Category: Renewables

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COMMERCE EXTENDS INITIATION DEADLINE IN SOLAR CIRCUMVENTION INQUIRIES & USTR TO START TARGETED CHINA 301 TARIFF EXCLUSION PROCESS
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Infocast Virtual Master Class: ESG for Renewable Energy Financing
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ESG and the Sustainable Economy Handbook
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POWER Magazine: Types of Power Purchase Agreements and Why Each PPA Might Be Used
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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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K&L Gates’ Energy Storage Handbook: Volume 6
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Renewables on Tribal Land: Addressing Environmental and Economic Equity on the Path to a Clean Energy Economy

COMMERCE EXTENDS INITIATION DEADLINE IN SOLAR CIRCUMVENTION INQUIRIES & USTR TO START TARGETED CHINA 301 TARIFF EXCLUSION PROCESS

By: Stacy J. Ettinger

COMMERCE EXTENDS INITIATION DEADLINE IN SOLAR CIRCUMVENTION INQUIRIES – NEW DEADLINE LATE NOV

On September 29, 2021, Commerce determined to delay a decision on initiation in the solar circumvention inquiries. Commerce instead asked the US solar manufacturers – A-SMACC (the so-called American Solar Manufacturers Against Chinese Circumvention) – for additional information. In particular, Commerce requested additional information related to why the A-SMACC companies have requested anonymity in the circumvention proceeding. Commerce also requested information regarding the A-SMACC companies’ ties to business interests in China or Southeast Asian countries.

At the request of A-SMACC,  Commerce extended the deadline for A-SMACC’s response to the additional questions until October 13. Commerce regulations permit other interested parties to file comments on A-SMACC’s response within seven days.

Commerce has indicated it will make its decision on initiation within 45 days of A-SMACC filing its response to Commerce’s questions. Assuming A-SMACC files on October 13, Commerce’s decision on initiation would be due on or by November 27. If Commerce initiates on November 27, the final results of the full investigation would be due on or by September 23, 2022.

Note that the new Commerce initiation deadline is just past the date the US International Trade Commission is expected to make its decision on the solar safeguard/201 extension (November 24, 2021).

Senate letter. On September 29 (around the time Commerce was initially set to issue its initiation determinations) twelve Senators sent a letter to the Commerce Secretary Raimondo expressing concerns regarding the anonymous petitions alleging illegal trade activity filed with the Department that would have “a devastating impact on the US solar industry and American solar jobs.” The Senators urged Commerce to “carefully assess the validity” of the petitions.

Background. On August 16, US solar manufacturers (the so-called American Solar Manufacturers Against Chinese Circumvention) requested that Commerce launch a circumvention inquiry on imports of solar products produced in Chinese-owned factories in Malaysia, Vietnam and Thailand. If Commerce initiates on November 27, the final results of the full investigation would be due around by September 23, 2022.

A wide range of interested parties have filed comments on A-SMACC’s initial anti-circumvention inquiry request. The parties have raised factual and legal issues related to whether A-SMACC’s inquiry provides sufficient justification for initiation. The parties have also made economic and policy arguments regarding the negative impact if Commerce were to initiate.

In particular, the interested parties argue that initiation of the circumvention inquiry would disrupt solar imports as companies park panels/modules offshore. They also argue that initiation would  undermine the Biden Administration’s push for expansion of US solar installation and capacity. In addition, nearly 200 companies involved in the solar industry, along with solar industry groups, have warned that imposition of tariffs on imported panels/modules from Malaysia, Vietnam and Thailand would devastate the industry and threaten US jobs.

The circumvention action is tied to the AD/CVD orders on Chinese CSPV cells. The petitioners in the circumvention case are arguing that imports of solar panels/modules produced in Chinese-owned factories in Malaysia, Vietnam and Thailand, with Chinese wafers and other Chinese components, should be subject to current antidumping and countervailing duty orders on Chinese cells/modules.

Commerce (or CBP) could act to make the circumvention findings retroactive, which means there is the potential that importers could be on the hook for payment of additional duties on previous imports.

USTR TO START TARGETED CHINA 301 TARIFF EXCLUSION PROCESS

On October 8, USTR published notice that it will consider requests to reinstate previously-granted China 301 tariff exclusions. The catch is: (1) only previously-granted exclusions that were subsequently extended through the end of 2020 are up for consideration; and (2) the reinstated exclusions would only apply to merchandise entered into the US on or after October 12, 2021 (the date USTR opens the public docket for filing reinstatement requests).

USTR intends to evaluate the possible reinstatement of each exclusion on a case-by-case basis. The public docket opens on October 12, 2021. The deadline for filing comments is December 1, 2021. Parties seeking to comment on more than one exclusion must submit a separate comment for each exclusion.

USTR has provided a list of the 549 previously-extended product exclusions up for consideration, on its website.[1] In addition, comments need to be filed using the form provided by USTR on its website.[2] The form contains specific requests for information regarding the company, many of which will look familiar from the original exclusion and exclusion extension process.   

A key factor in USTR’s evaluation will be whether the particular product remains available only from China. USTR is requesting that commenters address the following issues—

  • Whether the particular product and/or a comparable product is available from sources in the United States and/or in third countries.
  • Any changes in the global supply chain since September 2018 with respect to the particular product or any other relevant industry developments.
  • The efforts, if any, the importers or US purchasers have undertaken since September 2018 to source the product from the United States or third countries.
  • Domestic capacity for producing the product in the United States.

In addition, USTR will consider—

  • Whether or not reinstating the exclusion will impact or result in severe economic harm to the commenter or other US interests, including the impact on small businesses, employment,  manufacturing output, and critical supply chains in the United States, and
  • The overall impact of the exclusions on the goal of obtaining the elimination of China’s acts, policies, and practices covered in the section 301 investigation.

Exclusion track record. From 2018 to 2020, US stakeholders submitted about 53,000 exclusion requests to USTR for specific products covered by the section 301 China tariffs. A US Government Accountability Office report found that the agency denied 46,000 of those requests (87 percent) while approving about 2,200. Of the approvals, just 549 saw their tariff breaks extended – and it is these 549 previously-extended product exclusions that are up for consideration and possible reinstatement.


[1] https://ustr.gov/sites/default/files/files/Notices/Section 301 China Request for Comments/Annex of Previously Extended Exclusions for Website.pdf.

[2] https://ustr.gov/sites/default/files/files/Notices/Section 301 China Request for Comments/Facsimile of Data Requested.pdf.

Infocast Virtual Master Class: ESG for Renewable Energy Financing

CO-HOSTED WITH K&L GATES

November 2-3, 2021

As capital markets, investors, lenders and corporate off-takers accelerate their engagement with the challenges of global warming and other environmental threats, the development of formalized ESG (environmental, social and governance) principles has created great opportunities for renewable energy developers to increase company and project valuations, be more focused in their own M&A decisions, improve their own business processes and those of their suppliers, and obtain financing more easily and at more favorable rates.

However, the relatively recent development of multiple ESG standards and reporting formats, none of which were specifically developed for renewable energy developers, can make it difficult to know exactly how to align their business processes to maximize ESG performance and how to communicate their success at implementing these principles to critical outside partners and investors.

Taught by active market participants who are engaging with ESG issues daily, this ESG for Renewable Energy Financing Master Class will permit renewable development firms to:

  • Examine the core aspects and key challenges of accounting for ESG factors in the context of renewable energy project development and operation, as well as corporate finance
  • Identify ESG issues throughout the renewable energy project life cycle that can impact obtaining investment and financing, and operational cost
  • Get a detailed explanation of how ESG factors flow through project transaction documents to provide an understanding of ESG’s role and impact on contractual agreements & terms
  • Obtain tools and techniques to help identify and manage long-term risk grounded in ESG factors
  • Develop strategies to handle renewable energy project-specific risks such as load, shape and price risk and their interrelation with ESG principles

Co-Lead instructors are Elizabeth Crouse and Lana Le Hir

ESG and the Sustainable Economy Handbook

Environmental, social, and governance (ESG) and the sustainable economy are concepts that often overlap and frequently intertwine. Whether viewed separately or together, they have significantly changed global investing and business practices and will continue to evolve. 

This handbook examines how investors evaluate companies based on ESG and sustainability criteria, the way companies incorporate these standards into their operating principles, and the legal and financial considerations for both groups. Whether you are an investor, an investment manager, a company owner, or board member, it will provide you with valuable insights drawn from our lawyers’ deep industry experience and keen understanding of policy, procedures, and trends.

New Sustainable Investing Chapter released today!

To view and download the full ESG Handbook, click here.

Subscribe to receive alerts when additional chapters are released.

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.

K&L Gates’ Energy Storage Handbook: Volume 6

Now Available Online!

As a courtesy to our clients and friends, the K&L Gates Power practice has updated the Energy Storage Handbook.

This Energy Storage Handbook is designed to be a basic primer on what energy storage is, how federal and state governments regulate it, and what sorts of issues are encountered when such projects are financed and developed. While this Handbook is not meant to be a definitive catalog of every energy storage law and issue existing in today’s marketplace, we have endeavored to highlight the most common development and regulatory matters our clients face and the industries we serve. We will continue to update this Handbook periodically as additional states and stakeholders continue to address the implementation of energy storage resources in the marketplace.

We hope you find it useful and welcome your feedback.

New in Volume 6:

  • Completely refreshed FERC and ISO/RTO sections, including FERC Order 2222.
  • Hydrogen storage? It’s getting close.
  • Avoiding disputes in battery supply agreements.
  • New states, including Virginia and South Carolina.
  • The latest with PJM’s capacity rules.

To view the full Handbook, please follow the link below:

Renewables on Tribal Land: Addressing Environmental and Economic Equity on the Path to a Clean Energy Economy

Authors: Bart J. Freedman, Teresa A. Hill, and Benjamin A. Mayer

Demand for renewable energy projects has never been greater. The newest, latest trend is the push for renewable energy projects with positive social impacts and benefits to marginalized communities. Indeed, some of the most significant consumers and supporters of renewable and carbon-free power are now making environmental and economic justice a central focus and condition of their use of and investments in clean energy projects.1 Utility leaders have identified racial justice as a top concern in the transition to a clean energy economy.2 Key stakeholders and influential civil rights organizations, including the NAACP, have created toolkits and are advocating for just energy policies and practices.3 The Rocky Mountain Institute announced this summer that it will be launching a residential solar program to expand the use of solar in communities of color.4 At the same time, clean energy transition legislation throughout the country is accelerating the need for carbon-free resources, including wind, solar, and storage projects, to replace traditional fossil fuel resources, such as coal, oil, and natural gas, to power the grid.5

Read More

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