In Sixth Circuit Rejects Clean Air Act Preemption of State Common Law Claims: Four Things to Know, Pillsbury attorneys Matt Morrison and Bryan Stockton explore the Six Circuit Court of Appeals recent rejection of Clean Air Act, 42 U.S.C. §§ 7401 et seq. (CAA), preemption of state common law claims in Merrick, et al. v. Diageo Americas Supply, Inc. and Little et al. v. Louisville Gas & Electric Company; PPL Corporation. The takeaway is that a facility that is otherwise in compliance with CAA emission requirements can still face lawsuits by neighboring landowners for traditional torts such as nuisance and trespass. Merrick and Little add to the foundation of precedent across the Second, Third, and Sixth Circuits, and Iowa Supreme Court.
Today, Pillsbury attorneys Jim Glasgow and Elina Teplinsky posted their client advisory DOE Issues the Part 810 Final Rule: Summary and Compliance Steps for Industry. The Advisory discusses the U.S. Department of Energy’s (DOE) final rule amending its regulations at 10 C.F.R. Part 810 on “Assistance to Foreign Atomic Energy Activities” (“Part 810”). The rule takes effect on March 25, 2015. The rulemaking to amend Part 810, which the DOE has been undertaking since it published in the Federal Register a notice of proposed rulemaking (NOPR) seeking to amend Part 810 on September 7, 2011, constitutes the most substantial change to these foreign nuclear assistance regulations since 1986 and, arguably, in the history of Part 810.
Today, Pillsbury attorneys Daryl Shapiro, Tim Walsh, Rebecca Carr Rizzo and Keith Hudolin posted their advisory titled The Ninth Circuit Provides Clarity on ERA Whistleblower Protections. The Advisory discusses the Ninth Circuit’s November 7, 2014 ruling in Tamosaitis v. URS Inc. In its Tamosaitis ruling, the Ninth Circuit provided clarity on three key aspects of the whistleblower protections afforded under the Energy Reorganization Act (ERA), 42 U.S.C. 5801 et. seq. This decision has important implications for employers facing ERA whistleblower claims.
If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Daryl Shapiro, Tim Walsh, Rebecca Carr Rizzo, or Keith Hudolin, the authors of this blog.
Yesterday, Pillsbury attorneys Michael Hindus, Eric Save and John McNeece published their advisory titled Mexico’s Guidelines for Clean Energy Certificates Will Support Renewable Energy Development. The Advisory discusses, as part of a historic restructuring of its electrical power sector, Mexico’s creation of a market for tradable Clean Energy Certificates, which many industry participants will be required to obtain. Draft guidelines proposed by the Mexican Ministry of Energy set forth the criteria for granting these clean energy certificates, a framework for buying and selling them, and a procedure for establishing the obligations of market participants to obtain the certificates. Final guidelines will be issued shortly.
Four energy companies – Pathfinder Renewable Wind Energy, Duke-American Transmission, Dresser-Rand, and Magnum Energy – have jointly proposed an $8 billion plan to supply Los Angeles with more than twice the amount of electricity generated by the Hoover Dam. According to Duke Energy, the proposal would require construction of “one of America’s largest wind farms in Wyoming, one of the world’s biggest energy storage facilities in Utah, and a 525-mile electric transmission line connecting the two sites.” The compressed air storage facility in Utah – consisting of four vertical chambers, each approaching the size of the Empire State Building, carved from an underground salt formation – would yield 1,200 megawatts of electricity, which is enough to serve 1.2 million homes in the Los Angeles area.
Renewable energy producers have long struggled with how to deliver electricity when times of high demand do not coincide with times of peak energy production. For example, solar power typically peaks during midday, when energy demand is lower. The wind power proposal for Los Angeles, however, boasts the desirable pairing of energy storage with renewable energy. Under the proposal, when power demand is low and wind is high, the storage facility would use the excess electricity from the wind farm to compress and inject high-pressure air into the chambers for storage. During times of high power demand, the facility would use the stored, compressed air, combined with a small amount of natural gas, to drive eight generators to produce electricity.
The proposal will be formally submitted to the Southern California Public Power Authority by early 2015 in response to the agency’s request for proposals to provide renewable energy and electricity storage for the Los Angeles area. With energy demand in the area predicted to rise by as much as 18 percent by 2024, this proposal, which has a target in-service date of 2023, could provide a desirable green solution to Los Angeles’s impending energy crisis. But this is hardly a done deal. The proposal must first be selected from the many expected to be submitted to the agency, and its sponsors must then be able to clear regulatory hurdles and secure financing by entering into agreements for the sale of power.
A video with more information about the proposal can be found here.
Yesterday, Pillsbury attorneys John McNeece, Eric Save and Michael Hindus published their advisory titled Mexico’s Energy Reform Provides Significant Opportunities in Oil and Gas Exploration and Production. The Advisory discusses Mexico’s new energy legislation, which went into effect on August 12, 2014 and which will completely restructure the Mexican energy sector, including both hydrocarbons and electricity. This legislation opens up oil and gas exploration and production (“E&P”) to the private sector, through authorization of new contract arrangements with the Mexican State or with PEMEX, while reaffirming Mexico’s ownership of hydrocarbons in the ground. Mexico’s opening to the private sector will generate numerous opportunities for E&P operators, the E&P arms of international oil and gas companies, suppliers, and investors.
In the U.S. Department of Energy Solar Decathlon, 20 collegiate teams compete to design, build, and operate solar-powered houses that are affordable, attractive, and easy to live in, maintains comfortable and healthy indoor environmental conditions, supplies energy to household appliances for cooking, cleaning, and entertainment, provides adequate hot water, and produces as much or more energy than it consumes. The winner of the Decathlon will be “the team that best blends affordability, consumer appeal, and design excellence with optimal energy production and maximum efficiency.”
The free and open to the public 2013 Decathlon & XPO that will be held October 3-13, 11 a.m. to 7 p.m. daily, at Orange County Great Park in Irvine, California, will include “a clean, renewable, and efficient energy exposition, featuring visionary and innovative companies, products, and educational opportunities.”
The Decathlon’s purpose is to educate students and the public about the money-saving opportunities and environmental benefits presented by clean-energy products and design solutions, to demonstrate to the public the comfort and affordability of homes that combine energy-efficient construction and appliances with renewable energy systems available today, and to provide participating students with unique training that prepares them to enter our nation’s clean-energy workforce. Through fun, interactive exhibits and activities, the Decathlon & XPO will also help “educate visitors about the broad spectrum of energy efficiency in home design, transportation, consumer products, food production and education.” Exhibitors will showcase their company and energy-efficient products, resources, and ideas to consumers, homebuilders, municipalities, government agencies, businesses, and more, and speakers will showcase their work, research, and expertise in clean, efficient, and renewable enterprises.
The 2013 Decathlon teams are:
Arizona State University and The University of New Mexico
Czech Republic: Czech Technical University
Kentucky/Indiana: University of Louisville, Ball State University and University of Kentucky
Missouri University of Science and Technology
Santa Clara University
Southern California Institute of Architecture and California Institute of Technology
Stevens Institute of Technology
Team Alberta: University of Calgary
Team Austria: Vienna University of Technology
Team Capitol DC: The Catholic University of America, George Washington University, and American University
Team Ontario: Queen’s University, Carleton University, and Algonquin College
Team Texas: The University of Texas at El Paso and El Paso Community College
Tidewater Virginia: Hampton University and Old Dominion University
University of Nevada Las Vegas
The University of North Carolina at Charlotte
University of Southern California
West Virginia University
The first Solar Decathlon was held in 2002; the competition has since occurred biennially in 2005, 2007, 2009, and 2011. In October of 2007, the Spanish and U.S. governments signed a memorandum of understanding to create Solar Decathlon Europe, a complementary competition to the U.S. Department of Energy Solar Decathlon. Spain hosted the first two of these competitions in 2010 and 2012. In 2014, Solar Decathlon Europe will move to Versailles, France. Solar Decathlon China is the most recent addition to the international family of Solar Decathlon competitions. The first Solar Decathlon China began on August 2 and will continue through August 13, 2013, at in Datong, China.
Information for schools interested in participating in the 2015 U.S. Department of Energy Solar Decathlon is also available. A U.S. Department of Energy funding opportunity announcement is tentatively expected on the following timeline: (1) Issue date: Aug. 26, 2013, (2) Due date: Nov. 4, 2013, and (3) Notification date: Jan. 15, 2014.
Photo © October 13, 2007, JoshBerglund19 – creative commons.
The Milwaukee Public Museum’s 8-story tower’s marble façade facing West Wells Street is being replaced with 234 solar panels. It was reported that, over the past 50 years, the Museum’s heavy marble façade on the south wall facing West Wells Street has weathered and become less stable. Milwaukee County, which owns the building, reportedly elected to use solar panels as the replacement option because of the energy-generating potential of solar. The Museum’s solar wall is expected to generate 77,533 KW hours of electricity per year, the equivalent of having 442, 60-W light bulbs on for 8 hours every day for an entire year. For now, the Museum will be the only building in Milwaukee with a full solar wall that is generating electricity.
It was reported that Milwaukee-based manufacturer Helios USA has been contracted to produce the Museum’s solar panels. Construction is expected to last approximately 5 months, commencing Monday, July 29. The initial phase, which will involve removal of the existing marble façade, is expected to take 4 weeks.
Photo © March 10, 2006, fitzgene – creative commons.
UPDATE: Natural Resources Defense Council Staff Blog, Great News: NY Governor Cuomo Pledges $1 Billion For Solar (Jan. 8, 2014)
On July 17, 2013, New York Governor Andrew M. Cuomo announced that the State University of New York’s (SUNY) College of Nanoscale Science and Engineering (CNSE) will revitalize a vacant Kodak cleanroom building in Rochester, “transforming it into a first-of-its-kind CNSE Photovoltaic Manufacturing and Technology Development Facility (CNSE MDF) for crystalline silicon photovoltaics, part of a $100 million initiative that will attract solar energy jobs and companies to the Greater Rochester Area.” This effort will also include the acquisition and relocation to the CNSE MDF of “the assets of Silicon Valley solar company SVTC as part of a $100M initiative that will create over 100 high-tech jobs and positions New York as the national leader in accelerating innovative solar technologies.”
The project is expected to set “a precedent for further investment in this green industry in New York State” and to “attract additional investments from companies around the world and accelerate our development and use of solar energy,” growing New York’s clean energy economy. It is reportedly the “first initiative as part of the project will relocate a critical component of the U.S. Department of Energy’s (DOE) SunShot initiative from California’s Silicon Valley to Upstate New York, positioning New York as the recognized national leader in accelerating the development and use of solar energy nationwide.”
Renovation of the former Kodak’s MEMS inkjet facility is underway to transform the 57,000-square-foot building at 115 Canal Landing Boulevard in the Canal Ponds Business Park. The initiative will include the fitting up of a state-of-the-art, 20,000-square-foot cleanroom. The press release confirms that a late fall opening is anticipated.
As part of the CNSE MDF project, it was reported that “over $19 million in cutting-edge tools and equipment formerly utilized by SVTC, a Silicon Valley-based solar energy company, are being relocated to the CNSE MDF and will constitute the foundation of the manufacturing development line, a result of the acquisition of SVTC’s assets by CNSE.” It further confirmed that the U.S. Department of Energy “is providing nearly $11 million in cash funding to support procurement and installation of high-tech tools and equipment, with investment from private industry partners expected to exceed $65 million to support the development and operation of the CNSE MDF.” In addition, it was reported that, “[t]o support the project, New York State will invest $4.8 million through the New York State Energy Research and Development Authority (NYSERDA).” New York’s investment is to be directed entirely to CNSE with no private company to receive any state funds as part of the initiative.
This is to be the solar industry’s first full-service collaborative facility dedicated to advancing crystalline silicon, or c-Si technologies. The CNSE MDF will provide a range of services and equipment, including complete manufacturing lines, access to individual tools, secure fab space for users’ proprietary tools, and pilot production services in an intellectual property secure environment. It is expected that the CNSE MDF will attract solar industry companies to New York to access a state-of-the-art resource that will dramatically reduce the cost, time, and risk associated with transitioning innovative solar technologies from research to commercial manufacturing of crystalline silicon photovoltaics. It is also expected to play a critical role in the national effort to develop a strong photovoltaic (PV) manufacturing industry, and serve to accelerate the introduction and use of solar energy in homes and businesses across the country. Among other things, it is expected to enable education and training to support the expansion of the highly skilled workforce required by the U.S. PV manufacturing industry.
The establishment of the CNSE MDF for c-Si PV technology is also expected to complement and expand the capabilities and expertise of the national U.S. Photovoltaic Manufacturing Consortium (PVMC), headquartered at CNSE as part of the DOE’s SunShot Initiative. The PVMC is reportedly leading the national effort to reduce the cost of installed solar energy systems from $5 per watt to less than $1 per watt over the next 10 years.
Governor Cuomo’s announcement comes on the heels of his July 9, 2013 announcement that $54 Million will be awarded to fund 79 large-scale solar power projects across the State of New York, adding 64 MWs to the state’s solar capacity.
Photo © July 1, 2011, Deutsche Bank, All Rights Reserved, Creative Commons.
UPDATE: Sacramento Business Journal, California hits solar power record, twice (Mar. 11, 2014); The Huffington Post, California More Than Doubles Solar Energy In 2013 (Jan. 13, 2014): “California installed more megawatts of solar energy in 2013 than it did in the last 30 years combined, the California Solar Energy Industries Association reported … ‘Today, California is closing out the year with more than 2,000 MW of rooftop solar systems installed statewide,’ CALSEIA executive director Bernadette Del Chiaro said.”
On July 10, the California Public Utilities Commission (CPUC) issued its California Solar Initiative Annual Program Assessment on the progress of the California Solar Initiative (CSI). The Assessment reflects that the program has installed 66% of its total goal with another 19% reserved in pending projects. This is an estimated 1,629 MW of installed solar capacity at 167,878 customer sites in the investor-owned utility territories through the end of the first quarter of 2013. The CPUC estimates that this is enough to power approximately 150,000 homes and avoid building three power plants. To read the Assessment, click California Solar Initiative Annual Program Assessment.
In January 2007, California began an $3.3 billion ratepayer-funded effort to install 3,000 MW of new solar over the next decade and transform the market for solar energy by reducing the cost of solar generating equipment. The CPUC’s portion of the solar effort is known as the CSI. The CPUC boasts that is the country’s largest solar program and has a $2.2 billion budget and a goal of 1,940 MW of solar capacity by the end of 2016.
CPUC’s Assessment includes the following highlights:
- A record 391 MW were installed statewide in 2012, a growth of 26% from 2011.
- Pacific Gas and Electric Company achieved the most installations in the non-residential sector of any investor-owned utility, having met 70% of their non-residential installation goal.
- Applicants to the low income portion of CSI, known as the “Single-Family Affordable Solar Homes” program, have received $64 million in support for their residential solar systems while the “Multifamily Affordable Solar Housing” (MASH) program has completed 287 projects representing a total capacity of 18.4 MW. There are an additional 83 MASH projects in process, for a total capacity of 11.3 MW. “Virtual Net Metering” has facilitated thousands of tenants receiving the direct benefits of solar as reductions in their monthly electric bills.
- In just over 3 years of operation, the CSI-Thermal program has received 1,215 applications for $56.3 million in incentives.
- All but 92 MW, or 6%, of solar capacity in the state is signed up for Net Energy Metering (NEM) tariffs. Pursuant to California Assembly Bill 2514 and CPUC Decision 12-05-036, the CPUC has initiated a study on the costs and benefits of NEM to ratepayers. The study is expected to be released later this year.
Additional Resources: Solar Industry, California More Than Doubles Solar Power Market In 2013 (Dec. 31, 2013)