Global Power Law & Policy

Legal and Policy Developments Affecting the Global Power Industry.

 

1
SCPPA Amends “Rolling RFP” to Encourage Energy Storage Submissions by April 1
2
DOJ’s Bird in the Hand: MBTA and BGEPA enforcement
3
Important Upcoming Energy Storage Events on the US West Coast
4
CFTC and FERC Begin Formal Data Sharing
5
K&L Gates Policy Insight: Will Wyden Recharge the Batteries on the Finance Committee’s Energy Tax Reform Proposal?
6
Southern California Public Power Authority (SCPPA) Issues Renewable Energy and Energy Storage RFP
7
California Independent System Operator Corporation (CAISO) Proposes Transmission Tariff Changes
8
Energy Leadership Changes in U.S. Senate
9
Farm Bill Includes Energy Title
10
Imperial Irrigation District Energy Storage RFQ

SCPPA Amends “Rolling RFP” to Encourage Energy Storage Submissions by April 1

The Southern California Public Power Authority (“SCPPA”) recently amended its “rolling RFP” for renewable energy and energy storage projects–the original RFP was described on this Blog in an earlier post). 

California’s AB 2514 requires publicly-owned utilities to submit to the California Energy Commission by October 1, 2014 appropriate targets for the procurement of cost-effective energy storage.  As a result, SCPPA’s members are now actively seeking proposals for energy storage system development.  Because SCPPA expects to conduct its first in-depth analysis and review of energy storage-related proposals during April 2014, it “strongly encourages” energy storage respondents to submit proposals on or before April 1, 2014.  The RFP amendment adds that energy storage-related proposals will be accepted after April 1, 2014 and throughout the term of the RFP (through December 31, 2014), but states that SCPPA’s current request is intended to encourage proposals that may be immediately evaluated for their near term cost-effectiveness and viability for SCPPA’s members.

SCPPA’s RFP, as amended, can be found here

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.  http://www.americanbar.org/calendar/2014/03/white_collar_crime2014.html?sc_cid=CEN4WCC-CRS.

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 http://1.usa.gov/1fqL5Yt).

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!

CFTC and FERC Begin Formal Data Sharing

On March 5, 2014, the Commodity Futures Trading Commission (CFTC) and Federal Energy Regulatory Commission (FERC) announced that they had shared data for the first time under an information sharing Memorandum of Understanding (MOU) that was signed by the two agencies at the beginning of this year.  The purpose of the MOU is to minimize duplicative information requests when the agencies are conducting market surveillance or investigating possible manipulation, fraud or market abuse.  Congress directed the agencies to enter into the MOU as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).

The data that is subject to sharing under the MOU relates to information about market participants as well as entities regulated by either agency.  Accordingly, FERC may share data concerning Regional Transmission Organizations (RTOs), Independent System Operators (ISOs), and the independent market monitor of RTOs and ISOs, which is the North American Electric Reliability Corporation (NERC).  The data subject to sharing also includes information about interstate pipelines and storage facilities, which are regulated by FERC, and designated contract markets, swap execution facilities, derivatives clearing organizations and swap data repositories, which are regulated by the CFTC.  Any data shared by the agencies remains confidential unless it is used in an enforcement proceeding.

The agencies also announced the formation of a staff level Interagency Surveillance and Data Analytics Working Group to coordinate information sharing between the agencies and focus on data security, data sharing infrastructure, and the use of analytical tools for regulatory purposes. 

Dodd-Frank mandated a second MOU between the agencies, which also was signed at the beginning of this year, that is intended to resolve conflicts concerning potential overlapping jurisdiction and avoiding conflicting or duplicative regulation.  That MOU addresses circumstances where an entity seeks, or an agency considers sua sponte, an authorization or exemption to engage in activities that the agency thinks may also come within the other agency’s jurisdiction.  This MOU has yet to be invoked.  The second MOU specifically states that it “does not expand, alter or limit the . . . [a]gencies’ respective authorities pursuant to applicable statutes and regulations.”  It therefore remains to be seen whether the agencies will cooperate and coordinate with respect to enforcement matters, or whether we will instead see the prospect of another Amaranth case with multiple actions brought by both agencies.

The agencies have taken a long time to get to this point.  Dodd-Frank provided that the MOUs should be entered into by January 2011, and they were not actually entered into until three years later.  In the interim, the CFTC gave priority to the promulgation of the dozens of regulations that it was also required to adopt under Dodd-Frank.  In addition, last April the CFTC issued Orders exempting from the Commodity Exchange Act (1) certain electric operations transactions entered into by certain government and cooperatively-owned electric utility companies, and (2) certain transactions entered into by ISOs and RTOs that are authorized by a tariff or protocol approved by FERC or the Public Utility Commission of Texas.

The implementation of the information sharing MOU was carried out while each agency is being lead by an Acting Chairman.  Hopefully, the sharing of information under the MOU signals an era of greater cooperation and coordination between FERC and the CFTC than has sometimes been the case in the past.  It will be particularly important to observe this relationship as each agency gets new permanent leadership and the Dodd-Frank regulatory structure is developed.  It is a further reminder that, even though the jurisdictional issues among international regulators arising from cross-border swap transactions have grabbed most of the market’s attention, there are jurisdictional issues among U.S. regulators that have yet to be resolved.

 

K&L Gates Policy Insight: Will Wyden Recharge the Batteries on the Finance Committee’s Energy Tax Reform Proposal?

 

In late 2013, the Senate Finance Committee released a tax reform staff discussion draft on energy (the “energy draft”) as part of a series of tax reform proposals. According to Committee staff, the energy draft “proposes a dramatically simpler set of long-term energy tax incentives that are technology-neutral and promote cleaner energy that is made in the United States.” Although the departure of former Chairman Max Baucus (D-MT) from the U.S. Senate has thrown the fate of energy tax reform into doubt, there is ample reason to believe that his energy draft has hydrogen left in the fuel cell. This alert describes the energy draft and offers insights on the possible next steps for the proposal.To read the full alert, click here.  Additional Resources: With so many different pieces to tax reform, it is easy to lose track of various proposals and materials. To access the most relevant tax reform information from the House Ways and Means Committee, Senate Finance Committee, the Administration, and others, please visit our Tax Reform Resources page.

February 25, 2014

Authors:
Mary Burke Baker
Government Affairs Advisor
mary.baker@klgates.com +1.202.778.9223
Cindy L. O’Malley
Government Affairs Counselor
cindy.omalley@klgates.com
+1.202.661.6228
Nicholas A. Leibham
Partner
nick.leibham@klgates.com
+1.202.778.9284
Karishma Shah Page
Associate
karishma.page@klgates.com
+1.202.778.9128
Ryan J. Severson
Associate
ryan.severson@klgates.com
+1.202.778.9251
Andrés Gil
Associate
andres.gil@klgates.com
+1.202.778.9226
David A. Walker
Government Affairs Specialist
dave.walker@klgates.com
+1.202.778.9346
 

For more information, please contact our Public Policy and Law professionals, or visit our practice page on the Web.

This Policy Insight is presented as part of the Global Government Solutions® initiative.

 

Southern California Public Power Authority (SCPPA) Issues Renewable Energy and Energy Storage RFP

The Southern California Public Power Authority (SCPPA) recently announced a Request for Proposals for Renewable Energy and Energy Storage Projects. In the RFP, SCPPA seeks proposals for — in addition to customary renewable energy products — “Permanent Load Shifting (PLS), including energy storage and permanent load-shifting technologies” and “energy storage solutions (ESS) for both distribution and grid levels.” According to the announcement, respondents may propose (i) project ownership by SCPPA, (ii) a power purchase agreement (or, for storage, an “equivalent commercial agreement”) with an ownership option, or (iii) a power purchase agreement (or, for storage, an “equivalent commercial agreement”) without an ownership option.

Read More

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:

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Energy Leadership Changes in U.S. Senate

Last week, the U.S. Senate approved the nomination of Senator Max Baucus (D-MT) as the next U.S. Ambassador to China by a 96-0 vote. Although Senator Baucus’ departure will certainly have an effect on foreign policy, it has also set off a chain reaction as Senators move into key leadership positions on tax and energy issues.

Senator Baucus’ departure vacates the Chairmanship of the Senate Finance Committee, which has wide jurisdiction over all issues relating to tax, trade, and entitlement programs. In his place, Senator Ron Wyden (D-OR) will take the helm at the Finance Committee, leaving his current post as Chairman of the Committee on Energy and Natural Resources. Senator Mary Landrieu (D-LA) will replace Wyden as Chairman.

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Farm Bill Includes Energy Title

After years of negotiations, the United States House and Senate have passed a comprehensive Farm Bill which will be signed into law by President Obama on February 7 at Michigan State University, the alma mater of Senate Agriculture Committee Chair Debbie Stabenow (D-MI). On February 4, the Senate voted 68-32 to approve the five-year authorization bill, formally titled the Agriculture Act of 2014. The House passed the legislation last week.

While the bill predictably includes provisions which impact farm programs and also authorizes nutrition programs, in addition, it includes an Energy Title which provides support to many feedstock growers as well as traditional farmers who improve the energy efficiency of their operations.

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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.

 

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