Category: Uncategorized

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Oregon Passes Law to Explore Opportunities for Renewable Hydrogen Development
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We Have ESG Down to the Letter
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The Service’s CO-Balancing Act: Final Carbon Capture Credit Regulations Target Broad Taxpayer Implementation and Administrability
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Join Us for a Webinar: The Promise of Fusion Energy May Be Closer Than You Think
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FERC Issues Landmark Order No. 2222 To Facilitate the Participation of Distributed Energy Resources in Wholesale Markets
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The Energizer – Volume 74
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Join Us at Solar Power International
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Join Us: PV Magazine Webinar – Is your company capturing the 2020 safe harbor?
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U.S. ENERGY STORAGE ASSOCIATION RECOGNIZES K&L GATES WITH BRAD ROBERTS OUTSTANDING INDUSTRY ACHIEVEMENT AWARD
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To Kill a Mockingbird: Federal Court invalidates Department of Interior’s MBTA Opinion Letter

Oregon Passes Law to Explore Opportunities for Renewable Hydrogen Development

By: Gabrielle E. Thompson and William H. Holmes

On 19 May 2021, Governor Kate Brown signed Senate Bill 333 into law, which directs the Oregon Department of Energy to study the potential for development of renewable hydrogen production and use in Oregon. The results of the study are due to the Legislature by 15 September 2022.

Under the new law, the study will evaluate the benefits, as well as any barriers, to the production and use of renewable hydrogen in Oregon. The study will utilize existing data, studies, or other publicly available materials to analyze how “renewable hydrogen may support existing renewable energy and greenhouse gas reduction policies and goals in Oregon.”1

Specifically, the study will identify the total hydrogen volume currently used each year in Oregon by various industries and the potential applications of renewable hydrogen in Oregon by 2030 by sectors such as transportation, industry, electricity generation, and energy storage. The study will also include an assessment of the potential for using renewable hydrogen in conjunction with other renewable electricity generation to increase resiliency or to provide flexible loads.

Additionally, the study will look at the forecasted costs of renewable hydrogen and how those costs may affect its adoption in Oregon. Finally, the study will consider and identify any technological, policy, commercial, or economic barriers to the adoption of renewable hydrogen in Oregon.

The study represents an important first step in determining the opportunities for developing renewable hydrogen production and development in Oregon, which has adopted a Renewable Portfolio Standard that requires 50 percent of the electricity Oregonians use come from renewable sources by 2040. Renewable hydrogen is another potential source that could be used to meet those renewable energy requirements.

The bill, which was sponsored in the Senate by Senator Lee Beyer (D – Springfield), received a unanimous vote in favor by the House Energy and Environment Committee and received bipartisan support from Representative Helm (D – Washington County) and Representative Brock-Smith (R – Port Orford), who carried the bill to the House floor where it passed unanimously.

The bill was drafted by Renewable Hydrogen Alliance (RHA), a trade association based in Portland, Oregon, with more than 70 members in the United States and worldwide dedicated to the mission of using renewable electricity to create clean fuels.


1Senate Bill (SB) 333 Enrolled (2021).

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.

The Service’s CO-Balancing Act: Final Carbon Capture Credit Regulations Target Broad Taxpayer Implementation and Administrability

By: Elizabeth C. CrouseAaron C. Meyer, and Mary Burke Baker

Amid the headline-grabbing events of 6 January 2021, the U.S. Department of Treasury released final regulations under Code Section 45Q. Code Section 45Q provides for a U.S. federal income tax credit at varying rates to taxpayers that participate in various aspects of the process of sequestering carbon oxide and disposing of it in secure geologic storage, use it as a tertiary injectant in a qualified enhanced oil or natural gas recovery project, or utilize it in certain processes. 

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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The Energizer – Volume 74

By: Buck B. EndemannDaniel S. CohenMolly K. BarkerOlivia B. MoraAbraham F. JohnsNatalie J. ReidMatthew P. Clark

A biweekly update on clean technology applications, distributed energy resources, and other innovative technologies in the renewable energy and clean transport sector.

There is a lot of buzz around cleantech, distributed energy resources (“DERs”), microgrids, and other technological innovations in the renewable energy and clean transport industries. As these innovations develop, energy markets will undergo substantial changes to which consumer and industry participants alike will need to adapt and leverage. Every other week, K&L Gates’ The Energizer will highlight emerging issues or stories relating to the use of DERs, energy storage, emerging technologies, hydrogen, and other innovations driving the energy and clean transportation industries forward.

IN THIS ISSUE:

  • Southern California Edison Invests in EV Charging
  • The University of Newcastle Develops Thermal Block Energy Storage System
  • Researchers in Sweden Develop Molecule that Stores Sunlight as Chemical Bonds
  • Massachusetts Supreme Court Upholds PPA Backing a US$1 Billion Transmission Line to Carry Canadian Hydro-Electric Power to Bay State

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. 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.

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