rise for businesses to provide "green" products and services.  Many consumers are willing to pay a premium for products that are environmentally friendly, and businesses have taken notice.  Buzzwords such as "organic," "recyclable" and "hybrid" are used to distinguish a product from its competitors.  Even the government has increased its focus on encouraging companies to provide environmentally friendly products and services by offering a wide array of tax incentives available to companies and consumers.  It is not surprising that many companies have responded to these incentives by embarking on green marketing campaigns.

However, companies engaged in green marketing are not only increasing their profits, but also their risk.  Lawsuits and class actions accusing companies of "greenwashing" - marketing the environmental friendliness of a company's product in a false or misleading way - have sprung up across the nation.  These lawsuits have been filed against companies in a variety of industries and trades, including construction companies, retailers, automakers, candy makers and manufacturers of cleaning supplies.

In addition to these consumer actions, the Federal Trade Commission (FTC) has also increased its scrutiny of green marketing.  In June 2009, the FTC filed suit against Kmart, Tender Corporation and Dyna-E International for making false and unsubstantiated claims that their products were biodegradable.  The FTC alleged that these claims did not conform with environmental marketing guidelines contained in the "Green Guides," a set of regulations used by the FTC to determine whether a company's environmental marketing constitutes consumer fraud.  A revised version of these guides will be released later this year and will address the changes and growth in green marketing over the past ten years.

Although green marketing is a potentially invaluable tool, companies should ensure that they understand and minimize the risks that are associated with its use.  For further information regarding green marketing and ways to manage its risk, please contact Michael McNally or Jacob Cox in Ice Miller LLP's Competitive Business Practices Litigation Practice Group and members of the Firm's Green Industries Initiative.

Blog was written by Paul Jones, partner in the Tax Practice Group and member of the Firm's Green Industries Initiative.

Nearly five months after the enactment of the American Recovery and Reinvestment Act, the U.S. Department of the Treasury and the U.S. Department of Energy (DOE) today announced a multi-billion dollar program for the development of renewable energy projects.  The Act extended and modified tax credits for renewable energy projects in a manner intended to make such projects more financially feasible during the current economic downturn.  The Act authorized the Treasury to make direct payments to companies that create and place in service renewable energy facilities beginning January 1, 2009.

Under the new program, businesses may elect to forgo renewable energy tax credits in return for an immediate reimbursement of a portion of qualified expenses.  The cash in lieu of credit program is intended to provide immediate stimulus in local economies, and guidance is now available for businesses to elect direct payments in lieu of tax credits in support of renewable energy facilities.  According to their press release, the Treasury and DOE estimate that the cash in lieu of credit program will support 5,000 bio-mass, solar, wind, and other types of renewable energy production facilities.  While applications are not yet being accepted, businesses interested in applying for the new program should start preparing now to seek the cash grants.

Businesses considering the election of cash in lieu of credits should carefully consider not only the requirements of the program, but also the tax consequences of the election as it may impact the overall economics of the project.

At least that is Sen. Bob Corker's (R-Tenn.) take on carbon sequestration (as reported in BNA's Daily Environment Report) who says he finds it hard to believe that the infrastructure necessary to make carbon capture a reality, such as pipelines and right of way access, will ever come to pass.  His remarks are skeptical of the Senate Energy and Natural Resources Committee chairman Jeff Bingaman's (D-N.M.) proposal to add a bill establishing a national carbon capture and sequestration program.  The bill (S. 1013) would establish a national indemnity program through the Department of Energy (DOE) for up to 10 commercial scale carbon capture and sequestration projects. While the Department of the Interior is preparing a report that provides the framework for geological sequestration on public lands, the legislation authorizes DOE and the Environmental Protection Agency and the Department of Transportation to establish a grant program for state agencies.  The secretary of energy could take ownership of, and assume potential liability for, carbon dioxide injection as part of DOE sequestration demonstration projects according to Sen. Lisa Murkowski (R-Ala.). From a legal perspective the risk of loss of carbon capture and the issues surrounding indemnity have been a sticking point for potential projects.  Proponents of projects have been looking for certainty on what programs and agencies will govern the carbon capture programs.  In addition to the indemnity, the bill includes a legal framework for closing down a geological storage site to address these concerns.  Obviously not everyone is sold, as Sen. Corker also inquired "Are we smoking something?" and the Obama administration officials testifying before the committee said that DOE and the Interior Department are not prepared to take a position on the bill at this time.

In the meantime, donkey owners everywhere are tying them to fence posts; just in case.

Indiana Department of Environmental Management, DieselWise Indiana  - Application Deadline is May 15, 2009

The DieselWise program is grant availability for projects designed to significantly reduce diesel emissions across Indiana.  The total estimated funding for this competitive grant opportunity is in excess of $2,000,000.  DieselWise Indiana anticipates awarding cooperative agreements from this announcement ranging from $25,000 to $250,000, subject to availability of funds and the quality of proposals received.  Additional funds may be available in the near future.  Project proposals submitted under this grant announcement may be awarded for funding from these additional funds.  Preference will be given to applicants that are willing to provide a financial match and/or in-kind match, provide actual historic idling hours pre-installation and post installation of idle reduction technologies, along with a commitment to maximize the use of any installed diesel emission reduction technology.  Information can be found at http://www.in.gov/idem.5255.htm

USEPA Small Business Innovation Research Program - Solicitation closes May 20, 2009

The U.S. Environmental Protection Agency’s (EPA) Small Business Innovation Research Program supports small businesses in developing new environmental technologies.  The EPA anticipates the total funding that will be available for Phase I projects issued under this announcement will be $1.8 million. A total of $70,000 is available in funding for each EPA Phase I award. Recipients of Phase I awards will be eligible to compete for a much larger (up to $295,000) two-year Phase II award. Companies with fewer than 500 employees are eligible.  Solicitation closes May 20.

SBIR Phase I green building materials and systems research topics are:

• Building Materials and Site Management
• Energy and Indoor Environmental Quality
• Water Use and Management

HUD Brownfields Economic Development Initiative Funds - Application Deadline June 16, 2009
 
The Department of Housing and Urban Development (HUD) published a notice of availability of $20 million in Brownfields Economic Development Initiative (BEDI) funds (74 FR 20494) on May 4.  David Kaminsky, who works on development grants in HUD's Office of Economic Development, said the funds will be awarded competitively, and individual grants are capped at $2 million. BEDI grant funds are targeted for use in redeveloping brownfield sites as part of larger urban economic development projects, according to HUD. Brownfields are underutilized, abandoned or vacant sites where expansion or redevelopment may be burdened by confirmed or suspected environmental contamination, according to HUD. Kaminsky said BEDI grants must be used in conjunction with a new guaranteed loan under Section 108 of the Housing and Community Development Act. Section 108 is the loan guarantee provision of the Community Block Grant Program administered by HUD. The application deadline is June 16. The funds are coming from fiscal year 2008 and fiscal year 2009 appropriations, according to HUD. See http://www.hud.gov/offices/cpd/economicdevelopment/programs/bedi/funding09/index.cfm.

Serendipitous timing or well-planned launch, the Energy Systems Network (ESN) launched today at a press conference attended by Governor Daniels. The ESN is an economic development initiative for the clean-technology sector. ESN is the latest economic development initiative under the Central Indiana Corporate Partnership, which also houses Conexus (the manufacturing/logistics initiative) and BioCrossroads (life sciences). The dialogue on clean energy received a boost this week with the introduction of the Waxman-Markey comprehensive energy legislation. Playing off the theme that carbon-capture legislation is coming, even as early as this session, Jim Rogers, Duke Energy President and CEO, highlighted the need for clusters addressing energy technology by saying that groups like the ESN need to connect and convene in order to solve the energy issues facing not only our generation, but generations to come. Highlighting his Princeton, Ind., roots and his grandson at Purdue, Mr. Rogers stated that Indiana has the configuration of technology companies, know-how and passion to turn energy vision to reality. Committing $1M in funds from Duke over three years, Duke is a partner, with IPL and others, in one of the first ESN initiatives announced, the power plug-in initiative, to create a vehicle system connected to the smart grid. Allison Transmission, Cummins and EnerDel lead the contributors to a Hoosier heavy hybrid program for medium and heavy duty trucks. Governor Daniels reminded the audience that there are not enough BTUs from these sources to replace coal, so don't think Indiana is not going to be a player in the energy economy, but that these technologies are an important supplement and a driver of jobs and the economy in Indiana. An all-star board including Mr. Rogers, Mike Hudson of I-Power, President Dr. Cordova of Purdue, Charles Gassenheimer of EnerOne and others joined the Governor and Mr. Rogers at the event. Joe Loughrey, formerly of Cummins, announced that he will chair the ESN.

President Obama set out his priorities regarding his vision of a clean energy future. In a press release prior to meetings with "clean energy entrepreneurs and leaders of the research community" the president stated that it was time to make investments in cutting-edge research that will establish the foundation for America's future economic prosperity. The press release included the follwoing:

FACT SHEET: INVESTING IN OUR CLEAN ENERGY FUTURE

Today, President Obama will meet with clean energy entrepreneurs and leaders of the research community to discuss his strategy for building a clean energy economy and creating the industries and jobs of the future.

The American Recovery and Reinvestment Act (ARRA) and his FY10 budget dramatically increase investment in cutting-edge research, the development and deployment of clean energy technologies, and incentives for private sector research and development (R&D).  These investments will establish the foundation for America’s future economic prosperity, reduce our dependence on foreign oil, and help combat climate change.

The ARRA includes $39 billion in energy investments at the Department of Energy and $20 billion in tax incentives for clean energy, including:

• The creation of an advanced research agency for energy, modeled after the Defense Advanced Research Projects Agency which developed the Internet.
• Support for Energy Frontier Research Centers, which could lead to breakthroughs in energy storage, super-efficient engines, and solar cells as cheap as paint.
• Supporting U.S. manufacturing of advanced batteries needed for plug-in hybrids, renewable energy backup, and other applications.
• $1.2 billon for research infrastructure for the Department of Energy’s national labs, which is being announced by Secretary of Energy Steven Chu today at Brookhaven National Laboratory. 

The  president’s 10-year budget also proposes almost $75 billion to make the Research and Experimentation Tax Credit permanent, stimulating private-sector investment in R&D and keeping the U.S. economy at the cutting-edge of 21st century technologies:

• Studies have shown that every dollar of tax benefit stimulates as much as an additional dollar of private R&D spending in the short term and two dollars in the long term.  Every one dollar of R&D adds two dollars of benefit to our economy and society as a whole.
• Two-thirds of benefits of the credit are attributable to salaries of U.S. workers performing U.S.-based research, and the credit stimulates R&D spending by more than 11,000 small, medium and large firms.
• The credit has been extended 13 times with some extensions lasting just six months, and has also been allowed to lapse for almost a year - undermining its effectiveness because companies can't count on it. 

Several of the technologies in the program today will be on display, highlighting the importance of R&D investment in building a clean energy economy, including:

• Orion Energy "Apollo Light Pipe:" The Apollo Light Pipe collects and focuses sunlight, bringing natural light indoors without consuming electricity and replacing traditional lighting for large portions of the day.  Coca-Cola and Sysco have installed this system, saving enough energy to power over 500 homes for a year.
• Solyndra Solar Panel: Solyndra is the first recipient of the DOE Loan Guarantee recovery program, announced last week.  Their solar panel is a unique cylindrical design that maximizes direct sunlight and absorption. 

The program will highlight success stories from R&D investments in the lab to job creation. Paul Holland, the vice chairman of the board and lead investor for Serious Materials, will introduce the president and share the story of Serious Materials, the leading energy-saving building materials company in the U.S.

• Serious Materials has four plants in California, Colorado, Pennsylvania, and plans to reopen the old Republic Windows plant in Chicago this Spring.
• Earlier this month, Serious Materials re-opened a previously shuttered plant in Pennsylvania, and is hiring back over 100 union workers in the next couple of months.
• Serious Materials’ products exceed current Energy Star standards by up to 400 percent and can reduce heating and cooling energy costs by up to 50 percent.  Five percent of U.S. energy use is lapsed through inefficient window glass.

Update GHG Rule Published April 10th

The EPA's proposed Mandatory GHG Reporting Rule was published in the Federal Register on Friday, April 10, 2009.  There will be a second hearing on April 16, 2009 in Sacramento, CA (Sacramento Convention Center, 1400 J Street, Sacramento, CA 95814). Comments must be in to EPA by June 9, 2009.

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The Environmental Protection Agency, on March 10, 2009, issued a proposed rule for a mandatory federal greenhouse gas reporting program. The new reporting requirements would apply to suppliers of fossil fuels and industrial chemicals, manufacturers  of motor vehicles and engines, as well as direct emitters of greenhouse gases with emissions equal to or greater than a threshold of 25,000 metric tons per year.   The EPA estimates that approximately 13,000 facilities would be covered under the reporting program.

EPA indicated that in developing the program they considered work underway in many states and regional initiatives as well as voluntary programs.  Seventeen  states have developed, or are developing, mandatory GHG reporting rules. Reporting requirements have taken effect in 12 states as of 2009, the remaining are set to begin in 2010 or 2011. However, the proposed rule includes manufacturers of mobile sources and engines as required to report emissions from the vehicles and engines they produce, generally in terms of an emission rate, which is not typical in the reporting schemes considered by the agency.

The gases covered by the proposed rule are carbon dioxide (CO2), Methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexaflouride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE).  The public has 60 days to comment on the proposed rule after it is published in the federal register. Comments are likely to address the mobile source requirement, the cost associated with the frequency and verification of reports included in the proposal and the thresholds for reporting.

Blog written by Paul Jones.

Tax Provisions in the American Recovery and Reinvestment Act Provide Relief to Taxpayers and Promote Clean Technology and Renewable Energy
As expected, the United States Congress passed, and last week the President signed into law, sweeping economic recovery legislation that expands existing, and establishes new, tax incentive programs to promote clean technology, renewable energy and green jobs.  The legislation also provides businesses tax relief in certain areas.

Read the entire alert about the American Recovery and Reinvestment Act.

The American Recovery and Reinvestment Act (ARRA) is being scrutinized on every level, and the overall assessment is that the bill is good for green.  From production tax credits to grants, weatherization to infrastructure investment, money is there to be received but you have to work quickly, and through the proper processes, to receive the funding.  Watch for tight timelines and meet the dates!

Some programs are being implemented by the Department of Energy.  On Thursday Energy Secretary,  Steven Chu, announced he intends to streamline the process by which the Energy Department distributes funding, with the goal of dispersing 70 percent of its funds from the ARRA by the end of 2010.  He is naming Matt Rogers as a senior adviser to implement the new department reforms which include rolling out appraisals of applications for loan guarantees, rather than waiting for the application deadline to evaluate them.  He said that the loan application forms will be simplified and the department will speed up loan underwriting by using outside partners.  The Treasury Department is also tasked with crafting regulations to implement the stimulus funding.

Specifically for Indiana, you should know the process for the:

Indiana Brownfields Program - Contact a Petroleum Remediation Grant consultant in your region.  A potential project list will be compiled by March 4, 2009. Right now the list is focused on petroleum contaminated sites, however the program may be able to open site consideration to hazardous substances as well.

Indiana State Revolving Fund - Drinking Water and Wastewater programs.  The Indiana Finance Authority (IFA) will be provided approximately $94 million to fund wastewater infrastructure projects and about $26 million to fund Drinking Water infrastructure projects.  The IFA created the SRF Loan Program Recovery Loan and Grant Program.  All standard SRF Loan Program requirements apply. Fixed rate loans (20- year terms) and grants are available.  Make sure that your community has completed a Preliminary Engineering Report and have it filed with the SRF Loan Program by March 13, 2009.

As always think about where the remainder of the financing is going to come from.  For instance, if you are applying for the 30 percent Department of Energy grant for eligible wind, biomass, geothermal and solar plants, make sure that you have a plan in place to fund the remaining 70 percent.  Start talking with your investment and private equity team to craft the entire package.

Blog written by Paul Jones.

Congress is in the process of passing economic recovery legislation that would (if enacted) expand existing, and establish new, tax incentive programs to further those goals.  Specifically, the American Recovery and Reinvestment Tax Act (the Act) contains several provisions that would provide expanded or additional sources of funds for green projects.  If enacted in its current form, the Act would, among other things:

• Establish a 30% credit for investment in facilities that manufacture advanced energy property;
• Extend Code Section 45 renewable energy production tax credits by increasing the placed in service date for three years (through 2012 for wind and 2013 for other qualified facilities);
• Allow temporary election to claim 30% investment credit under Code Section 48 in lieu of the Code Section 45 production tax credit; and
• Expand the volume for Clean Renewable Energy Bonds (CREBs); and
• Expand the volume for the recently established Qualified Energy Conservation Bonds (QECBs), which like CREBs, are tax credit bonds.

The Act contains several other provisions, including those that would expand the New Markets Tax Credit program, revise certain tax-exempt bond limitations, and provide relief for cancellation of debt income.

Read the full text of an Ice Miller alert which contains more details on the points above.

And it was a whirlwind, no pun intended... Wednesday at the State House,  the Indiana General Assembly was enlightened (really, this is too easy) by a group of local and national experts on topics ranging from photovoltaic opportunities, the Energy Systems Network and lithium batteries to a utilities take on where energy is headed.  One common theme - in these tight capital markets regulation is necessary to jump-start the innovation and, if companies (and/or ratepayers, as the case may be) are going to be asked to foot the bill. The providers want cost recovery and the ratepayers are going to want to make sure that they are not disproportionally impacted.  The AEP representative stated that the time to act in support of low/non-carbon technologies is now.  He stated that AEP believes that the evaluation of a new nuclear power plant (1600 MW unit) is favorable in relation to continued use of fossil fuels, but caveated that any development on the issue would require a favorable regulatory environment (including cost recovery).  Jesse Kharbanda of the Hoosier Environmental Council noted that a core weakness on renewables in Indiana right now is that there is no renewable energy policy at the state level. He provided that Indiana is the only state in the Industrial Midwest without a renewable energy standard.   A second common theme was the discussion of "zero-carbon emitting technologies" and innovation that is growing around these areas. The presenters noted that these are key market opportunities.  According to the presenters, the lack of a Renewable Energy Standard (RES) means that Indiana is losing out.  Go to http://www.in.gov/legislative/session/video.html to see a recording of the days events.

Following up on two major campaign themes, on Monday, January 26, President Obama stated that, "It will be the policy of my administration to reverse our dependence on foreign oil while building a new energy economy that will create millions of jobs."  He directed the Environmental Protection Agency (EPA) by memorandum to Lisa Jackson, the new EPA administrator, to reconsider California's request for a waiver so that it can impose rules for automotive greenhouse gas emissions more strict than those of the federal government, according to the Wall Street Journal. Under the federal Clean Air Act, California needs an EPA waiver in order to set pollution standards that are stricter than other federal standards.
 
So goes California, so goes other states?  While a final decision by EPA is not expected for several months, with the number of states that the "Bush administration had left idling on clean cars" (according to Chris Kearns of Environment Rhode Island) the states are waiting to act.  Thirteen other states have already passed laws calling for the adoption of new rules as soon as the waiver is granted.  However, not all of Indiana's neighbors are thrilled with the prospect.  Sen. George Voinovich, R-Ohio, suggested that this was akin to hitting U.S. automakers when they are down.  "I am fearful that today's action will begin the process of setting the American auto industry back even further," replied Voinovich in a written statement.  "The federal government should not be piling on an industry already hurting in a time like this."  President Obama refutes the assertion, saying "Let me be clear: Our goal is not to further burden an already struggling industry," Obama said. "It is to help America's automakers prepare for the future."  Obama also directed his administration to get in place new fuel-efficiency guidelines for the auto industry in time to cover 2011 model-year cars.
 
Meanwhile, the Associated Press reports that Secretary of State Hillary Rodham Clinton on Monday, February 2 will appoint a special envoy for climate change as the Obama administration moves to restore America's credentials in environmental policy, according to U.S. officials familiar with her decision.