Category Archives: Regulatory

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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 … Continue reading this entry

MISO Updates Interconnection Rules

FERC approved MISO’s proposed changes to its generator interconnection procedure (“GIP”) and generator interconnection agreement (“GIA”), designed to streamline MISO’s interconnection queue process. These changes will affect all interconnection requests made after January 4, 2017 and all prior requests that have not yet completed a system impact study. The new provisions are largely designed to … Continue reading this entry

Supreme Court of Illinois Says Courts Can Decide ARES Rate Disputes

Courts – not the ICC – have jurisdiction over rate cases involving an ARES, said the Supreme Court of Illinois.[1] In a unanimous opinion written by Chief Justice Karmeier, the Court in December answered the Seventh Circuit’s certified question whether rate claims against ARESs are under the jurisdiction of the ICC or the courts under … Continue reading this entry

IRS Revokes Favorable PLR Concerning Ability of Tribe to Pass ITCs to Lessee in Master-Tenant Structure

In recently released Private Letter Ruling 2016-40-010 (the new ruling), the IRS prospectively revoked PLR 2013-10-001 (the original ruling), concluding that a Native American tribe may not elect to pass investment tax credits (ITC) associated with renewable energy assets on reservation lands to a taxable entity under Section 50(d)(5) of the Tax Code.  [Click here … Continue reading this entry

IRS Issues Proposed Rules on Income Inclusion under Section 50(d)(5)

The IRS just published long-awaited temporary regulations under section 1.50-1T governing the section 50(d)(5) income inclusion rules. These rules apply to lessees of investment credit property when the lessor elects to treat the lessee as having acquired the property for its fair market value and pass through the investment tax credit available under section 46 … Continue reading this entry

New Hampshire Doubles Solar Net Metering Cap

New Hampshire has doubled the caps on energy that both residential and commercial customer-generators of rooftop solar can sell back to the grid, raising the cap from 50 MW to 100 MW. The governor signed H.B. 1116, which was introduced this past March, into law on May 2, 2016. Net metering programs allow homeowners and … Continue reading this entry

IRS Issues New Notice Extending Beginning of Construction Safe Harbor

Yesterday, the IRS issued Notice 2016-31 (the “Notice”) which revises previous guidance on satisfying the “beginning of construction” test in order to take advantage of the section 45 renewable electricity production tax credit (PTC) for wind and other renewable energy facilities including geothermal, biomass, landfill gas and certain hydropower and marine hydrokinetic energy projects. The … Continue reading this entry

Massachusetts Raises Caps on Solar Net Metering

Massachusetts has raised the caps on the Commonwealth’s net metering program. The governor’s signature was inked on April 11, 2016 on a bill approved by the legislature last week, after months of negotiation. Net metering programs allow homeowners and other solar customers to sell excess power they generate back to the electrical grid in exchange … Continue reading this entry

Scalia’s Death Revives the Clean Power Plan

Last week the Clean Power Plan was basically dead.  Five Supreme Court justices had stayed it and determined that the challengers were likely to prevail on the merits.  But with Scalia’s passing, everything has changed.  The  Supreme Court now appears to be deadlocked as to the Plan’s legality.  And a tie at the Supreme Court … Continue reading this entry

Republican Lawmaker Wants to Revoke EPA’s New Authority to Regulate Greenhouse Gases

On February 1st, I published an editorial arguing that the U.S. Environmental Protection Agency should use an obscure provision of the Clean Air Act to broadly regulate greenhouse gas emissions. This provision, Section 115, would allow the EPA to issue new rule ordering every state to cut its pollution by 28 percent from 2005 levels … Continue reading this entry

North Carolina Considers Additional Statewide Permitting Requirement for Solar Farms

North Carolina has been a hotbed of activity for residential and utility scale solar developers. According to the Solar Energy Industry Association, the Tar Heel State ranks fourth in the country in terms of installed solar capacity (1,088 MW). However, the North Carolina Energy Policy Council (EPC)—an advisory body within the state’s Department of Environment … Continue reading this entry

California Net Metering Ruling; Installations Greater than 1 MW Now Eligible

In a closely watched hearing, the California Public Utilities Commission (CPUC) voted 3-to-2 in favor of extending net metering in California. Eligible customers owning generation such as solar photovoltaic (PV) systems will continue to be able to net the electricity they produce against the electricity they consume. The decision establishes a successor program to the … Continue reading this entry

Breaking News: Congress Set to Vote On Spending Bill Including 5 Year Extension of ITC and PTC

Congressional leaders reached a much anticipated bi-partisan agreement in an omnibus appropriations bill that includes an extension (with phasedowns) of the section 48 investment tax credit (ITC) for solar energy property and section 45 renewable electricity production tax credit (PTC) for wind. (The 2000+ page bill is available here.) A separate tax extenders bill (available … Continue reading this entry

FERC Clarifies that Certain Qualifying Facilities (QFs) are Exempt from FPA Section 203

FERC recently issued an order confirming that certain qualifying facilities (“QFs”) under the Public Utility Regulatory Policies Act of 1978 (PURPA) are exempt from section 203(a)(1) of the Federal Power Act (“FPA”) pursuant to section 292.601(c) of its regulations even if the QF has a market-based rates (“MBR”) tariff and/or generator interconnection facilities. FERC’s order … Continue reading this entry

Arizona Rooftop Solar Regulations Highlight Distributed Generation Debate

Sunny Arizona is again in the middle of a nationwide debate between solar companies and utilities. Legislation adopted in March 2015, and which goes into effect on January 1, 2016, mandate certain disclosures and formats for leases used by rooftop solar companies, such as disclosure of the total lifetime cost of the system and the … Continue reading this entry

Hawaii Sets 100% Renewable Energy Goal and Opens the Door to Community Solar

Electricity on the island state of Hawaii will come 100% from renewable resources by 2045, pursuant to new legislation. The plan will end Hawaii’s current reliance on imported fuel oil which Governor Ige has said currently costs $5 billion annually. Wind, solar, geothermal and storage technology and distribution improvements will all play important roles. Hawaii currently produces … Continue reading this entry

Edison International Using Rooftop Solar to Help Modernize It's Grid

SunEdison, Inc. has secured 20-year power purchase contracts with Southern California Edison to build 33 megawatts of rooftop arrays on industrial buildings in Southern California. Once the rooftop arrays are complete, SunEdison’s public traded yieldco unit TerraForm Power Inc. will purchase the systems.  The 17 systems are expected to be operational next year, and will … Continue reading this entry

FERC Issues Proposal to Ease Regulation of Gen-Tie Lines

FERC has issued a Notice of Proposed Rulemaking (NOPR) that would substantially reduce the regulatory burdens placed on energy project developers that construct generator lead lines (gen-tie lines) to interconnect their projects to the grid. Currently, developers that own, operate or control a gen-tie line (referred to in the NOPR as “Interconnection Customer’s Interconnection Facilities” … Continue reading this entry

IRS Issues Notice 2015-25 Extending Safe Harbor for Continuous Construction in Order to Take Advantage of Renewable Energy Tax Credits

Yesterday, the IRS issued Notice 2015-25, which updates the guidance in Notices 2013-29,  2013-60, and 2014-46. These Notices provide that a taxpayer can show that it has “begun construction” of its qualified renewable energy facility by December 31, 2014 for purposes of taking advantage of the section 45 renewable electricity production tax credit (PTC) or the … Continue reading this entry

SCE Announces RAM 6 Program Forum

Southern California Edison (SCE) announced a Program Forum for SCE’s 2015 Renewable Auction Mechanism (RAM) Program. The Program Forum will be held on Wednesday, March 4, 2015, from 1:00 p.m. to 3:00 p.m. (Pacific Standard Time). The main purpose of the Program Forum is to discuss SCE’s upcoming RAM 6 Request for Offers (RFO) process. … Continue reading this entry

IRS Releases Guidance on Performance and Quality Standards for Small Wind Energy Property

The IRS recently released Notice 2015-4 (the Notice), which provides performance and quality standards that small wind energy property (defined under section 48(c)(4) of the Code as property utilizing a “qualifying small wind turbine” with a nameplate capacity of not more than 100 kilowatts (kW)) must meet to qualify for the section 48 investment tax … Continue reading this entry

Production Tax Credit Extended for Renewable Projects Beginning Construction in 2014

On December 19, 2014, President Obama signed into law the Tax Increase Prevention Act of 2014 (H.R. 5771).  H.R. 5771 includes a retroactive one-year extension of the section 45 renewable electricity production tax credit (PTC) for wind and other renewable energy facilities including geothermal, biomass, landfill gas and certain hydropower and marine hydrokinetic energy projects. Taxpayers … Continue reading this entry

Iowa Supreme Court Decision Boosts Renewable Energy Development

A recent Iowa Supreme Court decision may give a boost to small-scale renewable energy development in that state. On July 11, the court issued its opinion in SZ Enterprises, LLC vs. Iowa Utilities Board (link to decision), determining that a third-party power purchase agreement for behind-the-meter generation is not subject to regulation as a “public utility” … Continue reading this entry

Expensive Lessons Learned after 8th Circuit Rules against Wind Developer in Its $400 Million Suit against a Minnesota Utility

A large wind developer, enXco Development Corp. (“enXco”), learned a hard lesson about the importance of negotiating flexibility in contracts to deal with unforeseen regulatory hang-ups, when the U.S. Court of Appeals for the 8th Circuit affirmed a lower court’s ruling to dismiss enXco’s $400 million suit against Northern States Power Co. (“NSP”), a division … Continue reading this entry