On August 8, 2014, the IRS released Notice 2014-46. The Notice provides guidance with respect to a number of issues. Specifically, the Notice (i) clarifies how to satisfy the “physical work” test under the begin construction requirement, (ii) clarifies the effect of various types of transfers of interests in a facility after construction has begun and (iii) modifies the application of the 5 percent safe harbor as it applies to a single project comprised of a number of facilities. The Notice can be found here. We will post a discussion of the Notice later this week.
The Washington Utilities and Transportation Commission (WUTC) has issued an interpretive policy statement clarifying its jurisdiction to regulate third-party owners of solar panels and other net metering systems as “Public Service Companies.” Docket No. UE-112133 (July 30, 2014) (statement). While the WUTC’s policy statement provides useful guidance on the agency’s current position and the action it will likely take in the future, the statement is not binding on the agency. Read More
Last Thursday, July 3rd, the Department of Energy (DOE) issued its finalized loan guarantee solicitation for renewable energy and energy efficiency projects. DOE made $2.5 billion in loan guarantee authority directly available through the solicitation, but indicated that an expansion of this financing up to $4 billion is possible depending on how much it can stretch an appropriated credit subsidy on applications. This suite of loan guarantees has been a highly sought after item as Secretary Ernest Moniz and other DOE officials have repeatedly stressed the Department’s focus on renewable and energy efficiency research and financing. DOE support for research and investment in these areas can be seen as an extension of the President’s Climate Action Plan, as the Administration strives to cut carbon emissions. Read More
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
In 2007, the Supreme Court told the U.S. Environmental Protection Agency (EPA) it was wrong to conclude that it lacked the authority to regulate greenhouse gases (GHGs) emitted from vehicles, because GHGs are an “air pollutant.” Since then, the energy and power industries in particular have watched as the EPA took that ruling and developed regulations focused on limiting GHG emissions from stationary sources. EPA not only regulated GHGs from utilities, but expanded the program to almost any source of GHGs (landfills, electronics manufacturers, office buildings), and then “tailored” the rule to limit what everyone agreed were onerous and unnecessary impacts. In a 5-4 decision, the Supreme Court again reversed the EPA, this time telling it that it cannot regulate entities’ GHG emissions if they do not otherwise need a Clean Air Act (CAA) permit. While the decision provides relief to building owners, hospitals, bakeries, dry cleaners, many manufacturers, and just about every other type of business that uses heating and air conditioning, the power industry itself (meaning those that need CAA permits anyway) did not fair as well because the Court upheld EPA’s authority to require them to implement “best available control technology” (BACT) to limit GHGs. This alert describes the decision, and addresses the question most relevant to the regulated community: How much will this decision matter? Read More
If there wasn’t enough uncertainty about the process and standards for obtaining a programmatic eagle take permit, the U.S. Fish and Wildlife Service just made it more difficult. Since 2009, energy developers and operators – from oil & gas to wind & solar – have been able to apply for a permit for the incidental take of eagles. That permit program, which has evolved over the past several years through regulatory revisions and agency guidance, may be poised to change in dramatic fashion.
On June 19, 2014, the American Bird Conservancy and other individual plaintiffs (the “ABC Plaintiffs”) filed a lawsuit against the U.S. Fish and Wildlife Service (“USFWS”). The ABC Plaintiffs are challenging the USFWS’ revision to its eagle take rule. Specifically, the ABC Plaintiffs are challenging the agency’s determination to extend the maximum term for an incidental eagle take permit (“ETP”) to 30 years on two ground: first, USFWS revised the eagle take rule without analyzing environmental impacts under the National Environmental Policy Act (“NEPA”); and second, the rule violates the Bald and Golden Eagle Protection Act (“BGEPA”) by subverting basic eagle protections and safeguards without adequate explanation. Read More
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.
On June 3, 2014, the U.S. Department of Commerce (the “Department”) announced that certain crystalline silicon photovoltaic (“CSPV”) products from the People’s Republic of China (“China”) had been produced by taking advantage of subsidies, and that such products could be subjected to countervailing duties when imported into the United States. Upon publication of the preliminary determination in the Federal Register on Tuesday, June 10, 2014, U.S. importers of such products will be required to make cash deposits of estimated countervailing duties at the time the products enter the United States.
Renewable energy will play a major role in EPA’s latest proposal to cut greenhouse gas emissions from electric generating facilities. On June 2, 2014, EPA Administrator Gina McCarthy proposed a new regulation for cutting carbon pollution from existing electric generating units (EGUs). This rule is perhaps the most significant action to date in the President’s Climate Action Plan announced last year. The rule will require EGUs to reduce their CO2 emissions by 30% by 2030 from 2005 levels. EPA assigned a CO2 goal for each state but lets states choose how best to meet the goal. Read More
On May 19, 2014, the Environmental Protection Agency (EPA) released a long-delayed final rulemaking regulating cooling water intake structures at existing facilities under Section 316(b) of the Clean Water Act (CWA). For more than two decades, environmental advocates have pushed EPA to issue a rule under Section 316(b) in order to protect aquatic organisms, such as fish and shellfish, that become pinned against cooling water intake structures (impingement) or are drawn into cooling water systems (entrainment). Previously, EPA issued rules governing cooling water intakes at new facilities. The latest rulemaking addresses intakes at existing facilities. If unchallenged in court, this final rule would conclude what has been more than twenty years of litigation between EPA and environmental organizations.
Section 316(b) requires that the location, design, construction, and capacity of cooling water intake structures for facilities having a National Pollutant Discharge Elimination System (NPDES) permit “reflect the best technology available for minimizing adverse environmental impact.”  The final rule seeks to minimize environmental harm associated with cooling water intake structures by identifying the best technology available (BTA) to reduce impingement and entrainment for certain categories of existing facilities and new units at existing facilities. These new requirements will be implemented through NPDES permits under Section 402 of the Clean Water Act. Read More