Recently, there has been an uptick in Environmental, Social, and Governance (“ESG”) factors being considered and incorporated into commercial real estate transactions. As the focus on mitigating climate change has risen, the commercial real estate industry has seen an increase in green buildings and clean energy infrastructure. The desire to incorporate ESG factors in the industry has even trickled down into commercial real estate leases. Leases, which include various provisions to promote energy-efficiency and environmental sustainability, are often referred to as “green leases.” Green leases can be tailored to meet landlord and tenant requirements, as well as building specific needs. Here are some common ways landlords and tenants can incorporate green leasing provisions into commercial real estate leases.
Continue Reading Incorporating Environmental Sustainability Concepts into Commercial Real Estate Leases

At the beginning stages of a solar project, developers must be aware of oil and gas operations on or near the project area. However, operations that occur near but not directly on a site plan are often overlooked. If overlooked, these oil and gas operations can cause significant delays and costs when developing and financing a new project. However, some initial research and due diligence at the beginning of a greenfield development project can usually protect the project from the types of issues and costs associated with oil and gas operations located near but not directly on the site plan, which will allow the project to stay on schedule and budget.
Continue Reading The Implications of Drilling Units Created by Pooling on Solar Development

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 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

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

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

On February 5, 2021, House Democrats reintroduced the GREEN Act. The GREEN Act extends federal tax credits for renewable energy and expands them to include new storage technology.

Key provisions include:

  • extending the Investment Tax Credit (ITC) for solar energy at 30% through 2025 before phasing down to 26% in 2026, 22% in 2027 and then 10% from there;
  • extending the 30% investment tax credit for offshore wind property through 2026;
  • preserving the wind production tax credit’s 60% phaseout level through 2026;
  • extending the production tax credit for marine and hydrokinetic renewable energy facilities through 2026; and
  • providing for a 30% investment tax credit for energy storage technology.


Continue Reading New and Expanded Clean Energy Tax Incentives on the Horizon