Confirming landowners’ signatory authority is crucial when preparing renewable energy leases or conducting due diligence in a renewable energy financing transaction. It is not enough to rely on a landowner’s word that he or she owns a proposed project area and has the right to encumber it with a renewable energy lease. While some leases include language certifying that the landowner executing the agreement has signatory authority, failing to properly confirm that authority can result in title issues, potentially requiring lease amendments or resulting in the denial of title insurance.
In the wake of increasing inflation and as a means of codifying several of the Biden administration’s legislative priorities, the Senate passed the $750 billion Inflation Reduction Act on August 7, 2022 (the “Act”), by a 51-50 party-line vote. The Act, which is comprised of sweeping healthcare, energy, and tax measures, was approved by the House of Representatives on August 12, 2022, and signed into law by President Biden on August 16, 2022, creating a significant number of renewable energy sector benefits.
Continue Reading The Inflation Reduction Act: Green Energy Benefits
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
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
The already-complicated relationship between wind energy and eagles has taken center stage recently. The U.S. Fish and Wildlife Service (USFWS) is ramping up its efforts to protect bald and golden eagles at development projects across the country, with a massive settlement and plans to revamp the eagle take permitting process by the end of this year.
Continue Reading U.S. Fish and Wildlife Service Makes Clear Its Commitment to Eagle Protection with a $35 Million Eagle Death Settlement and Upcoming Changes to Eagle Take Permitting Program
The Bureau of Ocean and Energy Management (BOEM) revealed its intention to request Calls for Information and Nominations for a variety of Call Areas along the Central Atlantic and Oregon coasts on April 27. The Calls for Information and Nominations evidence BOEM’s continued push to advance the development of offshore wind resources. BOEM intends to officially publish the Call Areas—those portions of the Outer Continental Shelf (OCS) preliminarily identified as suitable for development—for public comment on April 29, 2022.
Continue Reading BOEM Readies Itself for Further Offshore Wind Development Along the Central Atlantic and Oregon Coasts
The Bureau of Ocean Energy Management (BOEM) announced this morning that it will offer 110,091 acres of the Outer Continental Shelf (ICS) in the Carolina Bay Area for lease this coming May. The Carolina Bay Area lease sale follows the recent lease sale in the New York Bight and demonstrates the Bind Administration’s commitment to establishing 30 gigawatts of offshore wind production by 2030. BOEM’s Federal Register notice may be found here.
Continue Reading BOEM Presses Forward with Offshore Wind Development in the Carolina Bay
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