William H. Holmes
Bill Holmes concentrates his practice in the area of energy law, with a special emphasis on wind, geothermal, biomass, tidal and ocean power, and other forms of renewable energy.
Stoel Rives Opens Office in Washington, D.C.
We are pleased to announce that we have opened a satellite office in Washington, D.C. Our new address, effective immediately:
Stoel Rives LLP
1020 19th Street NW, Suite 375
Washington, DC 20036
Phone: (202) 398-1795 / Fax: (202) 621-6394
The new office is headed by firm partner Greg Jenner, a former Deputy Assistant Secretary of the U.S. Treasury for Tax Policy and Tax Counsel to the U.S. Senate Committee on Finance.
Click here to read the press release.
Women of Wind Energy's Ninth Annual Rudd Mayer Memorial Fellowships
Each year, Women of Wind Energy (WoWE) awards fellowships to women college students or recent graduates to attend the annual American Wind Energy Association WINDPOWER conference.
Previous awardees include engineers, lawyers, PhDs, MBAs, technicians, meteorologists, economists and more from schools like Stanford, Columbia Gorge Community College, James Madison, UC Boulder, Appalachian State, and MIT.
Applications for Women of Wind Energy's Ninth Annual Rudd Mayer Memorial Fellowships for 2013 are due Friday February 22 at 5pm Eastern
Find more information on WoWE's website here: http://www.womenofwindenergy.org/apply-for-windpower-fellowship.html.
#PTC Extension: Scarcity of Utility-Scale PPAs a Big Challenge for Wind Energy in 2013
In the wake of the extension of the production tax credit, my colleague Ed Einowski has analyzed a key challenge – the relative scarcity of available utility-scale power purchase agreement RFPs. Having a PUC-approved PPA in place is generally a prerequisite for securing financing for utility-scale wind projects. Here’s what he has to say:
The extension of the production tax credit (PTC) allows the wind energy industry to move forward with projects in 2013. But the last few years – especially 2012 – have seen relatively few utility-scale wind power purchase agreements executed. Without the assured revenue source of a power purchase agreement (PPA), wind projects will generally find third-party financing – whether debt, tax equity or cash equity – unavailable. And few developers – even those with the financial resources to do so – will likely be willing to risk proceeding with project construction in the absence of a financeable PPA. As a consequence, for most developers the PTC extension presents the immediate challenge of securing a financeable PPA to enable the PTCs to be secured. Given the time it generally takes to negotiate and finalize a utility-scale wind PPA as well as pursue other key items such as turbine supply agreements and engineering, procurement and construction contracts, it will be necessary to move expeditiously.
For a more detailed discussion of the issues involved, read the full article.
Fiscal Cliff Bill Includes PTC Extension and Other Energy-Related Provisions
Congress yesterday passed the American Taxpayer Relief Act of 2012 (the Act), which averted the so-called “fiscal cliff.” The President is expected to sign the Act shortly.
The Act includes a number of energy-related tax provisions, including a one-year extension and modification of the production tax credit under Section 45 of the Internal Revenue Code (the PTC) for certain renewable energy facilities. The energy-related provisions in the Act include:
- PTC Extensions and Modifications – The PTC is extended and modified for certain types of facilities. These extensions and modifications include:
- In the case of wind, geothermal, landfill gas, trash, marine, and hydrokinetic facilities and certain closed-loop biomass, open-loop biomass, and qualified hydropower facilities, the PTC will apply if construction begins before January 1, 2014 (rather than if the facilities are placed in service before January 1, 2014). The Act does not specify what it means to begin construction for this purpose, although there are analogous authorities that have been adopted for other purposes that may be applied. Note, however, that a facility to which this extension applies may qualify for the PTC even if it is not placed in service before January 1, 2014.
- The PTC for municipal solid waste facilities is modified to exclude from the definition of municipal solid waste certain paper that is commonly recycled and that has been segregated from other solid waste.
- The election to claim the investment tax credit rather than the PTC for certain facilities is extended to apply to certain facilities with respect to which construction begins prior to January 1, 2014.
- The PTC for Indian coal production facilities is extended for one year, to apply to sales of qualified production during the eight-year period (rather than the previous seven-year period) beginning on January 1, 2006.
- In the case of wind, geothermal, landfill gas, trash, marine, and hydrokinetic facilities and certain closed-loop biomass, open-loop biomass, and qualified hydropower facilities, the PTC will apply if construction begins before January 1, 2014 (rather than if the facilities are placed in service before January 1, 2014). The Act does not specify what it means to begin construction for this purpose, although there are analogous authorities that have been adopted for other purposes that may be applied. Note, however, that a facility to which this extension applies may qualify for the PTC even if it is not placed in service before January 1, 2014.
Graham Noyes Among the "Top 100 People in Bioenergy" for 2012-13
I’m excited to report that my colleague and fellow Renewable + Law blogger Graham Noyes was recently named among the “Top 100 People in Bioenergy” by readers of Biofuels Digest and the publication’s editorial board. Graham was one of only three attorneys to make the list, which was headed by U.S. Agricultural Secretary Tom Vilsack for the third consecutive year. CEO Jonathan Wolfson and President Harrison Dillon of client Solazyme placed fourth in the list.
More than 300 individuals received votes in the annual poll, including company executives, scientists, researchers and policy leaders. Overall, leaders from organizations in 13 different countries were recognized in the poll. You can read the full list here.
Congrats, Graham!
DOE-Commissioned Study Endorses LNG Exports, Says U.S. Economy Will Benefit
A little off topic for our Renewable + Law Blog, but since the fate of renewables is often closely tied to developments in the market for natural gas, I thought this post by my colleage Erin Anderson would be of interest:
Liquefied natural gas (“LNG”) exports will benefit the U.S. economy according to a NERA Economic Consulting study commissioned by the U.S. Energy Department (“DOE”). Posted on Wednesday, December 5, the two-part study concluded that the economic benefits of LNG export will outweigh the impact of potentially higher natural gas prices. The DOE said it would take the report and public comments on the same into account in its review of 15 pending LNG export application dockets. Under federal law, grant export authorization to countries without a free trade agreement with the United States can be denied if inconsistent with the “public interest”. Economic factors are an element that must be evaluated in making the public interest determination.
The DOE study assessed a range of different assumptions about global markets, export volumes, pricing points and domestic production costs, and concluded that the US economy will experience a net positive effect after consideration of multiple scenarios. The study does not claim that there is a win-win for all socioeconomic stakeholder groups, however, noting that "[o]verall, both total labor compensation and income from investment are projected to decline, and income to owners of natural gas resources will increase."
The possibility of exporting volumes roughly equivalent to one-third of present U.S. natural gas production has generated opposition among natural gas customers, currently benefitting from a flush market of extraordinarily cheap gas resulting from hydraulic fracking. Some in the manufacturing sector fear that directing large quantities of domestic natural gas out of the US market will drive up domestic supply costs, negatively affecting manufacturing and jobs creation during the fragile economic recovery. The Industrial Energy Consumers of America issued a press release (PDF) on Wednesday challenging the report’s methodology. Dow Chemical has also taken a leading role in raising questions about the report.
Proponents of LNG exports have responded by noting that global LNG consumption will at some point decline as US costs increase beyond those of competing supplies, thus alleviating concerns that the US domestic market will be held hostage to an insatiable global market.
The Department of Energy will be accepting initial comments on the Macroeconomic Impacts of LNG Exports from the United States (PDF) study until January 24, 2012. See the Federal Register notice (PDF) for more details.
Upcoming Webinar: How to Sell Clean Tech Products in China - A Case Study
Join Stoel Rives partner, Michael Mangelson, co-presenter, for a free webinar organized by the US China Clean Tech Center (UCCTC) and the San Francisco US Commercial Services. Learn how GE and Honeywell launched their Smart Grid project in China with our partner, TEDA ECO Center, and how you can do it too. Hear real case studies from US company executives successful in exporting their clean tech products to China.
December 12, 2012
12:00 p.m. - 1:30 p.m. PST
Space is limited - REGISTER today!
Newly Published CEQA Decision Sets Precedent Regarding EIR Project Alternatives
A legal update from my colleagues Barbara Brenner and Kristen Castaños:
We are pleased to report that the California Third District Court of Appeal recently granted our request to publish its decision in a California Environmental Quality Act (CEQA) case in which we were lead counsel. In a challenge to the certification of an environmental impact report (EIR), plaintiffs had argued that the EIR failed to include an adequate range of alternatives to the project. The Court rejected this argument.
The case is significant for two reasons. First, it provides precedent for a lead agency and project proponent to reject alternatives that are not feasible, thus avoiding the time and cost of analyzing an infeasible alternative for fear of a CEQA suit. Second, the Court upheld the rule of reason in its finding that the analysis of the project and the No Project alternative amounted to a reasonable range of alternatives. CEQA practitioners often advise clients to identify at least one alternative that is potentially feasible. Based on this determination, a record clearly showing there is no feasible project alternative can be upheld.
DOJ Eagle Feather and Parts Policy
From my partner Michael O’Connell:
Occasionally, we receive inquires regarding federal policies relating to actual, potential or alleged impacts of projects on bald and golden eagles and other migratory birds.
On October 12, 2012, Attorney General Holder issued a policy regarding Possession or Use of the Feathers or Other Parts of Federally Protected Birds for Tribal Cultural and Religious Purposes. The policy “formalizes and memorializes” the U.S. Department of Justice longstanding prosecutorial discretion policy regarding possession or use of feathers and parts of eagles and other migratory birds by members of federally recognized Indian tribes for religious and cultural purposes. The policy does not alter requirements that Indians obtain a permit from U.S. Fish and Wildlife Service to “take” eagles in the wild for religious or cultural reasons or to salvage eagle carcasses or parts that may have been killed by collision with project structures or vehicles or other causes.
This new policy reflects a deliberate federal efforts to accommodate tribal cultural and religious interests in eagles and other migratory birds. While the policy does not directly affect project developers or operations of energy, agriculture, infrastructure and other projects, it may be of interest to project developers and operators. Deliberate federal accommodation of tribal interests in possession and use of eagle and other migratory bird feathers and parts may lead federal agencies to give greater attention under NEPA and other laws affecting permits and project authorizations and in enforcement initiatives to potential project impacts on eagles and other migratory birds.
Upcoming Energy Efficiency Conference in Portland
The Citizens Utility Board (CUB), in partnership with the Univeristy of Oregon School of Law, will be presenting its 2nd Annual Policy conference on Energy Efficiency: The Next Generation on Friday, October 26, 2012, at the University of Oregon's White Stag Block (70 NW Couch Street).
The all-day conference will focus on energy efficiency in the Pacific Northwest and its impact on the regional economy. Featured speakers include Congressman Earl Blumenauer. For more information, please visit the CUB Policy Center web site.
