Category: Uncategorized

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Financing the Renewable Hydrogen Revolution
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From IP Law Watch: H2 PRODUCTION: A SHIFT TOWARDS ELECTROLYSIS
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From IP Law Watch: Global Trends in Hydrogen IP Protection
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Join CleanCapital for a Webinar: How is the Inflation Reduction Act Affecting Clean Energy Developers?
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Reactive Power Compensation for Renewable Energy Facilities: Opportunity Amidst Change
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Update on the Tax Credit Revolution: Prevailing Wage and Apprenticeship Clock Starts Soon
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California Passes Suite of New Climate Bills Aimed at Reducing Emissions, Stimulating Carbon Capture, and Implementing Buffers
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Ensuring Energy Security Section in the Inflation Reduction Act of 2022
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Declaration Of Emergency And Authorization For Temporary Extensions Of Time And Duty-Free Importation Of Solar Cells And Modules From SE Asia
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MCE Clean Energy: Green Hydrogen Expert Roundup

Financing the Renewable Hydrogen Revolution

A supplement to The H2 Handbook, United States

Risk in the hydrogen industry spans multiple areas, from feedstock and power supply to offtake and transportation. Understanding the regulatory, tax, and practical considerations of hydrogen projects, particularly green hydrogen, is essential for formulating an investment strategy for renewable hydrogen.

A supplement to the United States section of The H2 Handbook, this new guide offers insights to mitigating risk for projects in the United States, including the new and updated US federal income tax credits provisions of the Inflation Reduction Act. 

From IP Law Watch: H2 PRODUCTION: A SHIFT TOWARDS ELECTROLYSIS

Hydrogen production technology, according to the joint EPO-IEA report summarizing patent trends in the hydrogen economy (summarized here), accounts for the largest percentage of patenting activity since 2011 among the three primary stages of the hydrogen value chain (i.e., (i) production, (ii) storage, distribution, and transformation, and (iii) end-use industrial applications). Trends show a shift in hydrogen production from carbon-intensive methods to technologies that do not rely on fossil fuels. The bulk of recent increased patent activity is directed to electrolysis development, while patent activity related to production from biomass and waste has decreased.

Read the rest of this post on K&L Gates’ IP Law Watch blog.

From IP Law Watch: Global Trends in Hydrogen IP Protection

By Jason EngelBen Fechner and Clare Frederick

The European Patent Office (EPO) and the International Energy Agency (IEA) recently published a joint report summarizing innovation and patent trends within the hydrogen economy.1 The report is based on global patent activity since 20012 and is intended to help governments and businesses understand which parts of the hydrogen value chain appear to be making progress and which parts may be lagging behind.3 The report dives deep into specific technologies, lists the most active applicants in select technologies, and attempts to identify the impact of different governmental programs in specific sectors, with a goal of trying to help focus future innovation efforts.

Read the rest of this post on K&L Gates’ IP Law Watch Blog.

Join CleanCapital for a Webinar: How is the Inflation Reduction Act Affecting Clean Energy Developers?

In August Congress passed the Inflation Reduction Act, a landmark climate and clean energy bill. Six months later, we’re asking: where are we now?

Join CleanCapital’s Jon Powers, K&L Gates’ Elizabeth Crouse, and Environmental Defense Fund’s Elizabeth Gore, for an informational webinar to understand how the rollout of IRA policies will impact clean energy developers. What are the steps to full implementation? What progress has been made on tax and other key policy levels within the administration?

Hosted by:
Jon Powers
President, CleanCapital

Panelists:

Elizabeth Crouse
Tax Partner & Co-Lead of Power, K&L Gates

Elizabeth Gore
Senior Vice President, Political Affairs at Environmental Defense Fund

To learn more and register, please click here.

Reactive Power Compensation for Renewable Energy Facilities: Opportunity Amidst Change

By: Ruta Skučas, Maria Faconti, Kimberly Frank

Originally published in the Oil, Gas & Energy Resources Law Section Report – Volume 47, Number 1 / January 2023.

Reactive power provides synchronous and non-synchronous generators, as well as other forms of non-generation resources capable of providing reactive power, with a potential additional revenue stream. The provision of voltage support to the grid is an ancillary service, compensated in various ways in the various wholesale electricity markets. Renewable developers should familiarize themselves with the opportunities provided by reactive power compensation, even as some of the compensation models may be shifting.

In 2016, the Federal Energy Regulatory Commission (“FERC”) began allowing wind and solar facilities to offer reactive power as an ancillary service into wholesale electricity markets. Over the past few years, FERC and the independent system operators (“ISOs”) and regional transmission organizations (“RTOs”) began to revisit reactive power compensation models and, as a result, there has been a greater focus on reactive power issues in 2022. This article reviews the current status of reactive power compensation in various U.S. regions, as well as possible future changes.

Update on the Tax Credit Revolution: Prevailing Wage and Apprenticeship Clock Starts Soon

U.S. Energy, Infrastructure, and Resources Alert

By: Elizabeth C. CrouseCraig E. Leen

The U.S. Treasury Department released a preliminary draft of Notice 2022-61 (the Notice) on 29 November 2022 and the final on 30 November 2022. Taxpayers now have 59 days to begin construction on qualified projects without causing those projects to be subject to the new prevailing wage and apprenticeship requirements. The U.S. Department of Labor also released companion FAQs on the prevailing wage and apprenticeship rules 29 November 2022. The Notice generally applies to credits under Code[1] Sections 30C (alternative fuel infrastructure), 45Y (post-2024 electricity PTC[2]), 48E (post-2024 electricity ITC[3]), 45V (hydrogen PTC), 45 (current electricity PTC), 48 (current electricity ITC), 45Q (carbon capture), 45L (energy efficient homes), 45U (zero-emission nuclear power), 48C (advanced energy manufacturing facilities), and 179D (energy efficient commercial buildings), but the beginning of construction rules apply more narrowly.

For further details, please see the following Alert that discusses some of the main points in the Treasury and Labor guidance that was released.

California Passes Suite of New Climate Bills Aimed at Reducing Emissions, Stimulating Carbon Capture, and Implementing Buffers

By: David Wang, Elizabeth C. Crouse, Buck B. Endemann

On August 31, 2022—the last day of the 2022 legislative session—California legislators passed a package of climate bills aimed at reducing statewide emissions, stimulating the carbon capture industry, and implementing buffers between communities and oil and gas developments. The bills include $54 billion in climate-related spending and come on the heels of other state and federal efforts to reduce carbon emissions across many sectors of the economy.

The package contains the following bills:

  • AB 1279, which codifies California’s existing goal of carbon neutrality by 2045.
  • AB 1757, which requires the state Natural Resources Agency to establish targets for natural carbon sequestration and nature-based climate solutions.
  • SB 846, which authorizes the Diablo Canyon nuclear power plant to continue operations until December 31, 2030, and provides Pacific Gas & Electric Company (“PG&E,” the plant’s operator) with a $1.4 billion loan to help facilitate those operations.  While Diablo Canyon was originally going to be retired by 2025, many saw Diablo Canyon’s 2,256 MW as critical for providing carbon-free power during the afternoon and evening ramp.
  • SB 905, which directs the California Air Resources Board (“CARB”) to establish a program to evaluate the efficacy, safety, and viability of carbon capture, utilization, or storage (“CCUS”) and carbon removal technologies. The bill also requires CARB to adopt various regulations governing CCUS and carbon removal projects, including a unified permit application for such projects and measures to minimize leakage from carbon storage reservoirs.
  • SB 1020, which sets interim targets regarding retail sales of electricity. Current law requires 100 percent of all energy sales to California end-use customers to be supplied by eligible renewable energy sources or zero-carbon resources by 2045.  SB 1020 sets interim targets of 90 percent by 2035 and 95 percent by 2040. SB 1020 also requires state agencies to source 100 percent of their energy from eligible renewable or zero-carbon resources by 2035—ten years earlier than the current target.
  • SB 1137, which establishes 3,200-foot buffer zones between oil and gas facilities or wells with a wellhead and facilities that qualify as “sensitive receptors,” including private homes, schools, community centers, nursing homes, hospitals, and prisons.

Legislators failed to pass AB 2133, which would have made stricter California’s emissions reduction goals (raising from 40 percent to 55 percent the reduction below the state’s 1990 emissions levels that California would have to meet by 2030).

Each bill now goes to Governor Gavin Newsom to sign by September 30, 2022, which he is expected to do after publicly advocating for them earlier in August. The California legislature’s actions come several days after CARB announced a new rule that would require by 2035 all new cars, trucks, and SUVs sold in the state to be greenhouse gas emission-free. These state-level efforts complement recent federal efforts to catalyze and develop a low-emissions energy economy, notably the Infrastructure Investment and Jobs Act of 2021 (“IIJA,” or Bipartisan Infrastructure Law, which included $47.2 billion for improving climate resilience) and the Inflation Reduction Act of 2022 (“IRA,” which included $369 billion in climate-related spending, tax credits, and incentives). These initiatives represent a concerted effort on both the federal and state level to rapidly shift the economy towards low-emissions energy sources, and consequently provide ample opportunities for new investment opportunities, financing structures, and stakeholders.

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Ensuring Energy Security Section in the Inflation Reduction Act of 2022

By Laurie B. Purpuro

On 27 July, Senators Manchin and Schumer announced a deal on the successor to the Build Back Better Act, which is expected to pass in the Senate on Saturday (6 August 2022) and the House the following Friday. This new legislation, called the Inflation Reduction Act of 2022, includes US$370 billion in programs and tax credits to boost renewable energy production in the United States. 

That said, page 644 of the draft includes language that ties federal solar, wind and offshore wind development to federal lease sales for oil and gas. 

The Details

The section of the bill titled “Ensuring Energy Security” prohibits the Bureau of Land Management (BLM) from issuing rights-of-way (ROW) for wind or solar development on federal land unless an onshore oil and gas lease sale has occurred within 120 days before the wind or solar lease issuance. In addition, these wind and solar ROWs would not be allowed unless, in the previous year, BLM completed onshore oil and gas lease sales covering 2,000,000 acres or 50% of the acreage in which interested parties have expressed interest, whichever is lower. (Note: Wind and solar projects that impact federal land are authorized by ROWs.)

Offshore wind (OSW) is similarly impacted by this provision, as it prohibits the Bureau of Ocean Energy Management (BOEM) from issuing an OSW lease unless an oil and gas offshore lease sale of at least 60 million acres is held during the year before the OSW lease issuance.

The Impact

This section of the agreement is intended to force the Biden Administration to restart the regularly scheduled oil and gas lease sales that it has been cancelling since 2021, while at the same time allowing the Biden Administration to conduct fewer annual oil and gas lease sales than currently required.   

The Mineral Leasing Act requires four onshore oil and gas leases per year; the language in this bill requires three onshore oil and gas leases per year, as a prerequisite to solar and wind development on federal land. BOEM offshore oil and gas five-year leasing programs require two offshore oil and gas lease sales in most years; this bill requires one sale per year, in order to allow solar and wind development on federal land. 

Furthermore, the acreage requirements for oil and gas sales outlined in the bill are in line with previous sales. And for the onshore oil and gas lease sales, just in case BLM falls shore of the 2,000,000 acre requirement, they can sell leases for 50% of the acreage that parties are interested in.

The Compromise

This Inflation Reduction Act of 2022 is a compromise forged by Senate Democrats with the slimmest of majorities. The Ensuring Energy Security section is Energy and Natural Resources Committee Chair Joe Manchin’s way of requiring an all of the above energy policy for the country.

Declaration Of Emergency And Authorization For Temporary Extensions Of Time And Duty-Free Importation Of Solar Cells And Modules From SE Asia

By Stacy J. Ettinger

On June 6, 2022, President Biden issued a declaration of emergency and authorization for temporary extensions of time and duty-free importation of solar cells and modules from SE Asia under 19 USC 1318(a). The basis for the declaration of emergency is the need to ensure electric resource adequacy and address the unavailability of solar cells and modules that is jeopardizing new, planned solar installations.

In short, there is an emergency because the US is unable to import solar modules in sufficient quantities to ensure solar capacity additions necessary to achieve US climate and clean energy goals, ensure electricity grid resource adequacy, and help combat rising energy price.

Statutory authority. The statutory authority cited in the declaration (19 USC 1318(a)) is a catch-all provision that allows the president to authorize CBP to permit duty free entry of certain items if the president declares the existence of an emergency.

Specifically, the statute provides for “the importation free of duty of food, clothing, and medical, surgical, and other supplies for use in emergency relief work.” Expect arguments from stakeholders that solar products don’t fit within the list, but this law is about as good as gets if you want to find a way to stop the application of antidumping and/or countervailing duties (“ADCVDs”).

Here’s how this is going to work—

New Commerce regulation. Commerce likely will publish an interim final regulation – before the date of the preliminary determination in the solar circumvention proceedings – that will allow Commerce to instruct CBP to not collect duties on cells/modules from the four SE Asian countries for a period of 24 months (starting from the date of the proclamation). The new regulation will not apply to the current ADCVDs on imports of Chinese or Taiwanese solar cells/modules.

Current regulations (19 CFR Part 358) set forth the procedures for importation of supplies for use in emergency relief work free of ADCVDs, as authorized under 19 USC 1318(a). These regulations were published in 2006 (71 FR 63230 (October 30, 2006)). 

Commerce will continue with the circumvention inquiries. Commerce officials put out a press release on June 6 clarifying that the agency will continue the ongoing circumvention inquiries. The release states that “whatever conclusion Commerce reaches when the [circumvention] investigation concludes will apply once this short-term emergency period [24 months] is over. In accordance with the President’s declaration, no solar cells or modules imported from Cambodia, Malaysia, Thailand, and Vietnam will be subject to new antidumping or countervailing duties during the period of the emergency. Existing duties on Chinese and Taiwanese imports of solar cells and modules remain in effect.”

Commerce could still go negative at the prelim or final. Commerce is proceeding with the circumvention inquiries related to imports of cells/modules from the four SE Asian countries. Commerce’s preliminary determination is due no later than August 29, 2022; Commerce’s final determination is due by January 26, 2023. Commerce could still issue a negative determination at the prelim or final stage of the circumvention inquiries.

What happens if Commerce goes affirmative? If Commerce goes affirmative, per its regulations it must direct CBP to suspend liquidation and require a cash deposit of estimated duties. Pursuant to the emergency declaration and new regulation, Commerce would have the authority to not follow its regulations. In other words, Commerce would instruct CBP to not suspend liquidation or collect cash deposits for imports of solar cells/modules from the four SE Asian countries.

What could go wrong with this plan? Possible risk is that an interested party to the circumvention inquiries (such as the domestic manufacturer that requested the inquiries) will sue on the new regulation and/or Commerce’s application of the current regulation (19 CFR Part 358), arguing duty free treatment of solar cells/modules is beyond the scope of products covered under the statute (19 USC 1318(a)). The litigation could take at least a couple years to play out.

If the plaintiff were to prevail (and assuming an affirmative final regarding circumvention), suspension of liquidation and estimated duty payments would kick in. It is unclear whether suspension/duty payments would be retroactive (ie, to date of affirmative preliminary determination) or prospective (eg, from the effective date of the final court decision). The latter seems more likely.

The bottom line. Implementation of the Declaration should provide a two year window during which developers and other solar system providers should be able to import panels from Cambodia, Malaysia, Thailand and Vietnam without the risk of retroactive tariffs.

Relevant documents

Declaration of Emergency and Authorization for Temporary Extensions of Time and Duty-Free Importation of Solar Cells and Modules from Southeast Asia | The White House

FACT SHEET: President Biden Takes Bold Executive Action to Spur Domestic Clean Energy Manufacturing | The White House

President Biden Invokes Defense Production Act to Accelerate Domestic Manufacturing of Clean Energy | Department of Energy

Department of Commerce Statement on President Biden’s Proclamation on Solar Cells and Modules | U.S. Department of Commerce

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