On March 21, 2022, the Securities and Exchange Commission (“SEC”) issued a highly-anticipated Proposed Rule that proposes to require public companies to disclose climate-related risks in their registration statements and annual reports filed with the SEC. The Proposed Rule, titled The Enhancement and Standardization of Climate-Related Disclosures for Investors, will mark a watershed moment for ESG transparency and corporate compliance if finalized.
Continue Reading The SEC Proposes Mandatory Climate-Related Disclosures

Under current law, there are significant tax benefits for renewable energy projects in the United States.  These benefits include nonrefundable ITC and PTC tax credits and depreciation deductions.  From the perspective of a renewable energy developer, however, such tax benefits may be difficult to use effectively.  Currently, ITC and PTC tax credits are nonrefundable, meaning that developers with tax liability lower such credit will face difficulties effectively utilizing such excess credit.  Developers face a similar problem with depreciation deductions, as these will only operate to reduce taxable income.  If a developer does not have enough taxable income to utilize these depreciation deductions, it will be difficult to effectively utilize such excess.
Continue Reading Direct Pay Proposals in the Build Back Better Act and Observations from Industry Insiders

Greenwashing is under increased scrutiny at the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC).  Greenwashing is clearly damaging to consumers and investors as it imbues purchasing decisions with disinformation.  It “harms innovation, since it makes it more difficult for legitimate, environmentally friendly products to compete with sellers who engage in deception.”[1]As investors and consumers become increasingly sophisticated in environmental issues, it is easier for them to detect greenwash and discount companies that make misleading environmental claims, thereby undermining that company’s public integrity.[2]

In light of increasing investor interest and reliance on Environmental, Social, and Governance (ESG) related disclosures the SEC is pursuing multiple ESG efforts.  For example, the SEC created the Climate and ESG Task Force in its Division of Enforcement.[3]  The Climate and ESG Task Force was created to “develop initiatives to proactively identify ESG-related misconduct.”[4]  The SEC’s Division of Examinations published a Risk Alert on ESG offerings, which states that “rapid growth in [ESG] demand, increasing number of ESG products and services, and lack of standardized and precise ESG definitions present certain risks.”[5]  Additionally, the SEC invited public comments on climate change disclosures.
Continue Reading Increased Scrutiny on Greenwashing

During the 87th regular legislative session, the Texas Legislature passed several bills to address energy-related issues resulting from Winter Storm Uri. Together, the legislation required an overhaul of the ERCOT board of directors, expanded the Public Utility Commission of Texas (“PUCT”) from three to five members, imposed weatherization requirements on generation and transmission assets in ERCOT and on certain components of natural gas infrastructure, and directed a redesign of the ERCOT market to ensure grid reliability. As of September 1st , all of these laws were effective.
Continue Reading Legislative Check-In on Energy-Related Mandates from the 87th Regular Session

Companies with ESG policies – including financing parties investing in renewable energy projects – should assess the impact of Texas Senate Bill 19 on their government contracting opportunities, and should expect and prepare for heightened state regulation of corporate firearm policies in the future.

Effective September 1, 2021, Texas Senate Bill 19 prohibits government entities from contracting with companies that have policies that restrict business with the firearms industry. The bill specifically targets banks and other financial institutions that have at least ten employees and are seeking government contracts of at least $100,000. Under the bill, such institutions are required to provide written verification that they do not have practices, policies, guidance, or directives that “discriminate” against a firearm entity or firearm trade association.
Continue Reading The Government Contracting and Energy Implications of Texas Senate Bill 19: Navigating State Regulation of Corporate Firearm Policies

After Winter Storm Uri devastated the ERCOT grid, calls for industry reform rang out across the state of Texas. For the past few months, public hearings and floor debates have considered wide-ranging proposals to harden the ERCOT system against extreme weather events and address the financial consequences of the storm. The Legislature considered numerous bills dealing with issues such as energy and ancillary services repricing, market rules and price formation, generation weatherization, ERCOT and Texas Public Utility Commission (“PUCT”) reform, debt securitization, and the appropriate role and accountability of renewable resources in securing reliability of the grid. Below we provide an overview of the most significant energy legislation proposed during the recent Texas legislative session, both related and unrelated to Winter Storm Uri fallout. The Legislature passed bills that will affect all segments of the Texas energy economy, which collectively will prompt significant change in the years ahead. We have described bills that “passed” as those that have been enrolled or have already been signed into law by the Governor (Bills that have an asterisk in this article have been signed by the Governor.). We note that the veto period extends for 20 days post-session, which ended May 31st , so as of this writing it remains possible the Governor may veto some of these bills, though we have no indication he intends to do so. We will update this post after the veto period expires to note any such vetoes.
Continue Reading A Legislative Session in Review: Taking a Look at Key Energy Bills that Did (and Did Not) Pass During the 87th Regular Session

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

The Texas Public Utility Commission has a new member with Gov. Greg Abbott’s (R) appointment of Arthur D’Andrea to a six year term.  D’Andrea currently serves as assistant general counsel to Gov. Abbott and was previously an assistant solicitor general for the Texas Attorney General’s office.

This makes Gov. Abbott’s second appointment of the year, having named
Continue Reading Gov. Abbott Appoints New Public Utility Commissioner

While the Texas 85th legislative session began with the filing of several bills on a diverse range of energy issues, few had made it into law when the session ended on May 29, 2017. The House and Senate passed legislation that impacts wind generation facilities, electric utility rate-setting and the General Land Office’s retail electricity

2000px-Texas_flag_map.svgAt the start of today’s Public Utility Commission of Texas (PUCT) open meeting, Chairman Donna Nelson announced that May 15, 2017 will be her final day at the commission.  This is a month before she was speculated to be leaving the commission.  In order to fill her vacant space, the Governor must appoint a replacement.