On June 3, 2020, the U.S. Court of Appeals for the First Circuit vacated an air permit issued by the Massachusetts Department of Environmental Protection (DEP) for the construction of a new compressor station proposed by Algonquin Gas Transmission as part of its Atlantic Bridge natural gas pipeline project and remanded the matter to the agency for further analysis. Town of Weymouth v. Massachusetts Department of Environmental Protection, et al., No. 19-1794 (Jun. 3, 2020). In reviewing the agency’s decision, the First Circuit concluded that the DEP’s Best Available Control Technology (BACT) analysis was inadequate because the Agency failed to undertake its own independent analysis of the cost-effectiveness of the various options of controlling air emissions and instead relied on the Federal Energy Regulatory Commission’s (FERC) analysis. The court also decided several other environmental arguments raised by the Town of Weymouth and other petitioners in favor of the DEP, including environmental justice and noise concerns, among other issues, which are addressed in a
Refinements to Horizontal Market Power Analysis for Sellers in Certain Regional Transmission Organization and Independent System Operator Markets,
Order No. 861, 168 FERC ¶ 61,040 (2019).
Effective date: September 24, 2019.
On July 18, 2019, FERC issued an order modifying the requirements for entities which hold market-based rate authority, as well as new applicants. This order will reduce the filing burden on entities seeking market-based rates in the Eastern ISOs, PJM, NYISO, ISO New England and MISO. It leaves filing requirements unchanged for entities in bilateral markets, CAISO and SPP.
Order No. 861 finds that sellers transacting in markets operated by regional transmission organization (“RTO”) and independent system operators (“ISO”) do not need to submit indicative screens regarding their horizontal market power to obtain or maintain market-based rates to sell energy, ancillary services and capacity. The Commission found that the ISO/RTOs’ market monitoring regimes are sufficiently mature to allow for appropriate monitoring and mitigation. Further,
Data Collection for Analytics and Surveillance and Market-Based Rate Purposes,
Order No. 860, 168 FERC ¶ 61,039 (2019).
On July 18, 2019, the Federal Energy Regulatory Commission (“Commission”) issued a final rule which will have impacts on new market-based rate applications, as well as companies which currently have such authorization. Under this rule, companies which currently hold market-based rates, as well as new applicants, will need to submit data into a relational database regarding their affiliates, and will need to keep such data updated. This will add a new compliance obligation to companies, and will require closer monitoring of active and passive investors in a project.
Following up on the 2016 series of Notices of Proposed Rulemaking, the Commission issued a final rule, adopting its proposal to collect market-based rate information in a relational database, but declining to require entities, including those holding market-based rates (“Sellers”) and those who transact in virtual energy and
On November 26, 2018 the Solar Massachusetts Renewable Target (SMART) Program opened for applications.
SMART is a new renewable incentive program established to support development of 1600 MW of new solar projects in Massachusetts. The program provides renewable energy project owners with a tariff based incentive that is paid directly by the utility company to the project owner, plus additional location- and customer-based incentives.
To qualify for the program you must file an application with the State Solar Program Administrator. Eligible projects will need to be interconnected to one of the three investor owned utility companies in Massachusetts: Eversource, National Grid, and Unitil. Each utility has established capacity blocks that decline in incentives with each block. The blocks are filled on a first-come, first-served basis.
The initial application period opened on November 26 and will continue through November 30, 2018. All applications received before midnight November 30, 2018 will be
On Friday, June 22, 2018, the Internal Revenue Service issued guidance clarifying when construction commences for purposes of qualifying for the investment tax credit (“ITC”) for solar photovoltaic facilities. The ITC is a dollar-for-dollar reduction in federal income tax due by the taxpayer equal to a specified percentage of the eligible basis (generally the cost) of an energy project originally placed in service by the taxpayer. The percentage of the ITC depends on when construction begins on the eligible project, and hence the guidance received by the IRS is critical.
As a result of the PATH Act, the ITC percentage for solar facilities, which traditionally has been 30 percent of the eligible basis, phases out as follows:
- 30% for projects that begin construction by the end of 2019
- 26% for projects that begin construction in 2020
- 22% for projects that begin construction in 2021
- 10% for projects that begin construction in 2022 or after
On May 10, 2018, the House Energy Subcommittee held a hearing on the state of electric transmission infrastructure, particularly focusing on transmission planning, the efficacy of Order No. 1000 and the future of the transmission grid. Important take-aways from the hearing included:
- Consensus that Order No. 1000 has not worked to incentivize transmission infrastructure development in the way that was intended, and particularly, has not resulted in development of interregional transmission projects.
- The Commission and Congress should rethink transmission incentives, including considering how to best incentivize new technology and whether performance-based incentives might be appropriate.
- Significant offshore wind generation is coming to the East Coast; we need to think about how to best support its interconnection.
Six witnesses testified on the state of transmission infrastructure. Former FERC Commissioner Tony Clark, now a senior advisor at the law firm of Wilkinson Barker Knauer LLP, discussed the white paper he recently issued, considering the status and efficacy of Order No.
FERC Substantively Revises Generator Interconnection Rules, Eases Rules For New Developers of Generation and Storage Facilities
On Thursday, April 19, 2018, the Federal Energy Regulatory Commission (FERC or “Commission”) issued a Final Rule revising its Large Generator Interconnection Procedures (LGIP) and Large Generator Interconnection Agreement (LGIA), which apply to generators over 20 MW. The order, labeled Order No. 845, is the first comprehensive review of FERC’s generator interconnection policy in about 15 years, since Order No. 2003 and its progeny in 2003.
Order No. 845 is prospective only, applying to generators which are not yet in a queue. Transmission providers, including independent system operators and regional transmission organizations (ISO/RT) must file changes to their tariffs by August 7, 2018. Note that on May 17, 2018, the ISO/RTO Council filed a motion for extension, asking that the compliance date be extended by 70 days to October 16, 2018.
The changes that FERC proposes will be beneficial
On April 17, 2018, the five Commissioners of the Federal Energy Regulatory Commission (“FERC”) testified before the House Energy Subcommittee in a hearing titled “Oversight of the Federal Energy Regulatory Commission and FY2019 Budget.” Chairman Kevin McIntyre, along with Commissioners Cheryl LaFleur, Neil Chatterjee, Robert Powelson and Richard Glick discussed a number of topics ranging from cyber security and grid resiliency to baseload resources, removing barriers to entry for energy storage, review of the pipeline approval process, as well as potential modifications to the Public Utility Regulatory Policies Act (“PURPA”) and the Federal Power Act (“FPA”).
Key topics and takeaways included:
- Tension between state energy policies and wholesale electricity markets. Chairman McIntyre commented that finding a balance between state energy policies and FERC’s jurisdiction over the wholesale markets is one of the trickiest areas the Commission faces. He explained that states have the authority to prefer certain energy resources, and FERC has the obligation to ensure that electricity generated by these resources is
The 2017 tax reform act amended Section 118 of the Internal Revenue Code, to dramatically reduce the ability of a corporation to exclude from its gross income grants that the corporation receives from federal, state, or local governments or from civic groups to incentivize corporate investments. Many energy infrastructure projects benefit from exactly these kinds of incentives. Now and in the future, project developers need to be aware of and understand these changes, so that they can work to minimize the adverse consequences of the tax reform act’s amendment.
Before Tax Reform. Before the passage of the tax reform act, Section 118 provided that a corporation’s gross income did not include any contribution to the capital of the corporation. The regulations that accompanied this section explained that this exclusion applied to contributions received from persons other than shareholders (i.e., so-called “non-shareholder contributions to capital”). Thus, for example, if the government or a civic group contributed property to a corporation in order to
The Bipartisan Budget Act of 2018 extended and enhanced a tax credit that incentivized carbon dioxide capture, storage, and utilization.
The enhanced credit, known as the “45Q tax credit,” offers a tax credit of up to $50 per ton for carbon oxide (not just dioxide) that is sequestered and up to $35 per ton for carbon oxide that is reutilized. The credit amounts began at $22.66 per ton of sequestered carbon oxide and $12.83 per ton of reutilized carbon oxide in 2017, and are set to increase linearly until hitting $50 and $35 per ton of sequestered and reutilized carbon oxide, respectively, in 2026. Businesses have six years to begin qualifying projects and have twelve years from the time they begin operations to take advantage of the credits. For sequestered carbon oxide to qualify for the credit, it must be:
- captured from an industrial source,
- amounts that would otherwise be released into the atmosphere as an industrial emission,