On April 24, 2017, PJM Interconnection, L.L.C. (“PJM”) submitted an amicus curiae brief in a legal challenge against an Illinois program to provide additional revenue for some of the state’s financially-struggling nuclear energy facilities. The program allows eligible generators to generate and sell Zero Emission Credits (“ZECs”) and obligates the state’s utilities to buy a certain share of those credits. In its brief, PJM argued that the program allows uneconomic generators to continue participating in wholesale energy and capacity markets, thereby causing “substantial harm” to the markets and other participating generators. Continue Reading PJM Files Amicus Brief Opposing Illinois ZEC Program in Federal District Court Challenge
On April 25, 2017, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) dismissed Portland General Electric Company’s (“PGE”) and PáTu Wind Farm LLC’s (“PáTu”) petitions for review of FERC’s orders finding that PGE must purchase all of the power delivered by PáTu pursuant to their power purchase agreement (“PPA”) under the Public Utility Regulatory Policies Act (“PURPA”), but that PGE was not required to use dynamic scheduling. In doing so, the D.C. Circuit held, among other things, that: (1) it lacked jurisdiction to review FERC’s resolution of PGE and PáTu’s PURPA dispute because the orders were merely declaratory; (2) circuit court review of PURPA section 210(h) enforcement actions occurs on appeal from district courts; and (3) FERC’s Federal Power Act (“FPA”)-based regulations cited to by PáTu in support of its claim that FERC should require PGE to use dynamic scheduling only apply to the transmission customer-transmission provider relationship, which was unlike PáTu and PGE’s relationship. Continue Reading D.C. Circuit Dismisses PGE Petition for Review over PURPA Purchase Obligation, Denies PáTu Petition on the Merits
On April 6, the California Public Utilities Commission (CPUC) unanimously approved an order doubling the budget of California’s Self-Generation Incentive Program (SGIP). The order directs California’s three investor owned utilities to double their collection of SGIP fees from ratepayers. Together the utilities will collect $166 million dollars annually through 2019 to fund the SGIP, resulting in an addition $249 million for project funding.
The Order implements California’s Greenhouse Gas Reduction Act (AB 1637), which Governor Brown signed into law in September, 2016. The Act directs the PUC to increase the maximum collection for SGIP and extends the net energy metering program for fuel cells that commence commercial operation on or before December 31, 2021. The law updated the qualifications for the battery storage program by increasing the individual project cap to 5 MW and increasing the statewide cap by approximately 76 MW. Continue Reading California Seeks to Transform the Market: Doubles Funding for Distributed Generation with a Vision for Massive Battery Storage Growth
We would like to thank all our clients for choosing Troutman Sanders to represent them in 2016. In 2016, our work spanned 23 states and several countries and accounted for more than 2 gigawatts of installed renewable energy with a value exceeding $5.5 billion.
In “2016 Renewable Energy Market Year in Review and a Look Ahead to 2017,” we reflect on the biggest trends and challenges we observed in 2016 and offer insights into important trends and policy agenda items that will continue to be significant in 2017 and beyond, including:
- Tax Reform
- Federal Tax Credits
- The “Duck Curve”
- Renewable Portfolio Standards
- Energy Storage / Battery Storage
- Public Utility Regulatory Policies Act of 1978 (PURPA)
- Resurgence of Natural Gas-Fired Generation
- Commercial Power Purchase Agreements
- Proxy Revenue Swaps
- Foreign Investment
- Community Choice Aggregation
- Federal Policy
To view the complete newsletter, click here.
On February 13, 2017, a bipartisan coalition of 20 US governors published a letter imploring President Donald Trump to support the renewables industry. The group highlighted the wide impact the industry has across the nation, employing hundreds of thousands of Americans and transforming low-income and rural communities. The Governors highlight four ways in which Congress and the Trump administration could help the renewables industry.
First, grid modernization and transmission development. The Governors argued that any national infrastructure package should provide significant funding for grid modernization to address the electrical transmission challenges created by large expansions of renewable generation across the country. To implement and streamline the grid modernization process, the governors suggested that the administration create a state-federal task force to work with FERC and the National Laboratories. Continue Reading Bipartisan Governors Push Trump to Support Renewables in Infrastructure Planning
Troutman Sanders Project Development, Acquisition and Finance Partner, Brian Harms will provide guidance to counsel involved in the development of renewable energy projects, with a particular focus on the operations and maintenance (O&M) agreements that underpin such developments on March 7, 2017. The panel will discuss factors to consider and will outline the important terms and conditions to be addressed in O&M agreements. CLE credit is available. For more information click here.
The Second Circuit Court of Appeals sent a clear message to secured creditors with its recent decision, Ring v. First Niagara Bank, N.A. (In re Sterling United, Inc.),1 that in the case of a collateral description in a financing statement for blanket liens covering all of a debtor’s assets — less is more. In the case, the secured party, First Niagara Bank, supplemented its “all assets” UCC-1 description with the phrase “including but not limited to, [all assets located at]”, followed by a specific address where the collateral was located.2 When the debtor later moved to a new location, this unnecessary additional phrase almost backfired on the secured party when a bankruptcy trustee moved to avoid the financing statement as a preference.3 The Court ultimately found after protracted litigation that the collateral description was sufficient, but First Niagara’s experience serves as a reminder to creditors (and their attorneys) that a simple “all assets” UCC-1 description limits the risk of future litigation.
1 Ring v. First Niagara Bank, N.A. (In re Sterling United, Inc.), No. 15–4131–bk (2d Cir. Dec. 22, 2016) (Summary Order).
2 Id., at * 4
3 See id.
With the Obama administration coming to an end, January 2017 marks the beginning of a dramatic wholesale conservative shift in federal public policymaking. Starting with the swearing-in of the 115th Congress on January 3rd, and followed by President Donald J. Trump’s inauguration on January 20th, the legislative and executive branches promise a robust schedule of activity heading into the Trump administration’s first 100 days.
Troutman Sanders Strategies team’s 2017 Federal Outlook provides an overview of the legislative and regulatory priorities for the 115th Congress and the incoming Trump administration. Click here to view a copy of the complete report.
On November 17, 2016, FERC issued a Notice of Proposed Rulemaking (“NOPR”) in which it proposed modifications to its pro forma interconnection agreements that would require new generating facilities to install and enable primary frequency response equipment as a condition of interconnection. FERC explained that the proposed modifications are intended to address industry-wide reliability concerns related to declining frequency response performance. Continue Reading FERC Issues NOPR Proposing to Include Primary Frequency Response Provisions in Pro Forma Generation Interconnection Agreements
On August 1, 2016, the New York Public Service Commission approved the state’s plan to achieve fifty percent of its generation needs from renewables. In so doing, New York joins a handful of other states (including California Hawaii and Vermont) with ambitious clean energy goals at or above the fifty-percent mark.