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

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act, a monumental $1.2 trillion bipartisan infrastructure bill. Given its wide scope, the bill will drive remarkable activity and long-term investment in a wide variety of infrastructure sectors. The infrastructure bill takes an expansive view on what constitutes infrastructure and includes significant funding for the electric power system, clean energy technologies, and oil and gas infrastructure.

Continue Reading Key Takeaways for Energy Companies from the Infrastructure Investment Jobs Act

The momentum behind offshore wind has continued to grow since our February 2021 post on the topic. Last week, the U.S. Department of the Interior announced plans to open seven more offshore wind leases by 2025 off both coasts of the U.S. These potential leases will cover projects in federal waters in the Gulf of Mexico, Gulf of Maine, and off the Mid-Atlantic, the Carolinas, California, and Oregon. The agency’s announcement follows a March 2021 commitment by the Biden Administration to deploy 30 gigawatts (30,000 megawatts) of offshore wind by 2030. The agency’s announcement also came on the same day the Department of Energy set aside $13.5 million to support continued research on the impact of offshore wind on birds, bats, and marine mammals.
Continue Reading From Sea to Shining Sea, U.S. Continues Renewable Energy Push with Biden Administration’s Latest Commitment to Offshore Wind

Farm leases are a common occurrence on land being developed for solar and wind energy projects, due to the size and rural nature of land sought for development. While title searches will discover written leases that are made of record with the county clerk, farm leases are often verbal “handshake” agreements, meaning they go undetected during a standard title search. It is always recommended to conduct a site visit and inquire as to the existence of any grazing or crop operations when entering into a real estate contract for land intended for development. If a farm tenant is leasing a portion of the project property, such lease may need to be terminated, particularly in the context of a solar energy project that will require more surface use of the land.
Continue Reading Terminating Oral Farm Leases

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

What if you could substitute a renewable battery powered motor for the internal combustion engine just twelve years after its invention? At minimum, we would not be faced with the challenge of limiting greenhouse gas emissions. For all of the benefits the internal combustion engine has brought humanity, its environmental consequences are not among them.
Continue Reading The Argument for Mining Bitcoin from Clean Energy and Waste Energy Streams

The Texas legislature recently passed Senate Bill 760 (“SB 760”). SB 760, which takes effect on September 1, 2021, relates to the decommissioning of solar power facilities.  Under the new law, solar companies must now comply with similar decommissioning requirements as those previously imposed on wind companies during the 2019 legislative session.  SB 760 requires solar power facility agreements to now provide that the grantee is responsible for removing its solar power facilities from the landowner’s property.
Continue Reading Texas Legislature Expands Decommissioning Requirements to Solar Power Facility Agreements with Enactment of SB 760

The colocation of energy storage facilities with solar and wind projects has emerged as a popular trend within the renewable energy field. Many Independent System Operators have reported an increase in hybrid resources projects in their interconnection queues in recent years. For example, CAISO (California Independent System Operator) reported that hybrid projects constitute two-thirds of all solar projects in its interconnection queue.

Continue Reading Real Estate Concerns for Hybrid Renewable Energy Projects