FERC Confirms that FPA Section 203 Approval is Not Required for Tax Equity Investment

Federal Energy Regulatory Commission (“FERC”) has issued a declaratory order confirming that no approval under Section 203 of the Federal Power Act (“FPA”) is required in connection with the transfer or issuance of passive tax equity interests in public utilities or public utility holding companies.

Under Section 203, FERC’s prior authorization is required “if a public utility wishes to sell, lease or otherwise dispose of jurisdictional facilities,” which, as FERC previously ruled, includes a transfer of control over such facilities. FERC has now confirmed that passive tax equity interests do not constitute voting securities, and thus do not grant their holder control, for the purposes of Section 203 analysis.

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U.S. Trade Commission Finds Domestic Injury from Foreign Solar Imports

In a ruling highly anticipated and hotly debated in the solar industry, the U.S. International Trade Commission determined in a unanimous 4-0 decision today that foreign imports of solar modules caused “serious injury” to U.S. companies under Section 201 of the 1974 Trade Act. The determination concerns “Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled Into Other Products).”

The Commission is expected to hold a hearing on October 3 to consider potential remedies and issue a recommendation to President Trump by November 13.

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N.C. Governor Signs H.B. 589

North Carolina Governor Roy Cooper has signed H.B. 589 into law. H.B. 589, otherwise known as the Competitive Energy Solutions Plan, adds the following features to the already robust North Carolina solar industry: competitive bidding process for solar developers, a statewide rooftop solar leasing program, and the Green Source Rider Program, which allows large utility customers to offset their electricity usage with renewable energy.

H.B. 598, however, does not provide such benefits to the North Carolina wind industry, but instead places a moratorium on wind development through the temporary prohibition of wind permit issuance. Citing concerns at military bases, the bill prohibits the Department of Environmental Quality (DEQ) and Costal Resources commission to issue a permit for a new wind project or wind project expansion until December 31, 2018. Specifically, the moratorium is meant to allow the General Assembly to consider the impact of wind energy facilities and energy infrastructure on military operations, training, and readiness.

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Nevada Legislature Approves Bills to Encourage Distributed Generation and Community Solar Projects

The Nevada legislature took several actions in the last days of its 2017 legislative session to reopen the state to the development of and investment in distributed generation and community solar projects.  While Nevada has the fourth most solar capacity installed of any state, most of the recent development has been of utility-scale projects after the Public Utility Commission of Nevada changed its net metering policy in 2015 to cut the rate paid by utilities for electricity produced by distributed generation systems to wholesale, rather than retail, rates.

Responding directly to industry pressure and the slowdown in rooftop and other distributed generation solar development since 2015, A.B. 405 provides that rooftop solar customers will initially be compensated for net metering at 95 percent of the retail rate.  Each time an additional 80 megawatts of rooftop solar is installed in the state, this percentage will decrease for subsequent installations, but will not go below 75 percent of the retail rate.  This represents a significant increase in rates from the current wholesale rate structure, though Nevada may remain less attractive for many developers and investors compared to states that require utilities to pay customers full retail rates for net metering projects.  Customers will be able to lock in their rates for twenty years, which will make investments in the first 80 megawatts of installed capacity particularly attractive to financing parties. 

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IRS Releases 2017 PTC Amounts

U.S. Department of Commerce Sets Stage for New Countervailing Duties on Chinese Solar Panels

The IRS just published its annual notice that provides the inflation adjustment factors and reference prices used in determining the amount of the section 45 production tax credit (PTC) for the production of renewable energy and refined coal.

The credit for the production of renewable energy from wind, closed-loop biomass and geothermal facilities is 2.4 cents per kilowatt hour for 2017 (up from 2.3 cents in 2016). The credit for the production of renewable energy from open-loop biomass, small irrigation power, landfill gas, trash, qualified hydropower, and marine and hydrokinetic facilities remains at 1.2 cents per kilowatt hour. The credit for the production of refined coal is $6.909 per ton for 2017 (up from $6.810 in 2016). The credit for the production of Indian coal has expired for calendar year 2017. No phase-outs apply to the credits for these energy resources in 2017.

A copy of the notice is available here.