Category: Energy & Utilities

Australian Competition Tribunal authorises the acquisition of Macquarie Generation by AGL Energy Limited
K&L Gates Hosts ACORE’s Power Generation and Infrastructure Executive Meeting
Hawaiian Electric Company Extends “Intent to Bid” Deadline for O’ahu Energy Storage RFP
FERC Announces Proposed Rule to Reduce Regulatory Burden for Generators that Own Generation Tie-Lines
President Obama Announces New Commitments to Drive Solar Development
DOJ’s Bird in the Hand: MBTA and BGEPA enforcement
Important Upcoming Energy Storage Events on the US West Coast
California Independent System Operator Corporation (CAISO) Proposes Transmission Tariff Changes
Imperial Irrigation District Energy Storage RFQ
Dubai Government Launches Energy Initiative

Australian Competition Tribunal authorises the acquisition of Macquarie Generation by AGL Energy Limited

The Australian Competition Tribunal (Tribunal) has recently handed down a decision authorising the acquisition of the electricity generation assets of Macquarie Generation (which are currently owned by the State of New South Wales) by AGL Energy Limited (AGL) (an entity which currently operates as a major electricity retailer in New South Wales).  Read More

K&L Gates Hosts ACORE’s Power Generation and Infrastructure Executive Meeting

The American Council on Renewable Energy (ACORE) will hold its Power Generation and Infrastructure Executive meeting at the K&L Gates New York office on June 23, 2014 from 1:00 – 5:00 p.m. This meeting will focus on expanding the role of renewable energy and distributed energy resources in improving grid resiliency in the Tri-state area of New York, New Jersey and Connecticut. Leaders from the power, business, investment, regulatory, and non-profit sectors will examine the challenges and opportunities in renewable energy and distributed energy solutions in support of regional grid resiliency and reliability.

To read more about the event and to register, visit ACORE’s event site.


Hawaiian Electric Company Extends “Intent to Bid” Deadline for O’ahu Energy Storage RFP

As energy storage matures both technologically and commercially, several investor owned and municipal utilities have begun formal processes to procure storage. Recent examples include Southern California Edison’s request for energy storage to satisfy local capacity requirements in the Los Angeles basin, the Imperial Irrigation District’s request for qualifications with respect to 40 MW of energy storage (summary available here), Southern California Public Power Authority’s request for energy storage proposals pursuant to its rolling RFP process (summary available here and here), Long Island Power Authority’s request for proposals for up to 150 MW of energy storage, and the Kauai Island Utility Cooperative’s recent storage RFP.

Hawaiian Electric Company’s solicitation for large-scale energy storage systems is the latest large energy storage RFP and represents another significant step in the ongoing commercialization of the energy storage sector. Hawaiian Electric’s procurement deserves to be watched carefully.

The RFP seeks proposals for one or more large-scale, grid-connected energy storage systems capable of storing 60 to 200 MW for 30 minutes. Although several of the procurements noted above contemplate the use of power purchase agreements (typically structured like gas tolling agreements) to secure access to storage, Hawaiian Electric has asked for a firm lump-sum price proposal to engineer, procure and construct one or more systems to be located on the island of O’ahu. The RFP package includes the utility’s proposed form of engineering, procurement and construction services (EPC) contract.

Hawaiian Electric intends to use energy storage to continue integrating variable renewable energy generation. Renewable energy on O’ahu consists primarily of wind and solar photovoltaic (PV). The utility anticipates that energy storage will provide certain services, such as sub-second frequency response and minute-to-minute load following, that will allow more of O’ahu’s electricity to come from variable resources. The system(s) are expected to be located within Hawaiian Electric substation facilities and properties, and the utility’s goal is to place the system(s) into service in the first quarter of 2017, if not sooner.

Hawaiian Electric recently extended the deadline to submit an “Intent to Bid Form” to 10:00 am Hawaii Standard Time on May 29, 2014. The deadline for the response to the RFP itself is 10:00 am Hawaii Standard Time on July 21, 2014.

The RFP can be found here.


FERC Announces Proposed Rule to Reduce Regulatory Burden for Generators that Own Generation Tie-Lines

In a Noticed of Proposed Rulemaking announced on May 16, the Federal Energy Regulatory Commission (FERC) proposed the following three reforms to reduce regulatory burdens for generators that own generation tie-lines (also known as Interconnection Customer’s Interconnection Facilities or “ICIF”) and to promote the development of generation resources, while still ensuring open access to those seeking transmission service over the ICIF:

Blanket Waiver of Certain Open Access Rules: A public utility (1) that is subject to open access transmission tariff (OATT) requirements, open access posting requirements, and FERC’s standard of conduct rules solely because it owns, controls, or operates ICIF and (2) that sells electric energy from its Generating Facility would be granted a waiver from the requirement to file an OATT and from related open access posting requirements and standard of conduct rules. Also, unlike under the current policy under which a third-party request for transmission service automatically revokes a generator’s OATT waiver, the proposed blanket waiver would not be revoked if transmission service over the ICIF is requested by a third party.

Federal Power Act (FPA) Sections 210 and 211 Apply to Third-Party Requests for Service: For a third party to obtain interconnection and transmission services on ICIF, the third-party must submit an application to FERC under Federal Power Act (FPA) sections 210 and 211, 16 U.S.C. §§ 824i-j. Sections 210 and 211 grant FERC the authority to require, respectively, the physical interconnection of a third-party’s facilities and the provision of transmission service to a third party if FERC determines that doing so is in the public interest.

Five-Year Safe Harbor Preserving Priority Transmission Rights: ICIF owners that are eligible for the proposed blanket waiver would be entitled to a rebuttable presumption that (1) they have definitive plans to use the capacity on the ICIF and (2) they should not be required to expand their facilities. The rebuttable presumption would last for a period of five years following the ICIF’s energization. However, the ICIF owner would need to make an informational filing to FERC reporting that its five-year safe harbor period had begun. The safe harbor period is intended to preserve eligible ICIF owners’ priority use, which is particularly important to generation projects that will be developed in phases.

The proposed reforms would replace FERC’s current policy of granting priority transmission rights and waivers of OATT and related open access requirements to ICIF owners on a case-by-case basis. FERC found that its current case-by-case approach has created undue risk, burden, and uncertainty for generation developers. The proposed reforms are intended to mitigate these problems while still ensuring open, non-discriminatory access to the transmission grid.

FERC’s announcement seeks comments from the industry on ways to implement and refine the proposed rule, including comments on: (1) the circumstances under which the proposed blanket waiver should not apply or might be revoked, (2) whether planned future use by an affiliate of an ICIF owner is an appropriate factor for the Commission to consider when making a priority rights determination in a Section 210 or 211 proceeding, and (3) whether the structure and length of the proposed safe harbor period is appropriate. Comments on the proposed rule will be due 60 days after the notice of the proposed rule is published in the Federal Register.

Stay tuned for more alerts from K&L Gates with more in-depth analysis of the proposed rule. If you would like to sign up to receive K&L Gates energy alerts, you can do so here.


President Obama Announces New Commitments to Drive Solar Development

On Friday, President Obama announced private sector goals and commitments for solar installation, applauded those private financial institutions which are “leading the way” on solar and renewable investments, and announced a series of “executive actions” which the Administration is taking to stimulate the use of energy efficiency and renewable energy technologies.  Read the White House Fact Sheet here.

The President’s announcement came in the middle of Senate debate on the Shaheen-Portman energy efficiency bill which has been stalled for years in the US Senate.  And again this week, because of issues unrelated to energy efficiency, it appears that the bill will not advance.  The Administration has clearly decided – as they have on other energy and environment issues – to take steps which do not need Congressional action in order to advance the President’s energy agenda.  Read More

DOJ’s Bird in the Hand: MBTA and BGEPA enforcement

The American Bar Association recently held its 28th annual conference for the White Collar Crime Institute in Miami, Florida.

The Institute prides itself for showcasing the most significant white collar crime issues across the country.  At this year’s meeting, Stacey Mitchell – Chief of the Environmental Crimes Section at U.S. Department of Justice (DOJ) – discussed new areas and developments during a panel discussion on “The Expanding Net of Environmental Crimes Prosecutions.”

During the Q&A, Ms. Mitchell was asked about new areas of environmental criminal enforcement for DOJ.  She responded that enforcement actions against the wind energy industry would be new this year, and specifically, enforcement actions under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).

While there is a lengthy history of MBTA and BGEPA enforcement, the focus thus far has been largely on individuals and the oil/gas industry – think poachers, farmers, and oil spills.  DOJ’s enforcement record has been mixed as it relates to prosecuting companies that are operating legally but where migratory birds are injured.  This year, however, Ms. Mitchell announced that DOJ would be taking a closer look at how wind companies comply with these laws.  Ms. Mitchell pointed to a recent plea deal with Duke Energy Renewables, and alluded to more cases on the horizon.  Just a few months ago the House Committee questioned the U.S. Fish & Wildlife Service about why it was prosecuting oil and gas companies under the MBTA and BGEPA, but not wind companies (see

The Duke Energy Renewables (DER) plea was the first of its kind against involving a wind energy company.  In late 2013, DER plead guilty to two counts of MBTA violations for killing approximately 163 migratory birds, including 14 golden eagles at two wind farms in Wyoming.  Under the terms of the plea agreement, DER will pay nearly $1 million in fines and restitution, commit to taking up to $600,000 in operational adjustments per year for the life of the wind projects, and agree to file for an eagle take permit.

Other companies are being investigated under the MBTA and BGEPA, which establish criminal liability for unintentional take of migratory birds and eagles.  The MBTA is a “strict liability statute,” and the BGEPA is enforced under a general intent criminal standard.  The stakes are high for the wind industry given the low legal standards to sustain a conviction, the steep costs of operational adjustments, and the uncertain risks underlying bird/turbine interaction.  These risks are compounded by the fact that there is no MBTA permit for incidental take of migratory birds from industrial activities, and that an eagle take permit has never (to date) been issued to a wind farm.

It remains to be seen how DOJ will exercise its enforcement discretion to target wind companies.  But what is clear is that the wind industry may be DOJ’s bird-in-the-hand for high-profile environmental cases in the years to come.

Important Upcoming Energy Storage Events on the US West Coast

There’s a busy week ahead for those who are involved in energy storage on the US West Coast.

In California, the three investor owned utilities (Pacific Gas & Electric, Southern California Edison and San Diego Gas & Electric) have now applied to the California Public Utilities Commission (CPUC) for review and approval of their energy storage procurement plans.  The plans explain how each IOU intends to procure by 2020 its share of the 1,325 MW energy storage target set by the CPUC in D. 13-10-040.  The CPUC will be holding a workshop to provide information on the applications from 10am to 4pm on Friday, March 14, 2014, at the CPUC’s auditorium at 505 Van Ness Avenue, San Francisco.  There is also a call in number for the workshop: 866-830-4003, Participant passcode: 9869619.

A little to the north of California, energy storage is becoming a focus of attention in Oregon.  Renewables Northwest will be holding its Second Energy Storage Meeting in K&L Gates’ Portland Office, 1 SW Columbia St, 19th Floor, from 10am to Noon on Thursday, March 13.  The meeting will help interested parties prepare for an energy storage workshop organized by the Oregon Department of Energy and the Oregon Public Utility Commission, which will be held from 8am to 4:30pm on Wednesday, March 19 at the White Stag Building, 70 NW Couch St, Portland, OR 97209.   You can register for the workshop here.

Still further north, K&L Gates will be sponsoring a Washington Clean Technology Alliance meeting on Progress and Promise in U.S. Grid Energy Storage, Including Washington State, featuring special presentations by Dr. Imre Gyuk, U.S. Department of Energy, and Richard Locke, Washington State Department of Commerce.  This event will be held on March 20, 2014 from 4:00 to 6:30 pm at K&L Gates’ offices in Seattle, 925 4th Ave, Suite 2900.  Advanced tickets are required, and they’ll be on sale through March 16.  You can obtain tickets for the event here.

K&L Gates attorneys will be attending each of these events, and we look forward to seeing you there!

California Independent System Operator Corporation (CAISO) Proposes Transmission Tariff Changes

On January 30, 2014, the California Independent System Operator Corporation (“CAISO”) submitted proposed tariff changes to the Federal Energy Regulatory Commission (“FERC”) in Docket No. ER14-1206-000 to implement policy and process enhancements to the project sponsor competitive selection process that takes place during the third stage of CAISO’s transmission planning process. The proposed tariff changes were developed by CAISO over the past several months as part of its Competitive Transmission Improvements stakeholder initiative, which began in September 2013. The proposed tariff changes address five issues:

Read More

Imperial Irrigation District Energy Storage RFQ

The Imperial Irrigation District (IID), the third-largest public power utility in California, recently issued QR 123, the first step in a solicitation for 20 megawatts to 40 megawatts of “battery” storage. The solicitation seeks storage that can accommodate a very broad range of specified operational characteristics, and it may prove challenging for any given storage technology to meet all of those characteristics. The solicitation’s reference to “battery” storage implies that IID is not seeking flywheels or other energy storage technologies.

At this stage, QR 123 is in the nature of a request for vendors to supply their qualifications to “design, engineer, procure and construct a utility-scale energy storage project” that will have the desired operational characteristics. Responses are due February 11, 2014.

Information about QR 123 can be found here.


Dubai Government Launches Energy Initiative

The other day I attended the launch of a new energy efficiency initiative in Dubai. The Government of Dubai has ambitions to achieve substantial savings in the consumption of energy and water over the next 15 years. It aims to encourage the retrofitting of some 30,000 government and private sector buildings and public areas with energy efficient appliances, equipment and materials covering lighting, cooling, water, industrial processes and building insulation. It is also targeting efficiencies in district cooling through regulation and greater system connectivity. To this end a new “ESCO” (Energy Service Company) industry is being created under the regulatory oversight of the Dubai Regulatory & Supervisory Bureau. As a catalyst for the evolution of this new market, Dubai Electricity & Water Authority (DEWA) has established Etihad ESCO, an ESCO that will help promote energy efficiency projects for government departments and agencies. Read More

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