Global Power Law & Policy – Page 37 – Legal and policy developments affecting the global power industry.

CFTC Proposes to Permit Private Rights of Action Against RTOs and ISOs and Persons Transacting Thereon

Aug 08 2016

By Lawrence Patent

The Commodity Futures Trading Commission (CFTC) has proposed to amend its previous Order exempting specified electric energy transactions from certain provisions of the Commodity Exchange Act (CEA) and CFTC regulations and to permit a private right of action against regional transmission organizations (RTOs) and independent system operators (ISOs) and persons transacting thereon for alleged fraud and manipulation. 81 Fed. Reg. 30245 (May 16, 2016). The CFTC stated that it did not intend in the original RTO/ISO Order, issued in 2013 (78 Fed. Reg. 19880 (April 2, 2013)), to grant exemption from the private right of action provided in CEA Section 22, but the Fifth Circuit held that this was the effect of the RTO/ISO Order in Aspire Commodities, L.P. v. GDF Suez Energy N.Am., Inc., No. 15-20125, 2016 WL 758689 (5th Cir. Feb. 25, 2016). Therefore, were the CFTC to adopt the amendment to the RTO/ISO Order, it would in effect be overruling Aspire. The types of transactions covered by the RTO/ISO Order include financial transmission rights, energy transactions, forward capacity transactions, and reserve or regulation transactions, and the RTO/ISO Order applies to any person or class of persons offering, entering into, rendering advice, or rendering other services with respect to these transactions.

CEQ Issues Final Greenhouse Gas Guidance Directing Federal Agencies to Consider Climate Change in their NEPA Reviews

Aug 05 2016

By Craig Wilson, Cliff Rothenstein, Sandra Safro, Ankur Tohan, David Wochner and Michael L. O’Neill

On August 2, 2016, the White House Council on Environmental Quality (CEQ) published a final version of its guidance to federal agencies requiring the consideration of greenhouse gas (GHG) emissions and effects on climate change when evaluating potential impacts of a federal action under the National Environmental Policy Act (NEPA). CEQ explains that it does not expect the Final Guidance to be applied to federal actions for which a NEPA review has been concluded or actions for which a final environmental impact statement or environmental assessment has been issued. As discussed in greater detail below, although the Final Guidance is not legally binding on federal agencies, various aspects of the document have the potential to delay permitting timelines as agencies determine whether and how to incorporate the Final Guidance into their reviews and very likely will add to the level of review that agencies undertake.

To read the full alert, click here.

Puget Sound Energy Reports to the Washington UTC on the Progress of its Efforts to Join the CAISO Energy Imbalance Market; CAISO Releases Study Chronicling Benefits of a Regional Energy Market

Jul 28 2016

By Eric Jay and Kari Vander Stoep

Puget Sound Energy (“PSE”) recently presented to the Washington Utilities and Transportation Commission (“WUTC”) regarding the steps it is taking to join the California-based Energy Imbalance Market (“EIM”) this coming fall. WUTC Docket No. 151425 (July 20, 2016). The EIM is a new energy market overseen by the California state energy balancing authority – the California Independent System Operator (“CAISO”) – that came online in November 2014. It is intended to increase reliability and other benefits for affected costumers by coordinating the dispatch of energy generation and transmission from utilities across an expanded geographic footprint that is expected to encompass significant portions of eight western states by the end 2018. As of the end of the second quarter this year, CAISO estimates that the EIM has resulted in a $65 million gross benefit for its participants to-date.

FERC Issues Rule Requiring Wind Generators to Provide Reactive Power as a Condition of Interconnection

Jul 05 2016

By Ben Tejblum and William Keyser

On June 16, 2016, the Federal Energy Regulatory Commission (the “Commission”) issued Order No. 827, which establishes reactive power requirements for all new non-synchronous generation (the “Rule”).[1] Specifically, the Rule revises the Commission’s pro forma Large Generator Interconnection Agreement (“LGIA”) and pro forma Small Generator Interconnection Agreement (“SGIA”) to require that newly interconnecting non-synchronous generators, including wind generators, provide dynamic reactive power pursuant to the terms of their interconnection agreements. The Rule is the result of a Notice of Proposed Rulemaking addressing reactive power requirements that was issued by the Commission last November.

The Washington State Department of Ecology Reissues Clean Air Rule

Jun 17 2016

By Ankur Tohan, Alyssa Moir and Alyssa M. Fritz

On June 1 the Washington State Department of Ecology (“Ecology”) reissued a draft Clean Air Rule (“CAR”). A prior iteration of the rule was filed on January 6, 2016, but was withdrawn by Ecology to address and incorporate feedback from stakeholders and covered parties. Ecology anticipates that the revised CAR will be finalized sometime in September 2016; comments on the proposed rule are due by July 22, 2016.

Like the withdrawn rule, the intent of the reissued CAR is to establish emission standards to cap and reduce greenhouse gas (“GHG”) emissions from in-state stationary sources, petroleum product producers and importers, and natural gas distributors. The CAR would cover two-thirds of all in-state GHG emissions, including both public and private sector parties.

According to Ecology, some of the changes in the reissued rule include “incorporating mechanisms to ensure emissions are reduced while supporting business growth; recognizing early actions already taken to reduce emissions; and an effective pathway for power plants.”

Reactions to the reissued CAR have been mixed. Some stakeholders have raised concerns about the costs of implementing the program and the potential costs to energy customers. Others have asserted that the proposal would not sufficiently reduce emissions to protect the environment.

Below, we address what parties could be affected by the reissued rule, how the rule would operate, and the different options for compliance. We also outline the significant changes and significant omissions in the reissued CAR as well as the key dates for stakeholder input and covered party compliance.

Click here to read the full alert on K&L Gates HUB.

UPDATED: Comprehensive Energy Policy Legislation A Side-by-Side Comparison of H.R. 8 & S. 2012

Jun 08 2016

By Tim Peckinpaugh and Kathleen Nicholas

Linked below is our updated side-by-side comparison of the House and Senate energy bills, which are moving to conference to reconcile differences in the hope of producing a final bill. The principal difference from our earlier side-by-side comparison is the inclusion of several natural resource and energy R&D provisions added to the House bill late last month in order to prepare the bill for conference and permit the appointment of House conferees.This is the first comprehensive energy bill to advance this far in the legislative process in nine years.

New Bill Planned for the Development and Funding of Offshore Wind Energy in Germany

Jun 06 2016

By Christoph Mank

An introduction of bidding processes for determining the amount of funding for the generation of electricity from onshore wind turbines, offshore wind turbines and large photovoltaic systems is planned with an amendment of the German Renewable Energy Act (Erneuerbare-Energien-Gesetz).

The German government sees the transition to bidding processes as being a central instrument for attaining the goals laid down by policy makers regarding the development of the share of renewable energies in the production of electricity. The political goal is to increase the share of renewables in the amount of electricity generated to between 40% and 45% by 2025, between 55% and 60% by 2035 and at least 80% by 2050. In real terms the increase in the contribution of renewable energy to the electricity production in Germany has gone from 25.3% in 2013 to 28% in 2014 and 32.6% in 2015. It is the political will of the current government not to fall below or exceed this established scope for expansion. For this purpose the aim is to fix the tendered quantities at a level that is as accurate as possible on the one hand; on the other hand, a high realisation rate needs to be achieved with regard to the projects awarded in the context of the bidding process.

Teresa A. Hill Named to National Law Journal’s “Energy & Environmental Trailblazers”

May 31 2016

K&L Gates is pleased to congratulate our partner Teresa A. Hill on being named to the National Law Journal’s “Energy & Environmental Trailblazers.” The National Law Journal recognized lawyers across the country that have moved the needle in the energy or environmental space through devising new strategies, pioneering technological advancements, litigating landmark cases, and other innovative initiatives.

Teresa was honored for her work in the cutting edge area of corporate energy sourcing, which helps corporate customers develop and implement sustainability and carbon reduction goals through their energy strategy.

In addition to her work spearheading the K&L Gates Corporate Energy Sourcing Initiative, Teresa focuses her practice in the areas of energy and infrastructure projects and transactions with an emphasis on on wind, solar, biomass, geothermal and hydroelectric power.

Click here to read the National Law Journal feature

New Treasury Guidance Significantly Expands Field of Renewable Energy Projects That May Qualify for the PTC or ITC

May 25 2016

On May 5, the U.S. Treasury Department released Notice 2016-31 to address certain changes made to the Production Tax Credit (“PTC”) and Investment Tax Credit (“ITC”) in the Protecting Americans from Tax Hikes (“PATH”) Act of 2015, Pub. L. No. 114-113, Div. Q. The Notice generally extends the application of the “beginning of construction” and “continuous construction” requirements set forth in Notices 2013-29, 2013-60, 2014-46, and 2015-25, and also favorably modifies several key factors of both requirements. In addition, on May 18, the U.S. Treasury Department released a revised version of Notice 2016-31, which states that the provisions of Notice 2016-31 apply to any project for which a taxpayer claims the PTC or, via Code Section 48(a)(5), the ITC, that is placed in service after January 2, 2013.

Eagle Take Permit Program Revamped – Longer Permits and Clearer Mitigation Requirements

May 24 2016

The United States Fish and Wildlife Service recently proposed revisions to its regulations authorizing take of bald and golden eagles.

The Bald and Golden Eagle Protection Act (“BGEPA”) imposes criminal and civil penalties against “whoever . . . shall take . . . any bald . . . or any golden eagle, alive or dead, or any part, nest, or egg thereof . . . .” “Take” is broadly defined to mean “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” The United States has expressed its intent to pursue companies that violate BGEPA.

Read the full alert on K&L Gates HUB.