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On April 14, 2011, the EPA announced the settlement of a twelve year dispute with Tennessee Valley Authority (TVA) over Clean Air Act violations. In the settlement, TVA agrees to permanently retire 2,700 MW of coal power from Alabama, Kentucky and Tennessee and invest an estimated $3 to $5 billion on new and upgraded state-of-the-art pollution…

Last week, the Minnesota Public Utilities Commission resolved a longstanding dispute over who owns Renewable Energy Credits (RECs) when the Power Purchase Agreement (PPA) is silent.  Following the establishment of an REC tracking system for Minnesota, Xcel Energy asked the Commission to clarify ownership of RECs associated with 46 wind, biomass, hydro, and landfill gas…

On July 27, 2010, the Court of Appeals of Texas, Fifth District, Dallas, issued its decision in TXU Portfolio Management Company, L.P., v. FPL Energy, LLC, et al., 2010 Tex. App. Lexis 5905 (2010).  The case arose when three FPL wind farms (the "Wind Farms") located in the McCamey area of West Texas experienced ERCOT-imposed …

From our colleagues Beverly Pearman and Jeremy Sacks:

Massachusetts Department of Public Utilities (“DPU”) has modified the two programs challenged by TransCanada Power Marketing Ltd. (“TransCanada”) in a federal law suit. TransCanada filed its complaint on April 16, 2010, alleging that portions of the Green Communities Act that were intended to increase in-state renewable energy resources were unconstitutional because they favor Massachusetts producers in violation of the Commerce Clause. The Commerce Clause generally prohibits states from enacting laws that burden out-of-state businesses in order to give a competitive advantage to in-state businesses.

The first modification came in early June as a result of settlement negotiations. Massachusetts modified the Solar Carve-Out program to grandfather in rates for Alternative Compliance Payments (“ACP”) that were contractually committed or renewed before January 1, 2010. ACP are paid by electric companies that do not hold the required amount of Solar Renewable Energy Credits (“SRECs”) that must be produced only by facilities located in Massachusetts. In exchange for this rule change, TransCanada dismissed its claims challenging the Solar Carve Out on June 9, 2010, but continued to press forward with its Commerce Clause challenge to a Request for Proposals for Long-Term Contracts for Renewable Energy Projects (the “RFP”) issued by the Massachusetts Department of Energy Resources (“DOER”) this year.Continue Reading Massachusetts Suspends In-State Requirement for Renewable Energy Generation and Modifies Solar Carve Out

From our colleagues Greg Corbin and Barbara Craig:

On March 24, 2010, four conservation groups filed a complaint against Kauai’s electric utility, Kauai Island Utility Co-op (“KIUC”), alleging that KIUC’s power lines, utility facilities, and street lights “take” threatened Newell’s Townsend’s shearwaters (Puffinus Auricularis Newelli) (“Newell’s shearwaters”) and/or endangered Hawaiian petrels in violation of the Endangered Species Act (“ESA”). The civil complaint, filed in the U.S. District Court for the District of Hawaii, alleges that KIUC has failed to secure the necessary ESA incidental take permits and, despite years of promises, has failed to implement protective measures that are needed to prevent the “take” of the listed birds.Continue Reading Kauai’s Electric Utility Faces Civil Suit and Criminal Charges For Bird Fatalities

From our colleagues Beverly Pearman and Jeremy Sacks:

Mitsubishi Heavy Industries, Ltd. and Mitsubishi Power Systems Americas, Inc. v. General Electric Company

On May 20, 2010, Mitsubishi Heavy Industries, Ltd. (“MHI”) and Mitsubishi Power Systems Americas, Inc. (“MPSA”) (collectively “Mitsubishi”) filed suit in the U.S. District Court for the Western District of Arkansas contending that General Electric Company (“GE”) is engaged in a scheme to monopolize the sale of variable speed wind turbines in the United States in violation of state and federal statutes. They seek a compensatory damages award in excess of $100 million, an award of treble damages, punitive damages, and a permanent injunction prohibiting further litigation by GE for infringement of specified patents that GE claims to own. Mitsubishi’s claims are brought pursuant to Section 2 of the Sherman Act, Section 43(a) of the Lanham Act, and a state law claim of tortious interference with contractual and prospective business relationships.Continue Reading Mitsubishi Alleges that General Electric, Co. Is Engaging in Anti-Competitive Behavior in the Variable Speed Wind Turbine Market

Stoel Rives litigation partners Beverly Pearman and Jeremy Sacks have prepared the following report on TransCanada’s recent challenge to the Massachusetts RPS:

On April 16, 2010, TransCanada Power Marketing, Ltd. (“TransCanda”) filed suit in the U.S. District Court for the Central District of Massachusetts arguing that Massachusetts is unconstitutionally discriminating against out-of-state renewable energy producers. TransCanada purchases energy from generators and resells it to distribution companies and retail customers in the northeast United States. It is a U.S.-based subsidiary of TransCanada Corporation, a Canadian entity that, among other things, owns significant pieces of energy infrastructure in Canada and the United States, including power generation facilities. TransCanada’s suit challenges two Massachusetts programs that it claims benefit in-state economic interests while burdening out-of-state interests in violation of the U.S. Constitution’s Commerce Clause. It is seeking declaratory and injunctive relief as well as damages under 42 USC § 1983.Continue Reading TransCanada challenges Massachusetts RPS