Few propositions are as much of a win-win for both the holders of mortgages and the developers of renewable energy projects as non-disturbance and attornment agreements.

First, let’s review why a non-disturbance agreement is necessary. A lot of work goes into the design and layout of a renewable energy project, including studies and tests conducted to determine the feasibility of the land.
Continue Reading Non-Disturbance Agreements: Beneficial to Both Renewables Developers and Banks

The state of Illinois continued its push to achieve 100 percent renewable energy by 2050 when, on July 14, 2022, the Illinois Commerce Commission (ICC) approved the Illinois Power Agency’s (IPA) 2022 Long-Term Renewable Resources Procurement Plan (LTRRPP) and finalized rules and programs established under the Climate and Equitable Job Act (CEJA), which passed in September 2021. The LTRRPP is a guidebook for CEJA’s implementation, and its approval authorizes over $1.1 billion to procure new renewable generation in Illinois over the next two years by helping to fund renewable energy projects across Illinois.

Continue Reading Illinois Commerce Commission Approves Long-Term Renewable Resources Procurement Plan

Direct pay proposals contained in the proposed Build Back Better Act promise to establish a system that would allow renewable energy developers to elect to receive ITC and PTC tax credits as a refundable credit. This would allow developers, who, under the current system, usually cannot efficiently utilize the non-refundable ITC and PTC credits due to not having sufficient tax liability to offset all of the otherwise available credits. This blog has covered the direct pay proposal in greater detail here.

Continue Reading Direct Pay: A Conversation with Shannon Maher Bañaga, Spokesperson, The Partnership for Clean Energy Investment

In order to keep pace with the federal government’s ambitious goal of permitting the production of at least twenty-five (25) gigawatts of renewable energy through projects placed on public land by 2025, the Department of the Interior (the “DOI”) recently announced several policy changes to ensure developing renewable projects on public land is attractive and affordable for third-party developers and investors.

Continue Reading Federal Government Hoping to Increase Placement of Renewable Energy Projects on Public Land

On June 6, 2022, President Biden declared a national emergency (the “Declaration”) in relation to energy resources and temporarily extended the time of duty-free importation of solar panels and parts from Malaysia, Cambodia, Thailand, and Vietnam. This declaration comes in response to industry concerns over the implications, for ongoing solar energy projects, of the anti-circumvention inquiry by the U.S. Department of Commerce that was initiated on April 1, 2022. The Declaration permits the Secretary of Commerce to waive the collection of duties and other estimated duties on imported solar cells and modules from Thailand, Vietnam, Malaysia, and Cambodia for the next twenty-four months, regardless of the outcome of the anti-circumvention inquiry.

Continue Reading President Puts Hold on Tariffs and Duties On Solar Panels and Parts of Solar Panels From Vietnam, Cambodia, Malaysia, and Thailand

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