Energy Law Updates: Offshore Wind Farms, Solar Projects, Government Contracts, Hydropower, & More

For your reference, here’s a roundup of commentary on recent legal developments in the renewable and alternative energy industry: 

Wind Power

Offshore Wind Energy Development in Mid-Atlantic Moving Forward (Venable LLP)

“Coinciding with the publication of the environmental assessment, [the Bureau of Ocean Energy Management (BOEM)] announced that it is soliciting statements of interest from wind energy developers considering the potential lease areas off the coast of Virginia. Based on the level of interest, BOEM will determine whether to proceed with a competitive or non-competitive lease process. BOEM has already determined that there is sufficient interest in development off Maryland’s coast to hold a competitive lease process.” Read the full update»

One Small Step Forward For Mid-Atlantic Offshore Wind Development (Foley Hoag LLP)

“Yesterday, the Bureau of Ocean Energy Management issued a notice of availability for the Environmental Assessment it prepared in connection with the issuance of leases for wind energy development off the coast of New Jersey, Delaware, Maryland, and Virginia.” Read the full update»

O’Malley’s Proposed Wind Farms May be Key to Boosting Maritime Workforce (Duane Morris LLP)

“With no offshore wind farms yet built off U.S. Coastlines, Gov. Martin O’Malley has proposed the Maryland Off-shore Wind Energy Act of 2012 as an investment in a renewable energy and a vehicle for statewide job creation. The legislation allows for the installation of a wind farm at least 10 miles off the coast of Ocean City with a capacity of 450 megawatts, which translates into enough clean power to meet approximately half of the electricity needs of Baltimore City.” Read the full update»

Will Regulatory Hurdles Leave New Jersey Wind Farms Blowing in the Breeze? (Donald Scarinci)

“In 2010, Gov. Chris Christie signed the Offshore Wind Economic Development Act into law in the hopes of promoting the creation of wind farms off the coast of New Jersey. Among other things, the law established an offshore wind renewable energy certificate program and made financial assistance and tax credits available for businesses that construct manufacturing, assemblage, and water access facilities to support the development of qualified offshore wind projects.” Read the full update»

Evaluating Wind Turbine Patent Infringement Risk Exposure (Philip Totaro)

“Major international corporations are increasingly becoming the targets of IP infringement suits. This has driven the need for indemnification of patent infringement liability in component/product supply agreements, particularly in business-to-business (B2B) market sectors. In addition, patent infringement liability insurance is becoming more commonplace for makers of industrial equipment who are hoping to sell their wares into several international markets.” Read the full update»

Solar Power

Eyeing Tax Rewards, Big Cos. And PE Firms Back Solar (Snell & Wilmer L.L.P.)

“The end of a federal grant system that doled out billions of dollars to solar energy companies may have been a blow to some players in the industry, but still-remaining tax benefits are proving to be a strong enough lure for rich corporations and private equity firms to invest in solar projects, experts say… The grant program’s demise will make it harder for smaller solar players to finance major projects, experts say, because only big businesses that turn regular, taxable profits can realize savings under the federal tax incentive program, which has at least five more years of life.” Read the full update»

Buy American Requirements for Military Base Solar Projects (Reed Smith)

“In January 2012, the [Department of Defense (DoD)] issued a report … which found that more than 7,000 megawatts (MWAC) of solar energy development is technically feasible and financially viable at several DoD installations in the Mojave and Colorado Deserts of California. The complete report is more than 500 pages, and provides detail on the full range of issues for any solar project development, as well as the special considerations for projects located on active military bases.” Read the full update»

‘Buy American’ And Solar Devices — DOD Clarification (Sheppard Mullin Richter & Hampton LLP)

“Last year in January 2011, the president signed the 2011 National Defense Authorization Act, which included a ‘Buy American’ requirement for photovoltaic devices being purchased by the U.S. Department of Defense. Twelve months later, the DOD issued an interim rule to implement this new requirement.” Read the full update»>

Money from the Sky? Property Owners and Lenders Ponder On Site Solar Energy Systems (Robert Marsico)

“Typically, commercial property owners who utilize the expertise of companies specializing in solar energy generation do so through fairly detailed agreements. Often such agreements provide for the installation by the solar energy company of an onsite system (usually roofmounted) and for the terms of purchase by the property owner of the solar energy output of the installed system at favorable rates.” Read the full update»

Government Renewable Energy Contracts 

U.S. Army Looking for $7 Billion in Renewable Energy Over the Next 10 Years (Reed Smith)

“In late February, the U.S. Army began its long-awaited process for signing up to $7 billion in renewable energy contracts over the next 10 years when the Army Energy Initiatives Task Force (AEITF) issued a draft request for proposals (Draft RFP). During this pre-solicitation, the Draft RFP was issued to gather information from potential bidders to assist the AEITF in the development of a formal Request for Proposal that it intends to issue later this year.” Read the full update»

Army Seeks Public Comment on $7 Billion in Renewable Energy Procurement (Mintz Levin)

“The Army does not intend to own or operate any generation assets through this indefinite delivery / indefinite quantity contracting vehicle, nor will it provide financing to project developers. Instead, the Army will utilize third party financing, and enter into long-term PPA contracts, with a maximum tenor of 30 years. Projects under 4 MW will be set aside for small businesses.” Read the full update»

U.S. Army Solicits Industry Feedback for $7 Billion in Upcoming Renewable Power Contracts (Wilson Sonsini Goodrich & Rosati)

“The Army has expressed a preference for contractors with deep experience developing projects that incorporate solar, wind, geothermal, and biomass technologies. Future projects may be located on or near any federal property located within the U.S., including Alaska, Hawaii, territories, provinces, or other property under the control of the U.S. government for the duration of contract performance.” Read the full update»

Additional Reading

Unanimous Supreme Court Decision Supports Hydropower Industry and Private Landowners (K&L Gates LLP)

“The United States Supreme Court gave the hydropower industry a major victory last week in the closely watched case of PPL Montana, LLC v. State of Montana… The decision … makes clear that States are not free to start charging the owners of dams and reservoirs, or other water-based facilities, millions of dollars of ‘rent’ based on novel and sweeping claims of riverbed ownership. For PPL Montana, the State’s claim for back rent was over $50 million and it claimed many millions of dollars going forward.” Read the full update»

Supreme Court Settles Riverbed Battle (Greenberg Glusker Fields Claman & Machtinger LLP)

“The Supreme Court’s ruling relieved PPL of its obligation to pay the state of Montana $41 million in back rent for use of the riverbeds, and likely quelled any fears in the hydropower industry that similar ownership theories would be advanced by other states seeking to fill empty coffers with millions of dollars in back rental payments.” Read the full update»

EPA Issues Enforcement Policy on Use of 2010 and 2011 Biomass-Based Diesel Renewable Fuel Credits (Sutherland Asbill & Brennan LLP)

“The U.S. Environmental Protection Agency (EPA) has issued an Interim Enforcement Response Policy to Resolve Violations Arising from the Use of Invalid 2010 and 2011 Biomass-Based Diesel Renewable Identification Numbers (RINs). The Policy follows in the wake of EPA’s enforcement actions related to RINs generated by Clean Green Fuel LLC and Absolute Fuels LLC. EPA’s Policy addresses invalid 2010 and 2011 RINs only, and is modeled upon EPA’s settlement posture set forth to the Obligated Parties who used Clean Green and/or Absolute Fuels RINs on their 2010 compliance reports.” Read the full update»

Renewable Energy Update — March 21, 2012 (Allen Matkins Leck Gamble Mallory & Natsis LLP)

“According to the American Wind Energy Association, California currently produces 3,927MW of wind power. Another 847MW is under construction and 18,269MW are in the queue. If all are built, that would bring total wind generation in the state to more than 24,000MW — six times the current level. Potentially, California could produce even more — as much as 105,646 GWh — if all areas with strong wind conditions were developed.” Read the full update»

Energy & Clean Tech Connections (Mintz Levin)

“On Capitol Hill, the administration promoted energy-related matters in the third week of February while Congress was in recess for the Presidents’ Day holiday. While speaking to college students in Miami February 23, President Obama criticized the pro-drilling approach of Republicans and the reluctance of the oil and gas industry to relinquish its rights to $4 billion a year in tax breaks, which the President has called for zeroing out in his fiscal year 2013 budget request.” Read the full update»

Watt’s New? Michigan Energy Newsletter – February 2012 (Varnum LLP)

Both United Solar Ovonic (USO), with manufacturing plants in Greenville, and its parent company, Energy Conversion Devices of Auburn Hills, filed for Chapter 11 bankruptcy reorganization on February 14. The reorganization plan calls for USO, maker of flexible, lightweight thin-film photovoltaic solar panels, to be sold in order to shed the debt and legacy costs from that entity.” Read the full update»

Renewable Energy Alert: New Business Opportunities in New Jersey Energy Laws (Lowenstein Sandler PC)

“In the final days of the recent lame-duck session of the state legislature, the Senate and Assembly passed and sent to New Jersey Governor Chris Christie a dozen bills that address renewable energy, energy efficiency and related subjects. Not all the bills met with the governor’s approval… But here are four the Governor did sign that should be of interest to businesses looking to save on their energy dollar or branch out into renewable energy.” Read the full update»

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