In FERC Enters the Trump Era, The agency announces staff-led Technical Conference as Trump administration expected to name new Commissioners, my colleagues Jeff Merrifield, Sheila McCafferty Harvey, Jeff Delaney, Meghan Claire Hammond and I discuss the Federal Energy Regulatory Commission’s much-anticipated announcement that occurred on March 3 regarding its upcoming staff-led technical conference on wholesale energy and capacity markets.
In Energy Storage: Finding New Home with FERC Policy Statement and Notice of Proposed Rulemaking, my colleagues Michael Hindus, Kevin Ashe, Meghan Claire Hammond and I discuss the Federal Regulatory Agency Commission’s (FERC) November 2016 notice of proposed rulemaking (NOPR), January 19 policy statement confirming that electric storage resources may be able to recover both cost-based and market-based rates, and market participates’ comments on the FERC’s NOPR. Market participants seeking to bring storage resources to the wholesale electricity marketplace are encouraged to consider the implications of these recent efforts to incorporate electric storage on a wider scale.
Earlier today, we published our client alert Trump Administration Seeks to Limit Coverage of Clean Water Act, Executive order to set out a new definition of “Waters of the United States” discussing a February 28, 2017 executive order directing that the Waters of the United States Rule (commonly referred to as the WOTUS Rule) be reviewed and revised or repealed. Although the executive order starts the process, its completion is expected to take at least a year or two given the formal administrative process required for repeal or replacement. In 2016, the WOTUS rule was stayed by the Sixth Circuit Court of Appeals pending further action. The repeal will be significant for project developers, such as solar projects and real estate developers, as well as for farmers and ranchers, mining companies and other energy companies. More administrative actions are expected given the aggressive approach by the Trump Administration to roll back the Obama Administration’s regulation on this issue.
Additional Source: Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule; Construction Industry to See Greater Federal Footprint in Projects with New “Waters of the United States” Rule
Anyone doing international construction work knows that the U.S. Securities and Exchange Commission’s (SEC) has been continually increasing its Foreign Corrupt Practices Act (FCPA) focus on U.S. companies doing business overseas. Here’s the latest: Recently my colleagues William Sullivan, Reza Zarghamee and Fabio Leonardi wrote an interesting piece, New SEC Payment Disclosure Rules Raise FCPA Concerns for Energy Companies, on the SEC June 27, 2016 announcement that it had adopted final rules requiring public disclosure, among other things, of certain payments made to foreign governments by resource extraction issuers in connection with the commercial development of oil, gas and mineral rights. These disclosure requirements are expected to raise FCPA enforcement concerns for energy companies, as both the SEC and the U.S. Department of Justice will scrutinize this information for cause to open parallel investigations and potentially pursue issuers for alleged FCPA violations.
Photo: Sean MacEntee, energy, Taken May 19, 2010 – Creative Commons
In 2014, the NRC promulgated a “Continued Storage Rule” followed by the Nuclear Regulatory Commission’s (NRC) issuance of a Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities (NUREG-0586) to support the Rule. On June 3, 2016, the U.S. Court of Appeals for the DC Circuit, in State of New York, et al., v. Nuclear Regulatory Commission, et al., rejected the arguments made by “several states, a Native American Community, and numerous environmental organizations” objecting to the Rule and generic EIS concerning the “continued, and possibly indefinite storage” of spent nuclear fuel generated by nuclear power plants operating in the United States.
In Implications for the Power Sector of Recent Rulings by U.S. Supreme Court and FERC, Pillsbury attorneys Michael Hindus, Andrew Weissman, and Katherine Vorhis discuss an important issue the power industry is currently facing — the tension federal and state roles in power supply planning. Of note, is the U.S. Supreme Court’s April 19 decision in Hughes v. Talen Energy Marketing LLC et al. wherein the Court struck down on federal pre-emption grounds a Maryland program intended to support construction of a new 725 MW natural gas-fired generating plant in Maryland after concluding that the program invaded “FERC’s [exclusive] regulatory turf” over determination of wholesale rates for electricity. This was followed within days by FERC blocking the implementation of two Purchase Power Agreements approved by the Ohio Public Utilities Commission just days later. The tension likely will continue, and the sparring over this issue could intensify, given the states’ efforts to support continued operation of existing generating units and construction of new plants.
California Assembly Bill 2699 (Gonzalez) is a bill to watch if you are a home improvement contractor that installs solar energy systems or, for that matter, a contractor in California. AB 2699 would, among other things, require the Contractors State License Board (CSLB) to develop a “solar energy system disclosure document” and, in turn, require solar energy systems companies to provide this document to its customers prior to the completion of a sale, financing, or lease of a solar energy system.
AB 2699 would also require the CSLB to establish through regulation requirements for a contractor to maintain a blanket performance and payment bond for the purpose of solar installation work and, of particular note, even with this bond, the contractor will be subject to the down-payment restriction set forth in California Business & Professions Code § 7159.5(a)(8). If this bill is signed into law, this latter requirement will certainly translate into increased costs for contractors that currently do not have in place a blanket performance and payment bond. In turn, as a practical matter, this lIsley will translate into higher costs for consumers who want to install a solar system because such costs will trickle down to them. There may also be pressure put on others in the industry to reduce costs to make up for this increase in costs.
In Five Things You Need to Know About the Extension of the ITC/PTC, Pillsbury partners Nick Sarad and Tom Morton, and senior law clerk Andrés Berry discuss the 2016 Consolidated Appropriations Act (H.R. 2822) and the extension of federal income tax credits for solar, wind and certain other renewable energy facilities.
Photo: Chris Potter, 3D Green Footprint, Taken December 7, 2012 – Creative Commons
Get ready wind, solar, biomass, and geothermal energy and transportation electrification contractors! On October 7, 2015, California Governor Jerry Brown signed into law the “Clean Energy and Pollution Reduction Act of 2015.” The objectives of the Act are: (1) to increase from 33% to 50% (by December 31, 2030), the procurement of our electricity from renewable sources; and (2) to double the energy efficiency savings in electricity and natural gas final end uses of retail customers through energy efficiency and conservation. These lofty goals are to be achieved by implementation of the California Renewables Portfolio Standard (RPS) Program, a program established in 2003. Notably, the Act includes a legislative finding that “a principal goal of electric and natural gas utilities’ resource planning and investment shall be… to encourage the diversity of energy sources through improvements in energy efficiency, development of renewable energy resources, such as wind, solar, biomass, and geothermal energy, and widespread transportation electrification.” This bill reflects California’s persistence in its efforts to turn to reliance on renewable energy. In effect, this should mean the continued growth in opportunities for contractors working in renewable energy areas.
UPDATE: Stevens Wins Solar Decathlon 2015 — CONGRATULATIONS!
The U.S. Department of Energy’s Solar Decathlon is a biennial event that challenges collegiate teams to design, build, and operate solar-powered houses that are cost-effective, energy-efficient, and attractive. The winning team will be the one that best blends affordability, consumer appeal, and design excellence with optimal energy production and maximum efficiency. The Solar Decathlon U.S. 2015 will take place October 8 through 18 at the Orange County Great Park in Irvine, California.