Archive: 2020

1
Join Us for a Webinar: The Promise of Fusion Energy May Be Closer Than You Think
2
FERC Issues Landmark Order No. 2222 To Facilitate the Participation of Distributed Energy Resources in Wholesale Markets
3
Senate ENR Committee Holds Hearing on FERC Commissioner Nominees
4
Senate ENR Hearing Slated for FERC Nominees
5
Join Us at Solar Power International
6
Join Us: PV Magazine Webinar – Is your company capturing the 2020 safe harbor?
7
U.S. Army Corps Proposes Two New Nationwide Permits for Utility Lines and Revises Additional Nationwide Permits Impacting Utility-Scale Wind and Solar Infrastructure
8
U.S. ENERGY STORAGE ASSOCIATION RECOGNIZES K&L GATES WITH BRAD ROBERTS OUTSTANDING INDUSTRY ACHIEVEMENT AWARD
9
To Kill a Mockingbird: Federal Court invalidates Department of Interior’s MBTA Opinion Letter
10
Trump nominates Clements, Christie to FERC

Join Us for a Webinar: The Promise of Fusion Energy May Be Closer Than You Think

Join us on 1 October 2020 for a webinar on fusion energy.

For nearly 100 years, scientists and engineers, as well as science fiction authors and fans, have dreamt of harnessing fusion reactions to power our economy. Despite daunting technical challenges, fusion energy may become a technically viable and economic energy source in the coming years, as an attractive carbon-free baseload alternative to conventional energy sources.

As the energy sector progresses towards commercial fusion, governmental regulators around the world are considering how they should treat fusion facilities. Two of the most active jurisdictions for commercial fusion development are the United States and the United Kingdom. Along with Fire Energy and Prospect Law, members of our K&L Gates fusion energy team will provide an update on the regulatory approaches to fusion that the US and UK are taking, the prospects for differentiating regulations for future fusion facilities from those applicable to existing fission-powered nuclear plants, next steps in developing regulatory certainty for the emerging fusion power sectors in these nations, and include a section on risk and the management of risk through insurance.

For more information and to register, please click here.

FERC Issues Landmark Order No. 2222 To Facilitate the Participation of Distributed Energy Resources in Wholesale Markets

Authors: Buck Endemann, Kimberly Frank, Elias Hinckley, and Patrick Metz

In a landmark order issued on September 17, 2020, the Federal Energy Regulatory Commission (FERC) adopted rules aimed at removing barriers to the participation of distributed energy resources (DERs) in the organized markets for electric energy, capacity, and ancillary services operated by Regional Transmission Organizations and Independent System Operators (RTOs).  Order No. 2222 builds on reforms previously undertaken by FERC and, once fully implemented, should be a major step toward opening up RTO markets to competition, facilitating new entry of resources, and fostering business model innovation.

Order No. 2222 envisions “aggregations,” which are groups of small DERs participating in the RTO markets as a single resource represented by their aggregators.  According to FERC, these aggregations will permit DERs to provide a variety of products and services that will compete with more conventional resources in the RTO markets.  FERC expects that this will, in turn, ensure that rates remain just and reasonable.

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Senate ENR Committee Holds Hearing on FERC Commissioner Nominees

Authors: Kimberly FrankSandra SafroDavid Wochner, and Patrick Metz

On September 16, 2020, the Senate Energy and Natural Resources (ENR) Committee held a hearing to consider the nominations of Mark Christie and Allison Clements to the Federal Energy Regulatory Commission (FERC).  Chairman Murkowski and Ranking Member Manchin focused their preliminary comments on the importance of ensuring that FERC has a full complement of five Commissioners and expressed interest in acting quickly to move through the confirmation process.  However, there was no indication of the specific timing of the Senate ENR and floor votes that would be required to confirm the nominees.  Several Senators praised both Christie and Clements, and no Senator expressed opposition to the nominees, though Clements received a few pointed questions from Senators Gardner and Lee about her time at the Natural Resources Defense Council.

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Senate ENR Hearing Slated for FERC Nominees

Authors: Kimberly Frank, Sandra Safro, David Wochner, and Patrick Metz

On September 9, 2020, the Senate Energy and Natural Resources (ENR) Committee announced that it would hold a hearing this Wednesday, September 16, 2020, to consider the nominations by President Trump of Allison Clements and Mark C. Christie to serve as FERC Commissioners.

The Senate ENR Committee hearing is an important first step toward the confirmation of Clements and Christie.  After holding its hearing, the Committee will hold a vote on whether to forward the nominees to the full Senate.  At that point, the Senate would need to consider their nominations and vote to confirm their appointments.  Each would then would need to be sworn in as Commissioners. 

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Join Us at Solar Power International

Please join K&L Gates Energy, Infrastructure and Resources Practice Area Leader, David Benson, at Solar Power International as he moderates the panel, “The Evolution of Finance in a Changing Offtake Market,” on Friday, September 25, 2020, at 3:05pm EDT.

This panel will discuss new revenue models, such as merchant projects, hedging strategies, and VPPAs, are changing how renewable energy projects are being financed. Topics will include how panelists view projects with these evolving offtake approaches and how they view risk in these markets, taking the audience through transaction structures and what it takes to execute renewable energy deals.

For more information on Solar Power International, please click here.

Join Us: PV Magazine Webinar – Is your company capturing the 2020 safe harbor?

Join K&L Gates partner, Elias Hinckley, as he participates on a webinar with PV Magazine, “Is Your Company Capturing the 2020 Safe Harbor?”

­This webinar will discuss the current 26% solar investment tax credit that will be reduced by to 22% on January 1, 2021 and steps to take to ensure your project captures the full credit.

The webinar will take place on Wednesday, 23 September, 2020, at 11:00 AM EDT.

For more information and to register, please click here.

U.S. Army Corps Proposes Two New Nationwide Permits for Utility Lines and Revises Additional Nationwide Permits Impacting Utility-Scale Wind and Solar Infrastructure

Authors: Ankur K. Tohan, Robert M. Smith, and Natalie J. Reid

The U.S. Army Corps of Engineers (USACE) has proposed revisions to its Nationwide Permits (NWPs) that will significantly change to how utility lines will be treated under the NWP program. Currently, only one NWP exists to address the construction of all utility lines: NWP 12. The USACE proposes to add two new utility line permits: NWP C: Electric Utility Line and Telecommunications Activities and NWP D: Utility Line Activities for Water and Other Substances. The USACE further intends to limit existing NWP 12 to only oil and natural gas activities. Finally, the USACE has proposed to further reduce the regulatory obstacles faced by wind and solar project developers by modifying additional NWPs.

The key changes relevant to wind and solar developments are the creation of NWP C, the elimination of many Pre-Construction Notification requirements, and the removal of the 300 linear foot limit for losses to stream bed in NWP 51. To read the full alert CLICK HERE.

U.S. ENERGY STORAGE ASSOCIATION RECOGNIZES K&L GATES WITH BRAD ROBERTS OUTSTANDING INDUSTRY ACHIEVEMENT AWARD

The U.S. Energy Storage Association (ESA), the national trade association for the American energy storage industry, will recognize K&L Gates with the Brad Roberts Outstanding Industry Achievement Award at the 2020 ESA Annual Awards taking place during the association’s virtual conference next week.

The award recognizes K&L Gates for “its tremendous contributions that have advanced the industry forward including nurturing early storage developers, hosting an annual conference, and developing the widely circulated Energy Storage Handbook.” The ESA determines this award by surveying its members and past award recipients each year to identify a member organization that has made significant contributions in the storage industry.  

Read more about the award in the ESA press release

To Kill a Mockingbird: Federal Court invalidates Department of Interior’s MBTA Opinion Letter

Authors: Ankur K. Tohan and Gabrielle E. Thompson

In her opening statement to an August 11 opinion, United States District Court Judge Valerie Caproni writes:

“It is not only a sin to kill a mockingbird, it is also a crime.”

Judge Caproni’s literary reference is the launching point for addressing the matter at hand: the validity of the Department of Interior’s December 22, 2017, Memorandum M-37050, which concludes that the Migratory Bird Treaty Act (MBTA) prohibition on the “taking” or “killing” of migratory birds applies only to deliberate acts intended to take a migratory bird. The M-Opinion announced the Trump administration’s view of the take prohibition in the MBTA, and states that the Trump administration will not seek criminal penalties against individuals and industries —such as oil and gas, as well as renewable energy— for incidentally taking migratory birds. The M-Opinion significantly limited the scope of the take prohibition in the MBTA, reducing the potential liability for development of infrastructure and renewable energy projects.

Judge Caproni writes that Interior’s opinion violates the letter of the law for the past century and contradicts Interior’s long held position that even incidental take or kill of a migratory bird violated the MBTA “irrespective of whether the activities targeted birds or were intended to take or kill birds.” Now, Judge Caproni stated,

“[I]f the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”

Judge Caproni devotes the remainder of her ruling explaining why the M-Opinion violates the Administrative Procedures Act as contrary to law. Judge Caproni rejected Interior’s narrow reading of the statute as lacking support in the plain language of the MBTA. As Judge Caproni explained,

“There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds. Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only ‘some’ kills are prohibited.”

While Judge Caproni acknowledged that in drafting the MBTA Congress may have been “principally concerned” about over-hunting, Congress chose not to narrowly draw the prohibition in the statute to intentional take or kill of birds.

The August 11 order vacates the M-Opinion.

Trump nominates Clements, Christie to FERC

By Sandra E. Safro, David L. Wochner, Kimberly B. Frank, and Patrick T. Metz

Late yesterday, the White House announced that President Trump intended to nominate Mark C. Christie and Allison Clements to be FERC Commissioners. Christie would assume the seat currently occupied by Commissioner Bernard McNamee, whose term expired June 30, 2020, but who is continuing as commissioner until the earlier of when his replacement is confirmed and sworn in or the end of the current congressional session, as permitted by law. Clements would fill a seat left vacant in August 2019 with the departure of former Commissioner Cheryl LaFleur. If the Senate confirms Christie and Clements, FERC would have five Commissioners for the first time since LaFleur left the Commission in August 2019.

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