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Seth Kirshenberg Authors Article in ABA’s Procurement Lawyer on Implementing Climate Change Strategies

News | November 1, 2021


Kutak Rock partner Seth Kirshenberg co-authored the article “Roadmap to Implementing Climate and Resilience Goals: Federal Agency Solutions” for the October 2021 issue of The American Bar Association’s Procurement Lawyer. The article outlines tools to assist the federal government to achieve the goals of the Executive Order 1408 (EO 1408) addressing the threat of global climate change.  Further, as COP26 begins this article identifies current tools the Administration can use to implement its climate change strategies.

“Federal procurement can be a powerful initiative to drive, among other activities, greater adoption of carbon-free energy sources by federal agencies,” Kirshenberg points out in the article. “As the largest power purchaser in the country, the federal government affects the types and cost of power available for the entire United States and can potentially increase the market for carbon-free electricity. The key to implementing the policy will be whether individual federal agencies, especially those with large power requirements, will implement the policies quickly and on a large scale.  Currently, DOE is investing in generation facilities at one its largest sites that will be run on diesel fuel.  Our paper outlines how the Administration can change its purchasing to clean energy sources.

Highlighted recommendations include:

Recommended improvements to legal authority

  • Empower GSA and DOE to authorize agreements for up to 40 years
  • Enable current authorities to execute virtual PPAs
  • Enable all federal agencies to authorize PPAs

Empower agencies through executive order

  • Clarify legal authorities and the use of federal power marketing agencies
  • Address needs of financial community
  • Develop appropriate budget scoring

Recommendations for federal agency leaders 

  • Prioritize carbon-free energy
  • Create accountability measures for meeting carbon-free energy goals
  • Acknowledge that carbon-free energy may cost more than fossil fuels in the short run
  • Utilize Agency offices that purchase the power and manage the real estate to implement the programs
  • Accelerate currently planned projects
  • Create teams and develop expertise to implement carbon-free energy projects
  • Accelerate ESPC/UESC use

Seth Kirshenberg is a co-leader of Kutak Rock’s energy practice, where he has led and closed billions of dollars in clean energy and energy efficiency projects with his clients.