Tag: USA

1
Declaration Of Emergency And Authorization For Temporary Extensions Of Time And Duty-Free Importation Of Solar Cells And Modules From SE Asia
2
Powering America: The Role of Energy Storage in the Nation’s Electricity System
3
K&L Gates Distinguished Speaker Program – featuring A. Stanley Meiburg, Acting Deputy Administrator, EPA
4
Building Bridges IV Bridging the Public-Private Divide: Financing Infrastructure Through Pooled Investment Platforms
5
Event: Infocast’s Corporate Renewables 2016, K&L Gates Platinum Sponsor
6
Another Step Toward North Carolina Offshore Wind: Proposed Offshore Wind Farm Lease Announced
7
CEQ Issues Final Greenhouse Gas Guidance Directing Federal Agencies to Consider Climate Change in their NEPA Reviews
8
FERC Issues Rule Requiring Wind Generators to Provide Reactive Power as a Condition of Interconnection
9
The Washington State Department of Ecology Reissues Clean Air Rule
10
UPDATED: Comprehensive Energy Policy Legislation A Side-by-Side Comparison of H.R. 8 & S. 2012

Declaration Of Emergency And Authorization For Temporary Extensions Of Time And Duty-Free Importation Of Solar Cells And Modules From SE Asia

By Stacy J. Ettinger

On June 6, 2022, President Biden issued a declaration of emergency and authorization for temporary extensions of time and duty-free importation of solar cells and modules from SE Asia under 19 USC 1318(a). The basis for the declaration of emergency is the need to ensure electric resource adequacy and address the unavailability of solar cells and modules that is jeopardizing new, planned solar installations.

In short, there is an emergency because the US is unable to import solar modules in sufficient quantities to ensure solar capacity additions necessary to achieve US climate and clean energy goals, ensure electricity grid resource adequacy, and help combat rising energy price.

Statutory authority. The statutory authority cited in the declaration (19 USC 1318(a)) is a catch-all provision that allows the president to authorize CBP to permit duty free entry of certain items if the president declares the existence of an emergency.

Specifically, the statute provides for “the importation free of duty of food, clothing, and medical, surgical, and other supplies for use in emergency relief work.” Expect arguments from stakeholders that solar products don’t fit within the list, but this law is about as good as gets if you want to find a way to stop the application of antidumping and/or countervailing duties (“ADCVDs”).

Here’s how this is going to work—

New Commerce regulation. Commerce likely will publish an interim final regulation – before the date of the preliminary determination in the solar circumvention proceedings – that will allow Commerce to instruct CBP to not collect duties on cells/modules from the four SE Asian countries for a period of 24 months (starting from the date of the proclamation). The new regulation will not apply to the current ADCVDs on imports of Chinese or Taiwanese solar cells/modules.

Current regulations (19 CFR Part 358) set forth the procedures for importation of supplies for use in emergency relief work free of ADCVDs, as authorized under 19 USC 1318(a). These regulations were published in 2006 (71 FR 63230 (October 30, 2006)). 

Commerce will continue with the circumvention inquiries. Commerce officials put out a press release on June 6 clarifying that the agency will continue the ongoing circumvention inquiries. The release states that “whatever conclusion Commerce reaches when the [circumvention] investigation concludes will apply once this short-term emergency period [24 months] is over. In accordance with the President’s declaration, no solar cells or modules imported from Cambodia, Malaysia, Thailand, and Vietnam will be subject to new antidumping or countervailing duties during the period of the emergency. Existing duties on Chinese and Taiwanese imports of solar cells and modules remain in effect.”

Commerce could still go negative at the prelim or final. Commerce is proceeding with the circumvention inquiries related to imports of cells/modules from the four SE Asian countries. Commerce’s preliminary determination is due no later than August 29, 2022; Commerce’s final determination is due by January 26, 2023. Commerce could still issue a negative determination at the prelim or final stage of the circumvention inquiries.

What happens if Commerce goes affirmative? If Commerce goes affirmative, per its regulations it must direct CBP to suspend liquidation and require a cash deposit of estimated duties. Pursuant to the emergency declaration and new regulation, Commerce would have the authority to not follow its regulations. In other words, Commerce would instruct CBP to not suspend liquidation or collect cash deposits for imports of solar cells/modules from the four SE Asian countries.

What could go wrong with this plan? Possible risk is that an interested party to the circumvention inquiries (such as the domestic manufacturer that requested the inquiries) will sue on the new regulation and/or Commerce’s application of the current regulation (19 CFR Part 358), arguing duty free treatment of solar cells/modules is beyond the scope of products covered under the statute (19 USC 1318(a)). The litigation could take at least a couple years to play out.

If the plaintiff were to prevail (and assuming an affirmative final regarding circumvention), suspension of liquidation and estimated duty payments would kick in. It is unclear whether suspension/duty payments would be retroactive (ie, to date of affirmative preliminary determination) or prospective (eg, from the effective date of the final court decision). The latter seems more likely.

The bottom line. Implementation of the Declaration should provide a two year window during which developers and other solar system providers should be able to import panels from Cambodia, Malaysia, Thailand and Vietnam without the risk of retroactive tariffs.

Relevant documents

Declaration of Emergency and Authorization for Temporary Extensions of Time and Duty-Free Importation of Solar Cells and Modules from Southeast Asia | The White House

FACT SHEET: President Biden Takes Bold Executive Action to Spur Domestic Clean Energy Manufacturing | The White House

President Biden Invokes Defense Production Act to Accelerate Domestic Manufacturing of Clean Energy | Department of Energy

Department of Commerce Statement on President Biden’s Proclamation on Solar Cells and Modules | U.S. Department of Commerce

Powering America: The Role of Energy Storage in the Nation’s Electricity System

By Kathleen Nicholas and Tim Peckinpaugh

Today, the House Energy and Commerce Committee convened its eleventh hearing in its “Powering America” series.  The series goal is to examine all aspects of the U.S. electricity sector, and today the focus was on energy storage.  Members on both sides of the political divide agreed utilization of battery and other storage systems presents an opportunity to better optimize the country’s electricity system, and help bolster vulnerable places like Puerto Rico and rural areas.

The witnesses today were:

  • Dr. Keith E. Casey, Vice President, Market and Infrastructure Development, California ISO (Opening Statement)
  • Mr. Mark Frigo, Vice President and Head of Energy Storage, E.ON North America (Opening Statement)
  • Mr. Kiran Kumaraswamy, Market Applications Director, Fluence (Opening Statement)
  • Dr. Zachary Kuznar, Director, CHP Microgrid and Energy Storage Development, Duke Energy Corporation (Opening Statement)
  • Mr. Kushal Patel, Partner, Energy and Environmental Economics, Incorporated (Opening Statement)

A variety of topics were broached during the hearing, including ways the federal government can be helpful to the storage industry and how large-scale storage can be applied to the grid in ways that increase resiliency and reliability, and are beneficial to ratepayers.

You can view an archived video of the webcast here.

K&L Gates Distinguished Speaker Program – featuring A. Stanley Meiburg, Acting Deputy Administrator, EPA

K&L Gates is pleased to invite you to our September 20th Distinguished Speaker Program breakfast featuring A. Stanley Meiburg, Acting Deputy Administrator of the Environmental Protection Agency (EPA).

Stan Meiburg serves as the Acting Deputy Administrator of EPA, continuing a career spanning over 39 years at EPA in locations around the country. He has broad experience in the management of the agency across the spectrum of EPA’s activities, and has received numerous awards, including recognition as a Distinguished Federal Executive in 2012 and as a Meritorious Federal Executive in 1997. He received EPA’s Gold Medal in 1990 for his work on the Clean Air Act Amendments, and Silver Medal in 1983 for work on state-federal relations.

Meiburg spent 18 years as Deputy Regional Administrator of EPA’s Region 4 office in Atlanta, Georgia, following service as Deputy Regional Administrator in EPA’s Region 6 office in Dallas, Texas. He is the second person in EPA history to serve as Deputy Regional Administrator in more than one region.

From 1990 to 1995, Meiburg was Director of Region 6’s Air, Pesticides and Toxics Division. From 1985 to 1990, he was Director of the Planning and Management Staff of EPA’s Office of Air Quality Planning and Standards in Durham, North Carolina, leading work on the 1990 Clean Air Act Amendments as well as planning and budgeting for the air program.

Meiburg joined EPA in 1977, serving in a variety of positions in Washington, D.C., Research Triangle Park, N.C., and Dallas, Texas, before coming to Atlanta. Meiburg holds a B.A. degree from Wake Forest University and M.A. and Ph.D. degrees in political science from The Johns Hopkins University.

RSVP:
To attend, please email Kristen Hughes or call +1.202.661.3795 by 5:00 p.m. EDT, Monday, September 19.

This event is not a fundraiser. To maintain the informality of this event, it is strictly off the record.

Building Bridges IV Bridging the Public-Private Divide: Financing Infrastructure Through Pooled Investment Platforms

K&L Gates, SovereigNET, The Fletcher School’s Network for Sovereign Wealth and Global Capital, and the International Forum of Sovereign Wealth Funds are pleased to announce our fourth symposium on global infrastructure.

The central theme of the symposium will be Bridging the Public-Private Divide through Pooled Investment Platforms. The discussion will focus on the design of innovative financing platforms to narrow the global infrastructure investment gap.

Gathering representatives from the World Bank and the institutional investor community together with policy makers, development banks, service providers, academics, and public sector partners, the symposium will explore the role of investment fund structures – sovereign, multilateral and private – in mobilizing capital in scale to finance critical infrastructure needs in both developed and emerging economies.

The symposium will be organized into four discussion panels and several interactive lunch breakouts. All sessions will feature speakers who are actively involved in sponsoring, funding, managing, and governing global infrastructure and strategic investment funds.

Keynote Speaker:  Adrian Orr, Chief Executive Officer, New Zealand Superannuation Fund; Chair of International Forum of Sovereign Wealth Funds 

To RSVP for this program, please click here.

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Event: Infocast’s Corporate Renewables 2016, K&L Gates Platinum Sponsor

We invite you to join us for Infocast’s Corporate Renewables 2016 program on September26-28, 2016 in Washington, D.C. Portland partners Teresa A. Hill and William H. Holmes will be co-sponsors, along with faculty from Renewable Choice Energy, of a one-day, interactive Corporate Renewables 101 workshop on Monday, September 26.  Topics discussed will include developing a procurement strategy, offsite renewable energy options, and executing on your renewable energy strategy.  The workshop will help corporations, universities, non-profits and other non-utility purchasers of renewable energy build a strong foundation in renewable energy procurement.

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Another Step Toward North Carolina Offshore Wind: Proposed Offshore Wind Farm Lease Announced

The U.S. Department of the Interior has just announced the next step in the years-long process toward the development of wind energy facilities off the coast of North Carolina.  In a notice published in the Federal Register on August 16, 2016, the Bureau of Ocean Energy Management (“BOEM”) proposed the sale of commercial lease rights to develop wind energy facilities on the Outer Continental Shelf off the coast of northeastern North Carolina.  The notice can be found at: https://federalregister.gov/a/2016-19552.  The area proposed for lease encompasses approximately 122,400 acres, begins about 24 nautical miles off the Outer Banks of North Carolina, and contains 21.5 Outer Continental Shelf blocks.  This area is known as the Kitty Hawk Wind Energy Area (“WEA”) and is situated in rough proximity to the Virginia WEA that was leased by BOEM pursuant to an auction process in 2013.  A map of the proposed Kitty Hawk lease area can be found at: http://www.boem.gov/Map-Standard-Background/.  Public comments to BOEM’s notice, as well as expressions of interest in the proposed lease for the Kitty Hawk WEA, may be submitted during the 60-day comment period that ends on October 17, 2016.

To read the full alert, click here.

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

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.

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

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.

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The Washington State Department of Ecology Reissues Clean Air Rule

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

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.

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