Greater Sage-Grouse Avoids ESA Listing
The U.S. Fish and Wildlife Service (“Service”) announced on Tuesday, September 22, 2015, that it would not list the greater sage-grouse under the Endangered Species Act (“ESA”).
Where You Operate Matters: the Fifth Circuit Widens the Split on MBTA Liability
Last week the Fifth Circuit issued a ruling that reduces uncertainty regarding criminal liability for taking migratory birds. In particular, the ruling alleviates potential liability for facilities where interactions with migratory birds are effectively unavoidable—such as wind production facilities, power transmission lines, and other energy production or manufacturing facilities. These types of facilities face a fundamental tension under the Migratory Bird Treaty Act (“MBTA”): on the one hand, the MBTA imposes strict criminal liability for the take of migratory birds; and on the other hand, there is no permit available to authorize the unintentional take of migratory birds. The Fifth Circuit’s ruling joins other circuits around the country in holding that the MBTA applies only to the intentional take of migratory birds; however, the court’s ruling widens the split between circuits that differ in how MBTA liability applies.
WUTC Investigation Shines the Spotlight on How to Value Energy Storage – Comments Due September 25, 2015
The Washington Utilities and Transportation Commission (the “WUTC”) is in the midst of an investigation into methods for modeling the costs and benefits of energy storage in utility integrated resource plans (“IRPs”). During its review of the 2013 IRPs of Washington’s regulated utilities (Puget Sound Energy (“PSE”), Avista, and PacifiCorp), the WUTC directed the utilities to start considering how energy storage could be incorporated into future IRPs. As part of this effort, WUTC staff issued a white paper in May 2015: Modeling Energy Storage, Challenges and Opportunities for Washington Utilities. On August 7, the WUTC noticed a comment period on the white paper; the comment period closes on September 25, 2015. The WUTC will use the comments received during this period to determine whether it is necessary to give utilities direction on how energy storage should be treated in their planning and procurement processes, and may issue a policy statement at the end of the investigation to provide that guidance.
EPA’s Clean Power Plan: A Regional Analysis
EPA’s recently issued Clean Power Plan (“CPP” or “Plan”) affects every state differently. The Plan has a decidedly nationwide impact—reducing the United States’ power plant greenhouse gas emissions 32 percent by the year 2030. But the Plan functions entirely on a state-by-state level, treating each state in a different way based on its unique emissions profile. In this way, the Plan seeks to harness the power of federalism to achieve its ambitious goals.
While the target-based approach is in some ways similar to the structure of EPA’s National Ambient Air Quality Standards (NAAQS), the CPP has revised and reordered certain elements, and has modified the targets for carbon dioxide (CO2) reductions required by individual states. Although NAAQS are set on a nationwide basis, under the CPP every state has a different carbon target based on a calculus that includes the state’s emissions profile and energy mix. Thus, some states (like Montana and West Virginia) are subject to greater emission reductions than other states (like Idaho and Maine). And while states have some flexibility to determine how to meet their targets, the devil will be in the details, as evidenced by EPA’s compliance pathway chart.
OPUC reschedules Community Solar Workshop 2 for September 22, 2015
The second workshop in the Oregon Public Utility Commission (the “Commission”) Docket No. UM 1746 (HB 2941 Community Solar Program Design) has been rescheduled from Wednesday, September 23rd to Tuesday, September 22. The workshop was rescheduled in order to accommodate stakeholders who observe Yom Kippur and to encourage stakeholder participation.
Eagles Back in the Nest: FWS 30-Year Eagle “Take” Rule Vacated Less than Two Years After Implementation
On August 11, 2015, the United States District Court for the Northern District of California struck down a U.S. Fish and Wildlife Service (the “Service”) regulation that increased the maximum duration of programmatic permits for the incidental “take” of bald and golden eagles from five to thirty years (“the 30-Year Rule”)1. The decision sets aside the 30-Year Rule and leaves its fate in the hands of the Service, with potentially negative consequences for those entities that interact with avian resources. Without the 30-Year Rule, entities like wind farms—where avian interaction is effectively unavoidable—face serious questions related to securing permit coverage for their operations and prosecution for incidental take of eagles.
Moreover, until the 30-Year Rule is either reshaped through the administrative process or challenged on appeal, the previous rule—with its five year permit term and need for reapplication/NEPA review every five years—remains in place. Reapplication will trigger administrative burdens for both the permittee and the Service, with respect to both meeting the requirements of NEPA and the potential for appeals.
Duke Energy Issues RFPs for Distributed Energy Resource Program
Duke Energy Carolinas and Duke Energy Progress (collectively, Duke) recently issued two requests for proposals (RFPs) as part of the implementation of Duke’s Distributed Energy Resource Program (DERP). The DERP, which was developed pursuant to South Carolina’s Distributed Energy Resource Act of 2014 (Act 236), was approved by the South Carolina Public Service Commission earlier this year. (See more information about Duke’s program.)
OPUC Seeks Public Comment by September 1 in Its Community Solar Program Docket
In an email sent to interested stakeholders on August 14, 2015, the Staff of the Oregon Public Utility Commission (the “Commission”) provided further guidance on the public comments due in Docket No. UM 1746 on September 1, 2015, and released a revised docket schedule. As we reported in our August 6, 2015, blog post, the Commission opened UM 1746 to examine a range of possible community solar programs and requested that stakeholders submit proposals for community solar designs by August 7, 2015. Seven stakeholders filed proposals or comments, including Oregon’s investor-owned utilities; Citizens’ Utility Board of Oregon; joint nongovernmental organizations (NWSEED, Oregon SEIA, RNW, Portland Bureau of Planning & Sustainability, Oregonians for Renewable Energy Process, and NWEC); Northwest & Intermountain Power Producers Coalition; Oregon Department of Energy; and Vote Solar. Some of the proposals described specific community solar designs, while others proposed a preferred set of community solar attributes.
Energy Storage and the Energy Policy Modernization Act
We may be close to seeing the passage of the first major federal energy legislation since the Energy Policy Act of 2007. With a vote of 18-4, the Senate Energy and Natural Resources Committee on July 30, 2015 voted to advance to the Senate floor the Energy Policy Modernization Act. The proposed act was introduced by the leaders of the Senate Energy and Natural Resources Committee: Chairman Lisa Murkowski (R-AK) and ranking member Democrat Maria Cantwell (D-WA). The broad, bipartisan energy legislation is a result of many hearings over 114 proposed energy bills introduced by committee members, dozens of sessions during which stakeholders provided input on the legislation, and over 94 amendments filed during a three-day markup session. The approximately 357-page legislation has five sections: efficiency, infrastructure, supply, accountability, and conservation reauthorization.
Georgia Allows Third Party Ownership (TPO) of Solar
Recently, Georgia Governor Nathan Deal signed into law House Bill 57, known as the Solar Power Free-Market Financing Act of 2015 (the Solar Power Act). The Solar Power Act, which both houses of the state’s General Assembly passed unanimously, allows homes and businesses to install solar technology under third party ownership (TPO). Although it sailed through the General Assembly, the Solar Power Act is the product of detailed negotiations and compromise between lawmakers, electric service providers, and consumers. The introduction of TPO through the Solar Power Act is expected to provide a significant boost to the residential and commercial solar markets in Georgia. Read More