Bottom Line Up Front: The Department of Energy (DOE) will implement new cybersecurity programs to enhance energy sector resilience. DOE’s announcement coincides with the Senate Energy and Natural Resources Committee’s support for the DOE’s Office of Cybersecurity, Energy Security, and Emergency Response (CESER). Expect to see resilience to cyber attacks in future government procurement activities.

On March 18, 2021, CESER announced several new research programs designed to enhance the safety and resilience of the U.S. energy sector. The Trump administration established CESER to protect critical energy infrastructure by assisting oil, natural gas, and electricity industries secure their infrastructure. Currently, energy infrastructure faces threats not only from climate and natural hazards, but also evolving and increasing physical and cyber threats. Continue Reading White House and Congress Support Improved Cyber Resilience in the Energy Sector

Recent Regulatory Steps

On January 14, 2021, on the eve of President Biden’s inauguration, EPA issued an advance notice of proposed rulemaking, seeking comment on whether PFOA and PFOS should be regulated under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the Resource Conservation and Recovery Act (“RCRA”). This will likely lead to the designation of PFOA and PFOS as “Hazardous Substances” under CERCLA and RCRA. Such a designation will likely lead to EPA and the state agencies taking more aggressive action to investigate and identify new sites where PFAS may be a concern and also to review the status of existing sites where PFAS may be a concern that was not addressed in previous investigations or response actions and to potentially pursue response actions at such sites.  At this moment though there is only the interim policy that EPA provided to assist in addressing PFOA and PFOS groundwater contamination. The comment period on this advance notice just closed and we anticipate a proposed rulemaking in the near future. Continue Reading PFAS – Regulation is Upon Us

FERC is in the process of gathering information and building a public record on technical and market issues that are prompted by the growing interest in “hybrid resources.”  FERC held a technical conference in the summer of 2020 (Docket No. AD20-9), followed by written comments from conference participants. In mid-January 2021, FERC directed RTOs and ISOs to submit reports on specific information requests.  Those reports are due in July 2021 and will likely provide valuable RTO and ISO specific facts and information for developers seeking to build, own, and operate hybrid resources in FERC-regulated RTOs and ISOs.

This technical conference proceeding could imply that FERC sees a basis or need to revise regulations or tariffs to address issues limiting hybrid resource development.  While FERC is not mandating any new requirement at this time, it could foreshadow a rule making proceeding for new regulations that facilitate and perhaps incentivize hybrid resources.

Generally, “hybrid resources” are projects that are comprised of more than one resource type at the same plant location.  For purposes of the Technical Conference, FERC focused on hybrid resources that consist of “a generation resource and an electric storage resource paired together.”  In industry vernacular, “hybrid resources” are also referred to as “Co-Located Resources,” “Combination Resources,” or co-controlled resources that share a single point of interconnection (“POI”). Continue Reading FERC Explores Barriers to “Hybrid Resources”

Senior Counsel Coty Hopinks-Baul recently published “The Tide Turns: Recent Developments In Federal Regulation Of Discharges To WOTUS” in Rock Products, discussing the changes the Biden Administration is expected to make to the federal regulation of discharges to waters of the U.S. (WOTUS).  The article provides a brief round-up on some of these actions and a few details that are easy to miss but may prove useful to the regulated community.

Read the article here.

Texas property owners are becoming more knowledgeable on renewable energy as wind and solar projects continue to thrive in the state of Texas. In the early stages of renewable development, leases were not heavily negotiated and were executed swiftly, at little cost to developers. Today, the expectation is quite different. Continue Reading Increased Landowner Sophistication Ramps Up Lease Negotiations in Texas

Solar panels are once again in the news due to several recent developments.  Due to various trade remedy actions taken over the course of the past few years, solar panels are 45% more expensive in the United States than in Europe and Australia and 50% more expensive in the United States than the global average. The Solar Energies Industries Association (SEIA) believes tariffs are largely responsible for the high price of solar panels in the United States.  The Congressional Research Service (CRS) estimates that 98% of solar panels and their components are manufactured outside the United States, as a result solar panels have been the subject of several ongoing trade disputes. Continue Reading Section 201 Safeguard Solar Panel Tariffs Set to Expire in February 2022

A recent Texas case, Lyle v. Midway Solar, S.W. 3d, 2020 WL 7769632 (Tex. App. Ct., El Paso 83rd Dist. 2020), addressed a challenge that many solar developers wrestle with: how to handle mineral owners. The El Paso Court of Appeals clarified this complex issue and demonstrated the importance of properly addressing the minerals on a site prior to developing a project.

Key Takeaways for Renewable Energy Developers:

This is an important case that renewable energy developers can look to in assessing the minerals on a project site. First, the court actually acknowledged that Texas was a leader in energy and produced the largest share of oil and gas, but that public policy favors adding renewable energy sources into the State’s energy portfolio, which is a great development for renewable energy developers. This case focuses on the conflict between the surface/solar owner and mineral owner/developer, which is always an issue especially for solar developers. The opinion does not address any fact-specific analysis that must be performed when applying the accommodation doctrine, but it 1) does help confirm that the accommodation doctrine does apply when the deed/contract does not address the uses of the surface, 2) sets when the application of the accommodation doctrine should be used, and 3) shows the importance of obtaining any agreements from the proper parties before filing them of record. Continue Reading Mineral Owner vs. Solar Company: New Texas Case Addresses Key Issue

On February 5, 2021, House Democrats reintroduced the GREEN Act. The GREEN Act extends federal tax credits for renewable energy and expands them to include new storage technology.

Key provisions include:

  • extending the Investment Tax Credit (ITC) for solar energy at 30% through 2025 before phasing down to 26% in 2026, 22% in 2027 and then 10% from there;
  • extending the 30% investment tax credit for offshore wind property through 2026;
  • preserving the wind production tax credit’s 60% phaseout level through 2026;
  • extending the production tax credit for marine and hydrokinetic renewable energy facilities through 2026; and
  • providing for a 30% investment tax credit for energy storage technology.

Continue Reading New and Expanded Clean Energy Tax Incentives on the Horizon

Europe’s offshore wind sector enjoyed a record $31 billion of investment in 2020. The U.S has some serious work to do to catch up. While development of land-based wind and solar projects continues at a rapid pace across the U.S., we lag far behind many other countries when it comes to offshore project development. There are currently only two small offshore wind projects operating in the U.S.

There are signs, though, that change is coming.

Continue Reading Offshore Wind Positioned to Take Off Under Biden

ERCOT has experienced more attention to and development of Private Use Networks (“PUN”) in the last months and years. This post summarizes what these “islands in the grid” are, their positive attributes, and how to create one.

If you find this post helpful, or would like to hear more about PUNs, we will be presenting more detailed information on this subject in a March 30th “Private Use Networks & Self-Generation: What You Need to Know” webinar, in which we will also address audience questions.

You can register for the free webinar using this link.

What’s a PUN?

Private Use Network is defined by ERCOT as “[a]n electric network connected to the ERCOT Transmission Grid that contains Load that is not directly metered by ERCOT (i.e., Load that is typically netted with internal generation).”  While a PUN is interconnected to the ERCOT system, it functions largely as an island within the ERCOT system that has both generation and load (separate from station load).  A PUN can contain many different categories of resources and loads, all of which are behind an ERCOT-polled settlement (“EPS”) meter. ERCOT models a PUN in its system models (used for transmission planning and for interconnection studies) if it contains at least 10MW generation, has more than one connection to the ERCOT grid, or provides ancillary services. For settlement purposes, ERCOT will settle the net of generation and load during any interval so that if the PUN is “net load” in an interval, it will be settled as load, and as generation if energy delivered to the system during interval exceeds energy consumed. Continue Reading Private Use Networks & Self-Generation: What You Need to Know