Energy Infrastructure Development, Acquisition & Financing

  • April 27, 2022

FERC Holds Technical Conference to Consider Financial Assurance for Hydropower Projects

Clean Energy, FERC, Permitting, Regulatory
Authors:
Practice area:
Industries:

On April 26, 2022 FERC held a Commission staff-led technical conference to discuss whether and, if so, how the Commission should require additional financial assurance mechanisms in the licenses and other authorizations it issues for hydroelectric projects.  The purpose of this effort is to ensure that licensees have the capability to carry out license requirements and, particularly, to maintain their projects in safe condition.  The technical conference followed, by over a year, the Commission’s January 26, 2021 notice of inquiry (NOI) seeking comments on potential changes to FERC’s rules relating to financial assurance for hydropower projects.

Background

The genesis of FERC’s January 2021 NOI was FERC’s concern that inadequate financing of hydropower projects may result in threats to public safety and environmental resources, especially for nonoperational projects.  FERC specifically noted recent experiences where a lack of funding for needed dam safety repairs led to several dam failures in 2020.  Therefore, FERC is considering whether to take additional measures to ensure that licensees have the

Continue Reading...
  • April 15, 2022

Fish and Wildlife Service Proposes to Reclassify Northern Long-eared Bat as Endangered

Clean Energy, Construction, Permitting, Regulatory, Renewable Energy, Siting, Wind Power
Authors:
Practice area:
Industries:

The U.S. Fish and Wildlife Service (FWS) is proposing to change the classification of the northern long-eared bat (NLEB) from threatened to endangered under the Endangered Species Act (ESA). Reclassifying the NLEB will have major implications for development projects throughout the U.S., particularly in wind energy development.

The FWS classifies a species as threatened when the species is likely to become endangered within the foreseeable future in all or a portion of its range. A species is endangered when it is in danger of extinction throughout all or a significant portion of its range.

Due to the fungal disease white-nose syndrome, the NLEB has experienced a steep decline in population across its 37-state range, which includes Maine, New Hampshire, and Massachusetts. In 2015, the FWS classified the NLEB as threatened due to the decline in population, and issued an ESA Section 4(d) rule allowing an incidental “take” of NLEB subject to certain conditions.

In 2020, under court order, the

Continue Reading...
  • April 11, 2022

Massachusetts Legislature Moves Forward with Reforms that Would Reshape the Energy Sectors to Achieve Climate and Economic Development Goals

Clean Energy, Energy Storage, Offshore Power, Renewable Energy, Solar Power
Authors:
Practice area:
Industries:

On April 7, 2022, Massachusetts Senate Ways and Means Committee issued its response to an earlier House Ways and Means Bill (House No. 4524).  The Senate bill, Senate No. 2819, revised a number of features of the earlier House bill with respect to the Commonwealth’s procurement of offshore wind energy, but also addressed a range of issues focused upon climate matters.  The Senate bill also included a range of provisions to advance electric vehicles, other forms of renewable energy, real estate development that advances climate goals and fundamentally alter consumers’ options by eliminating the competitive retail electricity supply market and decarbonizing the natural gas industry, as summarized below.

What’s next?  We understand that the Senate will be taking amendments to the bill during the next few days and that the Senate will likely adopt a form of Senate No. 2819 later this month.  The House will likely adopt a different version of the bill, resulting in the establishment of a conference committee to work out the

Continue Reading...
  • March 28, 2022

Slimmed Down Energy Tax and Social Spending Package Targeted for Vote Before August

Clean Energy, Development Incentives, Renewable Energy, Solar Power, Tax, Tax Credits
Authors:
Practice area:
Industries:

A slimmed down version of the Build Back Better bill is reportedly in discussions between the Biden Administration and Senator Joe Manchin (D-W.Va). The Build Back Better bill has been stalled in Congress due to opposition by Senator Manchin. The new discussions come as welcomed news as the wind production tax credit is set to expire this year, and the solar investment tax credit continues to phase down. Current law also does not include tax incentives for stand-alone energy storage projects.  Experts generally agree that prices for renewable energy development will increase absent legislative action.

According to the Washington Post, Senator Manchin has said that he would seek to bring the package to a vote prior to the August recess. Following the recess it becomes more difficult to move major legislation in advance of midterm elections

The bill is said to include an extension of the solar investment tax credits and wind production tax credits along with other clean energy provisions contained in the

Continue Reading...
  • November 17, 2021

Key Energy Provisions in Biden Administration’s $1.2 Trillion Infrastructure Investment and Jobs Act

Clean Energy, Energy Storage, Hydropower, Renewable Energy, Solar Power
Authors:
Practice area:
Industries:

On November 15, 2021, President Biden signed into law the $1.2 trillion Infrastructure Investment and Jobs Act. The Act earlier passed both Houses on a bipartisan basis. In conjunction with its passage, President Biden issued an Executive Order outlining the Administration’s priorities for dispersing monies from the infrastructure law, and establishing a task force that will coordinate the law’s implementation among federal agencies and state, local, and tribal governments. The task force will be jointly headed by former New Orleans Mayor Mitch Landrieu and Brian Deese, Director of the President’s National Economic Council, and will include the heads of the Office of Management and Budget, the Domestic Policy Council, the White House Climate Policy Office, and Cabinet members from the affected federal agencies, including the Departments of Transportation, Interior, Energy, and the Environmental Protection Agency (EPA).

The law represents the first part of the Administration’s two-pronged plan for federal investment in U.S. infrastructure. The second part, a proposed $1.85 trillion social spending

Continue Reading...
  • September 20, 2021

New York State Revises Solar and Wind Property Tax Calculator

Financing, Tax
Authors:
Practice area:
Industries:

On September 17, 2021, the New York State Department of Taxation and Finance came out with a second (revised) preliminary appraisal model for assessing solar and wind energy projects. Its initial preliminary appraisal model was issued on August 2, 2021.  Comments on both proposed property tax assessment models are due on October 1, 2021.

All local taxing jurisdictions in New York will require the use of the tax assessment model to assess renewable energy projects.  Publication and use of a uniform methodology for assessing renewable projects is one of several recent changes to the New York Real Property Tax Laws (RPTL) that the state recently enacted to promote solar, wind, and other renewable energy projects.

One of those changes was requiring local tax assessors to adopt a uniform income capitalization, or discounted cash flow, valuation approach to assess renewable energy property. An income capitalization approach values the project using the net present value of a project’s future cash flows using

Continue Reading...
  • May 26, 2021

Connecticut Targets Deployment of 1,000 MW of Energy Storage to all Electric Customers by 2030

Clean Energy, Energy Storage
Authors:
Practice area:
Industries:

In a victory for the energy storage industry, the Connecticut Senate has passed a bill targeting deployment of 1,000 MW of energy storage by December 31, 2030. The bill also establishes interim targets of 300 MW by December 31, 2024 and 650 MW by December 31, 2027. Pursuant to the legislation, the Public Utilities Regulatory Authority (“PURA”) must initiate a proceeding by January 1, 2022, to develop and implement programs and associated funding mechanisms to interconnect energy storage resources with the electric distribution system. The energy storage programs implemented by PURA must include rate design incentives designed to avoid or defer investment in traditional electric distribution system capacity upgrades. Moreover, PURA’s program must achieve the following objectives: 1) provide positive net present value to ratepayers; 2) provide multiple benefits to the grid, including resilience, ancillary services, and leveling peaks in demand; 3) foster sustained, orderly development of state-based energy storage industry; and 4) maximize value from participation of energy storage in capacity markets.

 

Continue Reading...
  • July 01, 2020

FERC Declares Concurrent Jurisdiction with Bankruptcy Courts Over Rejections of Natural Gas Transportation Agreements

FERC, Natural Gas Pipelines, Regulatory
Authors:
Practice area:
Industries:

On June 22, 2020, the Federal Energy Regulatory Commission (“FERC”) issued an order in response to a Petition for Declaratory Order (“Petition”) filed by ETC Tiger Pipeline, LLC (“ETC Tiger”), finding that FERC has concurrent jurisdiction with United States Bankruptcy Courts to review and dispose of natural gas transportation agreements sought to be rejected through bankruptcy.[1]

The Petition, filed on May 19, 2020, requested that FERC find that it has concurrent jurisdiction with Bankruptcy Courts under sections 4 and 5 of the Natural Gas Act (“NGA”) with respect to natural gas transportation agreements between ETC Tiger and Chesapeake Energy Marketing, L.L.C. (“Chesapeake”) and that FERC approval of any abrogation or modification of the agreements is statutorily required.  Specifically, ETC Tiger requested three Commission declarations:

  1. The natural gas transportation agreements between ETC Tiger and Chesapeake are FERC-jurisdictional agreements reflecting filed rates approved by FERC pursuant to its exclusive jurisdiction under the NGA;
  2. If Chesapeake seeks rejection of the agreements
Continue Reading...
  • June 11, 2020

PHMSA Issues Gas Pipeline Regulatory Reform Notice of Proposed Rulemaking

Natural Gas Pipelines
Authors:
Practice area:
Industries:

On June 9, 2020, the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued a Notice of Proposed Rulemaking (“NOPR”) to revise the Federal Pipeline Safety Regulations (“Regulations”) to reduce regulatory burdens associated with construction, operation, and maintenance of gas pipeline systems. The NOPR is in response to a series of executive orders (E.O. 13771, 13777, and 13783) calling on agencies to reduce or eliminate regulatory burdens. According to PHMSA, the value of the annualized cost savings associated with the proposed amendments is approximately $129 million (at a discount rate of 7 percent). The key reforms, which ease certain monitoring requirements, streamline reporting obligations, and reduce the burden on distribution pipelines associated with the Distribution Integrity Management Program (“DIMP”), are summarized below.

DIMP Requirements

PHMSA has proposed two revisions to DIMP requirements to ease the regulatory burden on gas distribution operators. The NOPR would provide operators of farm taps originating from regulated source pipelines the flexibility to choose between inspecting pressure regulators pursuant

Continue Reading...
  • August 13, 2019

New FERC Data Collection Requirements for Market-Based Rate Sellers

FERC, Regulatory
Practice area:
Industries:

Data Collection for Analytics and Surveillance and Market-Based Rate Purposes,
Order No. 860, 168 FERC ¶ 61,039 (2019).

On July 18, 2019, the Federal Energy Regulatory Commission (“Commission”) issued a final rule which will have impacts on new market-based rate applications, as well as companies which currently have such authorization.  Under this rule, companies which currently hold market-based rates, as well as new applicants, will need to submit data into a relational database regarding their affiliates, and will need to keep such data updated.  This will add a new compliance obligation to companies, and will require closer monitoring of active and passive investors in a project.

Following up on the 2016 series of Notices of Proposed Rulemaking,[1] the Commission issued a final rule, adopting its proposal to collect market-based rate information in a relational database, but declining to require entities, including those holding market-based rates (“Sellers”) and those who transact in virtual energy and

Continue Reading...