Little Rock Sustainability Commission Elects New Officers

The Little Rock Sustainability Commission has elected officers to serve for 2014. The new officers are:

• Chairperson: Benjamin D. Brenner (Mitchell, Williams, Selig, Gates & Woodyard P.L.L.C.)
• Vice Chairperson: Ron Hughes (HERS Inc. and Pulaski Tech)
• Secretary: Neil Gillespie (NICK Inc.)

Little Rock Mayor Mark Stodola established the Little Rock Sustainability Commission in 2008 to provide advice and guidance on sustainable policies and practices.  Since 2008, the Commission has worked with various groups in the City to develop sustainable policies that have positively impacted city government and the citizens of Little Rock.

The Commission's achievements include:

• Founding and organizing the annual Little Rock Sustainability Summit, focused on sustainable policy and stories of success in environmental stewardship.
• Honoring achievements in sustainability by local businesses and individuals with the “Sustain the Rock Award.”
• Spearheading a City-wide sustainability assessment resulting in eight key recommendations for the City to become more sustainable.
• Developing a sustainable purchasing policy for the City.
• Promoting the City's Green Building Incentive Program, which provides financial  incentives for residential buildings built to sustainable standards
• Drafting guidelines in 2011 for expanding farmers markets throughout the City.

The Commission is currently focused on a variety of issues that effect the Little Rock sustainasphere, including the creation of a clean energy district and implementation of the 2013 PACE legislation, advances in the residential energy efficiency code, greater connectivity of Little Rock's bike trails, commercial recycling, a 5, 10, and 20 year Sustainability Plan for the City of Little Rock known as the "Roadmap to Sustainability," and research into sustainability initiatives that promote economic development. More information about the Commission can be found here: Little Rock Sustainability Commission

The next meeting of the Commission will be Friday, May 23, 2014, at 11:30 a.m., at the Willie Hinton Neighborhood Resource Center on 12th Street in Little Rock.

 

The Little Rock Sustainability Commission meets the fourth Friday of every month 11:30 to 1:00 at the Willie Hinton Neighborhood Resource Center. The public is welcomed, invited, and encouraged to attend.

(Department of Self-Promotion: Yes, the Benjamin D. Brenner elected Chair of the Little Rock Sustainability Commission and the author of this sustainablog are one in the same.)

 

Little Rock is on the Road to Sustainability: Public Hearing, May 20, 2014

At the 2014 Little Rock Sustainability Summit, the City unveiled its “Roadmap to Sustainability” initiative. The initiative is organized around five topic areas – Energy, Quality of Life, the Natural Environment, the Built Environment, and Economic Development. The goal is to develop a sustainability plan that looks 5, 10 and 20 years into the future of the sustainasphere.

The journey begins on at 10:00 a.m. on Tuesday, May 20, 2014, with a public meeting in the Board Room at City Hall. The purpose of the meeting will be to identify (“inventory”) sustainable practices and achievements already in place, and to gather ideas about sustainable goals. The meeting will be the first in a series of four or more public meetings.

The development of a Sustainability Plan is an important step forward for Little Rock. While the City can rightfully highlight a number of “sustainable” achievements – the free, annual Sustainability Summit and the recent passage of a multifamily recycling ordinance are top-of-the-mind examples – the various efforts and programs have lacked the comprehensive coordination needed to be a true plan. There is an abundance of “low-hanging fruit” in the Little Rock sustainasphere, and a thoughtful Sustainability Plan comprised of measurable, achievable goals holds the promise of a serious picking party.

In case you missed it the first time around, the May 20, 2014, meeting is a public meeting. It is an opportunity to take ownership of the sustainasphere and to contribute to a project that should have benefits that are immediate and measurable.

(Also, I am told there will be snacks.)

May 20, 2014, 10:00 a.m.: Public Hearing, City of Little Rock Roadmap to Sustainability, City Hall Board Room.

Arkansas Court of Appeals Update: Deed placing property into Wetlands Reserve Program did not create right of public access.

In an April 30, 2014, decision, Johnson v. Kros, the Arkansas Court of Appeals affirmed a trial court’s finding that the deeding of property into a federal Wetlands Reserve Program did not create a public right of access.

The dispute between adjoining landowners arose out of a “Warranty Easement Deed” between Riverbend and the U.S. The Deed placed a pond located on Riverbend’s property into a Wetlands Reserve Program. The U.S. paid Riverbend around $1.5 million for the Deed.

At the same time as the Deed, the landowners directly to the south of Riverbend, the Johnsons, granted an easement to the U.S. permitting the overflow of pond water from the Riverbend property onto the Johnson property.

The Johnsons sought permanent access to the Riverbend pond. They argued that the pond easement gave them a right of access to Riverbend’s land, and that the Deed put the water and wildlife of the pond into the public domain.

The trial court denied the Johnsons’ claims and permanently enjoined them from going onto the Riverbend property. The decision turned on the plain and unambiguous language of the Deed, which reserved to Riverbend the “the right to prevent trespass and control access by the general public,” and the “right to undeveloped recreational uses, including hunting and fishing, and including the leasing of such rights for economic gain . . . .” The trial court held that this language made it clear that the Deed did not “open for use [Riverbend’s property] as a recreation area by the general public or the [Johnsons] for any reason.” Observing that there is, “nothing ambiguous or uncertain about the language of the easement,” the Arkansas Court of Appeals affirmed.

The full decision of the Arkansas Court of Appeals, Johnson v. Kros, can be found at 2014 Ark. App. 254 (2014).

The City of Fayetteville Takes A Step Closer to Having the First PACE Program in Arkansas

At the Arkansas Advanced Energy Association’s “Hour of Power” event this past August, City of Fayetteville Mayor Lioneld Jordan was blunt: he intended to do everything within his power to position the City of Fayetteville to be the first to make Property Assessed Clean Energy, or “PACE,” financing available to its citizens.

Mayor Jordan and the City of Fayetteville took an important step towards that goal last week, filing a proposed ordinance that would create an Energy Improvement District to manage innovative financing programs for advanced energy improvements on residential, commercial, and industrial real properties. These programs include PACE financing options.

Act 1074 of 2013, now codified at Ark. Code Ann. Section 8-15-101 et seq., authorized governmental entities to establish energy improvement districts for the purpose of managing PACE programs. (By way of definition, a PACE program is “a property assessed clean energy program under which a real property owner can finance an energy efficiency improvement, a renewable energy project, and a water conservation improvement on the real property”.)

The PACE Act directs governmental entities to create PACE districts by adoption of an ordinance. Like traditional improvement districts, once created, PACE districts are operated and controlled by a Board of Directors.

This is what the Fayetteville PACE Ordinance accomplishes: it creates Energy Improvement District No. 1, and creates a seven-member Board of Directors to operate and manage the District.

Passing the PACE Ordinance does not finish the job. The District’s Board of Directors will need to be populated, and it will need to figure out how to govern itself. A means for determining when energy efficiency improvements will result in “positive cash flow” needs to be worked out. Most importantly, the financing program needs to be put in place. This means identifying underwriters, issuing bonds, figuring out how PACE financing will be occur for residential properties, and, most likely, getting a third-party administrator in place. But none of these things happen until the PACE Ordinance is in place.

The proposed PACE Ordinance is on the agenda for the October 15, 2013, meeting of the Fayetteville City Council. The Arkansas sustainasphere, and this sustainablawger, will be watching.

The Fayetteville PACE Ordinance and some related materials can be found here. 

Arkansas's Proposed Rule Adopting the 2009 IECC: Last Call for Written Comments

Arkansas has adopted the 2009 International Energy Conservation Code (IECC), effective January 1, 2014. The Arkansas Economic Development Commission Energy Office is soliciting public comment on the Rule that will formally update the residential energy standard in Arkansas from IECC 2003 to IECC 2009. The deadline to submit written comments to the AEDC is close of business tomorrow, October 4, 2013.

Written comments should be addressed to J.D. Lowery, Deputy Director of the Arkansas Energy Office and submitted in any one of three ways: 

• POSTAL MAIL: Arkansas Economic Development Commission
  Attention: J.D. Lowery
  900 West Capitol, Suite 400
  Little Rock, Arkansas  72201 
• FAX: (501) 682-7499
• EMAIL:jlowery@ArkansasEDC.com  

 

The 2009 IECC residential energy standards would require that all new homes constructed in the State of Arkansas receive a HERS rating (including blower door and duct testing) and provide a home energy disclosure label for consumers in a manner similar to mpg ratings for vehicles or Energy Star ratings for appliances. Adoption of the rule is a necessary step toward listing Arkansas among the 40 other states that have previously upgraded their energy building codes to at least the 2009 standard.

The 2009 IECC is substantially different from the 2003 IECC, and these differences are specifically intended to improve energy efficiency. According to a 2009 study by the U.S. Department of Energy, “Impacts of the 2009 IECC for Residential Buildings at State Level,” “important new requirements” in the 2009 IECC include:

· A requirement that duct systems be tested and sealed, and air leakage minimized;

· Half of the lighting “lamps” in a building must be energy efficient;

· “Trade-off credits” are no longer available for high efficiency HVAC equipment. For example, under the 2006 IECC, use of a high efficiency furnace could be traded for a reduction in wall insulation. Such trade-offs are eliminated under the 2009 IECC;

· Vertical fenestration U-factor requirements and maximum allowable solar heat gain coefficients are reduced;

· Insulation requirements are improved and increased;

· Better air-sealing language;

· Controls for driveway/sidewalk snow melting systems; and,

· Pool covers are required for heated pools.

Obviously, more efficient sidewalk snow melting systems, basement insulation, and heated pools are not going to drive improved residential energy efficiency in Arkansas. The improvements in duct and HVAC efficiency, building envelope tightness and air sealing, and window and insulation requirements are the meat of the coconut for those in the Arkansas sustainasphere.

In 2009, the U.S. Department of Energy analyzed the impact of the 2009 IECC in Arkansas. The DOE study found an average savings of $242.00 per house, per year for homes meeting the requirements of the 2009 IECC.

Annual savings of $242.00 might not, at first blush, blow your skirt up. But consider: if the average life of a home is 30 years, not adopting the 2009 IECC will result in homeowners paying an additional $7,260.00 in energy costs over the life of the home.

 

The adoption of the 2009 IECC should also stimulate job creation and growth. The new requirements for air duct testing and sealing, and for general building envelope tightness will translate directly into a need for quality third-party testing, inspection, and compliance professionals. In simple terms, this means more home energy raters, auditors, inspectors, specialists, and consultants. These are skilled positions. Once created, they should become permanent parts of the sustainable economy.

More than pure economics, adopting the 2009 IECC is an integral step on the path to sustainability. Green building technology is rapidly evolving, and the only surefire way to ensure that Arkansans are provided with affordable, reliable, and sustainable energy is to adopt and enforce updated building standards based on current technology.

Here is a link to the AEDC’s proposed Rule adopting the 2009 IECC.

Reflections on the AAEA Second Annual Meeting and Policy Conference

The Second Annual Meeting and Policy Conference of the Arkansas Advanced Energy Association (AAEA), held yesterday in North Little Rock prompted me to reflect on what it means to practice sustainability law in Arkansas. 

What it means, more often than not, is uniting apparently disparate interests in a way that furthers the client's sustainability agenda and achieves the client's goals (of which, presumably, one is furthering the sustainability agenda). Consider the simple act of uniting sustainable business practices – such as efficiency in the use of paper and energy, with the notoriously inefficient practice of law. For a client that wants to use, or must use, (or both) vendors, contractors, and professoonals who meet certain sustainability standards or criteria, this simple act takes on considerable importance.

Against this backdrop, I highlight two strands of thought from the AAEA conference. The first is from the keynote speaker, former Colorado governor Bill Ritter. Governor Ritter observed that it was unlikely that comprehensive advanced energy legislation would be forthcoming from the federal government anytime soon. Instead, advancements in the law of sustainability would be found locally, and, ultimately, public policy would provide the leverage to move forward. These are not state secrets revealed. But to a lawyer who practices sustainability law, Governor Ritter’s plain spoken observation is a gut check. One of my mentors in the law used to reflect that, “for a lawyer, public policy is the refuge of a weak mind.” And it’s mighty difficult to provide advice and counsel about laws that do not exist and public policies that aren’t law.

The second thread comes from Matt Dromi, a co-founder of the Fayetteville, Arkansas-based company modthink. Presenting on “Harnessing the Power of Social Media for Advanced Energy Business Growth,” Dromi emphasized that successful social media campaigns were authentic and embraced humanity. This means less, “come to my event” or “here’s a coupon for some pants,” and more, “this is my real story” and “this is how we are alike.” In two words: similarities connect.

These two disparate ideas tie together in the practice of sustainability law. More often than not, lawyers are focused on differences, and clients, particularly before attorneys fees exceed budget, dig their heels into ground wrought from principle. For example, in reviewing a contract, the lawyer's first line of inquiry is usually something like, “What’s wrong with this deal?” or, “How is this different from what I expected?” as opposed to “What is good about this deal?” or “What provisions do I definitely want to keep?” The client's companion position might be something like, "I never waive the security deposit" or "I always litigate on my turf," instead identifying with areas of common interest, such as a mutual commitment to maintain the LEED certification of a building, and to share costs to do so.

This is the sustainability law that I practice – a practice driven by client goals and guided by embracing similarities. The fact that we are dealing with sustainability subject matter means that, by definition, there are similarities and that those similarities relate directly to client goals. Identify the common ground and point out to your adversary (and, perhaps with some finess, your client) that the two of you are already standing on it and identify exactly what that means: that from the start, some principles are aligned and some goals achieved. 

The law of sustainability is different from other areas of law because, properly practiced, it is driven by similarities between and among parties as opposed to differences. Yes, parties negotiating a green lease may be adversarial, but they are also united by the common principals inherent in a green lease, such as the desire to preserve and promote a green building. Yes, an employer/employee relationship is often marked by an imbalance of power, but as the employer adopts sustainable business practices the two are united by a common interest in the employee’s welfare. The similarities align with goals, and if the parties start with a focus on the similarities, they are more likely to achieve the goals. A settlement of a contested piece of litigation is often described as a deal that no one likes. The resolution of a sustainability claim can be just the opposite – a deal that serves the goals and common interests of all involved.

And to me, that is what the practice of sustainability law is about.

 

A Blow to the Arkansas Sustainasphere: Nordex USA to Cease Arkansas Production

The Arkansas Advanced Energy Association (“AAEA”), reported this morning that Nordex USA will soon be ceasing production at its’ manufacturing facility in Jonesboro, Arkansas:

AAEA learned this morning that Nordex USA will cease nacelle production at its Jonesboro, Arkansas facility after it completes the orders in its current pipeline. The decision was driven by the wind industry's global overcapacity and the continued uncertainty and instability of the US market. The decision will not impact the current year's business performance, as exceptional expenses were already accounted for in 2012 as previously reported. The training academy, the central parts storage and the repair facility in Jonesboro will remain in operation to support Service and Operations in the Americas. Around 40 employees will be affected with layoffs beginning in October 2013. Ralf Sigrist, President & CEO of Nordex USA, Inc. commented, "This is a sad day for all of us at Nordex USA. We will lose valued colleagues, who have done their very best for us, but the decision was inevitable considering the underutilization of our plant." In the future, nacelles for the North and Latin American markets will be supplied from Nordex' factory in Rostock, Germany, using the global supply chain and logistics support based there.

Special thanks to the AAEA folks for sharing this developing news.

The National Blueways Program and the White River

In January of this year, the White River became the second river designated a “National Blueway” under the National Blueways Program. Nearly six months later, that designation has become the source of controversy and contention, with opponents raising concerns that the designation will lead to increased regulatory activity and threaten private property rights.

So what is the National Blueways Program and what does it mean for a river to be designated a National Blueway?

According to the U.S. Secretary of the Interior, the Program advances a public policy of healthy and accessible rivers that are important to local communities and that contribute significantly to local, regional, and national economies.

The National Blueways Program was established by Order 3321 of the Secretary of the Interior. Order 3321 allows for the designation of entire rivers, including the watershed (a “source to sea” approach) as a National Blueway. All designated National Blueways will comprise the National Blueways System.

The Purpose of the National Blueways Program, as set forth in the Secretary’s establishing Order, is to establish a program

…to recognize river systems conserved through diverse stakeholder partnerships that use a comprehensive watershed approach to resource stewardship. River systems designated as a National blueway shall collectively constitute a National Blueways System. The National blueways System will provide a new national emphasis on the unique value and significance of a “headwaters to mouth” approach to river management and create a mechanism to encourage stakeholders to integrate their land and water stewardship efforts by adopting a watershed approach.

The Program is overseen by a “National Blueways Committee” charged with providing “leadership, direction, and coordination to the National Blueways System” including directing the bureaus of the Department of the Interior “to collaborate in supporting the National Blueways System”.

The establishing Order further states that, “National Blueways will be nationally and regionally significant rivers and their watersheds that are highly valued recreational, social, economic, cultural, and ecological assets for the communities that depend on them. National Blueways encourage a landscape-scale approach to river conservation that involves a river from its headwaters to its mouth and across its watershed, rather than individual segments of the channel and riparian area alone. Establishment of a National Blueways System will help promote best practices, share information and resources, and encourage active and collaborative stewardship of rivers across the country.”

Nothing in the establishing Order authorizes the public use of private property or otherwise affects the use of private property, and the Order explicitly states that it will not result in new federal regulations: “Nothing in this Order is intended to be the basis for the exercise of any new regulatory authority . . . .”

The establishment of the National Blueways Program would appear to recognize the importance of protecting river systems as a whole, rather than in segments. Indeed, the primary distinction between National Blueways designation and existing federal designations is that existing designations generally only cover a segment of a river and a narrow band of riparian corridor.

The Arkansas Social Media Statute (Act 1480): More Questions than Answers?

THE ARKANSAS SOCIAL MEDIA STATUTE (ACT 1480): QUESTIONS AND CHALLENGES


The use of social media, especially in commercial and advocacy settings, is a key part of the sustainasphere. Employers who use and regulate employee use of social media can anticipate a number of compliance challenges and questions in connection the new Arkansas Social Media Statute (Act 1480). For example:

• How can employers use social media in investigations? The stature allows employer to request access in connection with a “formal investigation or related proceeding,” but does not define the phrase, leaving ambiguous and open to interpretation which investigations and proceedings qualify.

• How can employers use information publically available on social media? Act 1480 allows employers to view information publically available on the internet. But the statute is silent on whether employers can use the information they view as the basis for an employment-related decision, or as the basis for instituting a “formal investigation or related proceeding.” A related open question is whether, without asking for a password or username, an employer can ask an employee to verify “ownership” of a social media account on which the employer views publically available information, or to verify the information publically viewed.

• Who can sue for a violation of the Arkansas Social Media Statute? The Arkansas Legislature presumably intended to give employees and prospective employees the right to sue for violations of the statute. However, Act 1480 does not explicitly give an employee, prospective employee, or other person injured or damaged by the alleged violation the right to sue – i.e., the new statute does not provide for a private right of action.

• Is there a right to a jury trial or punitive damages? Assuming that employees and prospective employees do have the right to sue, do they have a right to a jury trial? To injunctive or other equitable relief? To punitive damages?

• How about attorneys’ to the prevailing party? Similarly, would an employee or prospective employee who prevails in a lawsuit under the new statute have a right to recover their attorneys’ fees incurred in prosecuting the action? The answer to this question is likely no, since Arkansas law is clear that absent a rule or statute explicitly providing for the recovery of attorneys’ fees, the parties to a suit bear their own fees.

• Is a violation of the Arkansas Social Media Statute also a violation of the Arkansas Deceptive Trade Practices Act (“ADTPA”)? The ADTPA contains a “catch-all” provision generally prohibiting unconscionable, false, or deceptive practices in business, commerce, or trade. See Ark. Code Ann. § 4-88-107(a)(10). The Arkansas Supreme Court has defined “unconscionable” to include conduct that violates a statute. See Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006). Thus, an employer’s conduct in violation of the new statute might form the basis for a suit against the employer for violating the ADTPA. (Significantly, the ADTPA explicitly provides that any person who is damaged or injured by a violation of the ADTPA “has a cause of action to recover . . . reasonable attorney’s fees.” Ark. Code Ann. § 4-88-113(f)).

• Are employees and prospective employees required to exhaust administrative or internal complaint processes and remedies as a pre-requisite to filing a suit?

• What is a “self-regulatory organization”? The statute provides that it is not intended to prevent an employer from complying with the rules or regulations of “self-regulatory organizations.” This provision appears intended to address concerns raised in other states about conflicts with compliance with the rules and regulations of agencies such as the federal Securities Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA). But the phrase “self-regulatory organization” is undefined. For example, would the American Bar Association, American Medical Association, or National Association of Realtors qualify as self-regulatory organizations for purposes of the statute?

These concerns will most likely be addressed and resolved through practice and litigation over time. What is clear is that, as indicated in the previous post, employers with a policy or practice of routinely asking employees to disclose or for access to their social media need to assess that policy or practice against the Arkansas Social Media Statute, probably with the assistance of counsel.

Delta Green Community Forum - This Friday, June 28, 2013

This Friday, June 28, 2013, citizens of the Arkansas sustainasphere will have a chance to gather and share notes at the inaugural Delta Green Community Forum in Forrest City, Arkansas.  The theme of the forum is "Visions of Green Jobs and Renewable Energy - Preparing Arkansas' Economy for the 21st Century."  The Delta Green Community Forum will be held at the East Arkansas Community College, 1700 Newcastle Road, Forrest City, Arkansas 72335.  Registration starts at 8:00 am, and the Forum starts at 8:30 am.

The Delta Green Community Forum will allow participants to gain a comprehensive insight into how renewable energy resources are generating a new field of green jobs in Arkansas, and how Arkansas ranks from a regional, national and international perspective in regards to legislative policies and current projects and products. The Forum will emphasize the importance of renewable energy sources and products to Arkansas’ Delta region. Participants will have the opportunity to network with many of the foremost authorities, experts and advocates in the field. “Tool-kits” will be given to participants that contain information on best practices and models that can be implemented in their own community.


The overall goal of the Forum is to provide Arkansas Delta farmers, community-based organizations, community leaders, and residents’ insight into the development and utilization of green strategies, products, practices, policies, and renewable energy sources that support the achievement of long-term economic goals of creating more green jobs and increasing workforce productivity without compromising environmental security for the region and for Arkansas.

PANEL TOPICS

Define Sustainable Energy and Green Jobs?

• This panel will connect different forms of sustainable and renewable energy with job creation. Panelists will also discuss how the terms Green, Sustainable, and Renewable were coined.

Sustainable Agriculture for Arkansas’ Future

• Will address the use of sustainable practices in agriculture to increase crop yields.

Path between Policy and Renewable Energy Adaptation

• The panel will discuss federal and state policy on renewable energy implementation, specially focusing on how polices have influenced financial opportunities for wind turbines and solar panel initiatives. Panelists will also discuss policies that encourage green initiatives and overcome challenges.

Model Community Projects - Solar Panel Application

• This panel will consist on various individuals who are currently implementing green projects (e.g. solar panels, wind turbines, high tunnels, aquaponics systems, and hydroelectric systems). The panel will also discuss Existing Building/New Construction and weatherization in relation to retrofitting, new procedures and change that will take effect, as well as general information on how facilities and organization can obtain resources to complete weatherization projects.

Renewable Technology Panel

• Panelists will discuss new technologies related to fuel production and how the demand for alternative fuels such as biodiesel can be facilitated by cities converting public transportation and state vehicles to cleaner and more efficient fuels.

Events like the Delta Green Community Forum are essential to a vital, growing sustainasphere because they provide a place for stakeholders (here, Delta farmers, non-profits, community leaders and residents) to learn about and define their green economy, bridging knowledge, expertise, and opportunity. These opportunities are also the place where the law of sustainability is born, because as citizens come to recognize themselves as stakeholders in the sustainasphere, they will also come to recognize the public policies necessary for the sustainsphere to grow and thrive economically and socially. This, of course, is also where the law of sustainability is born.

Arkansas Passes Law Restricting Employer Access to Employee Social Media (Act 1480)

On April 22, 2013, Arkansas passed Act 1480 and joined California, Illinois, Maryland, Michigan, New Mexico, and Utah as a state limiting or prohibiting employer access to the social media accounts of employees and prospective employees.


The new law prohibits employers from requiring, requesting, suggesting, or causing a current or prospective employee to:

(1) Disclose his or her username and password to the current or prospective employee’s social media account;

(2) Add any employee, supervisor, or administrator to the list or contacts associated with his or her social media account; or

(3) Change the privacy settings associated with his or her social media account.

Ark. Code Ann. § 11-2-124(b). Employers may not retaliate against an employee or prospective employee, or fail or refuse to hire a prospective employee for exercising these rights. Id. at § 11-2-124(c).

Act 1480 also contains potential safe-harbors for employers. It does not prohibit an employer from viewing information publically available on the internet, or prevent an employer from complying with “the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations.” Id. at § 11-2-124(e)(1).

Employers can also request access to an employee’s social media account in connection with certain “formal” investigations and proceedings. Nothing in the proposed statute:

Affects an employer’s existing rights or obligations to request an employee to disclose his or her username and password for the purpose of accessing a social media account if the employee’s social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee’s violation of federal, state, or local laws or regulations or of the employer’s written policies.

Ark. Code Ann. § 11-2-124(e)(2)(A).

Act 1480 also presents a number of challenges and compliance pitfalls for employers. Those will be discussed in the next post. However, under the Arkansas Social Media Statute, one thing is clear: employers can no longer ask current or prospective employees for blanket access to their social media accounts.

Fayetteville, Arkansas, LEED-Certification, and Energy Efficient Municipal Buildings

According to the USGBC, “LEED initiatives including legislation, executive orders, resolutions, ordinances, policies, and incentives” are found in 384 cities and towns and 58 counties across 45 states. 

One of those initiatives – and, at least according to the USGBC’s online database, the only municipal initiative in Arkansas – is City of Fayetteville Resolution 176-07.

Entitled, “A Resolution Establishing An Energy Efficient Building Policy for the City of Fayetteville,” Resolution 176-07 passed on October 2, 2007.  It provides, in its entirety:

Section 1:  That the City Council of the City of Fayetteville, Arkansas hereby requires all new, city-owned buildings in excess of 5,000 square feet to achieve a minimum certification of LEED-Silver as issued by the US Green Building Council provided a favorable cost-benefit analysis is provided by a private architect or engineer and require all exempt building designs to include a LEED checklist with an emphasis on energy and water efficiency.

Resolution 176-07 does not carry the force of law.  It is best considered a statement of public policy.  Unfortunately, as a statement of public policy, particularly one with a national profile, Resolution 176-07 is undermined by a significant ambiguity: what, exactly, is a “favorable cost-benefit analysis”?  Indeed, what if even though the cost of building to the LEED-Silver status is not disproportionately more expensive than building to a conventional standard, the architect or engineer in question concludes that the cost-benefit analysis is unfavorable because the proposed project will not result greater energy efficiency?

The incorporation of LEED standards into land use law has generated significant and spirited debate, and one of the frequent debate points is that the empirical data does not indicate that LEED-certified buildings are, in fact, better performing buildings.  Henry Gifford asserted this very point – that the USGBC promoted LEED as resulting in more energy efficient buildings even though a study commissioned by the USGBC indicated that this was not the case – in his now dismissed lawsuit, Gifford v. USGBC.  Similarly, the authors of the 2009 National Institution of Building Science Report on Building Rating and Certification in the U.S. Building Community observed, “[t]here is very limited data that correlates verifiable improvements in building performance with building rating/certification system requirements.  Many people view the few data sets that do exist as controversial in terms of methodologies and conclusions drawn from them.”  The study concludes that “[t]here are growing concerns that the implied guarantee of building energy performance emanating from the building rating/certification/labeling systems may confuse or mislead policy makers and the public.”

Thus, Resolution 176-07 runs the risk of failing to achieve the very cause it advances.  One way to improve Resolution 176-07 would be to add a provision requiring the collection and analysis of data from new municipal buildings built to the LEED-Silver certification standard.  This, it would seem, encourages not only the energy-efficiency conscious green building practices embodied in the Resolution, but also results in the creation of green jobs.   

Leading the Transition to Sustainable Energy

The start of 2012 finds considerable steam building in the Arkansas sustainasphere for real progress in energy-related sustainability initiatives – whether identified as “clean energy,” “renewable energy,” “advanced energy,” or something else. This is the year in which we will be both reflecting on the failures of the 2011 Arkansas legislature to take comprehensive and significant action regarding sustainability and in which we will begin laying the groundwork for more meaningful legislative action in 2013. The emergence of the Arkansas Advanced Energy Association is but one signal that sustainable energy is an area that will get attention when Arkansas lawmakers convene.

On December 26, 2011, ArkansasBusiness.com published a thoughtful guest commentary by Glen Hooks, “Clean Energy: Nothing to Fear.” Mr. Hooks’ commentary, reprinted with permission in its entirety below, is an example of one of the many voices that will be heard in the discussion of the future of sustainable energy in Arkansas. I present it here because, if nothing else, Mr. Hooks makes at least one valuable point that is often lost in the rhetoric of heated political discussion: Embracing sustainable energy will not lead to the immediate demise of fossil-fuel based energy. Proponents of one or the other often cast the debate in “all or nothing” terms that ignore the possible coexistence of, say, coal-fired power plants and biomass fuels cogeneration plants. The fact is, as Mr. Hooks points out, that there will be a transition period. And it will be significant, likely measured not in years but in decades. For Arkansans, the timing could not be better, for, given the right forethought and planning, we have the opportunity to shape and profit from the transition and to emerge a leader. Here is the commentary:

In the Dec. 12 issue of Arkansas Business, state Sen. Jonathan Dismang provided commentary about our nation's energy policy. Dismang hit the predictable checklist used by the anti-environmental crowd: ridiculing government investment in clean energy, laughing at fears about global warming and throwing out accusations of political cronyism. Yet, after peeling away the derision, the only thing that he seems to support is the same energy policy we've had for two centuries: drilling for fossil fuels and burning them, no matter the damage.

For far too long, our nation's energy policy has relied on polluting, destructive fossil fuels like coal to generate most of our electricity. We now know that coal poses a direct threat to the health of our citizens and our environment. Ask the citizens of Appalachia, whose lives and livelihoods have been destroyed by mountaintop coal mining and polluted water. Ask American children across the country who live near coal-fired power plants and suffer much higher rates of asthma than other children. Ask the fisherman who can't eat fish from his local stream in Arkansas because of high levels of mercury spewed out by coal-fired power plants. Ask the residents of Tennessee, Oklahoma and Michigan, who have suffered the devastating ills directly attributable to faulty facilities that fail to contain coal ash.

These heavily polluting industries are also heavily subsidized by the government and have been for decades. Dismang mentioned two renewable energy companies that received subsidies but didn't mention that those investments are dwarfed by the subsidies given to the coal and oil industries.

I absolutely support our government investing in solid research and development of clean energy technology. Other countries, most notably Germany, have made incredible strides in renewable energy for their citizenry. Why shouldn't we?

Frankly, we can do better than drilling and burning. It's far past time for our nation to get serious about an energy plan that moves us away from dirty coal and toward a clean, renewable energy future. This cannot be done overnight, but we must change our nation's energy mix.

I'm happy to report that the clean energy transformation has already begun. During the last six years, 161 proposed coal-fired power plant projects have been canceled, including the Plum Point II plant scheduled for Osceola. In just the last two years, more than 30,000 megawatts of coal power - more than 10 percent of the existing fleet - have been scheduled for retirement. This means cleaner air, cleaner water and healthier Americans.

Importantly, transitioning our country toward a cleaner energy future also means thousands of good-paying construction and manufacturing jobs.

All around the world - and in the United States - we're seeing significant and major steps forward in renewable energy. Solar power is on the rise in places like San Antonio, which is closing its coal-fired power plant and building 400 megawatts of solar energy. Thousands of megawatts of wind power are being built in neighboring Oklahoma and Texas, and wind power is becoming less expensive every day. Even Arkansas boasts large companies that produce windmill blades and turbines and employ hundreds of Arkansans. I'm sure that Dismang and all of us are glad those companies are here providing paychecks to families.

Getting our nation off coal and fossil fuels will not be an easy task. It's going to require a transition period. Here at the Sierra Club, we're working on a 20-year plan in which our nation stops building major polluters like coal-fired power plants, relies upon safely and responsibly drilled natural gas as a transition fuel during the next several years, and invests in improving our renewable energy technology to the highest, most productive level possible. That's the kind of national energy policy we need.

Americans, by nature, are problem-solvers. That same incredible, American-led innovation that has put men on the moon now produces fantastic, non-polluting energy.

I believe that our country can do much better than simply drilling and burning. We can produce clean energy, put hundreds of thousands of Americans to work and become a world leader. All it takes is a strong will to do so and the ability to step away from the dirty energy sources of the past.

(Department of Biography: Glen Hooks is a senior campaign representative and regional director for the Sierra Club's “Beyond Coal Campaign.” He is also a lifelong Arkansan and an Adjunct Professor at Pulaski Technical College. Mr. Hooks graciously granted me permission to republish his commentary in this blog, and he can be reached at Glen.Hooks@SierraClub.org.)

A Resource on Corporate Sustainability

One of the many challenges facing sustainable businesses is the need for reliable, comprehensive information about sustainable business practices.  Too often, folks in the sustainasphere are left to recreate the wheel when it comes to implementing a new sustainable enterprise.  One of the aims of this blawg is to fill those gaps.

In that spirit, here is a link to "Sustainable Business" section of The Guardian, a media news outlet in the United Kingdom.

Click, and you will find a vast collection of articles on sustainable businesses and sustainable business practices.

Enjoy!

Guardian Sustainable Businesses

Breaking News: Navy Makes Big Purchase from Tyson Foods' Biofuel Venture - ArkansasBusiness.com

Despite the fact that it is one of the biggest consumers of fuel and energy in the United States, the US military is one consistently under-rated player in the Arkansas sustainasphere and in the sustainasphere in general. We can expect that to change as renewable energy technologies advance and become more reliable, efficient, and affordable. Arkansas has significant renewable and sustainable energy potential, and is poised to be a beneficiary of innovation and investment spurred by the armed forces. Read here for an overview of the latest bioventure between an Arkansas company - Tyson Foods - and the U.S. Navy:

Navy Makes Big Purchase from Tyson Foods' Biofuel Venture - ArkansasBusiness.com

Sustainable Business Practices and Social Media Policies

One of the leading trends in sustainable business practices is the “paperless” office.  Given this preference for paperless, it is not surprising the owners of sustainable business are making substantial investments in technology, and can expect to have tech savvy employees who maintain a consistent and thorough electronic persona using social media resources like Facebook, YouTube, Twitter, LinkedIn, and Blogger – to name a few.

This means that in addition to the normal panoply of employee policies, sustainable business are going to need a “Social Media” policy – that is, a policy that defines when and how employees can use social media.  An example of a social media policy might be, “Employees are prohibited from using employer’s computers to access social media websites, and are prohibited from referring to the employer in any private use of social media web sites.

These policies the equivalent of a hidden pit lined with pointy sticks.  This is because they implicate employee privacy rights, free speech rights, and an employee’s right to engage in “concerted activity.”  (Department of Legal De-Mystification: “Concerted activity” is a phrase drawn from the National Labor Relations Act.  In broad, general strokes, it refers to an employee’s right to organize and to air grievances regarding the workplace.)

The first, and perhaps most important rule of social media policies is that best policies are narrowly drawn.  Here are some examples of policies found to be overbroad and unenforceable: 

• A policy prohibiting “inappropriate discussions about the company, management, and/or coworkers.”
• A policy prohibiting “revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent.”
• A policy prohibiting social media posts constituting “embarrassment, harassment or defamation of the [employer] or of any . . . employee, officer, board member, representative, or staff member.”
• A policy prohibiting employees from “making disparaging comments when discussing the company or the employee’s superiors, coworkers and/or competitors.”
• A policy prohibiting disclosure of “inappropriate or sensitive information” about the employer.
• A policy prohibiting “using the company name, address, or [similar] information” on the employee’s social media profile.
• A policy prohibiting use of “the Employer’s logos and photographs of the Employer’s store, brand, or product, without written authorization.”
• A policy prohibiting employees from “posting pictures of themselves in any media . . . which depict the Company in any way, including company uniform [or] corporate logo.”

So what can an employer prohibit?  The answer lies less in substance of the prohibition, but in the way in which it is communicated.  This leads to the second rule of social media policies: if you are an employer covered by the National Labor Relations Act, then your policy must inform employees that it does not prohibit criticism of workplace conditions or of the terms and conditions of employment and does not otherwise prohibit conduct protected under the National Labor Relations Act.

One good measure of whether a social media policy is overbroad is whether it subjects the employer to the temptation of disparate enforcement.  If the policy is so broad that if enforced all employees would be in violation, it is probably overbroad.  Likewise, if you, as the employer, are tempted to enforce the policy against one employee but not another, your policy is probably overbroad.

A corollary of the second rule is that social media policies should state and emphasize the legitimate business objectives that they seek to achieve.  Consider the following business justifications for limiting employee conduct through social media:

• Preventing and protecting employees from harassment and discrimination
• Protecting company confidential and proprietary information, including trade secrets, IP systems, and proprietary processes
• Protecting a company’s goodwill and reputation
• Prohibiting illegal conduct, including slanderous or libelous content

A social media policy accompanied by a “Purpose Statement” making plain that the policy is intended to achieve some or all of these objectives is much more likely to pass muster.

What about using employee social media postings as the basis for an adverse employment decision?  This gives us a fourth rule of social media policies, which is that employee posts that are made on the employee’s (as opposed to the employer’s) social media page, outside of working hours, and using private equipment, that refer to the employer or workplace, and are either aimed at or involve multiple employees are most likely protected and should not be used as the basis for either disciplinary action or termination.

One problem with social media is that employees can, and usually will, say just about anything online.  As a result, and not surprisingly, employers are generally tempted to use a social media policy as a sort of “do right rule” – that is, as a tool for getting the employee to use good judgment and to simply “act right.”  This leads to a fifth rule of social media policies: every social media policy should be accompanied by a set of guidelines that encourage employee behavior valued by the employer.  An example would be a guideline that encourages employees to be professional, polite, honest, and respectful in social media postings.  Such a guideline avoids the risk of an overbroad post while at the same time putting the employee on notice of the employer’s expectations.

A sixth, and, for the purposes of this post, final rule of social media policies is to that the policy should be publicly available on the employer’s website.  This is another means of clearly communicating the employer’s values, and it protects the employer from being attacked for enforcing a secret policy. 

This post is not intended to cover the waterfront regarding social media policies. Consider that at one time – albeit a time that now seems to have been shortly after the invention of dirt – employers did not have anti-harassment or anti-discrimination policies.  Now they are commonplace.  We are at a similar point in the evolution of social media policies, and the law regarding social media policies is evolving so quickly that employers must proceed, but with caution.  That leads to a final point, which I make at the risk of invoking the Attorney’s Full Employment Act: avoid “form” or “stock” policies.  Every employer is different, and every employer is going to have a different set of needs and justifications for a policy.  

SolarWorld v. The World (or at least China)

On November 9, 2011, the U.S. Department of Commerce announced that it will investigate claims advanced by a coalition of silicon solar manufacturers into whether Chinese solar manufacturers are engaged in illegal trade practices. The complaint, filed with the International Trade Commission, is commonly identified with the only known member of the coalition, SolarWorld. (According to the “Coalition for American Solar Manufacturing,” SolarWorld Industries America Inc., is “the largest U.S. producer of crystalline silicon solar cells and panels”.)

What, exactly, is the SolarWorld Complaint? Here is the summary found in the International Trade Commission’s Notice of Investigation:

The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigations . . . to determine whether there is reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports from China of crystalline silicon photovoltaic cells and modules . . . that are alleged to be sold in the United States at less than fair value and alleged to be subsidized by the Government of China.

Okay, so even without the statutory citations (which I omitted), that is a bona fide mouthful, and you are probably regretting your decision to read it. In plain language, SolarWorld complains that:

• The Chinese government heavily subsidizes the production of photovoltaic solar cells and panels;
• Those subsidized Chinese PV cells and panels have been illegally “dumped” on the U.S. market, which means they have been offered for sale in the U.S. at prices that are both below the cost of manufacture and so low that it is impossible for U.S. solar manufacturers to compete; and,
• China has done this intentionally.

As this sustainablawger has previously written, Arkansas is poised to emerge as a leader in renewable energy – both on the development side and on the manufacturing side. The Arkansas-specific question is what impact the SolarWorld Complaint, if successful, will have on our emerging renewable energy industry.

The answer is a decidedly mixed bag. On the one hand, and as vividly illustrated by the Solyndra bankruptcy, it is beyond debate that the price of silicon-based PV products has dropped precipitously. The price decline – some 40% over the course of a year – is widely attributed to an influx of Chinese solar panels. While this decline is devastating to manufacturers, it does have the effect of increasing the availability of solar technology and solar energy to consumers, which in turn leads to the creation of “green” jobs for installers.

On the other hand, a combination of tariffs and government subsidies would protect and promote domestic solar manufacturers, and this is necessary if these manufacturers are going to compete on an international playing field. Arkansas has been particularly successful recently in attracting renewable energy manufacturers, so there is some reason to expect that Arkansas would benefit from emboldened domestic solar manufacturers.

What can we expect next? According to one of SolarWorld’s lawyers, Timothy Brightbil: “Within the next 45 days the International Trade Commission will decide whether, preliminarily, whether the U.S. industry has been injured in part due to the Chinese imports. The Commerce Department will calculate dumping and subsidy margins and try to come up with a number to offset the effects of those Chinese imports. And that margin could start to be applied about six months into the case. Then there will be a final determination.” The ITC will issue its preliminary determination by December 5, 2011.

 

(Department of Case Numbers: The SolarWorld Complaint can be found on the U.S. International Trade Commission’s website, www.usitc.gov, as the active investigation captioned, “Crystalline Silicon Photovoltaic Cells and Modules from China, Investigations Nos. 701-TA-481 and 731-TA-1190 (Preliminary).”)