U.S. Fish and Wildlife Service Issues Land-Based Wind Energy Guidelines

On March 23, 2012, the U.S. Fish and Wildlife Service (USFWS) released its highly anticipated final Land-Based Wind Energy Guidelines. The Guidelines present a tiered approach for the consideration and analysis of potential impacts to wildlife and habitat from onshore wind energy development. The five-tier process and other guidance found in the Guidelines aim to efficiently avoid and minimize impacts to wildlife and habitat by guiding the decisions of developers from the initial stages of site selection through the development of project design and the ultimate construction and operation of a project.

While the Guidelines are voluntary, this new publication represents the informal rulebook by which the USFWS will judge the appropriateness of a site or project design and the adequacy of mitigation, including for purposes of enforcement. The new Guidelines replace the interim guidance published by the USFWS in 2003 and are effective immediately. The final version of the Guidelines does not significantly differ from the September 2011 draft version that was issued for public comment.

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Energy Conversion Devices, Inc. - "363 Sale" of Solar Business Unit

From my colleagues Erin Eliasen and David Levant:

Energy Conversion Devices, Inc. (“ECD”) and its subsidiary United Solar Ovonic LLC (“USO” and together with ECD, the “Debtors”), which manufacture lightweight, flexible PVs, have filed for chapter 11 bankruptcy and seek to sell USO’s solar business unit pursuant to section 363 of the Bankruptcy Code.

The Debtors seek qualified bidders for the purchase of USO’s stock or assets that comprise its solar business unit (the “Assets”). The deadline to submit “qualified bids” for the Assets is April 17, 2012. To be a “qualified bidder” a party must (i) execute a confidentiality agreement; (ii) provide a statement “demonstrating a bona fide interest” in the assets to be purchased and listing a “non-binding” range of value for such assets; and (iii) demonstrate proof of financial wherewithal to purchase the assets. If multiple qualified bids are received, an auction will be held on April 24, 2012. At present there is no “stalking horse bidder”, but if one comes forward and is overbid, the Bankruptcy Court has approved the payment to the stalking horse bidder of the lesser of a “break-up fee” of 2.0% of the purchase price or expense reimbursement up to $200,000. All purchases are subject to approval by the Bankruptcy Court.

This proposed sale is unusual in that it does not have a minimum bid requirement and there is no proposed stalking horse bidder. These factors may indicate an opportunity to obtain PVs and other of USO’s assets at a discount.

If you are interested in purchasing all or any of the Assets, please contact Erin Eliasen at (206) 386-7605 or David Levant at (206) 386-7601.

Gov. Kitzhaber Names Margi Hoffman as Oregon's Energy Policy Advisor

Oregon Governor John Kitzhaber announced today that he has named Margi Hoffman to serve as his Energy Policy Advisor.  She will join the Governor's office on April 2.

Ms. Hoffman has served as Senior Vice President and Director of Oregon Operations with Strategies360, a strategic consulting firm, and has also worked closely with Renewable Northwest Project (RNP) .  The news release from the Governor's office can be found here.

Congratulations, Margi!

PG&E Announces Plans to Issue 2012 Solar PV RFO

Pacific Gas & Electric Company (PG&E) announced today that it expects to issue its 2012 Solar Photovoltaic PPA RFO (“PV PPA RFO”) in late March or April .  PG&E's goal in this second round of the RFO is to procure 50 MW of new PV generation. 

Two of the eligibility requirements of the PV PPA RFO are (1) that participants provide proof that an interconnection application has been filed, and (2) that participants must pursue Resource Adequacy for their projects.  If you need to file an application, note that the current Cluster 5 window closes March 31, 2012.  For program information, please visit PG&E’s 2012 PV PPA RFO website.  Among other things, PG&E notes on the RFO website that it has developed an interactive, Google-based map of its service territory as a tool to help renewable energy developers identify potential project sites (although the map is not a guarantee that generators can interconnect at any particular time and place).

PG&E plans to conduct a Participants’ Webinar to discuss the 2012 PV PPA RFO shortly after its issuance. Registration for this event will be posted on the 2012 PV PPA RFO website at a later date.

Wisconsin Wind Siting Rules Effective Today

After years of uncertainty, the Wisconsin legislature allowed statewide wind energy siting rules to go into effect today. The new rules (known as “PSC 128”) require wind turbines to be located at least 1,250 feet from the nearest residence and at a distance 1.1 times the height of the wind turbine from the nearest property line. Cities, villages, towns, and counties are prohibited from enacting an ordinance imposing more restrictive requirements than the statewide rules. 

In 2009, the legislature directed the Wisconsin Public Service Commission (“PSC”) to develop rules that limit the restrictions local governments may impose on wind energy projects. The purpose of these rules was to ensure consistent local procedures and regulation of wind energy. On December 27, 2010, the PSC adopted the final wind energy siting rules (Wisc. Admin. Code Ch. PSC 128). But on March 1, 2011, the day the rules were to take effect, the legislature’s Joint Committee for the Review of Administrative Rules voted to suspend PSC 128. This year, the legislature considered a proposal to indefinitely suspend the rules, but adjourned yesterday without taking action.  As a result, PSC 128 automatically became effective today.


While PSC 128 was in limbo, the legislature considered a proposal that would have imposed much more stringent setback requirements (1,800 feet from the nearest property line). The American Wind Energy Association said that these setbacks essentially would have killed the commercial wind industry in Wisconsin. News reports suggest that the uncertainty over siting rules caused several wind projects in the state to be suspended or cancelled over the last year. But with PSC 128 now in effect, Wisconsin appears to be open for wind energy business again. 

FAQ on Army's $7 Billion Draft RFP for Renewable Energy

On February 24, 2012, the U.S. Army Engineering & Support Center issued a draft request for proposals for renewable and alternative energy (the “Draft RFP”). Since posting our initial blog and Energy Law Alert, we have received a number of inquiries about the details of the solicitation. Below are answers to some of the most frequently asked questions.

Before we get to the questions, however, we wanted to remind everyone of the Climate Solutions event entitled “Mission Critical: Clean Energy and the U.S. Military” that will be held at 600 University Street in Seattle from 4:30 to 6:30 p.m. tomorrow. The event will be hosted by David Benson, an energy and clean tech partner in our Seattle office. We look forward to seeing you there.

Q1:      Is this the actual RFP?

            A1:      No. It is only a draft. The Draft RFP can be found here. The Army is accepting comments until March 21, 2012. Comments can be submitted via the ProjNet website here.

Q2:      When will the Army issue the final RFP and what form will it take?

            A2:      The Draft RFP does not set a date for release of the final RFP, which will take the form of a Multi-Award Task Order Contract (the “MATOC/Final RFP”). For those unfamiliar with the MATOC process, it is very important to understand four fundamental things: (1) the MATOC will not likely offer the opportunity to bid on any specific project (i.e., a “seed project”) because the Draft RFP covers multiple technologies, (2) the Army will grant multiple awards under the MATOC, (3) awards granted under the MATOC give awardees the right to bid on individual Task Order contracts issued by specific facilities for specific projects (e.g., a Task Order for a 10 MW solar PV project at Joint Base Lewis-McChord in Washington), (4) parties that are not awardees in the MATOC process may not bid on these Task Orders. Thus, a developer must be an awardee under the MATOC/Final RFP in order to have the right to bid on individual project development opportunities. Before issuing the MATOC/Final RFP, the Army will need to complete its review of all of the comments that it receives by the March 21 deadline. At some point after the MATOC/Final RFP is published, the Army will host a pre-proposal conference in Huntsville, Alabama where participants will hear presentations regarding the program, the scope of work, contractual considerations, and small-business considerations. 

Q3:      Is the Department of Defense really mandated to procure 25% of its electricity from renewable resources by 2025?

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BPA Submits Compliance Filing in FERC Environmental Redispatch Proceeding

The Bonneville Power Administration (BPA) is gearing up for spring with its revised Oversupply Management Protocol (OMP), submitted last week as a compliance filing in the Federal Energy Regulatory Commission (FERC) proceeding on BPA’s “Environmental Redispatch” policy. BPA’s compliance filing was submitted in response to FERC’s December 7, 2011 order holding that BPA’s Environmental Redispatch policy of curtailing wind generation without compensation during periods of high water was unduly discriminatory and preferential. FERC directed BPA to file a revised Open Access Transmission Tariff (OATT) addressing the comparability concerns raised in the proceeding.  

Under the OMP, BPA would curtail wind generation during periods of high water in order to deliver federal hydropower in place of the curtailed generation, but would provide “compensation” for the curtailments based on the wind generators’ submitted displacement costs. The “compensation” would come in part from the wind generators themselves, who would be allocated a portion of the displacement costs through a new rate.   


BPA’s compliance filing is conceptually similar to the draft OMP it circulated for comment in February, although there are some changes of note. First, the OMP will now be in place for only one year, instead of the original 2015 end date. Second, wind generation with power sales contracts signed after March 6, 2012 will be compensated differently than wind generation with power sales contracts signed before then. Though both will receive compensation for lost production tax credits and lost renewable energy credits, the level of compensation for wind generation with post-March 6 contracts is not entirely clear. Third, wind generators can opt out of receiving compensation in exchange for not being allocated a share of the displacement costs; however, those opting out will be given a displacement cost of $0/MWh and thus be the first wind generators curtailed. Fourth, instead of submitting displacement costs to BPA, generators must now submit their displacement costs to a third-party evaluator.  BPA will no longer impose a penalty for inaccurate costs, but may ask FERC to investigate inaccuracies (or perceived inaccuracies) in the displacement cost submissions. 


FERC is accepting comments on BPA’s compliance filing through 5 pm EST Tuesday, March 27, 2012. In addition, BPA is seeking comments on its OMP Business Practice, which contains information on how BPA plans to implement the OMP. Comments on the OMP Business Practice are due by close of business on Monday, March 26, 2012. 

Don't Miss! Mission Critical: Clean Energy and the U.S. Military

Please join Stoel Rives partner, David Benson, host of "Mission Critical: Clean Energy and the U.S. Military," on March 15, 2012 in Seattle, WA. A new and formidable leader has emerged in the push for clean energy. The U.S. Department of Defense is setting aggressive objectives to reduce its fossil fuel dependence and invest in low carbon renewables and energy efficiency technologies. Leaders from the Army Air Force, Navy and Marines say our current fuel mix is a national security threat, making Americans vulnerable overseas and at home. Furthermore, the DOD warns that global warming is a threat multiplier which will heighten geopolitical instability and create both military and humanitarian challenges beyond the armed services' capacity to respond. In a time of Congressional gridlock, the U.S. military says we must face this issue now.

Join E2 and Climate Solutions to hear from Congressmen Adam Smith and Jay Inslee, Ray Smalling from Naval Station Everett and E2 member and Navy SEAL (ret) James Marvin about the role the military is playing to move America toward a clean energy economy, the impact these initiatives will have in the civilian economy, and the response from Congress.

Contact Ying Li at yli@nrdc.org with any questions. For more information, click here.


Thursday, March 15, 2012
4:30 - 6:30 P.M.


Stoel Rives LLP
Union Square Boardroom (street level, behind escalators)
One Union Square
600 University Street
Seattle, WA
206) 624-0900
Click here for map.