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

Renewable energy accounted for 11% of all energy generated in Illinois last year. That may sound low at first glance, but that percentage ranks Illinois second in the Midwest for installed renewable energy power and fifth in the nation for installed wind power with almost 4,000 MW of wind and 60 MW of solar. Nonetheless, the State of Illinois needs to increase the pace of renewable development and generation if it wants to maintain its reputation as a renewable energy leader in the U.S.  The State took steps last week to do just that.  On Wednesday, September 15, Illinois Governor J.B. Pritzker signed SB 2408, known as the Climate and Equitable Jobs Act (“Act”), establishing one of the most comprehensive state-level renewable energy initiatives to date. The Act’s highlights include $580 million a year for wind and solar development to increase Illinois’ renewable energy standard to 40% by 2030 and 50% by 2045.

Continue Reading New Illinois Climate and Equitable Jobs Act Adds Fuel to Renewable Energy Development in Illinois

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

During the course of any acquisition of a renewable energy project, the parties may be required to obtain consents from certain of the counterparties to the project contracts. This will be the case if a project contract includes a clause that requires the consent of the counterparty for (i) the assignment of such project contract, and/or (ii) the direct or indirect change of control of a party to the contract. The procurement of such consents can be time intensive, cause delays to a project sale, and expose a project to additional obligations if not addressed from the outset. For renewable energy projects, often times, major project contracts (e.g., revenue agreements, interconnection agreements, equipment supply agreements, etc.) include anti-assignment and/or change of control clauses.
Continue Reading M&A Time and Cost-Saving Measures: Third Party Consents in Project Development

In order for renewable energy projects to gain traction on a larger scale in the United States, significant investments need to go into building the required underlying infrastructure, including a green sustainable grid across the country.

Eminent domain, the government’s right to expropriate private property for public use with just compensation, has historically been the go-to tool for the fossil fuel industry to build and expand its vast network of pipelines by obtaining the parcels of land needed to build the pipeline. Eminent domain is a controversial concept and has been a popular target for environmentalists looking to slow the expansion of the fossil fuel pipelines.  Recent examples include the PennEast Pipeline, the Atlantic Coast Pipeline and the Dakota Access Pipeline.
Continue Reading Eminent Domain as Climate Policy: From a Target to a Potential Tool for Expanding Renewable Energy Projects

Texas property owners are becoming more knowledgeable on renewable energy as wind and solar projects continue to thrive in the state of Texas. In the early stages of renewable development, leases were not heavily negotiated and were executed swiftly, at little cost to developers. Today, the expectation is quite different.
Continue Reading Increased Landowner Sophistication Ramps Up Lease Negotiations in Texas

Solar panels are once again in the news due to several recent developments.  Due to various trade remedy actions taken over the course of the past few years, solar panels are 45% more expensive in the United States than in Europe and Australia and 50% more expensive in the United States than the global average. The Solar Energies Industries Association (SEIA) believes tariffs are largely responsible for the high price of solar panels in the United States.  The Congressional Research Service (CRS) estimates that 98% of solar panels and their components are manufactured outside the United States, as a result solar panels have been the subject of several ongoing trade disputes.
Continue Reading Section 201 Safeguard Solar Panel Tariffs Set to Expire in February 2022

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 mineral 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