Category: Public Policy

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White House Chooses Exclusion of Silica-Based Products Produced Using Forced Labor, Impacting Solar PVs
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We Have ESG Down to the Letter
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K&L Gates Distinguished Speaker Series: A Conversation on the Sustainable Economy with Elizabeth Willmott
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K&L Gates Distinguished Speaker Series: A Conversation on the Sustainable Economy with Dawn Weisz
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Carbon Quarterly – Volume 3
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D.C. Circuit Vacates Trump’s ACE Rule and Deals Biden’s EPA New Hand for Regulating Power Plant Greenhouse Gas Emissions
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Distinguished Speaker Series with FERC Commissioner Neil Chatterjee
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Join Us for a Webinar: The Promise of Fusion Energy May Be Closer Than You Think
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Join Us: PV Magazine Webinar – Is your company capturing the 2020 safe harbor?
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To Kill a Mockingbird: Federal Court invalidates Department of Interior’s MBTA Opinion Letter

White House Chooses Exclusion of Silica-Based Products Produced Using Forced Labor, Impacting Solar PVs

By: Stacy J. Ettinger, Amy L. Groff, William D. Semins, Caitlin C. Blanche, Coleman Wombwell, Elizabeth C. Crouse

Today, the White House announced that Customs and Border Protection (CBP) has issued a withhold release order (the Order) on products manufactured using silica-based products produced by Hoshine Silicon Industry Co., Ltd., and its subsidiaries (“Hoshine”), which are purportedly the world’s largest metallurgical-grade silicon producers. Hoshine has been linked to forced labor in the Xinjiang province of the People’s Republic of China (the PRC). The Order covers silica-based products and materials or goods derived from or produced using those silica-based products. Thus, CBP may use the Order to seize or exclude a variety of products, including solar photovoltaic panels.

We Have ESG Down to the Letter

Our integrated environmental, social, and corporate governance (ESG) approach is designed to help our clients navigate ever-evolving standards and add value to their companies. We’ve structured our broad scope of ESG services within coordinated and collaborative areas of focus, including corporate governance, investing, energy, and agriculture. These global teams span regions and industries to address an array of issues, from legislative, regulatory, and policy matters, to fund launches and environmentally responsible corporate initiatives.

We can evaluate and advise your business from E to S to G.

For more on our ESG practice, please click here.

K&L Gates Distinguished Speaker Series: A Conversation on the Sustainable Economy with Elizabeth Willmott

Wednesday
19 May 2021
12:00 p.m. – 1:00 p.m. ET

Please join us for the next conversation in our sustainability-focused Distinguished Speaker Series, where we sit down with leaders in the field of sustainable economy to discuss industry trends and opportunities.

Our featured speaker for this webinar will be Elizabeth Willmott. Elizabeth leads Microsoft’s carbon program, including fulfillment of the company’s commitment to be carbon negative by 2030. She joined Microsoft in 2016 after a decade of work on urban sustainability in the public and nonprofit sectors. She holds a double degree in biology and Chinese language from Williams College and a master’s degree in public policy from Harvard Kennedy School.

The program will be moderated by Elizabeth Crouse, a Partner and Practice Group Coordinator for the Power Group at K&L Gates. 

Please use the link below to RSVP by Tuesday, May 18, 2021.

K&L Gates Distinguished Speaker Series: A Conversation on the Sustainable Economy with Dawn Weisz

Tuesday
4 May 2021
12:00 p.m. – 1:00 p.m. ET

Please join us for the next conversation in our sustainability-focused Distinguished Speaker Series, where we sit down with leaders in the field of sustainable economy to discuss industry trends and opportunities.

The featured speaker for this webinar will be Dawn Weisz. Dawn is the CEO of MCE Clean Energy, a public agency and not-for-profit electricity provider that gives customers the choice of having 50% to 100% of their electricity supplied from clean, renewable sources such as solar, wind, bioenergy, and hydroelectric at competitive rates.  As CEO, Dawn is responsible for the vision, strategy, and leadership of the company. Under her leadership, MCE became the first community choice program to earn an investment-grade credit rating and now provides service to more than 480,000 customers and over a million residents and businesses in 36 member communities across four Bay Area counties. Dawn has more than 25 years of experience developing and managing renewable energy and energy efficiency programs while working for leading public agencies in the field. Previously, she was a Principle Planner with the County of Marin, where she managed energy and sustainability initiatives. She also previously served as the Executive Director for Sustainable North Bay, and prior to that, worked as a labor and environmental justice organizer in Los Angeles. She has also received awards from the U.S. Environmental Protection Agency, the Power Association of Northern California and the U.S. Department of Energy. She currently serves as President of the California Community Choice Association.  

The program will be moderated by Elizabeth Crouse, a Partner and Practice Group Coordinator for the Power Group at K&L Gates. 

Please use the link below to RSVP by Monday, May 3, 2021.

Carbon Quarterly – Volume 3

By: Ankur K. Tohan, Elizabeth C. Crouse, Eric E. Freedman, Tad J. Macfarlan, Alyssa A. Moir, Laurie B. Purpuro, Cliff L. Rothenstein, Molly K. Barker, Matthew P. Clark, Brigid Landy Khuri, Natalie J. Reid, Dean Brower

No matter your views on climate change policy, there is no avoiding an increasing focus on carbon regulation, resiliency planning, and energy efficiency at nearly every level of government and business. Changes in carbon—and more broadly greenhouse gas—policies have the potential to broadly impact our lives and livelihoods. Carbon Quarterly offers a rundown of the latest developments.

IN THIS ISSUE:  

  • Carbon Policy
    • U.S. House Democrats Propose Comprehensive Legislation to Address Climate Change
    • Social Cost of Carbon Returns to US$51 Per Ton (For Now)
    • Scale Act Overview
    • Aligning Carbon Capture and Environmental Justice
  • Carbon Litigation and Regulation
    • Climate Change Litigation Reaches the Supreme Court
    • The Past—and Future—for Federal Regulation of Power Plant Carbon Emissions
  • Carbon Business
    • Utilities are Looking to Green Hydrogen to Provide Energy Storage
    • Compulsory Corporate Disclosures on Climate Commitments and Risk: Leveling the Playing Field or Mandating a New Field
    • Microsoft Carbon Removal Project
  • Carbon Spotlight
    • NextDecade–Taking Energy to the Next Level

D.C. Circuit Vacates Trump’s ACE Rule and Deals Biden’s EPA New Hand for Regulating Power Plant Greenhouse Gas Emissions

U.S. Public Policy and Law Alert

By: David J. Raphael, Sandra E. Safro, Cliff L. Rothenstein, Dean Brower

On 19 January 2021, the eve of inauguration for the Biden Administration, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) struck down the Affordable Clean Energy Rule (ACE Rule). Issued under the Trump Administration’s Environmental Protection Agency (EPA), the ACE Rule repealed and replaced the formerly enacted Clean Power Plan (CPP) and sought to establish a more narrowly defined framework for the regulation of power plant greenhouse gas (GHG) emissions. As a premise for the ACE Rule, the Trump EPA argued that Section 111 of the Clean Air Act (CAA), codified at 42 U.S.C. § 7411, contains clear and unambiguous language limiting the EPA’s emission reduction measures to improvements “at” and “to” existing GHG emissions sources. However, the D.C. Circuit held that the CAA does not require the EPA to confine its GHG regulation in this way and, in fact, that the Trump EPA’s interpretation under the ACE Rule constituted a “fundamental misconstruction” of the statute. The D.C. Circuit also found that the ACE Rule’s extended compliance deadline requirements were arbitrary and capricious insofar as they relaxed the schedules for federal action and state compliance under Section 7411(d). The D.C. Circuit’s decision clears the way for the Biden EPA to establish a new regulatory framework for power plant GHG emissions.

Distinguished Speaker Series with FERC Commissioner Neil Chatterjee

Tuesday
26 January 2021
3:00 p.m. – 4:00 p.m. ET

Please join K&L Gates for an open conversation with FERC Commissioner Neil Chatterjee, as we discuss energy market trends, infrastructure development, renewables, and the energy transition.

Commissioner Neil Chatterjee was nominated to the Federal Energy Regulatory Commission by President Donald J. Trump in May 2017 and confirmed by the U.S. Senate in August 2017. He served as Chairman from August 2017 to December 2017. He was again named Chairman on October 24, 2018, and served in that role through November 5, 2020.

Since joining the Commission, Chatterjee has championed strategic initiatives reflecting his firm commitment to ensuring that FERC regulations and actions reflect changes in today’s energy landscape. Additionally, Chatterjee has made energy infrastructure a top priority. 

Prior to his tenure at the Commission, Chatterjee served as an advisor to Senator Mitch McConnell (R-KY), where he played an integral role in the passage of major energy, highway and agriculture legislation. Chatterjee previously worked as a principal in government relations for the National Rural Electric Cooperative Association and as an aide to House Republican Conference Chairwoman Deborah Pryce (R-OH). He began his career in Washington, D.C., as a staff member on the House Committee on Ways and Means.

A native of Lexington, Kentucky, Chatterjee is a graduate of St. Lawrence University and the University of Cincinnati, College of Law. Chatterjee resides with his wife and three children in Virginia.

The program will be moderated by K&L Gates’ Policy & Regulatory Practice Area Leader, David Wochner, and Power Practice Group Coordinator, Elizabeth Crouse.

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.

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.

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.

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