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 minerals 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

Donna Pryor and Leah Kaiser have written an article on Safety Law Matters outlining OSHA’s new guidance on mitigating and preventing the spread of COVID-19 in the workplace. The latest OSHA guidance standardizes a new name for employer policies: “COVID-19 Prevention Program.” In the guidance, OSHA states employers should implement COVID-19 Prevention Programs in the workplace.

The guidance extends to all industries, including oil, gas and mining.

For more information, read the article here.

Donna Pryor has written an article outlining President Biden’s new OSHA executive order that was published on Safety Law Matters, directing OSHA to issue revised guidance to employers on workplace safety during the COVID-19 pandemic.

The Assistant Secretary of Labor for MSHA was also directed to consider whether any emergency temporary standards on COVID-19 applicable to mines are determined to be necessary.

Read the article here.

On Tuesday, the D.C. Circuit vacated and remanded the Trump administration’s 2019 Affordable Clean Energy (ACE) rule. The ACE rule was intended as a replacement for the Obama-era Clean Power Plan (CPP). ACE was viewed as a significant rollback, especially since the CPP was one of the first major initiatives to reduce greenhouse gas emissions. The Court’s decision will send the U.S. Environmental Protection Agency (EPA) back to the drawing board, opening the door for the Biden administration to pursue its own rule-making agenda.

Section 7411 of the CAA

The ACE rule repealed the CPP and severely limited the ways in which greenhouse gas emissions could be regulated based on a new interpretation of Section 7411 of the Clean Air Act (CAA). Under the ACE rule, EPA interpreted Section 7411 of the CAA as requiring the agency to consider only control methods that could be applied at and to a stationary source, such as heat rate improvement technologies, when determining the best system of emission reduction. This interpretation was directly at odds with the CPP, which utilized control methods that were not applied at or to a physical source such as generation shifting. Continue Reading DC Circuit Court vacates and remands the Trump administration’s Affordable Clean Energy rule

Partner Megan Caldwell recently published “Trump Makes Last Minute Push to Boost Coal, But Biden Presidency’s Vow to Decarbonize Power Generation Causes Concern” in Coal Age, discussing recent and anticipated changes impacting the coal industry as the Trump administration ends and Biden kickstarts his ambitious clean energy agenda.

Read the article here.

Partner Megan Caldwell recently published “EPA Rollback of Rule Regulating Wastewater from Steam Electric Plants Allows Coal Companies Some Relief” in Rock Products Magazine, discussing the U.S. Environmental Protection Agency rollback of former President Barack Obama-era limits on wastewater effluent regulations governing the amount of toxic metals that coal-fired power plants can discharge in their wastewater.