In Americans for Clean Energy, et al v. EPA, decided July 28, 2017, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Environmental Protection Agency’s (EPA) 2015 rule establishing renewable fuel volume obligations for the years 2014 through 2017, with one exception: the court held that EPA cannot consider demand-side constraints in setting annual renewable fuel volumes.
In a breakthrough for offshore wind energy in the United States, construction of the Block Island Wind Farm, the first U.S. offshore wind farm, was completed in August 2016 about 30 miles off the coast of Rhode Island. The project began delivering power to the New England grid on May 5 of this year. While Block Island is a big step forward for the industry, broad public support for offshore wind farms in the U.S. has been lacking due in large part to concerns about aesthetics when the turbines are visible from land. As demonstrated by the collapse of the Cape Wind project in 2014 off the coast of Martha’s Vineyard, failure to get public buy-in can be fatal to a project.
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 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 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 and Reza Zarghamee 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 attorney Michael Hindus, discusses 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 partner Tom Morton discusses 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