Legislature Passes SBX1-2 to Increase California RPS to 33%
Legal News Alert from Stoel Rives Renewable Energy Law Group
The California Legislature has passed Senate Bill (“SB”) X1-2, which requires California’s electric utilities to increase their renewable generation to 33% by 2020. Passage of the legislation is the culmination of years of effort to increase California’s Renewable Portfolio Standard (“RPS”) from its current 20%. In 2009, the Legislature passed SB 14, which also would have increased California’s RPS to 33%, but the bill was vetoed by Governor Schwarzenegger on the ground that it imposed too many restrictions on the use of out-of-state generation to meet California’s RPS requirement. Governor Schwarzenegger then issued an executive order directing the California Air Resources Board to develop its own 33% Renewable Energy Standard under the Board’s authority pursuant to Assembly Bill 32, the Global Warming Solutions Act of 2006. Last year, the Legislature again tried to pass another 33% RPS bill, SB 722, but the session expired before the legislation could reach a final vote. Two bills were introduced in this session: SB 23 and SBX1-2. SBX1-2 was identical to SB 23, but it was introduced in special session in an attempt to speed passage of the legislation. SBX1-2 now goes to Governor Brown for signature, and he is expected to sign the legislation into law.
For more background and information on the decision and its implications, click here.
Renewable Energy Projects: Keys to Drafting Power Purchase Agreements
Renewable Energy Projects: Keys to Drafting Power Purchase Agreements
Thursday, March 31, 2011
1:00 – 2:00 p.m. (Eastern)
Join Stoel Rives Partner, Bill Holmes, as he presents this exclusive, 60-minute webinar on Thursday, March 31.
The power purchase agreement (PPA) is the most critical component of a renewable energy project, and essential to project finance. Knowing how to properly draft and negotiate PPAs will not only alleviate tension between buyer and seller, but will protect your client by equitably allocating future risks that can arise in this ever-changing business and legal environment. This webinar also features a live Q&A session, where you can get expert answers to your specific PPA questions.
Key highlights and learning objectives:
• How to draft and negotiate PPAs: critical terms and provisions for the buyer and seller
• Keys to allocating risks of RPS compliance, curtailment, change of law, and more
• Strategies to proactively address common disputes between developers and purchasers
• Key considerations for drafting dispute resolution clauses for PPAs
This crucial webinar is not to be missed. Click here to register.
All Party Meeting Concerning California's 2011 RPS Procurement
My partner Seth Hilton attended last Friday's all-party meeting on California's 2011 RPS procurement and prepared the following update:
On February 11, 2011, California Public Utilities Commission (CPUC) Administrative Law Judge Burton Mattson issued a Proposed Decision (PD) conditionally accepting the 2011 Renewables Portfolio Standard (RPS) Procurement Plans for Southern California Edison (SCE), Pacific Gas and Electric Company (PG&E), and San Diego Gas and Electric Company (SDG&E). If adopted, the Decision would set a schedule for the utilities’ 2011 RPS solicitation. The PD was on the agenda for the CPUC’s March 24, 2011 business meeting, but was held at Commissioner Florio’s request until the April 14 meeting.
On March 25, Commissioner Florio held a well-attended all-party meeting on the PD. Among the issues raised by Commissioner Florio was where California’s investor-owned utilities stood relative to the current RPS procurement targets and the targets contained in pending legislation (SBX1-2), and whether a 2011 RPS solicitation was necessary.
All three investor-owned utilities—PG&E, SCE and SDG&E—stated that holding a 2011 RPS solicitation would be prudent. PG&E stated that it was on track to meet the current 20% RPS this year and through 2013. However, future compliance, especially with the higher procurement targets under SBX1-2, is dependent on several large projects that are scheduled to come online in the next few years. Any delay or failure of those projects would require PG&E to procure additional resources to get to the 2016 target under SBX1-2, and therefore holding a solicitation this year made sense.
According to SCE, a 2011 solicitation would be prudent for a number of reasons, not only to assist SCE to reach the goals in SBX1-2. SCE noted that a solicitation would be beneficial for current contract administration by setting the price for any replacement power and that annual RPS solicitations were important for maintaining a vigorous RPS market.
SDG&E stated that it too was not done with procurement and would need further procurement to comply with the 2016 goal under SBX1-2.
Other parties also advocated in favor of a 2011 solicitation, with TURN noting that there may be some bargains available to the utilities due to the fact that no RPS solicitation was held last year and that competition would be fairly robust for RPS contracts.
The Division of Ratepayer Advocates was one of the few dissenters (along with CARE), arguing that because a new cost containment mechanism would apply under SBX1-2, the CPUC should consider waiting until it had addressed cost containment before commencing a new RPS solicitation.
The parties also discussed various issues to be resolved by the PD, including how economic curtailment should be handled in the pro forma RPS contract, congestion adders and integration cost adders. As currently drafted, the PD would require all three utilities to amend their pro forma agreements to use the economic curtailment provisions proposed by PG&E, which would allow utilities to economically curtail projects up to five percent of the project’s expected annual generation, for which PG&E would pay the project the full contract price but would not reimburse the project for any lost production tax credits. The California Wind Energy Association noted that although it supported PG&E’s proposal, the proposal should be amended to make it clear that the cap applies to any economic curtailment caused by the utility, even if the curtailment was in fact ordered by the California Independent System Operator, and to provide for the payment of any lost production tax credits as well.
As for congestion adders, the PD would require the utilities to consider congestion costs when evaluating projects and order the utilities to release congestion cost information in their 2012 and future plans, so that project developers will be fully informed when making siting decisions.
Finally, the PD declined to allow the use of integration cost adders when evaluating bids, despite both SCE’s and SDG&E’s requests that they be permitted to do so.
If you have any further questions on this all-party meeting or any other California energy regulatory issue, please contact:
Seth Hilton at (916) 319-4749 or sdhilton@stoel.com
Bill Holmes at (503) 294-9207 or whholmes@stoel.com
Jennifer Martin at (503) 294-9852 or jhmartin@stoel.com
California Court Enjoins Implementation of Cap-and-Trade
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Legal News Alert from Stoel Rives Environmental Law Group
March 23, 2011 San Francisco Superior Court has issued a final decision in Association of Irritated Residents v. California Air Resources Board. For the moment, the California Air Resources Board (CARB) is enjoined from further rulemaking to implement the California Global Warming Solutions Act (A.B. 32), including for the cap-and-trade program. The Court upheld the validity of CARB’s Scoping Plan for implementation of A.B. 32, saving CARB from having to revise the Plan. But, the Court found flaws with CARB’s environmental review of the Scoping Plan under the California Environmental Quality Act (CEQA), in particular its analysis of alternatives to the Plan’s recommended greenhouse gas (GHG) reduction measures, such as cap and trade. CARB is enjoined from further rulemaking until the agency has come into compliance with CEQA by amending its environmental review of the Scoping Plan. For entities facing regulation under A.B. 32, this decision has important implications. Scoping Plan GHG reduction measures that have already made their way through the rulemaking process appear unaffected. But CARB’s cap-and-trade program never made it out of the formal rulemaking process. While the Board members of CARB approved the cap-and-trade program in December 2010, it left it to the Executive Officer to take final action to adopt the proposed regulation (or bring it back to the Board) after more details were finalized. CARB had a packed schedule this year to finalize cap and trade prior to its January 1, 2012 start date. Under the Court’s final decision, these activities will have to be shelved if they fall within the rubric of further rulemaking or implementation. Regulated entities may thus have a temporary reprieve from the onset of cap and trade in 2012. But continued uncertainty over the details of CARB’s planned GHG regulation of stationary sources is a less than ideal situation for regulated sources. For more background and information on the decision and its implications, click here. If you currently subscribe to Stoel Rives legal updates, click here to update your contact information and preferences. To join the Stoel Rives mailing list and ensure direct delivery of future alerts, click here to subscribe. To unsubscribe, send an email to unsubscribe@stoel.com. |
California Court Enjoins Implementation of Cap-and-Trade
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Legal News Alert from Stoel Rives Environmental Law Group
March 23, 2011 San Francisco Superior Court has issued a final decision in Association of Irritated Residents v. California Air Resources Board. For the moment, the California Air Resources Board (CARB) is enjoined from further rulemaking to implement the California Global Warming Solutions Act (A.B. 32), including for the cap-and-trade program. The Court upheld the validity of CARB’s Scoping Plan for implementation of A.B. 32, saving CARB from having to revise the Plan. But, the Court found flaws with CARB’s environmental review of the Scoping Plan under the California Environmental Quality Act (CEQA), in particular its analysis of alternatives to the Plan’s recommended greenhouse gas (GHG) reduction measures, such as cap and trade. CARB is enjoined from further rulemaking until the agency has come into compliance with CEQA by amending its environmental review of the Scoping Plan. For entities facing regulation under A.B. 32, this decision has important implications. Scoping Plan GHG reduction measures that have already made their way through the rulemaking process appear unaffected. But CARB’s cap-and-trade program never made it out of the formal rulemaking process. While the Board members of CARB approved the cap-and-trade program in December 2010, it left it to the Executive Officer to take final action to adopt the proposed regulation (or bring it back to the Board) after more details were finalized. CARB had a packed schedule this year to finalize cap and trade prior to its January 1, 2012 start date. Under the Court’s final decision, these activities will have to be shelved if they fall within the rubric of further rulemaking or implementation. Regulated entities may thus have a temporary reprieve from the onset of cap and trade in 2012. But continued uncertainty over the details of CARB’s planned GHG regulation of stationary sources is a less than ideal situation for regulated sources. For more background and information on the decision and its implications, click here. If you currently subscribe to Stoel Rives legal updates, click here to update your contact information and preferences. To join the Stoel Rives mailing list and ensure direct delivery of future alerts, click here to subscribe. To unsubscribe, send an email to unsubscribe@stoel.com. |
New Stoel Rives California Environmental Law Blog
Stoel Rives LLP is pleased to present the California Environmental Law Blog (http://www.californiaenvironmentallawblog.com), which will focus on emerging environmental and natural resource issues specific to California.
The Stoel Rives California Environmental Law Blog is written by leading environmental and natural resources attorneys, whose posts will discuss comprehensive legal and business issues involving water rights, water quality, land use and CEQA, timber and forest products, energy, agribusiness and food processing, wineries and vineyards, Proposition 65, and delta legislation.
We look forward to many lively discussions with ag interest owners, wineries, property rights owners, food processors, local governments, public entities, forest product companies, landowners, and timber companies, as well as others interested in California environmental law.
We hope you enjoy the California Environmental Law Blog!
COMMISSIONER FLORIO NOTICES ALL-PARTY MEETING CONCERNING 2011 RENEWABLE PORTFOLIO STANDARD PROCUREMENT
On February 11, 2011, California Public Utilities Commission (CPUC) Administrative Law Judge Burton Mattson issued a Proposed Decision conditionally accepting the 2011 Renewables Portfolio Standard (RPS) Procurement Plans for Southern California Edison, Pacific Gas and Electric Company, and San Diego Gas and Electric Company. If adopted, the Decision would set a schedule for the utilities’ 2011 RPS solicitation. The Decision was on the agenda for the CPUC’s March 24, 2011 business meeting, but was held at Commissioner Florio’s request until the April 14 meeting.
On March 17, 2011, Commissioner Florio noticed an all-party meeting on the Proposed Decision for March 25, 2011. Yesterday, Commission Florio circulated an agenda for the meeting. Among the issues raised by the agenda is whether an RPS solicitation in 2011 is necessary and prudent.
Stoel Rives’ Partner Seth Hilton will be present at the all-party meeting, and will provide an update afterwards.
Idaho Legislature Halts Wind Moratorium
Today, the State Affairs Committee of the Idaho House of Representatives rejected H265, the bill that would impose a two-year moratorium on new wind projects in the state, by a vote of 11-8. Discussions at the hearing suggest that at least some of the bill's opponents believed the rapid development of wind in the state should be addressed by individual counties, rather than through a statewide moratorium on development. Although it appears that the bill will not make it out of committee, it cannot be considered dead. The bill may yet be rewritten in a process known as "gutting and stuffing" and brought up again this legislative session. For now, though, wind-industry advocates are breathing a sigh of relief.
For more information on H265, see Teresa Hill's blog from last week.
FERC Seeks Comments on Regulatory Reforms for Merchant Transmission and Generator Interconnection Capacity
The Federal Energy Regulatory Commission ("FERC") is seeking comments from energy industry participants on regulatory reforms that address how FERC should regulate merchant transmission development and generator interconnection (or lead) lines. Specifically, FERC desires comments on how it should balance the requirements of open access transmission and the needs of project developers.
Merchant transmission and generator interconnection issues have caused a surge of contested FERC proceedings in recent years. In 2009, merchant transmission developers, for instance, were granted the ability to place transmission capacity with anchor tenants prior to making capacity available through an open season. The anchor tenant model was a significant shift in merchant transmission regulation, but, to date, merchant transmission developers have struggled to maintain meaningful anchor tenant arrangements. As a result, more recent filings at FERC have pushed the boundaries of the anchor tenant model, and FERC now seeks to determine through public comment how its open access policies could be further changed to incentivize merchant transmission development.
Generator interconnection lines have also been a popular subject at FERC of late—specifically whether and how interconnection line owners should be granted priority rights to interconnection capacity. This issue is particularly relevant for renewable energy developers who are planning to build generation projects in phases and will rely on having interconnection capacity available to serve later phases when they come online. To maintain priority over competing interconnection requests, FERC has asked generation developers to show they have established milestones for developing the generation phases that seek priority (and to demonstrate progress toward meeting those milestones). Such filings are generally confidential, and thus interconnection line owners from the outside looking in have not been given much insight into what is required to establish priority. FERC's precedent on the issue has also created dissimilar treatment of interconnection owners who are affiliated with open access transmission providers.
On March 15, 2011, FERC staff held a technical conference where the invited speakers shared a wide range of opinions on these issues. With respect to merchant transmission, speakers supported (i) creating a new section to the Open Access Transmission Tariff ("OATT") that would specify the rules for developing merchant transmission and the ancillary services obligations of those developers, (ii) placing AC merchant lines under existing incumbent transmission provider OATTs, (iii) allowing more incentives for anchor tenants, and (iv) having FERC back away from regulating these projects in their early stages. Those who spoke about priority to interconnection capacity shared opinions that included (x) requiring interconnection developers to give public notice of their development intentions and allow others to bid on capacity (a "speak now or forever hold your peace" approach), (y) requiring all interconnection owners to develop and maintain an "OATT light"—a pared down version of the full OATT, and (z) advocating for less regulation of interconnection lines altogether. FERC staff also questioned whether and how FERC should regulate transmission service over interconnection facilities that are shared or jointly owned (e.g., through a Joint Ownership Agreement, Shared Facilities Agreement, or Common Facilities Agreement) directly by generation developers, or indirectly through an affiliate that owns and operates an interconnection line.
Written comments on these issues are due to FERC no later than April 21, 2011.
Continue Reading...
Sen. Murkowski Introduces Bipartisan Hydropower Improvement Act
Today, Senate Natural Resources Committee Ranking Member Lisa Murkowski (R-AK) introduced bipartisan legislation to accelerate the deployment of hydropower projects across the country. According to Murkowski, the Hydropower Improvement Act of 2011 "achieves common sense regulatory reform, spurs economic growth and takes advantage of hydropower's position as the country's leading source of clean, renewable energy." Co-sponsor, Sen. Jeff Bingaman (D-NM) pointed out that the bill includes provisions that address hydropower development from smaller sources, emphasize the need to improve efficiency at existing facilities, and encourage development of hydropower at existing, non-electrified dams.
Key provisions of the Hydropower Improvement Act, as summarized by the National Hydropower Association ("NHA"), include the following:
- Grant Program: Directs the U.S. Department of Energy ("DOE") to establish a competitive grant program to support efficiency improvements or capacity additions at existing hydropower facilities; adding generation to non-electrified dams; addressing aging infrastructure; conduit projects; environmental studies; and environmental mitigation measures.
- Non-Powered Dams and Pumped Storage: Directs the Federal Energy Regulatory Commission ("FERC") to explore a potential two-year licensing process for hydropower development at existing non-powered dams and closed-loop pumped storage projects.
- Conduit and Small Hydro: Allows for conduit projects on federal lands and directs FERC and other federal agencies to enter into a Memorandum of Understanding ("MOU") to better coordinate reviews of these projects. Requires regional workshops to reduce barriers and investigate improvements to the regulatory process for small hydro and conduit projects.
- Federal Hydropower Development: Requires the Departments of Energy and the Interior and the Army Corps of Engineers to report to Congress on the impelmentation of the March 24, 2010 MOU on increasing federal hydropower development. Also, directs FERC and the Bureau of Reclamation (the "Bureau") to complete a new MOU to improve the coordination and timeliness of non-federal hdyropower development at Bureau projects.
- R&D Program: Requires DOE to develop and implement a plan to increase the nation's use of hydropower through research, development, and demonstration initiatives.
- Studies: Directs DOE to study pumped storage project opportunities on federal and non-federal lands near existing or potential sites of intemittent renewable resource development, and a study of hydorpower potential from existing conduits. Directs the Bureau to study barriers to non-federal development at Bureau projects.
The NHA has lauded the bill and each of its nine co-sponsors for recognizing "the vital role of hydropower as an affordable, reliable, available and sustainable domestic energy source." Stoel Rives attorney Cherise Oram, NHA Legislative Affairs Committee Chair, assisted NHA staff in its work on the bill.
In addition to Sens. Murkowski and Bingaman, the bill's co-sponsors are Maria Cantwell (D-WA), Mark Begich (D-AK), Mike Crapo (R-ID), Patty Murray (D-WA), James Risch (R-ID), Sheldon Whitehouse (D-RI), and Ron Wyden (D-OR).
Idaho Legislature Considering Moratorium on Wind Development
Two bills were introduced in the Idaho legislature last week, both of which could significantly impact the wind industry in Idaho. The first, H250, extends a sales or use tax rebate available to purchasers of qualifying machinery and equipment used in generating electricity from renewable resources. The rebate is currently set to expire as of July 1, 2011. Under the proposed legislation, the rebate would be extended for such purchases but only if the purchaser achieves commercial operation by December 31, 2014.
The second bill, H265, would impose a moratorium on the construction of new wind projects in Idaho for two years and directs the Interim Energy Committee to meet during that time and report on various wind related issues, including the impact of wind on power rates and the ability of utilities to integrate wind into their systems. The relevant moratorium language is excerpted below. Although initial reports of the bill stated that it would not apply to wind projects that are already under construction or have permits, that is not how the legislation is written. As proposed, it prohibits municipalities, counties and state agencies from "granting approval or issuing any new licenses or permits for the construction or operation of wind turbines that exceed one hundred (100) feet in height and have a nameplate capacity that exceeds one hundred (100) kilowatts." A plain reading of this language means that a fully developed and "almost" fully permitted project with wind turbines already delivered on-site could be subject to the moratorium because of the inability to obtain building or other ministerial permits, which some Idaho counties require as each individual turbine is constructed.
We'll continue to monitor closely as the future of Idaho's wind industry is debated by the legislature.
61-1802. MORATORIUM ON CONSTRUCTION OF CERTAIN INDUSTRIAL WIND FARMS AND WIND TURBINES FOR A TIME CERTAIN. (1) From the effective date of this act until July 1, 2013, municipalities, counties and state agencies are prohibited from granting approval or issuing any new licenses or permits for the construction or operation of wind turbines that exceed one hundred (100) feet in height and have a nameplate capacity that exceeds one hundred (100) kilowatts. Projects that have been approved and for which the statute of limitations for legal proceedings of the state of Idaho against the project expire without any legal action against the project shall be allowed to be constructed. Projects for which legal proceedings are pending shall not be allowed to be constructed until the legal proceedings are complete and a court of competent jurisdiction finds that construction may proceed.
California Public Utilities Commission Holds Workshop on Energy Storage Legislation
On Wednesday, March 9, the California Public Utilities Commission (“CPUC”) held a workshop on its implementation of California’s recent energy storage bill, Assembly Bill (AB) 2514, signed by Governor Schwarzenegger on September 29, 2010.
AB 2514 requires the CPUC and municipal utilities in California to open proceedings by March 1, 2012 to determine appropriate targets, if any, for the procurement of viable and cost-effective energy storage systems by load-serving entities. By October 1, 2013, the CPUC must (1) determine whether a procurement target for energy storage is appropriate and, if so, (2) adopt a procurement target for each load-serving entity under its jurisdiction to be achieved by December 31, 2015 and a second target to be achieved by December 31, 2020. Municipal utilities have an additional year to meet these requirements.
Continue Reading...Army Corps Proposes New Nationwide Permit for Offshore Wind and Hydrokinetic Pilot Projects
The Army Corps of Engineers (the “Corps”) is seeking comments on a new proposed nationwide permit (“NWP”) for offshore wind and hydrokinetic pilot projects. In its February 16, 2011 Proposal to Reissue and Modify Nationwide Permits, the Corps described a new NWP for “Water-Based Renewable Energy Pilot Projects” that could give developers a reprieve from obtaining permits under § 10 of the Rivers and Harbors Act and § 404 of the Clean Water Act for the “construction, expansion, or modification of water-based wind or hydrokinetic pilot projects and their attendant features.”
Continue Reading...BOEMRE Proposes to Streamline Leasing on the OCS
There’s good news for offshore wind and hydrokinetic project developers looking to site projects on the Outer Continental Shelf (“OCS”). The Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE” or the “Bureau”) issued a Notice of Proposed Rulemaking (“NOPR”) on February 16, 2010 to delete a step in the regulatory process for issuing noncompetitive leases to renewable energy projects on the OCS when an applicant responds to a Request for Interest (“RFI”) or a Call for Information and Nomination (“Call”) issued by BOEMRE.
Continue Reading...Upcoming Energy Conference Highlights
Through industry presentations and publications as well as through our blog, our energy attorneys are dedicated to helping you stay informed and knowledgeable about legal developments that affect your business.
Visit our website for the latest calendar of events. Upcoming highlights include:
Renewable Energy World Conference & Expo North America 2011
March 8-10, 2011 – Tampa, FL
Featuring speakers Bill Holmes, Greg Jenner, David Benson and Ramona Monroe. Visit us at booth #726 in the Exhibit Hall.
Tax Equity Financing for Renewables
March 16 - Webinar
This webinar, part of EUCI's Law of Renewable Energy Series, is instructed exclusively by Stoel Rives Partners Gary Barnum, Greg Jenner, Kevin Pearson, and Moderated by Ed Einowski. It will provide a refresher on the 1603 grant, the PTC and the ITC, and discuss the requirements and complexities of bonus depreciation, and the opportunities to utilize New Market Tax Credits.
Biomass for Power, Fuels and Chemicals
March 21-22 – Minneapolis, MN
Visit with Mark Hanson, Jennifer Martin, Bill Holmes, and John Eustermann, who will cover topics from PPAs and feedstock agreements to project due diligence and case studies.
Solar Power Finance & Investment Summit
March 22-24 – San Diego, CA
Join speakers Morten Lund and Howard Susman along with Julia Pettit, David Quinby, Brian Nese, Jennifer Martin, Kristen Castaños, Greg Jenner and David Benson in sunny San Diego – save 15% on conference registration with code 111561
Solar EPC and Long-Term Component Supply
March 28 – Webinar
Stoel Rives Partners Ed Einowski, David Hattery and Morten Lund will serve as the exclusive instructors for this webinar, part of the Law of Renewable Energy Series presented by EUCI.
National Hydropower Association's Annual Conference
April 4-6 – Washington, DC
Cherise Oram will discuss how best to navigate the Endangered Species Act at the Federal Energy Regulatory Commission licensing, relicensing and mid-license stages as she presents, "Working Toward Successful ESA Outcomes."
Parties convene in Portland to discuss the creation of an Energy Imbalance Market
A group of western utility executives, transmission officials, and regulatory analysts are convening in Portland, Oregon next week to discuss the creation of a western Energy Imbalance Market (“EIM”). The EIM is part of an Efficient Dispatch Toolkit (“EDT”) proposed by a WECC subcommittee and the Western Interstate Energy Board (“WIEB”) that would include: (1) the EIM to supply energy imbalance service and congestion management, and (2) an Enhanced Curtailment Calculator (“ECC”) to manage power flow impacts across Balancing Authority (“BA”) seams. As a point of reference, the Southwestern Power Pool launched a similar “Energy Imbalance Service” in 2007.
Why: Renewable energy capacity in the West is expected to grow from roughly 13,000 MW today to 70,000 MW by 2020 as the result of state renewable energy requirements. Current energy balancing practices are insufficient to meet the challenges of the anticipated variable generation increases in the Western Interconnection, according to a white paper prepared by WIEB staff. Current bilateral transmission and scheduling practices do not, for instance, make use of remote balancing resources in the Western Interconnection and the EIM could help make more efficient use of generating resources located throughout its footprint.
Continue Reading...Oregon nears decision on sage-grouse rules that will impact energy siting
The Oregon Department of Fish and Wildlife (“ODFW”) posted the final draft rules and draft conservation strategy related to the greater sage-grouse. After years of negotiation and numerous public meetings on the ODFW’s approach, the final drafts are open for public comment. On April 22 they will be presented to the Fish and Wildlife Commission for consideration for adoption.
In March of last year the US Fish and Wildlife Service (“USFWS”) determined that protection of the greater sage-grouse was warranted under the federal Endangered Species Act (“ESA”) but was precluded from listing by the USFWS’s need to take action on species facing more immediate or severe threats. The species is now a candidate for listing, but it is uncertain if or when a formal ESA listing may occur. Oregon, through ODFW’s approach to sage-grouse conservation, joins other western states (e.g., Wyoming) in taking preventative state action, at least in part, to preclude the need for an eventual federal listing.
Both the USFWS determination and the ODFW’s conservation strategy identify energy, and renewable energy development specifically, as posing threats to the specie. The ODFW’s conservation strategy points out that there is great potential for geo-thermal, solar and wind energy in most sage-grouse regions in Oregon, but the same windswept ridges that make for great wind facility siting, for example, may also be important sources of accessible winter forage for sage-grouse.
Among other things, the draft rule would formally adopt the ODFW’s Core Area Approach to Conservation and directs the ODFW to maintain maps of sage-grouse core areas. The rule stops short of directly equating sage-grouse core areas with habitat categories under the Fish and Wildlife Habitat Mitigation Policy. By referencing the ODFW’s conservation strategy, the rule instead outlines micro-siting guidance for development projects (e.g. a wind facility) proposed in identified core areas. As part of the siting process, the ODFW recommends that sage-grouse habitat in core areas be classified as “irreplaceable, essential habitat” and impacts on such Habitat Category I areas avoided. In past iterations of the core area maps, much of eastern Oregon, and southeastern Oregon in particular, was identified as being home to sage-grouse core areas.
Washington State Legislature introduces another bill putting pressure on State RPS
The second of two bills that would drastically impact the Washington State Renewable Portfolio Standard (RPS) was recently introduced in the Washington State Legislature. HB 1890 would cut in half the amount of energy utilities are required to obtain from new renewable resources, and also allow them to offset renewable energy requirements with energy from fresh water sources and sources that predate March 31, 1999.
Currently, electric utilities in Washington that serve more than 25,000 customers are required to obtain the following percentages of their electricity from new renewable resources:
- At least 3% by January 1, 2012
- At least 9% by January 1, 2015
- At least 15% by January 1, 2020
This has been the case since the passage of the Washington Energy Independence Act (EIA) in 2006. HB 1890 would cut these percentages in half -- requiring eligible utilities to acquire only 1.5% of their energy from renewable sources by 2012, only 4.5% by 2015, and only 7.5% by 2020.
In addition, the EIA treats as eligible only incremental electricity produced as a result of efficiency improvements completed after March 31, 1999 and excludes energy from fresh water resources. HB 1890, however, would count as eligible all electricity from an existing generation facility powered by a fresh water renewable resource that commenced operation before March 31, 1999. In other words, fresh water energy resources that have been operating since before March 31, 1999 -- and are unchanged and unimproved since that time -- would count toward the RPS.
For more information on this bill including its full text, see the Washington State Legislature website.
Washington HB 1890 is sponsored by Rep. Brad Klippert (R-8th Dist.), Rep. Jan Angel (R-26th Dist.), Rep. Dan Kristiansen (R-39th Dist.), Rep. Shelley Short (R-7th Dist.), Rep. Larry Haler (R-8th Dist.), Rep. Barbara Bailey (R-10th Dist.), and Rep. Jim McCune (R-2nd Dist.). It was introduced and referred to the Environment Committee on February 8, 2011.
Another bill that would essentially wipe out the Washington State RPS altogether was introduced earlier this session. The blog post on that bill, SB 5563, is available here.
Boiler Hazardous Air Pollutant Emission Rules Released By EPA
On February 23, 2011, the U.S. Environmental Protection Agency (EPA) released final rules regulating hazardous air pollutant (HAP) emissions from boilers at major sources of HAPs (Boiler MACT) and boilers at minor or area sources of HAPs (Boiler GACT), for Commercial and Industrial Solid Waste Incinerators (CISWI) and for defining what constitutes a solid waste when burned. EPA also released a notice that it plans to reconsider key aspects of these rules. These rules impose significant burdens on certain classes of boilers and risk forcing many companies to stop using valuable fuels. EPA estimates that the Boiler MACT rule will impact 13,555 boilers and process heaters and that the Boiler GACT rule will impact 187,000 boilers and process heaters. For details on the Boiler MACT, Boiler GACT and CISWI rules, click here.
For more information about these rules and how they might affect you contact one of the following Stoel Rives Attorneys:
California
John McKinsey at (916) 319-4746 or jamckinsey@stoel.com
Allison Smith at (916) 319-4759 or acsmith@stoel.com
Idaho
John Eustermann at (208) 387-4218 or jmeustermann@stoel.com
Minnesota
Kevin Johnson at (612) 373-8803 or kdjohnson@stoel.com
Oregon
Tom Wood at (503) 294-9396 or trwood@stoel.com
Washington
David Benson at (206) 386-7584 or dlbenson@stoel.com
