Yesterday, the Treasury Department rolled out proposed Opportunity Zone (“OZ”) regulations (the “Proposed Regulations”) and President Trump noted the progress made by his Opportunity and Revitalization Council to eliminate barriers to OZ investments. The administration is clearly all in on maximizing the number of businesses and projects that will qualify for OZ benefits.Read More
On December 20, 2018, the Federal Energy Regulatory Commission (FERC) announced a Notice of Proposed Rule Making (NOPR) designed to simplify the horizontal market power analysis necessary for electric power sellers to secure market-based rate authority in some wholesale power markets. Specifically, the NOPR eliminates the need to perform two indicative screens (the pivotal supplier screen and the wholesale market share screen) in capacity markets and wholesale power markets already subject to Commission-approved monitoring and mitigation rules. Notably, the Southwest Power Pool and California Independent System Operator wholesale markets are not subject to these monitoring and mitigation rules, so parties seeking market-based rate authority to sell capacity in those markets must still perform the two indicative screens. This simplification will relieve the added procedural burden of administering the indicative screens for parties seeking market-based rate authority in the other FERC-regulated markets.
The NOPR also proposes to remove the presumption that market monitoring or mitigation measures will adequately address indicative screen failures in organized wholesale power markets where the grid operator does not administer a capacity market. Rather, the NOPR proposes that in the event of an indicative screen failure in those markets, applicants submit a delivered-price test or other evidence demonstrating a lack of horizontal market power or that the applicant propose other mitigation for capacity sales in those markets.
K&L Gates attorneys will continue to monitor these developments and assist our clients navigating compliance with FERC rules and regulations.
The tumultuous 2018 midterm election, characterized by many as the most consequential in a generation, ended as predicted: the Democrats took control of the House while the Republicans increased their hold in the Senate.
Indeed, it was a tale of two Houses. As of 10:00 a.m. ET on November 7, the Democrats have picked up 28 seats in the House of Representatives, with the prospects of gaining about seven more as the remaining close races are decided, mostly in the west. In the Senate, Democratic Senators in Missouri, Indiana, and North Dakota were defeated while a Republican lost in Nevada, resulting in a net gain of two Senate seats thus far for Republicans with three races too close to call.
To help you assess yesterday’s election, K&L Gates has prepared a comprehensive guide that summarizes the results and their impact on the 116th Congress, which will convene in January. The Election Guide lists all new members elected to Congress, updates the congressional delegations for each state, and provides a starting point for analyzing the coming changes to the House and Senate committees.
Please click here to download the most up-to-date version of the 148-page Election Guide, which will be updated on an ongoing basis as more of the close races are called and committees are finalized.
To view the complete guide online, click here.
On February 15, 2018 the Federal Energy Regulatory Commission (“FERC”) issued a Final Rule addressing participation of energy storage resources in electricity markets operated by Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”). Largely adopting the proposal issued in November 2016, the Final Rule seeks to remove barriers for energy storage participation in wholesale capacity, energy, and ancillary services markets. The ultimate impact of FERC’s directive will be determined over the next few years as RTOs and ISOs implement the standards through their respective stakeholder processes, compliance filings, and (potentially) litigation. FERC deferred ruling on a companion proposal addressing participation of distributed energy resources (“DERs”) in wholesale markets. In the coming months, stakeholders should carefully consider these measures as there will continue to be opportunities to shape the final outcomes. Read More
President Trump announced the imposition of tariffs on imported crystalline silicon photovoltaic (“CSPV”) modules and cells, as previously recommended by the U.S. International Trade Commission. The tariffs will be effective February 7, 2018.
Importers will be required to pay a tariff in the amount of 30 percent of the entered value in the first year, declining by 5 percent a year in each of the second, third, and fourth years. With respect to CSPV solar cells, the first 2.5 gigawatts imported in each year will be exempted from the tariff. These tariffs are in addition to the antidumping and countervailing duties relief previously imposed by the U.S. Department of Commerce on Chinese solar imports.
For U.S. solar developers and installers, the initial 30 percent tariff is expected to add 10 to 15 cents per watt to the final installed price. Green Tech Media Research (“GTM”) has predicted this will cause a reduction of approximately 10 percent in U.S. installed solar capacity. The tariffs do not apply to technologies other than CSPV, specifically thin film modules. Therefore manufacturers of thin film products such as Solar Frontier and First Solar may see increased relative market share.
The biggest impacts on projects are expected in the utility-scale solar sector, which is largely dependent on being competitive with other generation sources. Residential solar is viewed as more resilient and less sensitive to price changes.
Some CSPV manufacturing might shift to free trade agreement countries not included in the injury finding. In particular, manufacturers based in Singapore or Canada may benefit, if the President’s proclamation reflects the approach taken by a majority of the ITC Commissioners to exclude these countries from the tariff program.
China, South Korea, and other countries with exports subject to the tariffs will likely file complaints before the World Trade Organization (“WTO”). It is unclear what position the current Administration would take in response to an adverse WTO decision, if any. In any case, the WTO dispute settlement process itself could take anywhere from two to four years to complete.
Companies should consider steps to mitigate impacts of these tariffs. Reportedly over two gigawatts of modules have already been procured for 2018 projects in the United States. Accessing stockpiles of solar equipment may aid in reducing economic impacts.
The formal proclamation signed today by President Trump provides for exclusion of particular products from the safeguard measure. Procedures for requests for exclusion will be published in the Federal Register within 30 days. Companies may want to review the product exclusion process and consider whether an exclusion request is warranted.
On November 29, 2017, New York Gov. Andrew Cuomo (D) signed Assembly Bill A6571. Passed by the New York legislature in June 2017, this legislation directs the New York Public Service Commission (PSC) to undertake two efforts: (1) institute a proceeding to establish the Energy Storage Deployment Program within 90 days; and (2) set a target by January 1, 2018, for the installation of qualified energy storage systems across the state by 2030.
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.
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.
On May 30, the Department of Energy (“DOE”) published a request for information (“RFI”) soliciting guidance on potential regulations that should be modified or repealed to reduce burdens and costs. This is part of a government-wide initiative to overhaul the federal government’s regulatory regime, set in motion with an executive order signed by President Trump just after his inauguration. This RFI also comes after President Trump signed an executive order, “Promoting Energy Independence and Economic Growth,” which seeks to review all regulatory actions that hamper the domestic production of fossil fuels and nuclear energy.
To read the full alert on K&L Gates HUB, click here.
On Thursday, Senator Ron Wyden (D-OR), ranking member of the Senate Finance Committee, released new technology-neutral energy credits legislation that would revolutionize the existing Investment Tax Credit and Production Tax Credit provisions. The legislation features a graduated credit rate schedule based on the level of carbon emissions as compared to a carbon emissions baseline (keyed to “current” national average carbon emissions) that would be available without regard to technology or energy input. In a move that is consistent with cutting-edge energy innovations and responsive to the needs and concerns of many large power consumers and utilities, the credits would expressly be available for energy storage and carbon capture technology installed at power plants placed in service before January 1, 2019. Energy storage would include hydroelectric pumped storage, thermal storage, fuel cells, and–crucially–batteries, among others. Under Wyden’s legislation, the maximum credit rates would be 30% for the ITC and, for the PTC, 2.3 cents per kilowatt hour of electricity produced. In addition, the PATH Act “sunset” provisions on the PTC and ITC would be repealed and the proposal would temporarily extend other energy provisions during a transition period.
The proposed legislation would also create a technology-neutral clean fuel production credit, homeowner versions of the ITC, performance-based incentives for energy efficiency improvements to residential and commercial buildings, and clean energy bonds generally based on existing government bonds frameworks.
Although there are differences of opinion in the Congress on whether the tax code should offer energy incentives, Sen. Wyden’s proposal could come into play this year either as part of tax reform or the infrastructure debate. Senate Democrats recently released a blueprint for infrastructure that includes technology neutral energy reform.
Members of the K&L Gates LLP policy group are closely monitoring this and other tax and energy regulatory reform matters.