Global Power Law & Policy

Legal and Policy Developments Affecting the Global Power Industry.

 

1
U.S. Fish & Wildlife’s Double Take on Eagle Take Permits
2
K&L Gates Hosts ACORE’s Power Generation and Infrastructure Executive Meeting
3
Department of Commerce Issues Preliminary Countervailing Duty Determination on Crystalline Solar PV Products from China
4
Implications of EPA Emissions Rules for Renewables
5
EPA Promulgates Final Standards for Cooling Water Intake Structures
6
Hawaiian Electric Company Extends “Intent to Bid” Deadline for O’ahu Energy Storage RFP
7
Australian Government releases draft legislation to implement the Emissions Reduction Fund
8
Senate Action Halted on Tax Legislation
9
FERC Announces Proposed Rule to Reduce Regulatory Burden for Generators that Own Generation Tie-Lines
10
Doing Business in India Webinar – May 21

U.S. Fish & Wildlife’s Double Take on Eagle Take Permits

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”).[1]  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

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.

 

Department of Commerce Issues Preliminary Countervailing Duty Determination on Crystalline Solar PV Products from China

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.

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Implications of EPA Emissions Rules for Renewables

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

EPA Promulgates Final Standards for Cooling Water Intake Structures

Introduction

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.” [1] 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

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.

 

Australian Government releases draft legislation to implement the Emissions Reduction Fund

The Australian Government recently released draft legislation to implement the Emissions Reduction Fund (Fund), which is the cornerstone of the Government’s Direct Action Plan climate change policy.  The Direct Action Plan centres around the purchase of greenhouse gas emissions reductions by the Government (via the Fund).

The release of the draft Carbon Credits (Carbon Farming Initiative) Amendment Bill 2014 (Cth) (Bill) follows issuance of an Emissions Reduction Fund Green Paper late last year and a subsequent White Paper in April 2014, both regarding the design of the Fund.

The Bill will amend the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) (CFI Act) and build on the existing Carbon Farming Initiative (CFI) under that Act by providing for the purchase of greenhouse gas emission reductions credits by the Government.  The Bill also makes minor amendments to associated Commonwealth legislation.

Read More

Senate Action Halted on Tax Legislation

Senate consideration of legislation to reinstate 55 expired incentives ground to a halt on May 15. The Senate fell 7 votes short of ending a Republican filibuster. While many Republicans support the underlying package, they are opposed to efforts by Senate Majority Leader Reid to limit amendments.

The bill includes a dozen energy-related measures such as the renewable electricity production tax credit and biofuels credits.

Negotiations between key Democrats and Republicans will resume the week of May 19 in hopes of reaching an agreement to end the filibuster and allow the tax package to come up for votes. If the two sides remain at a standoff, the bill may not come up for a vote until after the November election.

 

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.

 

Doing Business in India Webinar – May 21

Is your company planning on or already doing business in India? If so, you need to familiarize yourself with the latest business, political, and regulatory issues affecting your business and your employees when entering this promising but challenging and diverse market.  In this complimentary webinar, a panel of K&L Gates partners with vast experience working with companies who are doing business in India, will address a range of legal issues to give you a comprehensive grasp on the business operating environment in India.  The purpose of this webinar is to provide international legal and business context. The information in this webinar should not be considered legal advice on Indian law or otherwise. Like all non-Indian law firms, K&L Gates does not practice Indian law and we work with a network of counsel in India on Indian law issues as necessary in any given situation.

To learn more and to RSVP for log-in instructions, visit the event page here.

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