In a move that was widely anticipated across the energy industry, the Federal Energy Regulatory Commission (FERC) today issued an order that terminated a notice of proposed rulemaking that had been initiated in October 2017 in response to a demand by Energy Secretary Rick Perry that FERC enact rules to compensate certain resources for what

Or so Secretary Rick Perry and the DOE would have us believe.  Approximately three weeks ago, the DOE made its pitch to FERC and the energy industry that a lack of “resiliency” threatens the U.S. power grid.  The responses are in.  And the shock and bewilderment that immediately followed the release of the Secretary’s surprising

Tax equity investments, and potentially other passive investments, in renewable energy just became that much easier to make.  Today, in response to a petition for declaratory order filed in January 2017 by a coalition of investors and project sponsors, FERC ruled that tax equity investments in public utilities does not trigger section 203 of the

By a notice issued yesterday, September 28, Rick Perry, the Secretary of Energy, utilized section 403 of the DOE Act to require FERC to cause organized energy market operators (ISOs/RTOs) to compensate “fuel secure generation”, i.e., coal power, for grid “resiliency”–something that apparently puts Americans at risk despite statements by NERC to the contrary or

The U.S. International Trade Commission (ITC) voted unanimously on September 22, 2017, for an affirmative determination of injury to U.S. producers of crystalline silicon photovoltaic (CSPV) products, such as solar cells, modules and panels, from increased imports of those products into the U.S. market.  The vote concludes the “injury phase” of the investigation which began on May 17 with the acceptance of a petition for relief from imported CSPV products filed by solar manufacturer Suniva, Inc. (later joined by SolarWorld Americas, Inc.) pursuant to Sections 201-202 of the Trade Act of 1974.  As we reported in an earlier blog post, the ITC held a public injury-phase hearing on August 15, 2017, in which the Commissioners heard testimony and received statements and briefs from petitioners and their supporters and opponents of the petition.  Meanwhile, ITC staff was busy summarizing and analyzing data collected during the investigation, which efforts produced an injury phase report (Staff Report) that runs more than 500 pages.  Here are five key things reflected in the September 22 vote.

1.  The ITC’s Vote Was Directed Toward 13 Existing U.S. Producers – The ITC collected data from the five-year period from 2012 through 2016 and identified 13 operating domestic producers of CSPV cells, including petitioners Suniva and SolarWorld.  The Staff Report noted that three domestic producers, tenKsolar,  Motech and Silicon Energy, had ceased operations during the period.  The Staff Report stated that these 16 (13+3) producers accounted for 100% of domestic CSPV cell production, and 63.9% of domestic CSPV module production during 2015. (See Report pages I-53 to I-55) The remaining domestic module production was contributed from various assembly operations and excluded modules made from imported CSPV cells. (See Report page III-33) U.S. producers are defined as companies with production facilities in the U.S. territory; foreign ownership or control, financial solvency and volume of production are irrelevant for defining U.S. producers under the statutory language.  Further, other industry players are irrelevant to the injury analysis, including investors, utilities, state and local interests, installers and those employed in these downstream and supporting sectors.  Only domestic producers and those directly working for them are protected parties in the injury phase.

2.  Statutory Language Matters – ITC trade investigations are not subject to creative statutory interpretation. The Commission reads and follows the relevant statutory language.  Here, the statute is straightforward.  The ITC mandate is to investigate “whether an article is being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic industry producing an article like or directly competitive with the imported article.”  The statute further defines domestic industry as “the producers as a whole of the like or directly competitive article or those producers whose collective production of the like or directly competitive article constitutes a major proportion of the total domestic production of such article.”  The “article” is the merchandise defined in the petition and deemed to be the scope of the investigation, which was published in the ITC’s notice of initiation of the Section 201 investigation on June 1 (82 FR 25333 2017).  A “substantial cause” is “a cause which is important and not less than any other cause.”  Finally, “serious injury” is “a significant overall impairment in the position of a domestic industry.”   Unlike some statutes with general or undefined language that allows a court or agency significant room for interpretation, Congress provided specific guidance to ITC in this one.  The Commissioners have little room for creative interpretation.
Continue Reading 5 Things Reflected in the ITC’s Suniva Injury-Phase Vote and What Comes Next

A North Carolina appeals court has reminded energy developers in the state of the importance of structuring a transaction so as not to trigger the state’s utility franchise laws. For one unfortunate developer, that reminder came in the form of disgorged revenues and potential monetary penalties.

Earlier this month, on September 19, 2017, a North Carolina appeals court (in a 2-1 decision) upheld a decision of the North Carolina Utilities Commission (“NCUC”), which found that an environmental non-profit organization (NC WARN) was impermissibly operating as a North Carolina “public utility” when NC WARN entered into a power purchase agreement to own and operate solar panels on a church’s property and to charge the church based on the amount of electricity generated by the solar panels. (State of North Carolina ex rel. Utilities Commission et al. v. North Carolina Waste Awareness and Reduction Network, Case No. COA16-811). The North Carolina court found that such service by NC WARN infringed on the franchised utility’s electric service territory, contrary to North Carolina’s policy prohibiting retail electric competition and establishing regional monopolies on the sale of electricity. According to the court, NC WARN’s activities (in owning and operating the solar panels on the church’s roof and selling electricity from those solar panels to the church) were in direct competition with the franchised utility’s services as both entities were selling electricity to the franchised utility’s customer.  
Continue Reading Transaction Structuring Matters: North Carolina Rejects Third-Party Rooftop Solar Power Purchase Agreements

Stoel Rives’ Energy Team has been monitoring and providing summaries of key energy-related bills introduced by California legislators since the beginning of the 2017-2018 Legislative Session. Legislators have been busy moving bills through the legislative process since reconvening from the Summer Recess. For any bill not identified as a two-year bill, the deadline for each house to pass the bill and present it to the Governor for signature or veto was September 15, 2017. Below is a summary and status of bills we have been following.

An enrolled bill is one that has been through the proof-reading process and is sent to the Governor to take action. A two-year bill is a bill taken out of consideration during the first year of a regular legislative session, with the intent of taking it up again during the second half of the session.

  • Of particular note here is SB 100, California’s pitch for 100 percent renewable energy, failed to move to the next stage of the process and is kicked to next year.
  • Our next blog post, after October 15, will provide an update on whether those bills sent to Governor Brown were signed or vetoed.

Continue Reading Updates to Energy Related Bills in the 2017-2018 California Legislative Session

As we approach the critical September 22  vote of the U.S. International Trade Commission (ITC) for the U.S. solar industry, here is a brief review of how we arrived at this point and what to expect.  This vote will constitute the injury determination in the ITC global safeguard investigation into the effect of imported crystalline silicon photovoltaic (CSPV) products on the U.S. domestic solar manufacturing industry.

Overview

As reported widely in the solar industry press, on August 15, 2017, the ITC in Washington D.C. conducted a public hearing for the injury phase of the trade investigation (Inv. No. 201-075) into CSPV product imports.  The hearing generated more than 400 pages of hearing transcript and thousands of pages of briefing materials and statements submitted both in support and in opposition of the need for trade protection remedies to  support the U.S. domestic solar manufacturing industry.  A public version of some hearing testimony is available here.  The stakes are high.  This investigation could lead to  increased tariffs, quotas, or both, against all U.S. imports globally of CSPV cells whether or not partially or fully assembled into other products. CSPV cells are the most common form of raw power-generating material used in solar panels.  This investigation is being conducted pursuant to U.S. trade statutes and U.S. obligations under the World Trade Organization (WTO) terms of the Agreement on Safeguards.
Continue Reading ITC Prepares to Vote on the Suniva/SolarWorld proceeding re Crystalline Silicon Photovoltaic Cells

Stoel Rives’ Energy Team has been monitoring and providing summaries of key energy-related bills introduced by California legislators since the beginning of the 2017-2018 Legislative Session. June 2, 2017 was the deadline by which the legislature was required to pass bills out of the house of origin.  Failing to meet that deadline does not automatically prevent a bill from proceeding through the legislative process; however, such failure will prevent the bill from being considered by the full legislature or the Governor during the first half of the Legislative Session.  Below is a summary of bills we have been following that have most recently changed.  We will continue to monitor and update these energy-related bills as the legislative session proceeds.

Assembly Bills

AB 79 (Levine, D): Electrical generation: hourly greenhouse gas emissions: electricity from unspecified sources.
STATUS: Ordered to Senate June 1, 2017.

  • Initially introduced as a bill to decrease the amount energy consumed from coal-fired generation resources, AB 79 was revamped to require, by January 1, 2019, the State Air Resources Board (CARB), in consultation with the Independent System Operator (ISO), to regularly update its methodology for the calculation of emissions of greenhouse gases associated with electricity from unspecified sources. The bill would require the CPUC and the CEC to incorporate the methodology into programs addressing the disclosure of the emissions of greenhouse gases and the procurement of electricity by entities under the respective jurisdiction of each.

Continue Reading Updates to Energy Related Bills in the 2017-2018 California Legislative Session