Catagory:The Americas

1
FERC Sets Technical Conference to Assess COVID-19 Impacts on Energy Industry
2
Join Us! Energy Storage Association Webinar: Energy Storage, Trade and China
3
Treasury to Extend Deadlines for Accessing Wind, Solar Tax Credits
4
Trump Administration To Consider Whether Imports Pose a Threat to the U.S. Energy Infrastructure
5
More Federal Interest in Private Fusion: DOE Seeks Input on Possible Cost Share Program to Support Private Fusion Energy Companies
6
FERC to Convene Technical Conference on Generation Resources Paired with Energy Storage
7
Power Purchase Amendment? West Virginia House Bills Introduced With Hope of Spurring Power Purchase Agreements in Renewable Energy Development
8
U.S. News “Best Law Firms” Rankings Recognize K&L Gates as Corporate “Law Firm of the Year”
9
Split FERC Floats Overhaul of Utility Power Purchase Regs
10
Digital Optimization of the OSW Industry: Big Data, AI & Blockchain

FERC Sets Technical Conference to Assess COVID-19 Impacts on Energy Industry

By: William Keyser, Sandra Safro, Patrick Metz and Abraham Johns

On May 20, 2020, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) announced that it will hold a technical conference to discuss the impact on the energy industry of emergency conditions arising from the COVID-19 pandemic.  The conference will take place July 8-9, 2020 from 9 a.m. to 5 p.m. 

Preregistration for the conference is available at: http://www.ferc.gov/whats-new/registration/07-07-20-form.asp.  FERC will issue a supplemental notice that includes the conference agenda in a proceeding opened in Docket No. AD20-17-000.

The Commission plans to use the conference to assess the ongoing impacts that the COVID-19 pandemic is having on parts of the U.S. energy industry.  While the Commission already enacted short-term regulatory relief actions for regulated entities, the conference will explore long-term options for safeguarding the nation’s energy markets, electric transmission system, natural gas and oil transportation, and future operation of energy infrastructure. 

In addition, FERC intends for the event to serve as a public forum for the Commission and stakeholders to address the recovery of the industry from the COVID-19 pandemic.  The event will afford the public an opportunity to receive high-level information about how COVID-19 may change the energy industry moving forward. 

Among the topics the Commission plans to cover in panels and discussions are: (1) ongoing and future operational and planning challenges due to COVID-19; (2) operations, planning, and infrastructure development impacts anticipated due to the effect of COVID-19 on electric demand; (3) operations, planning, and infrastructure development impacts anticipated due to the effect of COVID-19 on natural gas and oil demand; and (4) anticipated issues related to access to capital, such as credit, liquidity, and return on equity.

Further information about the event will be posted on the Calendar of Events webpage for the event.  K&L Gates will continue to monitor for updates from the Commission about the conference.

Join Us! Energy Storage Association Webinar: Energy Storage, Trade and China

Please join K&L Gates’ Elizabeth Crouse on the Energy Storage Association’s upcoming webinar, Energy Storage, Trade and China, on Thursday, May 21 from 12:00 PM – 1:00 CDT.

This webinar will explore the key trade and national security policies that currently impact the ESS market in the U.S. and assess their potential impacts on future deployments, including:

• How might regulatory developments under the Executive Order impact storage?
• What might the future hold for tariffs?
• How do these processes play out in an election year?

For more information and to register, please click here.

Treasury to Extend Deadlines for Accessing Wind, Solar Tax Credits

Author: Elizabeth Crouse

This afternoon, the Office of Legislative Affairs at the Department of Treasury, issued a letter to Charles Grassley, the Chairman of the Senate Committee on Finance, indicating that Treasury intends to issue administrative relief to the solar and wind industries regarding certain investment tax credit (“ITC”) and production tax credit (“PTC”) deadlines. Although the letter does not provide any details as to the nature of this relief, Chairman Grassley’s April 23, 2020 letter to Treasury requested that the four-year safe harbor for the continuous construction and continuous efforts test for the PTC and ITC be extended to a five-year safe harbor period.

Chairman Grassley did not request administrative relief concerning the impact of COVID-19 related measures taken by manufacturers and shipping companies on a customer’s “reasonable expectation” that materials purchased in 2019 would be delivered within 3.5 months after payment. This latter provision is important for purposes for establishing beginning of construction of solar projects in 2019.

Trump Administration To Consider Whether Imports Pose a Threat to the U.S. Energy Infrastructure

Authors: Stacy J. Ettinger, Steven F. Hill, David L. Benson, William M. Keyser

On May 4, 2020, Commerce Secretary Wilbur Ross announced an investigation into whether imports of certain power distribution transformers and parts threaten to impair U.S. national security. A few days earlier, on May 1, 2020, President Trump issued an Executive Order declaring a national emergency over potential foreign threats to the security of the U.S. bulk power system.  Both actions, which are in response to perceived foreign threats to the U.S. electrical power grid, will likely result in the imposition of significant restrictions on the importation of covered equipment.  As discussed below, each action will proceed along separate paths.

Commerce Section 232 National Security Investigation

On May 4, 2020, Commerce Secretary Wilbur Ross announced that the agency intends to initiate an investigation under Section 232 of the Trade Expansion Act of 1962[1] into whether imports of certain power distribution transformers and parts threaten to impair U.S. national security. Secretary Ross indicated the investigation will focus on “laminations for stacked cores for incorporation into transformers, stacked and wound cores for incorporation into transformers, electrical transformers, and transformer regulators.” 

Once initiated, the investigation must be completed within 270 days. Commerce will then provide its report and recommendations to the President, at which point the President has 90 days to determine the nature and duration of action to “adjust” imports.

The law gives the President complete discretion (“in the judgment of the President”) to choose the nature or duration of any action to adjust imports “so that such imports will not threaten to impair the national security.” Previous Section 232 actions included imposition of import tariffs, fees, and quotas, as well as complete embargo of subject imports. For example, in March 2018 President Trump imposed tariffs on steel and aluminum imports as a result of similar Section 232 investigations launched in April 2017. The President also has the option of negotiating agreements with trading partners to limit subject imports, the option embraced by President Trump in the context of the Section 232 investigation launched in May 2018 with respect to imports of automobiles.

Executive Order to Secure U.S. Bulk-Power System from Foreign Adversary Threats

On May 1, 2020, President Trump issued an Executive Order[2] declaring a national emergency over potential foreign threats to the U.S. bulk-power system from foreign adversaries that may seek to commit malicious acts against the United States and its population including malicious cyber activities.  The Order empowers the U.S. government to block imports of certain equipment that could endanger the security of U.S. power plants.

As a practical matter, the new Order does not ban anything, but rather instructs the Department of Energy to issue regulations within 150 days.  These regulations are expected to set forth procedures whereby specifically identified bulk power equipment may be prohibited from importation, acquisition, transfer, or installation.  (This process will likely be similar to that laid out in Commerce Department regulations implementing a 2019 Executive Order declaring a national emergency with respect to the information and communications technology and services supply chain concerns.[3]  Please see our prior alert for an explanation of those Commerce regulations.[4])

The May 1st Order provides authorization to target any acquisition, importation, transfer, or installation (transaction) of to-be-identified bulk-power system electric equipment designed, developed, manufactured, or supplied by persons owned/controlled by/subject to the jurisdiction or direction of a foreign adversary, where the transaction—

  • poses an undue risk of sabotage to or subversion of the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of the bulk-power system in the United States;
  • poses an undue risk of catastrophic effects on the security or resiliency of United States critical infrastructure or the economy of the United States; or
  • otherwise poses an unacceptable risk to the national security of the United States or the security and safety of United States persons.

The Order provides a somewhat generic definition of the term “foreign adversary” as “any foreign government or foreign non-government person engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or its allies or the security and safety of United States persons.”  The Commerce regulations (referenced above) include this same definition which gives the agency discretion to identify foreign adversaries as needed.

Implications

Trump Administration actions in response to perceived foreign threats to the U.S. electrical power grid could include sweeping import restrictions with a significant impact on both the renewable and conventional power industries. Until the Department of Energy issues regulations to implement the Executive Order, the order will not directly impact any power plant project or transaction.   


[1] 19 U.S.C. 1862 (2018); https://www.govinfo.gov/content/pkg/USCODE-2018-title19/html/USCODE-2018-title19-chap7-subchapII-partIV-sec1862.htm.

[2] https://www.federalregister.gov/documents/2020/05/04/2020-09695/securing-the-united-states-bulk-power-system.

[3] https://www.federalregister.gov/documents/2019/05/17/2019-10538/securing-the-information-and-communications-technology-and-services-supply-chain.

[4] http://www.klgates.com/commerce-proposes-process-to-evaluate-transactions-involving-information-and-communications-technology-and-services-for-national-security-concerns-12-03-2019/

More Federal Interest in Private Fusion: DOE Seeks Input on Possible Cost Share Program to Support Private Fusion Energy Companies

By Tim L. Peckinpaugh, R. Paul Stimers, Michael L. O’Neill, Abraham F. Johns

Yesterday, the U.S. Department of Energy (“DOE”) issued a formal Request for Information (“RFI”)[1] seeking input from all interested stakeholders regarding a “possible cost share program in fusion reactor technologies.”[2]  DOE is requesting comments by May 15, 2020.

This RFI process offers an opportunity for the private fusion community[3] to present its views on how a federal cost-sharing program can leverage private capital, nimble entrepreneurship, and technological advancement to accelerate the commercialization and deployment of fusion energy systems in the United States.  Please reach out to our team to explore ways that fusion energy stakeholders can take advantage of this opportunity.

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FERC to Convene Technical Conference on Generation Resources Paired with Energy Storage

By William H. Holmes, William M. Keyser, Michael L. O’Neill

On April 7, 2020, the Federal Energy Regulatory Commission (“FERC”) announced that its staff will host a technical conference in July 2020 to discuss so-called “hybrid resources.”  In its notice, FERC explained that it is using the term “hybrid resources” to refer to projects that are comprised of more than one resource type at the same plant location.  For this summer’s technical conversation, FERC states that it will focus on scenarios where a “generation resource and an electric storage resource [are] paired together as a hybrid resource.”

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Power Purchase Amendment? West Virginia House Bills Introduced With Hope of Spurring Power Purchase Agreements in Renewable Energy Development

By: Travis L. Brannon and Katherine M. Gafner

As many states see a push for renewable energy opportunities for their customers located in (or scouting new locations in) their borders, West Virginia legislators are poised to decide whether the state will facilitate such development. On January 8, 2020, two House bills were introduced that could open the door to more renewable choices.

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U.S. News “Best Law Firms” Rankings Recognize K&L Gates as Corporate “Law Firm of the Year”

2020 edition again positions firm among top five for most first-tier national listings

Global law firm K&L Gates LLP has been recognized as “Law Firm of the Year” in the area of corporate law in the 2020 edition of the U.S. News-Best Lawyers “Best Law Firms” report, released today.  Only one firm can earn the “Law Firm of the Year” designation in each of the report’s legal practice areas.

Read more here.

Split FERC Floats Overhaul of Utility Power Purchase Regs

A divided Federal Energy Regulatory Commission proposed major changes Thursday in how it implements the Public Utility Regulatory Policies Act, with one commissioner saying the change would “administratively gut the statute” that requires utilities to buy power from small-scale renewable energy producers.

The notice of proposed rulemaking fulfills a priority of FERC Chairman Neil Chatterjee to update the agency’s long-standing policies under PURPA, which is four decades old and has been criticized by many — especially in the utility industry — as being outdated.

Partner Will Keyser commented that PURPA reform has been long in the making. Read his quote and the full article here.

Originally reported by law360.com

Digital Optimization of the OSW Industry: Big Data, AI & Blockchain

You’re invited!

Please join K&L Gates and the Business Network for Offshore Wind for a practitioner-led event focused on the utilization of emerging technologies like Big Data, AI and blockchain in the offshore wind industry.

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