Archive: 2017

1
DOE Directs FERC to Issue Grid Resiliency Rules Providing Cost Recovery for Traditional Baseload Generation
2
Suniva Injury Finding Announced: Solar Import Remedies Heading to a Political Decision
3
K&L Gates Blockchain Energizer – Volume 13
4
Please Join Us: Energy Storage, Distributed Generation, and the Evolving Grid: Policy Developments and Market Opportunities
5
Halftime in California — Which Climate and Environmental Bills Are on the Board?
6
K&L Gates Blockchain Energizer – Volume 12
7
Puget Sound Energy Solicits Proposals for Green-Powered Electricity Resources
8
Renewable Fuel Standard – RIN Roundup
9
K&L Gates Blockchain Energizer – Volume 11
10
FERC Seeks Additional Comments on Proposed Primary Frequency Response Requirements for Electric Storage and Small Generating Facilities

DOE Directs FERC to Issue Grid Resiliency Rules Providing Cost Recovery for Traditional Baseload Generation

By Molly Suda, William M. Keyser, Donald A. Kaplan and Elizabeth P. Trinkle

UPDATE 10/5/17: On October 4, 2017, pursuant to authority delegated to the Director of the Office of Energy Policy and Innovation, FERC Staff issued a request that comments filed regarding DOE’s proposed rulemaking address specific questions “in order to assist Staff in understanding the implications of the proposed rule.” The request includes several categories of questions regarding the proposed rule, including the need for reform; eligibility (including with respect to the 90-day fuel supply requirement); implementation concerns; and impact on wholesale market rates. The request also asks commenters to address the timeline for compliance with a final rule; the impact of the proposed rule on consumers; and any alternative approaches that could be taken to accomplish the goals of the proposed rule.

UPDATE 10/3/17: On October 2, 2017, FERC issued a Notice Inviting Comments on DOE’s proposed rulemaking. Initial comments are due on October 23, 2017. Reply comments are due on November 7, 2017. FERC has docketed the proceeding at RM18-1-000.

On September 28, 2017, using the Secretary of Energy’s authority under Section 403 of the Department of Energy Organization Act, the Department of Energy (“DOE”) proposed a rule for final action by the Federal Energy Regulatory Commission (“FERC”). The rule would allow certain traditional baseload generators, such as coal and nuclear plants, to “fully recover costs” to maintain the reliability and resiliency of the electric grid. DOE is requiring FERC to consider and take final action on the proposed rule within 60 days after publication in the Federal Register. In the alternative, Secretary of Energy Rick Perry urges FERC to issue the proposed rule as an interim final rule, effective immediately. The proposed rule has the potential to significantly impact the wholesale electricity markets, implicate a host of issues related to pricing, and draw strong objections from the oil and gas industry.

Read More

Suniva Injury Finding Announced: Solar Import Remedies Heading to a Political Decision

In response to a petition by bankrupt U.S. solar panel manufacturer Suniva Inc., today the U.S. International Trade Commission (“ITC”) issued a finding that low-cost solar panel imports have caused “serious injury” to the domestic manufacturing sector.

It is widely believed that trade sanctions from this decision could cause price increases on the most commonly used type of solar panels, and therefore significant harm to the U.S. solar industry and corporate energy consumers.  By early November, the ITC will recommend a remedy, which will go to the White House for a final decision within three months.

The ITC’s injury finding generally applies to solar panel imports from all countries.  However, the ITC also is required to separately consider whether imports from countries with which the U.S. has a Free Trade Agreement (“FTA”) account for a substantial share of total imports and are contributing “importantly” to the serious injury.  In this case, the ITC made affirmative injury findings for imports from FTA countries Mexico and Korea, which will be included in the determination of remedies. The ITC made negative findings with respect to the other FTA countries, including Canada, which therefore will not be subject to such remedies.

The stakes are high.  Industry experts have said that by increasing the cost of panels, the tariffs sought by Suniva could have a negative impact of more than $50 billion on the U.S. solar industry.  More than 88,000 jobs in the solar supply chain could be eliminated, and 47 gigawatts of solar installations could be cancelled in the next five years.  Major corporate energy consumers relying on solar to meet sustainability commitments could see costs of installed utility-scale projects more than double.  It is unclear whether raising tariffs, especially to levels requested by Suniva, would significantly boost domestic panel manufacturing or create new jobs.

The ITC remedy recommendations will go to the White House, which has authority to impose whatever remedies President Trump chooses.  There is opposition to tariffs across the political spectrum, with commenters ranging from The Wall Street Journal and the Heritage Foundation on the right to the Solar Energy Industries Association (SEIA), environmental groups, and labor unions on the left, all arguing that imposing tariffs would harm U.S. economic interests.  Despite this broad opposition, the solar industry is very concerned that President Trump may view tariffs favorably as appearing to make a strong statement in favor of U.S. manufacturing and against Chinese trade imbalance.

The outcome of the remedy may be heavily influenced by political calculations.  SEIA and a number of industry coalitions will respond to the ITC decision with vigorous political advocacy, making the case to the White House and Congress that tariffs on solar panel imports would be counterproductive.  Another group, the American Solar Jobs Coalition, is working to build a path forward that “will support all aspects of the U.S. solar industry and ensure that the President’s decision will allow the solar industry to continue to support American businesses and drive American prosperity.”  Companies in the solar sector and clean energy consumers should actively monitor the outcome of this matter, and consider strategic responses in the event significant trade sanctions are imposed.

For more information on the Suniva proceeding, contact Elias Hinckley, Stacy Ettinger, or Jim Wrathall of K&L Gates.

Elias B. Hinckley
+1.202.778.9091
elias.hinckley@klgates.com

Stacy J. Ettinger
+1.202.778.9072
stacy.ettinger@klgates.com

James R. Wrathall
+1.202.778.9092
jim.wrathall@klgates.com

K&L Gates Blockchain Energizer – Volume 13

By Molly Suda, Buck B. Endemann, and Ben Tejblum

There is a lot of buzz around blockchain technology and its potential to revolutionize a wide range of industries from finance and healthcare to real estate and supply chain management. Reports estimate that over $1.4 billion was invested in blockchain startups in 2016 alone, and many institutions and companies are forming partnerships to explore how blockchain ledgers and smart contracts can be deployed to manage and share data, create transactional efficiencies, and reduce costs.

While virtual currencies and blockchain technology in the financial services industry have been the subject of significant debate and discussion, blockchain applications that could transform the energy industry have received comparatively less attention. Every other week, the K&L Gates’ Blockchain Energizer will highlight emerging issues or stories relating to the use of blockchain technology in the energy space. To subscribe to the Blockchain Energizer newsletter, please click here.

IN THIS ISSUE

  • Trusted IoT Alliance Launches to Foster Interoperability Across Blockchain Platforms
  • New York Energy Service Company Using Blockchain Technology to Lower Customer Bills
  • HyperLedger Composer Demo Explores Creation of Decentralized Energy Networks

To view more information on theses topics in Volume 13 of the Blockchain Energizer, click here.

Please Join Us: Energy Storage, Distributed Generation, and the Evolving Grid: Policy Developments and Market Opportunities

Please join us at our Washington, D.C. office on Wednesday, October 11 for a day of insightful discussions with other leading energy professionals on the evolving opportunities and challenges in the energy storage and distributed energy resource industries. Our experienced panelists will discuss the rapidly changing regulatory landscape of energy storage and DER industries, and share real life stories on how these changes are shifting markets and creating new opportunities for utilities, developers, consultants, and financiers.

Agenda topics will include:

  • Federal and state regulatory developments and predictions – and the corresponding market creation and disruption
  • Will the President’s Agenda on Energy and Infrastructure Impact the Development of Markets for Storage and Distributed Energy Resources
  • Monetization and Financing for Energy Storage Projects
  • How Technology and Innovation are Affecting the Utility Business Model and Creating Opportunities for Storage and DER Development

After the program, please join us for a networking reception.

To learn more about this event and to register, click here.

This event is hosted in partnership with the Energy Storage Association and the Edison Electric Institute.

Halftime in California — Which Climate and Environmental Bills Are on the Board?

By Buck B. Endemann and Molly Suda

The California legislature conducts its business in two-year sessions starting on the first Monday in December following an election. Last Friday, September 15, 2017, marked the last day for the California legislature to pass bills before a long interim recess lasting until January 3, 2018. Over the past nine months, the first half of the 2017–2018 legislative session saw a flurry of bills fueled by climate goals and the speculation of eroding federal support for environmental regulation.

Below is a summary of the primary successful and not-so-successful climate and environmental bills that were debated right down to the halftime whistle. On the whole, California made incremental progress in funding clean transportation efforts and incentivizing the deployment of energy storage systems, distributed energy resources, and energy efficiency strategies. While some of California’s grander schemes like the 100% Renewable Portfolio Standard (RPS) and California Independent System Operator (CAISO) regionalization fell short, Senate President Pro Tem Kevin de León has vowed to carry those efforts into the second half of the 2017–2018 session. K&L Gates’ energy and environmental attorneys will continue to monitor California’s progress toward its bold climate and environmental goals.

Read More

K&L Gates Blockchain Energizer – Volume 12

By Molly Suda, Buck B. Endemann, and Ben Tejblum

There is a lot of buzz around blockchain technology and its potential to revolutionize a wide range of industries from finance and healthcare to real estate and supply chain management. Reports estimate that over $1.4 billion was invested in blockchain startups in 2016 alone, and many institutions and companies are forming partnerships to explore how blockchain ledgers and smart contracts can be deployed to manage and share data, create transactional efficiencies, and reduce costs.

While virtual currencies and blockchain technology in the financial services industry have been the subject of significant debate and discussion, blockchain applications that could transform the energy industry have received comparatively less attention. Every other week, the K&L Gates’ Blockchain Energizer will highlight emerging issues or stories relating to the use of blockchain technology in the energy space. To subscribe to the Blockchain Energizer newsletter, please click here.

IN THIS ISSUE

  • Energy Web Foundation Moves Forward with Blockchain Applications in the Energy Sector
  • Japan Is the Latest Country to Test a Blockchain-Powered Energy Grid
  • Authors of the Blockchain Energizer Presenting at E4 Carolina’s “Demystifying Blockchain Technology” Seminar

To view more information on theses topics in Volume 12 of the Blockchain Energizer, click here.

Puget Sound Energy Solicits Proposals for Green-Powered Electricity Resources

By David L. BensonWilliam H. HolmesDavid P. Hattery, and Kristen A. Berry

On August 18, 2017, Puget Sound Energy (PSE) issued a Request for Proposals for the supply of renewable energy. Washington law requires that all electric utilities provide to their retail customers the option to purchase “qualified alternative energy resources” (RCW 19.29A.090). “Qualified alternative energy resources” range from wind and solar to hydropower and biomass.

PSE offers the three programs under which its customers may purchase renewable energy: Green Power, Solar Choice, and Green Direct. While the first two programs involve purchases of renewable energy credits (RECs) by residential, small commercial, and municipal customers, the Green Direct program encompasses long-term partnerships for renewable energy between PSE and large, commercial customers. The resources that PSE procures under this RFP may also be used to support a community solar program, if PSE chooses to develop one. PSE’s customers have provided input on what they wish to purchase, identifying wind and solar as the primary resources of interest. However, in this RFP PSE is willing to consider other offerings, including certified low-impact hydropower and biogas/anaerobic methane projects, as provided for in RCW 19.29A.090. Resources procured under this RFP will be in addition to resources to be acquired under Washington’s Energy Independence Act, RCW 19.285.

RFP respondents should be prepared to offer generation options that complement one of these three programs. Green Direct’s project capacity is limited to an expected annual production of 33 aMW. Alternatively, resources devoted to the Green Power and Solar Choice programs must be both under 5MW and located in the states of Washington or Oregon.

PSE will also consider selecting solar projects of different scales to support a community solar program. With respect to community solar, projects that meet the definition provided for in SB 5939 are preferred, including that the project be located in PSE’s service territory and retain eligibility for state incentives both by maintaining a maximum metering increment of 1000 kW and by connecting directly to the PSE system. The individual project size is flexible as long as it does not exceed 10 MW. For these solar projects, PSE prefers an online date of June 30, 2018 or earlier.

PSE will acquire energy generation from respondents through either (1) ownership arrangements or (2) a power purchase agreement with a term of at least four years (including power bridging agreements). PSE will consider several approaches to acquiring ownership or ownership interests in renewable energy projects, such as:

  • Implementing co-ownership arrangements with respondent while retaining dispatchability and control rights;
  • Purchasing development rights from respondent;
  • Entering into joint development agreements;
  • Transferring the interests to itself while respondent remains in charge of the development; or
  • Dividing the process into steps, with PSE’s purchase of power preceding its eventual receipt of ownership interests.

For power purchase agreements, respondents may only propose power purchase agreements of four or more years that both specify the type of generation assets utilized and provide assurances of those assets’ commercial availability on or before a specified date.

Responses to PSE’s RFP are due to PSE by October 12, 2017, with intent to bid due on August 30.

Renewable Fuel Standard – RIN Roundup

By Buck B. Endemann and Jeff M. Cohen

The federal Renewable Fuel Standard (RFS) requires refiners and importers of gasoline and diesel to blend a minimum volume of renewable fuel into their transportation fuel products. Refiners and importers subject to the RFS must purchase Renewable Identification Numbers (RINs), which are compliance credits traded on a secondary market, to prove that their fuel contains U.S. Environmental Protection Agency (EPA)-required volumes of cellulosic biofuels, biomass-based diesel, advanced biofuels, and total renewable fuel. While the RFS has generated controversy from the moment its first iteration was passed in the Energy Policy Act of 2005, volatile RIN prices and lower fuel demand have more recently prompted refiners to become increasingly vocal in their opposition to the program.

Two recent court rulings and a rulemaking proceeding could contribute to additional uncertainty, at least in the short term. On August 15, 2017, the U.S. Tenth Circuit Court of Appeals potentially expanded the RFS exemptions available to small refineries, a ruling that was followed by lower RIN prices in the secondary market. The RFS has a case-by-case exemption for small refineries that face “disproportionate economic hardship” in achieving compliance. EPA had previously interpreted the exemption to apply only where there existed an existential threat to a refinery’s survival. In Sinclair Wyoming Refinery Company v. EPA, the 10th Circuit rejected EPA’s interpretation, finding that a small refinery could qualify for an exemption if it suffered hardship that was merely out-of-line with that suffered by other small refineries. While the longer term implications of the case are unclear, if EPA grants more small refinery exemptions, fewer entities will be required to purchase RINs, which could potentially depress the market. It is worth noting that the Tenth Circuit broke with other circuits on the standard used to review EPA’s decision, and this case could be taken up by the U.S. Supreme Court.

While Sinclair may reduce the pool of regulated entities required to buy RINs, there is also reason to believe that EPA may require the remaining refiners and importers to blend an increased volume of biofuels into their gasoline and diesel. On July 28, 2017, the D.C. Circuit Court of Appeals struck down an Obama-era reduction in the amount of ethanol required to be blended in the nation’s fuel supply. In Americans for Clean Energy v. EPA, the D.C. Circuit concluded that the EPA had improperly used its “inadequate domestic supply” waiver to reduce blending targets below Congressionally-approved levels. Going forward, EPA will not be able to consider the “inadequate domestic supply” waiver by considering the retail demand for biofuels—the biofuel supply available to refiners, blenders, and importers should instead be the focus of the analysis. Pro-biofuel stakeholders praised the decision, which could result in more biofuels being sold into the marketplace.

These two cases were decided against the backdrop of EPA’s Renewable Fuel Standard Program rulemaking for its 2018 standards and 2019 biomass-based diesel volume. While the annual rulemaking process is used to set volumetric requirements and to consider various waivers, EPA is also presently seeking comment on whether the proposed 2018 biofuel volumes would cause “severe harm” to the economy. EPA is accepting public comments on the rulemaking through August 31, 2017.

Given recent developments, those in favor and those opposed to the RFS should have plenty to say in the rulemaking proceeding. K&L Gates attorneys are continuing to monitor the situation as we guide our clients through important RIN and RFS issues that affect their businesses.

K&L Gates Blockchain Energizer – Volume 11

By Molly Suda, Buck B. Endemann, and Ben Tejblum

There is a lot of buzz around blockchain technology and its potential to revolutionize a wide range of industries from finance and healthcare to real estate and supply chain management. Reports estimate that over $1.4 billion was invested in blockchain startups in 2016 alone, and many institutions and companies are forming partnerships to explore how blockchain ledgers and smart contracts can be deployed to manage and share data, create transactional efficiencies, and reduce costs.

While virtual currencies and blockchain technology in the financial services industry have been the subject of significant debate and discussion, blockchain applications that could transform the energy industry have received comparatively less attention. Every other week, the K&L Gates’ Blockchain Energizer will highlight emerging issues or stories relating to the use of blockchain technology in the energy space. To subscribe to the Blockchain Energizer newsletter, please click here.

IN THIS ISSUE

  • Bank Consortium Moves Forward with “Know Your Customer” Distributed Ledger Technology
  • Solar Technology Company Announces ICO to Fund Development of Local, Decentralized Energy Trading Platform
  • UK Startup Testing Blockchain Platform to Cut Time for Switching Energy Suppliers

To view more information on theses topics in Volume 11 of the Blockchain Energizer, click here.

FERC Seeks Additional Comments on Proposed Primary Frequency Response Requirements for Electric Storage and Small Generating Facilities

By Molly Suda, William M. Keyser, and Elizabeth P. Trinkle

In one of its first orders since regaining a quorum, the Federal Energy Regulatory Commission (“FERC”) issued a Notice of Request for Supplemental Comments (“Notice”) on August 18, 2017, seeking comments related to circumstances where electric storage resources should be required to provide primary frequency response and the costs associated with primary frequency response capabilities for small generating facilities.

The Notice builds off of comments received in response to FERC’s November 17, 2016 Notice of Proposed Rulemaking (“NOPR”). Along with a number of other proposals, the NOPR proposed to modify the pro forma Large Generator Interconnection Agreement and the pro forma Small Generator Interconnection Agreement to require all new large and small generating facilities, both synchronous and non-synchronous, to install, maintain, and operate equipment capable of providing primary frequency response as a condition of interconnection. The NOPR also proposed including minimum operating requirements for droop and deadband parameters and requirements to ensure timely and sustained responses to frequency deviations.

The NOPR did not include provisions specific to electric storage resources, and several commenters noted that by failing to address electric storage resources’ unique technical attributes, the NOPR requirements could pose an unduly discriminatory burden on such resources. In response to these concerns, FERC seeks additional information to better understand (1) the performance characteristics and limitations of electric storage resources; (2) potential ramifications to electric storage resources from the proposed primary frequency response requirements; and (3) what changes are needed to address the issues raised by stakeholders. While the Notice sets forth a number of specific questions for commenters to address, in general, the Notice seeks comments on operational limitations or challenges and potential adverse effects if electric storage resources are required to provide primary frequency response. The Notice also seeks comments on whether there are reasonable parameters or requirements that could apply to electric storage resources’ provision of primary frequency response.

In response to the NOPR, commenters also suggested a need to further investigate the costs for small generating facilities to install frequency response capability and argued that the proposed requirement would impose disproportionate costs on small generating facilities. Accordingly, to further assess small generating facilities’ ability and cost to comply with the proposed primary frequency response requirement, the Notice seeks comment on:

  • The differences in costs to install, maintain and operate governor or equivalent controls for small generating facilities versus large generating facilities;
  • Whether recent technological advances in primary frequency response capability minimize or eliminate barriers to entry for small generating facilities; and
  • Whether an exemption is appropriate for all or a subset of small generating facilities based on disproportionate cost impacts.

Developers, owners, and operators of electric storage resources and small generating facilities should consider whether the proposed primary frequency response requirements materially affect the cost, operation, and/or feasibility of projects to be developed. The Notice offers interested stakeholders an additional opportunity to shape FERC’s interconnection policy to avoid barriers to the integration of electric storage resources and small generating facilities and ensure any unique features of these technologies are addressed in future rules. The invitation for additional comments suggests that FERC may be interested in building a record to support different treatment or rules for energy storage resources and smaller distributed energy resources compared to traditional generation. Comments are due 21 days after publication of the Notice in the Federal Register.

Copyright © 2019, K&L Gates LLP. All Rights Reserved.