PSU's Hatfield School of Government Offers "Summer Series on the New Energy Economy"
This summer, the Center for Public Service at the Hatfield School of Government at Portland State University will be offering a series of short, 2-3 day classes under an umbrella called the "Summer Series on the New Energy Economy." These are non-credit courses, specifically designed for energy industry leaders, a wide range of professionals, and other community members with an interest in learning more about key energy topics.The series is being coordinated by Jeff Hammarlund, one of PSU’s adjunct faculty, who in recent years has taught a series of popular classes on various aspects of the Smart Grid.
The summer series will kick off with the first class on July 11-12. Entitled "Dissolving Complex Problems in the New Energy Economy," this course will bring a systems science focus to core energy structure, regulation, and policy questions. Other classes, which will run in July, August, and September, include
* Green Inc: Business Models for the New Energy Economy (July 13-15);
* Comprehending the Climate Conundrum (July 25-27);
* Riding the Waves of Change: Project Management and the New Energy Economy (August 10-12); and
* The Smart Grid and Sustainable Energy Systems (September 14-16);
Additional information and registration instructions can be found here. If you have specific questions, contact Christine Hanolsy at PSU at 503-725-5114 or hanolsy@pdx.edu.
Compliance with California Cap-And-Trade May Be Deferred until 2013
Yesterday, the Executive Director of the California Air Resources Board (CARB), Mary Nichols, announced that CARB is proposing to delay full implementation of California’s cap-and-trade program for a year. In testimony before the California Senate Select Committee on the Environment, the Economy, and Climate Change, Nichols stated that CARB is proposing to “initiate” the cap-and-trade program in 2012, but delay requirements for compliance until January 1, 2013. CARB adopted cap-and-trade in December 2010 and the program was set to go into effect on January 1, 2012, the statutory deadline for all greenhouse gas emissions reduction measures under A.B. 32 to become operative. CARB’s announcement comes despite an order from the California Court of Appeals last Friday that CARB can continue with implementation of cap-and-trade pending appeals related to the program in Association of Irritated Residents v. CARB. Earlier this month, CARB issued a revised analysis of alternatives to the cap-and-trade program, as ordered by the lower court in Association of Irritated Residents v. CARB. That supplemental environmental document is currently open for public comment until July 28 and CARB will consider adoption of the supplement on August 24, 2011. Nichols stated in her testimony that CARB will hold a public workshop in the next few weeks on its proposal to delay cap-and-trade compliance and other elements needed to finalize the cap-and-trade regulation. Look for CARB to issue an updated draft regulation in advance of the public workshop.
DOE Awards $7.5 Million for Nex- Gen Wind Turbines
Yesterday U.S. Energy Secretary Steven Chu today announced that six projects have been selected to receive nearly $7.5 million over two years to advance next-generation designs for wind turbine drivetrains. Drivetrains, which include a turbine's gearbox and generator, are at the heart of the turbine and are responsible for producing electricity from the rotation of the blades. The selected projects selected will also help promote and accelerate the deployment of offshore wind turbines.
Some of the projects are early stage R&D projects which will focus on reliability or may redesign drivetrains to eliminate certain components altogether. Other projects will focus on increasing the amount of energy produced by turbines, or designs that minimize the use of rare earth materials.
The awards will be issued through DOE's Wind and Water Power Program, which funds research, testing, development and deployment of innovative wind energy technologies.
Each project listed in the table below will receive up to $700,000 to conduct technology cost and readiness assessments during the 6-month Phase I. Some of the projects will be selected for Phase II and each Phase II project could receive up to an additional $2 million over 18 months.
|
Project |
Town, State |
Technology |
|
|
1. |
Advanced Magnet Lab |
Palm Bay, Florida |
A superconducting direct-drive generator for large wind turbines |
|
2. |
Boulder Wind Power |
Boulder, Colorado |
Magnet-based direct-drive generator to validate performance and reliability of large utility-scale turbine. Has offshore applications |
|
3. |
Clipper Windpower |
Carpinteria, California |
Drivetrain design that enables increased serviceability over conventional gearboxes |
|
4. |
Dehlsen Associates |
Santa Barbara, California |
Drivetrain configuration that eliminates gearboxes, power electronics, transformers, and rare earth materials |
|
5. |
GE Global Research |
Niskayuna, New York |
10 MW direct-drive generator using low-temperature superconductivity technology that reduces the risk of fluid leakage. |
|
6. |
NREL |
Golden, Colorado |
Hybrid design that uses a single-stage gearbox and non-permanent magnet generator that reduces the need for rare earth materials |
Stoel Rives Partners to Present Wind Project Development Case Study at Chinese Wind Conference in Beijing
Stoel Rives Partners Alan Merkle, Ed Einowski and Michael Mangelson will participate in the upcoming Workshop on Investment in U.S. Wind Energy by Chinese Companies, held in Beijing, China on June 30, 2011.
The opportunities for mutually beneficial cooperation between U.S. and China wind power industries have become increasingly profitable. Now more than ever it’s important for key players on both sides to understand and evaluate where their best prospects lie, as many basic business assumptions can become lost in translation.
This workshop, organized by the Chinese Wind Energy Association (CWEA), the U.S.-China Energy Cooperation Program (ECP) Wind Power Working Group (WPWG), and the National Energy Administration (NEA), gathers wind experts from across the U.S. and China to discuss the globalization of the Chinese wind energy industry, strategies for undertaking M&A transactions in the U.S., and a variety of case studies based on wind energy development projects.
Stoel Rives attorneys prepared their own case study, which will be presented during the workshop by Alan Merkle. Case Study: Development of a Wind Project in California, is based on a hypothetical 200 MW wind development project in Southern California. The case study covers the legal framework for a project of this scale, including real estate, permitting, transmission and interconnection, power purchase agreement, renewable energy credits, turbine supply and balance of plant agreements, and financing. It is available as a PDF for download in English and Chinese.
Ed Einowski will provide workshop attendees with a presentation titled Setting the Stage for Investing In U.S. Renewable Energy Projects: The Business and Legal Environments. The PowerPoint presentation is available as a PDF for download in English and Chinese.
The Stoel Rives Law of Wind Energy (now in its 6th edition) is also available for download in both English and Chinese editions here.
Renewable Energy Law Alert: EPA Releases Draft 2012 Renewable Fuel Standards
The U.S. Environmental Protection Agency (“EPA”) has released a series of proposed rules relating to the Renewable Fuel Standard (“RFS”). Originally enacted by Congress in the Energy Policy Act of 2005 and expanded by the Energy Independence Act of 2007, the RFS represents the country’s most comprehensive and effective policy in the energy security and greenhouse gas (“GHG”) sectors. The current RFS, often referred to as RFS2, contains four categories of fuel made from renewable biomass. EPA has the authority to set the mandate levels for these renewable fuels. U.S. petroleum refiners and importers are obligated parties under the program and must prove compliance by purchasing a sufficient quantity of these fuels. The EPA proposed an overall standard for 2012 for renewable fuel of 9.21% or 15.2 billion gallons of fuel and also proposed significant regulatory changes to the program.
Click here to continue reading this alert.
If you have any questions about the content of this alert, please contact:
Graham Noyes |
Marty Banks |
Kevin Prohaska |
Sara Bergan |
DOE awards $11M for Geothermal
The Department of Energy has selected eight projects to receive up to $11.3 million for the research and development of pioneering novel geothermal production technologies. The projects (listed below) will conduct Phase 1 feasibility studies, which will include technical and economic modeling and component design. The Department of Energy will choose the projects that will proceed to Phase II – proving out the designs in a real-world environment.
|
Name |
City, State |
Amount $ |
Technology |
|
|
1. |
GeoTek Energy, LLC |
Midland, Texas |
up to 2.85 million |
Gravity-driven downhole pump |
|
2. |
Gtherm, Inc. |
Westport, Connecticut |
up to $200,000 |
Single well geothermal system |
|
3. |
Lawrence Berkeley National Laboratory |
Berkeley, California |
up to $4.99 million |
Heat from superheated pressurized carbon dioxide in deep geothermal formations |
|
4. |
Lawrence Livermore National Laboratory |
Livermore, California |
up to $874,000 |
Integrated energy production with carbon capture and storage |
|
5. |
Louisiana State University |
Baton Rouge, Louisiana |
up to $997,000 |
Circulation of reservoir fluids to increase heat extraction |
|
6. |
Physical Optics Corporation |
Torrance, California |
up to $200,000 |
Wellbore condenser converting hot vapor into cooler liquids |
|
7. |
Terralog Technologies USA, Inc. |
Monrovia, California |
up to $541,000 |
Optimization of vertical and horizontal well systems |
|
8. |
University of Utah |
Salt Lake City, Utah |
up to $671,000 |
Development of deep sedimentary and crystalline reservoirs |
FERC Seeks Comments on Ancillary Markets and Energy Storage
On June 16, 2011, the Federal Energy Regulatory Commission (FERC) issued a Notice of Inquiry (NOI) seeking comments on what it described as two separate but related issues, both of which apply to electric energy storage (EES).
First, because FERC is interested in facilitating the development of robust competitive markets to provide ancillary services from all resources types, it seeks comment on “existing restrictions on third-party provision of ancillary services, irrespective of the technologies used for such provision.” In soliciting these comments, FERC noted the growing interest in rate flexibility among sellers of ancillary services, and a desire from those obligated to purchase those services to increase the available supply. Although a variety of resources can provide ancillary services, FERC believes that many are discouraged from doing so by the Commission’s restrictions on market-based pricing coupled with a lack of access to information that could help satisfy the requirements of those policies. Access to information is particularly difficult outside of areas served by RTOs/ISOs, which areas are often with the greatest need for an ancillary services market.
FERC pointedly invites comments on whether it should revise or replace the restriction set forth in Avista Corp., 87 FERC ¶ 61,223, order on reh’g, 89 FERC ¶ 61,136 (1999), which prohibits, absent a study showing lack of market power, third-party market-based sales of ancillary services to transmission providers seeking to meet their ancillary services obligations under the Open Access Transmission Tariff (OATT). Assuming that FERC revises or replaces the Avista restriction to facilitate the provision of ancillary services, it also seeks input on how it should contemporaneously ensure just and reasonable rates. In a related inquiry, the Commission is seeking comments on whether the various cost-based compensation methods for frequency regulation that exist in regions outside of organized markets can be adjusted to address the speed and accuracy issues identified in FERC’s recent Frequency Regulation Notice of Proposed Rulemaking for organized wholesale energy markets. See Frequency Regulation Compensation in the Organized Wholesale Power Markets, 76 FR 11177 (March 1, 2011), Notice of Proposed Rulemaking, FERC States & Regs ¶ 32,672 (2011). The June 16 NOI, when considered in context with this year’s NOPR on Frequency Regulation and last year’s NOI on EES, could signal that a broader rulemaking regarding EES is on the horizon.
Recognizing that “the role of electric storage and other new market entrants play in competitive markets is still evolving,” the Commission seeks comments on whether it should revise “current accounting and reporting requirements as they pertain to the oversight of jurisdictional entities using electric storage technologies” other than pumped storage hydro (for which FERC has established methods of accounting, reporting and rate recovery). Current utility accounting requirements do not appropriately fit EES due to the technology’s abilities to act like generation, transmission, and distribution assets. Accordingly, FERC is soliciting “specific details regarding whether and, if so, how to amend the current accounting and reporting requirements to specifically account for and report energy storage operations and activities.”
The NOI was published in the Federal Register on June 22, 2011, and comments are due sixty (60) days from that date.
Thanks to my colleague Jason Johns for his comments on this posting!
Supreme Court Dismisses Common Law GHG Case Against Energy Producers
On June 20, 2011, the U.S. Supreme Court issued an opinion on American Electric Power Co., Inc., et al. v. Connecticut, et al.
This case is significant because it dismissed a lawsuit in which several states and environmental groups sought court orders requiring large electrical utilities (alleged to be “the five largest emitters of carbon dioxide in the United States”) to reduce their greenhouse gas emissions because the emissions were alleged to be a public nuisance. Plaintiffs alleged that the emissions violated federal common law (nuisance) or state tort law. The plaintiffs were thereby requesting a court decree setting a cap for C02 emissions to be reduced annually.
The Supreme Court in a fairly short opinion touched upon a number of significant issues. The Court first dealt with the issue of jurisdiction and then with the issue of whether there is a federal common law cause of action of nuisance. The Court split on the issue of whether the plaintiffs had Article III standing, i.e., whether there was sufficient specific injury to the plaintiffs such that the Article III Claims and Controversies requirement would be met, allowing the plaintiffs to avail themselves of the jurisdiction of the federal court system. Half of the Court believes that there was no standing, the other believes (assuming the prior cases are an indication) that some of the plaintiffs (the states) had sufficient standing that the case could be brought. This issue was addressed in the Massachusetts v. EPA case in which the Court held that greenhouse gases were regulated under the Clean Air Act. In that case the state of Massachusetts was found to have had sufficient standing to allow the case to be heard.
The Court held that the federal common law nuisance which had been recognized in several interstate environmental cases was displaced by the statute even absent the setting of emission standards (EPA’s CO2 regulations are due in May 2012.) The Court also indicated that the agency should be allowed to act first, before the judiciary, as the expert agency is better equipped to do the job then the judiciary who typically lack the economic technological resources to cope with these issues. Plaintiffs’ proposal to have federal judges determine these emission limits in the first instance could not be reconciled with the statute.
Finally, the Court did not reach the issue of the viability of the state nuisance claims because they had been dropped by the lower courts when they held that the federal common law governed over state law. Because there was no briefing on the state law preemption issue, the issue was left for consideration on remand. The Court did indicate that the issue of whether there was preemption of the federal common law by federal legislation, as in this case, did not require “the same sort of evidence of a clear and manifest (congressional) purpose” required for preemption of state law. (Citing City Milwaukee II 451 U.S. at 304, 317 (1981)).
This decision, while sending the case back to the lower courts, raises several unresolved issues. Will the courts continue to allow plaintiffs, particularly non-states such as the industry groups in the Massachusetts case, and the environmental groups in this case, Article III standing where there is an argument that no specific injuries have been pled? Will the courts find that state common law claims are also pre-empted by the federal Clean Air Act? Will this theory of agency primacy be applied at other levels? What happens if the EPA or Congress decides not to issue greenhouse gas regulations? We’ll be continuing to monitor the case as it works its way back through the lower courts—stay tuned for updates.
Envision Solar Emphasizes Growing Intellectual Property Portfolio
Posted on behalf of Stoel Rives Partner, Aaron Barker.
Envision Solar International, Inc. recently announced that it has filed for a U.S. patent application for the company’s multi-axis Envision Trak™ solar tracking systems, which are designed to increase energy output by approximately 20 percent over a standard fixed PV array. Envision Solar emphasized that it is “pursuing an aggressive technology and product development program” and that the “company’s intellectual property portfolio is growing.”
Because most patent applications are not published until 18 months after filing, details of the new patent application are not available. However, Envision Solar states that the company’s new patent application advances its “previously patented Solar Tree® products into Envision Solar’s next generation—ultra-high output solar parking array technologies.”
U.S. Patent No. 7,705,277 is Envision Solar’s previous patent covering sun tracking solar panels. The patent is related to maximizing solar energy utilization by moving a solar panel to track movement of the sun from sunrise to sunset. An example claim and drawing from U.S. Patent No. 7,705,277 are shown below.
Claim from U.S. Pat. No. 7,705,277
1. An apparatus for moving an energy converting unit to maximize solar energy utilization which comprises:
at least one solar panel having a substantially flat surface with a plurality of the energy converting units mounted thereon;
a mount for supporting the solar panel with the flat surface thereof inclined relative to a terrestrial horizon at a fixed angle "α" wherein the mount includes a pole anchored in the ground;
a means for rotating the panel on the mount about a central axis, wherein the central axis is aligned with the pole and is substantially perpendicular to a horizontal plane defined by the terrestrial horizon; and
a controller for controlling rotation of the panel through successive one-directional cycles in accordance with a programmed schedule to maximize generation of solar energy.
According to Envision Solar, the company’s new patent application describes a “Device for Continuously Reorienting a Solar Panel.” The company also hints that the new patent application covers “a hybrid, multi-axis design, [that] provides a highly functional solution which allows the entire Solar Tree® canopy to track the sun, while not restricting traffic flow in drive aisles of parking lots.”
We look forward to the publication of Envision Solar’s new patent application.
Injunction on California Cap & Trade Rules Stayed by Appeal
At the prompting of the Petitioners, on June 6, 2011, the San Francisco Superior Court delivered an order criticizing the California Air Resources Board for continuing to work on AB 32, Greenhouse Gas regulations, despite the injunction issued in the CEQA case and ordered them to appear to discuss the issue. However, late last week the Appeals Court hearing the appeal in the case issued a stay of that same injunction pending the appeal of that case. The question of whether the stay will he re-imposed, will be the subject the parties will need to argue in June 2011. For additional information see our blog entitled, "Cap & Trade Injunction Stayed by Appeal of Lower Court Decision."
MATL Dispute Headed Back to District Court
The Montana Supreme Court has reversed a December 2010 district court decision that found that the developers of the Montana-Alberta Tie Line merchant transmission project do not possess eminent domain authority under Montana law and therefore could not take private land from a nonconsenting landowner. In its reversal, the state Supreme Court cited House Bill 198 that passed during the 2011 Montana legislative session, which bill grants eminent domain authority to any person issued a certificate under the state's Major Facility Siting Act. The Supreme Court noted that because the legislation applies retroactively to persons issued a certificate after September 30, 2008, and the MATL developers received their certificate on October 22, 2008, HB 198 now expressly provides eminent authority to MATL's developers. The district court must now reconsider its earlier decision in light of HB 198.
On a related note, Concerned Citizens Montana is driving a citizens' referendum to repeal HB 198. If the petition receives enough signatures, Montana voters will decide HB 198's fate in 2012.
CEC Moves Forward on Implementation of 33% RPS
On June 3, the California Energy Commission (“CEC”) issued a Notice of Intent to Implement 33 Percent Renewables Portfolio Standard (“RPS”). The new 33% RPS was signed into law by Governor Brown on April 12, 2011. The legislation for the first time expanded the RPS to publicly-owned utilities (“POU”), and tasked the CEC with, among other things, monitoring POU compliance with, and developing regulations to enforce, the new 33% RPS.
The Notice also encourages all regulated entities, including POUs, to participate in the California Public Utilities Commission (“CPUC”) proceeding addressing the new RPS, Rulemaking 11-05-005, “so that, where appropriate, the [CEC] and CPUC may coordinate program development.”
The Notice states that the CEC will implement the new RPS through two processes: (1) amending the RPS Eligibility Guidebook through the existing amendment process so that it conforms with the new legislation, and (2) initiating a rulemaking proceeding to address POU compliance. Although the new RPS legislation set a target date of July 1, 2011 for the CEC to adopt regulations for POU compliance, pending legislation (Senate Bill 23) may extend that deadline to July 1, 2012.
On June 6, the CEC also noticed a staff workshop for June 17, 2011 to introduce the scope and a tentative schedule for the rulemaking proceeding concerning POU compliance, and to solicit comments from interested stakeholders. Written comments may also be submitted to the CEC by July 1, 2011.
Washington UTC Issues Important Policy to Determine Eligibility of Renewable Energy Resources Under State EIA
For those interested in qualifying energy projects as “eligible renewable resources” under the Washington Energy Independence Act (EIA), the Washington Utilities and Transportation Commission (WUTC) issued on June 7, 2011 an important new policy statement that provides processes by which utilities and developers may obtain either a non-binding or binding opinion regarding the eligibility of those resources. Most importantly, these determinations may be obtained while projects are still in development, thereby easing the way for financing, formation of partnerships, and investments in research and development.
First, the Commission Staff has joined with staff of the Department of Commerce to establish an informal technical working group to provide non-binding technical analysis for guidance as to whether their proposed technology or resource is an “eligible renewable resource” under the EIA. Because the opinions of the Commission Staff are not binding on the Commission, and the Auditor, not Commerce, determines compliance for COUs, the technical working group will only provide technical analysis, not a binding legal opinion.
Second, for those entities that seek a more formal, binding opinion on the eligibility of their proposed project, there is an option under the Washington Administrative Procedure Act. Under the Act, any person may petition the Commission for a declaratory order with respect to the applicability to specified circumstances of a statute or rule enforceable by the Commission, such as RCW 19.285 or WAC 480-109-007. Persons with standing to file such petitions may include investor-owned utilities and entities that propose to sell projects, project output, or RECs from projects to investor-owned utilities.
For more information, see the full policy statement from the WUTC website or contact any of the Seattle-based Stoel Rives energy attorneys listed below:
David Hattery at (206) 386-7528 or dphattery@stoel.com
Graham Noyes at (206) 386-7615 or jgnoyes@stoel.com
Hania Younis at (206) 386-7519 or hyounis@stoel.com
Substantial Increase in Solar Patent Activity in 2010
By Aaron Barker
The Solar Energy Industries Association (SEIA) reported that the U.S. solar market grew 67% in value in 2010. We have also noticed that the amazing growth in the solar industry is reflected in U.S. patent activity. Because the solar industry covers a wide range of technologies, we looked at a simple example of issued U.S. patents that include the word “solar” in the title. We found that the number of “solar” patents increased 42% in 2009 and 73% in 2010. The chart below shows that the number of “solar” patents was relatively flat during most of the 1990s (hitting a low of 106 patents), increased during 1999-2003 (228 patents), dipped during 2004-2005 to 1998 levels (126 patents), and rose slightly during 2006-2008 to 2004 levels (170 patents). There were 242 patents in 2009 and 419 patents in 2010.
Using broad categories for the “solar” patents that issued in 2010, we estimate that 142 patents cover solar cell technologies, 109 patents cover solar powered devices or systems, 63 patents cover solar panel assemblies, 43 patents cover solar heating or cooling, 18 patents cover power plant technologies, and 17 patents cover mounting or packaging technologies.
The increase in solar-related patent activity is consistent with an increase in overall U.S. patent activity. In the recently published Oregon Patent Report for 2008-2010, intellectual property attorneys at Stoel Rives reported that the number of patents issued to corporate and individual inventors in Oregon rose a healthy 18.1%, compared with drops of 7.5% in 2009 and 4.4% in 2008. Nationally, the number of patents awarded to all U.S. inventors in 2010 rose 27.5%, compared with only a 3.3% increase in 2009 and a 1.8% drop in 2008. Thus, in addition to strong growth in the overall U.S. solar market, at least some of the increase in solar patent activity in 2010 may be attributed to a general increase in companies using the patent system to protect their innovations, the U.S. Patent and Trademark Office’s push to reduce a mountainous backlog, and an uptick in the number of patent applications filed just before the recent economic downturn.
Minnesota PUC clarifies that "other credits" include RECs
Last year, we reported on the resolution of a longstanding dispute between Xcel Energy and 46 renewable energy generators about the ownership of Renewable Energy Credits (RECs) when the Power Purchase Agreement (PPA) is silent. In an Order released September 9, 2010, the Minnesota Public Utilities Commission decided that 1) generators own the RECs produced under PPAs signed under the 1978 federal Public Utilities Regulatory Policy Act (PURPA) and 2) Xcel owns the RECs produced under PPAs signed under Minnesota’s 1994 wind and biomass mandates, unless the generator could demonstrate that the PPA was not silent. Today, the Commission released an Order offering more clarity to PPAs in the latter category.
Following the September 2010 Order, two generators (St. Paul Cogeneration LLC and Mission Funding Zeta) with contracts under the wind and biomass mandates sought to demonstrate to the Commission that their PPAs were not silent on REC ownership. Both PPAs at issue contained language allocating to the generator the benefit of “any tax credits, allowances or other credits” related to the generation facility. In today’s order, the Commission determined that this language unambiguously includes RECs. As a result, the Commission found that St. Paul Cogeneration and Mission Funding Zeta own the RECs under the terms of their PPAs. The Commission also found that Xcel owns the RECs under any remaining unsettled wind and biomass mandate PPAs, unless the generator demonstrates that the PPA is not silent within 30 days.
