On July 27, 2018, the U.S. Court of Appeals for the Federal Circuit issued an opinion reversing the decision of the Court of Federal Claims in Alta Wind I Owner-Lessor C, et al. v. U.S. The Federal Circuit held that goodwill and going concern value could attach to the assets of wind facilities that had not yet been placed in service and therefore that the Code Section 1060 residual method of allocating purchase price applied to the acquisition of the wind facilities. The Federal Circuit’s holding that goodwill and going concern value can attach to a wind facility, and the fact that it vacated the decision of the Court of Federal Claims (which included other holdings favorable to industry participants) could have significant implications for renewable projects.

At issue in Alta Wind was the appropriate amount of cash grants pursuant to Section 1603 of the American Recovery and Reimbursement Act of 2009 for several wind facilities. The Alta Wind plaintiffs purchased wind farms from a developer, placed them in service, and then applied to the Treasury Department for $703 million in Section 1603 grants. The Treasury Department awarded Section 1603 grants of approximately $495 million based on a determination that a portion of the purchase price for the wind facilities should be allocated to intangibles, potentially including going concern value and goodwill, using the residual method under Section 1060 of the Code.

As explained in our prior analysis, the Court of Federal Claims had focused on whether the wind farm acquisitions qualified as “applicable asset acquisitions” under Code section 1060 because of the presence of goodwill or going concern value. The court found as a matter of fact that neither goodwill nor going concern value could exist for a non-operational plant and therefore held that Section 1060 of the Code did not apply. With respect to goodwill, the court ruled that prior to beginning operations, no “expectation of continued patronage” could possibly exist under the terms of the PPAs, which is the sine qua non of a finding of the existence of goodwill. Regarding going concern value, the court cited United States v. Cornish, 348 F.2d 175 (9th Cir. 1965) for the proposition that going concern value, as distinguished from goodwill, is the “special value inherent in a functioning plant continuing to do business and to earn money with its staff and personnel.” Since the wind farms at issue were not functional at the time of acquisition, the court found that no separate intangible going concern value had yet been created. The Court of Federal Claims also held that location value, turnkey value, and any value attributable to above-market PPAs were inherent in the tangible property rather than separate intangibles.

The Federal Circuit disagreed with the Court of Federal Claims after applying a strict reading of the regulations under Section 1060 of the Code, which state that a group of assets constitute a trade or business requiring the use of the residual method if the “character” of the group of assets transferred is such that goodwill or going concern value could attach under any circumstances. Reg. 1.1060-1(b)(2)(i)(B) (emphasis supplied). According to the Federal Circuit, “[t]here is no need to show that a transaction had actual, accrued goodwill or going concern value at the time of the transaction” for the residual method to apply.

The Federal Circuit’s decision appears to leave open the debate as to whether a plant-specific, non-transferable power purchase agreement is an intangible asset separate and distinct from its underlying renewable energy facility. In 2012 the IRS issued PLR 201214007, in which it ruled that a facility-specific PPA was not separate from the underlying facility, citing a similar rule under Code section 168(c) for commercial real estate. The IRS subsequently revoked that ruling in PLR 201249013. The Federal Circuit addressed this issue in its analysis concerning one of the factors that could indicate the presence of goodwill and going concern value—viz., the presence of intangibles associated with the tangible property. Without much analysis, the court concludes that “the PPAs, or at least some portion thereof, may be characterized as customer-based intangibles” under Section 197 of the Code and accordingly appears to conclude that PPAs, or portions of the PPAs, could be separate intangibles. However, the court completely failed to address the substantive legal arguments for and against a holding that a facility-specific PPA is a separate and distinct asset from the underlying facility. If the Federal Circuit’s opinion can be confined to the initial determination of whether the residual method applies to a non-operational plant with a PPA, then the substantive issue of whether, as a matter of law, any value should be associated with an in-the-money PPA, or whether that value is inextricably intertwined with the value of the facility’s tangible asset, arguably remains to be decided another day.

The Federal Circuit opinion is a significant setback for industry participants in their attempts to assert that virtually all the basis in wind and solar projects is attributable to the tangible property, just as the trial court opinion was a significant setback for the government. However, it remains possible that the Court of Federal Claims on remand could conclude that there is in fact no goodwill or going concern value associated with the wind facilities, and we expect industry participants to take a similar position in the meantime.

An ambitious bill introduced in the Massachusetts’ Senate proposes to accelerate expansion to the state’s renewable energy sector. Along with implementing a market-based system to reduce emissions, the bill also aims to increase the required growth rate of the state’s renewable portfolio from 1% to 3% per year. Specific goals and proposals for solar, wind and energy storage are included in the bill. Continue Reading Massachusetts Bill Aims to Accelerate Renewable Energy Transition

On Monday, the New York State Energy Research and Development Authority (NYSERDA) issued its “Master Plan” to develop the state’s offshore wind resources and establish 2,400 MW of offshore wind generation by 2030. The plan is a component of Governor Andrew Cuomo’s Reforming the Energy Vision (REV) strategy to build clean and affordable energy systems across the state in an effort to achieve New York’s Clean Energy Standard with a goal of 50% renewable generation by 2030. Continue Reading New York Announces Master Plan to Develop 2.4 GW of Offshore Wind

While hydroelectric generation has historically been the largest source of renewable electricity generation, the U.S. Energy Information Administration (EIA) expects wind power to surpass hydro and become the largest renewable generation source sometime in the next two years. 2017 was a relatively wet year with hydro providing 7.4% of total utility-scale generation. But with only a handful of new hydro plant slated to come online in the next two years, hydroelectric generation will depend largely on water runoff and precipitation. Currently, the EIA predicts that hydro will be slightly lower in 2018 and 2019, and will produce 6.5% and 6.6% of utility-scale generation respectively. Although weather also greatly affects wind generation, output forecasts from wind are more dependent on capacity and the timing of new facilities coming online.

Continue Reading Wind to Surpass Hydro as Largest Renewable Electricity Generation Source

The Wind Energy Foundation released a report finding that upgrades and investment in transmission infrastructure is necessary to keep up with corporate demand for renewable energy. As the price of solar and wind energy has fallen, corporate demand for renewable energy has increased to a point that existing transmission lines are inadequate to provide access to such energy. Since 2013, U.S. corporations have committed to buying roughly 9 GW of wind and solar power and in 2016, the Renewable Energy Buyers Alliance set a target of purchasing an additional 60 GW of renewable energy by 2025. According to the report, transmission planners and regulators must approve plans to expand and upgrade transmission lines and FERC must improve their transmission planning process. With much of the renewable energy development taking place in the central U.S., long-distance transmission will be required to provide the renewable energy to major cities on the coasts. The full Wind Energy Foundation report can be found here.

In his State of the State speech on January 3, 2018, New York Governor Andrew Cuomo announced an ambitious, multifaceted clean energy and climate change agenda. The principal objectives are as follows:

  • Expand Regional Greenhouse Gas Initiative and Reduce Emissions Equitably From the Highest-Polluting, High Demand “Peaker” Power Plants
  • Issue Solicitations in 2018 and 2019 to Develop at Least 800 MW of Offshore Wind Projects and Foster Offshore Wind Industry and Workforce in New York State
  • $200 Million Investment to Meet Unprecedented Energy Storage Target of 1,500 Megawatts by 2025 In Order to Increase Transmission of Clean and Renewable Energy
  • Create the Zero Cost Solar for All Program for 10,000 Low-Income New Yorkers
  • Reconvene Scientific Advisory Committee on Climate Change Disbanded by the Federal Government
  • Governor Directs the Establishment of Energy Efficiency Target by Earth Day
  • Regulations to Close all Coal Plants to be Adopted

Continue Reading Governor Cuomo Announces Climate Change Agenda – Offshore Wind and Energy Storage Stand to Benefit

On Monday, the California Public Utilities Commission (CPUC) released its Renewables Portfolio Standard Annual Report announcing that the State is on track to meet its renewables portfolio standard (RPS) requirement of 50% ten years ahead of schedule. The California RPS sets a requirement that 33% of electricity retail sales be served by renewable resources by 2020, and 50% by 2030. But with aggressive investment in renewables the State’s three large investor owned utilities (IOUs) may achieve the 50% goal by the 2020 deadline, ten years early. Continue Reading CPUC: California May Achieve The 50% RPS Goal By 2020, 10 Years Ahead of Schedule

Southern California Edison (SCE) released The Clean Power and Electrification Pathway, a blueprint for California to reduce greenhouse gas emissions and air pollutants. SCE explains that a clean power and electrification pathway is the best approach to meet California’s 2030 and 2050 climate goals, reducing 1990 levels of greenhouse gas emissions by 40 and 80 percent respectively. The plan largely revolves around three economic sectors: electricity, transportation and buildings. By 2030, the plan calls for California’s electric grid to be supplied by 80% carbon-free energy, at least 7 million electric vehicles in California and one-third of space and water heaters in California to be electric powered. Essentially, the plan proposes to produce an electric grid with more carbon-free energy that will supply high-polluting industries. Other pathways to decarbonization, including renewable natural gas and hydrogen, were also analyzed but were determined to be more expensive than the clean power and electrification pathway. For more information, see SCE’s full plan here.

 

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.

We invite you to follow forthcoming news and developments through our Renewable Energy Insights, Washington Energy Report and Environmental Law & Policy Monitor blogs.

With New Federal Administration, States Betting Bigger on Renewables

Nearly 1 in 10 States have launched proposals directing utilities to procure anywhere from 50% to 100% of their power from renewable energy resources by mid-century. Currently 29 states and the District of Columbia have renewable portfolio standards (RPS) in place.  Several states, however, have introduced even more aggressive proposals likely in reaction to the fact that new federal requirements are not likely to be promulgated (e.g., the Clean Power Plan).

Some States Move All In For 100% Renewables

In 2015, Hawaii became the first state to adopt a 100% RPS designed to completely decarbonize its power portfolio. Over the next thirty years Hawaii’s RPS will ramp up with incremental requirements starting with 30% renewable generation by 2020 and ultimately achieving 100% renewable generation by 2045.

In recent weeks, state law makers in Massachusetts and California have introduced legislation to require 100% renewable energy output. In Massachusetts, a bill would require the state to get all of its electricity from renewable sources by 2035, and ultimately meet all of its heating, cooling and transportation needs through renewable sources by 2050.  Continue Reading With New Federal Administration, States Betting Bigger on Renewables