Delaware has long been a preferred jurisdiction for business formation, partly because of its well-developed body of case law with respect to commercial disputes (which makes predicting the outcome of – and thus resolving – those disputes relatively efficient).

Developers of renewable natural gas (“RNG”) and other energy projects have long taken advantage of that case law and other commercial features of Delaware law (including its lack of public filing requirements for corporate records) by forming special project entities in Delaware.

Continue Reading Delaware Court of Chancery Reaffirms LLC Member Protections

Last week’s blog post on NEPA and renewable energy development discussed how NEPA intersects with legal challenges brought against wind and solar projects.  On March 9, 2022, concerned residents from the Town of East Hampton, New York filed suit to overturn the Bureau of Ocean Energy Management’s (BOEM) and Army Corps of Engineers’ (Corps) approval of the South Fork Wind Farm Project (South Fork Project).  In Mahoney v. Dept. of Interior, No. 2:22-cv-1305, plaintiffs allege violations of the National Environmental Policy Act, Clean Water Act, and Outer Continental Shelf Leasing Act by BOEM and the Corps.
Continue Reading Property Owners Lodge a NEPA Challenge to the South Fork Offshore Wind Farm Project

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

2021 witnessed a new but familiar competition among stakeholders for the use and enjoyment of the Outer Continental Shelf.  Last year, interested parties initiated five lawsuits against the first federally approved offshore wind farm, Vineyard Wind I (located off the coast of Nantucket).  And 2022 has so far continued the trend with a new challenge to the Bureau of Ocean Energy Management’s (BOEM) designation of Wind Energy Areas in the New York Bight in late January.  These legal challenges echo the arguments marshaled in numerous lawsuits across the Nation to delay or prevent oil and gas development on public lands.  Developers seeking to participate in the energy transition can learn from the experience of oil and gas development on federal lands.
Continue Reading Legal Challenges to Renewable Energy Development, and How NEPA Can Help

The Federal Energy Regulatory Commission (FERC) is acting to improve the safety of hydroelectric generation projects.  Hydropower regulation is the oldest area of FERC’s jurisdiction, dating back to the 1920s.  The latest developments in this area of FERC regulation focus on safety.
Continue Reading FERC Acts to Improve Safety at Hydroelectric Projects

Last week, the Bureau of Ocean and Energy Management (BOEM) held its second of two intergovernmental stakeholder meetings to discuss offshore wind in the Gulf of Mexico.  The February 2, 2022, meeting follows BOEM’s receipt of a second round of scoping comments for a proposed environmental assessment (EA) of the Outer Continental Shelf (OCS) for offshore wind leasing.
Continue Reading BOEM Takes Another Step Toward Leasing the Outer Continental Shelf for Offshore Wind

In case you missed it while preparing for your turkey dinner, on November 22, 2021, the United States Supreme Court issued a significant decision bearing on states’ rights to water in Mississippi v. Tennessee, et al.[1]  In that decision, the Court decided 9-0 that the Equitable Apportionment Doctrine, which had prior to this decision been held to apply only to surface waters, now also applies to interstate aquifers i.e., underground waters.
Continue Reading Water Law Update: The Equitable Apportionment Doctrine Is Not Just for Rivers and Streams Any More

Tax considerations are one of the main drivers for renewable energy projects. This fall, Husch Blackwell’s Energy and Natural Resources team hosted a webinar that explored the available federal and state credits, abatements, incentives, and in some cases, specialty taxes that affect the profitability of renewable energy projects. During the program, we received a number of questions worth sharing with our blog subscribers that are navigating tax issues on their renewable energy projects. This article addresses those questions.
Continue Reading Digging Deeper: Tax Considerations for Renewable Energy Projects

On May 7, 2021, pipeline operator Colonial Pipeline Company suffered a ransomware cyberattack on its namesake Colonial Pipeline. Hackers attacked computerized management equipment, effectively freezing one of the largest pipelines responsible for delivering gasoline and jet fuel across the Southeastern United States. The attack was the largest of its kind on an oil infrastructure target in United States history.

With FBI assistance, the company paid a $4.4 million ransom to restore pipeline operations. Law enforcement agencies and media sources identified DarkSide, a criminal hacking group, as the culprit.

In the wake of the attack, developers of energy projects which rely on pipelines to deliver products (from traditional oil to renewable natural gas) find themselves exposed to the new risk of ransomware attacks – a risk which security technology is still struggling to address. In the meantime, energy project stakeholders (from financing sources to offtake customers) are turning to cyber risk insurance for protection. Project financiers and offtake customers to whom firm delivery obligations are owed are increasingly seeking evidence of cyber risk coverage during diligence efforts. But not all policies are created equal; selecting the coverage most appropriate to a project requires an understanding of the types of coverage available and common exclusions.
Continue Reading Cyber Risk Insurance in the Wake of the Colonial Pipeline Cyberattack