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Stoel Rives partner Michael O’Connell reports:

On January 4, 2010, the Keeper of the National Register determined that Nantucket Sound is a traditional cultural property (TCP) of two Indian tribes that is eligible for listing in the National Register of Historic Places, even though the area is submerged. The Keeper made that determination in response to a request from the Mineral Management Service (MMS), which is considering a request for a lease of outercontinental shelf land for 130 wind turbines for the Cape Wind Project. MMS and the Massachusetts State Historic Preservation Officer (SHPO) disagreed on whether Nantucket Sound was eligible for listing.Continue Reading Interior Secretary Salazar Invites Parties Interested in Cape Wind Project to Resolve Impact of Determination that Nantucket Sound Is Eligible for Listing as an Historic Property

On December 7, 2009, Energy Secretary Steven Chu announced the issuance of a final rule amending the October, 2007 Final Regulations implementing the Loan Guarantee Program under Section 1703 of Title XVII of the Energy Policy Act of 2005 (the "Section 1703 Program").  The amendments implemented through the final rule were first identified in a Notice of Proposed Rulemaking and Opportunity for Comment  issued by the Department of Energy ("DOE") on August 7, 2009.  The comment period for the proposed amendments ended on September 22, 2009; the comments received by the DOE from the industry and other interested parties were largely supportive of the proposed amendments.

In a nutshell, the amendments to the regulations outlined in the final rule are designed to:

  • provide flexibility in the determination of an appropriate collateral package to secure the guaranteed loan obligations;
  • eliminate the requirement that the Secretary receive a first priority lien on all project assets as a condition for obtaining the loan guarantee;
  • facilitate collateral sharing and related intercreditor arrangements with other project lenders; and
  • provide a more workable interpretation of certain statutory provisions regarding DOE’s treatment of collateral that is more consistent with the intent and purposes of Title XVII.

Continue Reading U.S. Department of Energy Announces Final Rule Amending Regulations for Loan Guarantee Program

From our colleague Ryan Steen:

On July 10, 2009, the Animal Welfare Institute and others (”Plaintiffs”) filed a motion for a preliminary injunction to halt construction of the Beech Ridge wind project in Greenbrier County, West Virginia (the “Project”). The Plaintiffs seek the injunction to prevent unavoidable harms that they allege the Project will cause to the Indiana bat, a species listed as endangered under the Endangered Species Act (“ESA”). The Plaintiffs’ injunction request follows closely on the heels of the complaint the Plaintiffs filed in the Federal District Court for the District of Maryland (Civ. No. 09-1519), which alleges that the Project will unlawfully “take” Indiana bats in violation of Section 9 of the ESA. In their complaint and request for an injunction, the Plaintiffs assert that the Project cannot lawfully move forward without an incidental take permit (“ITP”) issued under Section 10 of the ESA. Judge Titus recently ordered that the hearing on the Plaintiffs’ motion for a preliminary injunction will be addressed in conjunction with the trial on the merits of the case, currently scheduled for October 2009.Continue Reading Animal Rights Group Seeks Injunction to Halt Wind Project on ESA Grounds

On August 14, 2009, the Department of Energy ("DOE") State Energy Program ("SEP") announced that more than $119 million in funding from the Recovery Act to support energy efficiency and renewable energy projects has been awarded to Alabama, American Samoa, the District of Columbia, Illinois, Maryland, North Dakota and Wyoming.

Here is a summary of how the monies will be used by each of the states and territories:

  • Alabama has been awarded $22,228,000 in federal stimulus funds.  Alabama will utilize the Recovery Act  SEP funding to promote energy efficiency of businesses (with a particular focus on the automotive supplier industry), schools, and correctional facilities and the development of renewable energy resources in the state.  The state will also use funds to create a new "energy revolving loan fund" to stimulate the creation and retention of jobs and increase the generation of renewable energy by providing low-interest loans for new and existing industries in the state.  The loans will be used for the installation of renewable energy systems and the implementation of energy efficiency measures.  After demonstrating successful implementation of its plan, Alabama will receive nearly $28 million in additional funding, for a total of more than $55 million.  Click here for more information regarding Alabama’s state energy program and use of Recovery Act funds.
  • American Samoa was awarded $7,420,000 in federal stimulus funds.  American Samoa will utilize the Recovery Act SEP funding to expand the use of renewable energy across the territory, as well as to supplement weatherization funds to improve home energy efficiency for low-income residents.  Specifically, the territory will install a 1,000 kW photovoltaic solar-energy array near the Tafuna Power Station, 19 smaller 28 kW solar arrays on the roofs of government and other buildings, and a solar water heating system at the LBJ Tropical Medical Center.  American Samoa is also interested in expanding its use of wind power, and will use Recovery Act funds to set up eight anemometers to measure and quantify the territory’s wind potential.  After demonstrating successful implementation of its plan, the territory will receive more than $9 million in additional funding, for a total of $18 million.

Continue Reading Show Me the Money: State Energy Programs for Seven States and Territories Awarded $119 Million from the American Recovery and Reinvestment Act (“Recovery Act”)

The Department of Energy (DOE) announced this week that up to $22 million from the Recovery Act would be allotted to up to 4 eligible communities nationwide in order to encourage utility-scale renewable energy systems that provide clean, reliable, and affordable energy supplies for their communities, while creating jobs and new economic development opportunities. The projects will demonstrate how…

On Friday, June 25, 2009, the Department of Energy ("DOE") announced more than $304 million in Recovery Act funding to three states for their weatherization assistance programs. The DOE’s Weatherization Assistance Program will enable families making up to 200% of the federal poverty level – about $44,000 a year for a family of four – to save…

Query this:  the California legislature has passed the California Global Warming Solutions Act (AB 32) and Senate Bill 97, making it clear that the impact of a project’s greenhouse gas (GHG) emissions has to analyzed under the California Environmental Quality Act (CEQA).  Your project is one GHG source among literally thousands of sources in California contributing to global climate change.  There is no recognized CEQA threshold of significance for GHG emissions. We’re months away from having new CEQA Guidelines adopted under SB 97, but, in any case, the proposed draft amendments to the CEQA Guidelines do not establish a threshold of significance. And yet, you, as a project developer, need to analyze and reach a definitive (and defensible) conclusion on the cumulative impact of your project on climate change. What do you do? Continue Reading Evaluating Climate Change Impacts under the California Environmental Quality Act: Center for Biological Diversity v. Town of Yucca Valley

Last week DOE released a new funding opportunity announcement for up to $480 million for pilot-scale and demonstration-scale integrated biorefinery projects. An integrated biorefinery uses an “acceptable feedstock” to produce a biofuel or bioproduct as the “primary product.” Acceptable feedstocks include:

  • Algae
  • Certain woody biomass
  • Renewable plant materials so long as it is not generally intended for use

…

President Obama issues ban on executive branch officials from speaking to lobbyists on specific stimulus projects…
Continue Reading President Obama Clamps Down on Lobbyists and First Amendment