Category Archives: Legislation

Tucked away in the recesses of the Inflation Reduction Act is a provision that reminds everyone why they love Superfund so much.  On its face, it’s simply an incentive for renewable energy development, giving an adder to the amount of the investment tax credit (ITC) or production tax credit (PTC) to which certain renewable energy projects would otherwise be entitled, if they are located in an “energy community”. … More

Lost amid the more high profile items in Massachusetts’ recently enacted Act Driving Clean Energy and Offshore Wind is a requirement that the Department of Energy Resources establish a program requiring large buildings across the Commonwealth to report energy usage on an annual basis.   The requirement goes into effect on July 1, 2024, but DOER has an additional year (until July 1, 2025) to draft implementing regulations and establish the parameters of the reporting program.  … More

Based on numerous sources, Governor Baker has now signed an Act Driving Clean Energy and Offshore Wind.  This bill includes a number of key advancements for increased adoption of zero emission vehicles and clean transportation throughout the Commonwealth.  The law:

1. Outlaws the sale of internal combustion vehicles by any dealership after January 1, 2035 by making it an unfair or deceptive act or practice under Chapter 93A;…

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Energy storage systems (“ESS”) can help increase grid efficiency, facilitate the operation of increasing amounts of renewable energy, and lower energy costs, among other benefits. As energy storage systems increase in number in Massachusetts, a myriad of questions have emerged regarding their regulation and integration into the electrical grid.

DPU Order

On February 9, 2022, the Massachusetts Department of Public Utilities (“DPU”) released an order under Docket 19-55 with the goal of finding answers to some of these questions.… More

On Monday, Boston released a draft of the first phase of regulations intended to implement the amended BERDO ordinance signed by then-Mayor Janey in October. 

The first phase of the regulations is focused only on reporting issues.  It will address

• Reporting Requirements
• Third-Party Data Verification Requirements
• Preservation of Records

The rationale for this narrow focus is that the City wants these regulations in place promptly,… More

Amid renewed national ambitions to tackle climate change, electric vehicles (EVs) have emerged as a promising way to reduce emissions in the transportation sector, which accounts for nearly a third of greenhouse gas emissions. This approach has garnered support even from private industry, as evidenced by the flurry of car manufacturers who recently committed to all-EV fleets in the coming decades.… More

As President Biden announces his blueprint for expanding the use of offshore wind (OSW) power, Massachusetts hopes to become an industry hub. Those plans will certainly be facilitated by the new federal OSW policies.

On March 29, the Biden administration published a major plan to mobilize offshore wind development, particularly along the East Coast. The plan aims to construct 30,000 megawatts of OSW generation by 2030,… More

The White House this morning released a fact sheet on “The American Jobs Plan,” also known as President Biden’s infrastructure plan.  There’s a lot in here (as there should be for a couple of trillion dollars!), so today I’ll focus on energy infrastructure.  Here are the highlights: 

• $100B to “build a more resilient electric transmission system.”  This includes “the creation of a targeted investment tax credit that incentivizes the buildout of at least 200 gigawatts of high-voltage capacity power lines.”
• Creation of a “Grid Deployment Authority” within DOE to facilitate transmission line siting.…

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In January, when Governor Baker vetoed the Legislature’s effort to go big on climate, my colleague Zach Gerson made clear that the bill was not even “mostly dead.”  I am pleased to say that Zach’s diagnosis was correct.  The climate bill is very much alive.

Last week, the Legislature passed a new version of the bill, which adopted most of the Governor’s technical suggestions and almost none of his substantive changes. … More

As promised, President Biden has recommitted the U.S. to the Paris climate agreement. He’s also undertaken sweeping executive action to undo the previous administration’s environmental rollbacks. But after four years of lagging behind the rest of the world, the U.S. will face significant challenges in achieving meaningful emissions reductions without new legislation. And that means a tough road ahead working with an evenly divided Senate and moderates in Biden’s own party from states that remain dependent on fossil fuels.… More

On January 4th, as the legislative session came to a close, both houses of the Massachusetts legislature passed “An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy.”  My colleague, Seth Jaffe, posted on the act yesterday, when the details of the bill first came out, focusing on the climate and economic impacts.  There is no doubt that this act will significantly shape Massachusetts’s path towards a net-zero future.… More

On September 13, 2018, the Court of Appeals for the Seventh Circuit affirmed the trial court’s dismissal of claims that the zero-emission credit (ZEC) program enacted by the Illinois legislature in 2016 violated the U.S. Constitution’s dormant Commerce Clause and was preempted by the Federal Power Act. The Court took the unusual step of requesting an amicus brief from the Federal Energy Regulatory Commission (FERC). … More

On July 31, the Massachusetts Legislature passed H.4857, An Act to Advance Clean Energy.” The bill, released late on July 30, was the result of a compromise between the Senate’s broad, omnibus bill passed in early June and the House’s more modest proposals, passed piecemeal in mid-July. Among other things, the bill:

• increases opportunities for energy efficiency by expanding the definition of qualifying programs;…

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On July 19, the Federal Energy Regulatory Commission (“FERC” or “Commission”), pursuant to its authority under section 215 of the Federal Power Act, issued a final rule directing the North American Electric Reliability Corporation (“NERC”) to develop modifications to NERC’s Reliability Standards as they relate to cyber security incidents. Issuance of the final rule is timely. A recent news article described hackers’ successful infiltration of the control rooms of multiple electric utilities.… More

On July 2, the Federal Energy Regulatory Commission (“FERC”) issued an Order denying ISO-NE’s request to waive certain tariff provisions which would have permitted cost-of-service agreements for the continued operation of Exelon’s Mystic Units 8 and 9 (“units”). In addition, the Order instituted a proceeding under Section 206 of the Federal Power Act (“FPA”) requiring the ISO to submit interim tariff revisions for a short-term,… More

Effective June 1, ISO-NE implemented a number of changes to its market rules, systems, and procedures related to the operation of the regional wholesale electricity markets. The most significant of these changes include:

1. the Forward Capacity Market Pay for Performance initiative (“PFP”); and
2. the Price-Responsive Demand (PRD) structure.

The two programs, released simultaneously earlier this month, will affect both traditional generation resources and demand response resources alike.… More

The Federal Energy Regulatory Commission (FERC) issued a Final Rule (the Final Rule) on February 15, 2018 (Docket Nos. RM16-23-000; AD16-20-000; Order No. 841) pursuant to which FERC amended its regulations under the Federal Power Act to remove barriers to the participation of electric storage resources in the capacity, energy, and ancillary service markets operated by Regional Transmission Organizations (RTO) and Independent System Operators (ISO) (RTO/ISO markets).… More

Yesterday, February 12, 2018, the Massachusetts Senate Committee on Global Warming and Climate Change released a Proposed Draft of legislation staking out an ambitious and far-reaching set of policies across a wide range of sectors.

There is a lot in the proposal and we are still reviewing the details, including the differences among mandates, targets, goals and discretionary authority.

For now,… More

Late last month, the 2nd Circuit Court of appeals rejected a challenge to Connecticut laws intended to encourage use of renewable energy.  Earlier this month, Judge Manish Shah, of the Northern District of Illinois, issued a companion decision, rejecting challenges to the Illinois Future Energy Jobs Act, which grants “Zero Emission Credits” to certain facilities, “likely to be two nuclear power plants owned by Exelon in Illinois.”

(Caveat:  This firm represents,… More

In a letter circulated on January 24, 2017, the Massachusetts Department of Energy Resources (DOER) announced it will present a final proposed design of a new solar incentive program at a meeting on January 31, 2017.

DOER has worked with stakeholders over the last several months to develop a successor program to the Solar Carve Out II Program (SREC II). Final details are not yet available,… More

The Commonwealth of Massachusetts’ Appellate Tax Board (the “Board”) has again ruled that a ‘virtual’ net-metered solar PV project is exempted from property taxation under clause “forty-fifth” of Massachusetts General Laws, Chapter 59, Section 5. This time, the board promulgated its Findings of Fact and Report in KTT, LLC v. Board of Assessors of The Town of Swansea.

Beyond Forrestall

The Findings represent yet another major change in the application of the Commonwealth’s property tax exemption for off-site,… More

Late last night, the Massachusetts legislature enacted House Bill 4568, an act to promote energy diversity (the “Act”). Overall, the Act marks a compromise between the House’s original procurement-only legislation and the Senate’s more comprehensive “omnibus” bill. It is expected Massachusetts Governor Charlie Baker will sign the legislation shortly. After that, regulations will be required to be implemented and other regulatory actions will need to be taken by Massachusetts’ Department of Public Utilities,… More

The Massachusetts Department of Public Utilities (the “Department“) today issued its Order Announcing Notification Date in its proceeding under 16-64, setting September 26, 2016 at 2PM as the “Notification Date” related to the transition to market net metering credits for private net metering projects.

The Order, 16-64-D, is available here: 16-64-D Order Announcing Notification Date 7 29 16.

The Department determined in its order that “aligning the timing for transition to the new regime of net metering credits with DOER’s SREC II program is the best option to result in a smooth transition to a stable and equitable solar net metering market.” With this Order,… More

The Massachusetts Department of Public Utilities has issued its final Order (16-64-C) in its Docket 16-64 and has released its draft of amended net metering regulations under 220 CMR 18.00 et seq.

A copy of the Order and the final regulations is available at this link: 16-64-C Order Adopting Final Regs 7.15.16 With Appendices

According to the Order, the DPU intends to make the amended regulations go effective on July 29,… More

On April 8, 2016 the Massachusetts Department of Energy Resources (DOER) filed emergency changes to 225 CMR 14.00 with the Secretary of the Commonwealth in an effort to bridge the gap between the expiration of the current solar incentive program and the expected publication of a new solar incentive program. Subsequent to a public hearing and comment period, DOER made several responsive modifications, and finalized the regulations which the Secretary of the Commonwealth officially promulgated as of July 1,… More

Last Friday, the Senate Committee on Ways and Means released its version of the energy bill that passed the House earlier this month. Whereas the House bill would require distribution companies to procure 1,200 MW of offshore wind power by 2027 and 9,450,000 MWH of hydroelectric power by 2022, the Senate’s version would require 2,000 MW of offshore wind by 2030 and 12,450,000 MWH of “clean energy generation” by 2018.… More

If you needed any further proof that energy law is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you.  The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:

no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions;… More

This week a draft of the long-awaited Massachusetts energy bill was reported out of the Joint Committee on Telecommunications, Utilities and Energy. The bill would require the Commonwealth’s distribution companies to competitively solicit long-term, fifteen- to twenty-year contracts for large-scale offshore wind and hydroelectric power. Notably absent from the bill are provisions addressing resources such as solar, onshore wind, nuclear, energy storage, and energy efficiency.

The bill seeks to jumpstart the development of offshore wind in federal lease areas by directing distribution companies to enter into contracts for 1,200 MW of offshore wind power before July 1,… More

The Massachusetts Department of Public Utilities’ (“DPU”) recent emergency order (the “Order”) issued May 11 in its Docket 16-64 made some immediate changes to the Commonwealth’s net metering law enacted by the Act Relative to Solar Energy (the “Act), which, according to its own preamble, was itself was an “emergency law, necessary for the public convenience” adopted, in part,… More

On April 11, Massachusetts Governor Charlie Baker signed into law compromise legislation modestly raising the cap on the state’s net metering program. Net metering allows customers to generate solar power to offset electricity costs and provide surplus power to the grid.

The program was previously limited to 4 percent of peak electricity demand for private projects and 5 percent for public projects. These limits were reached in National Grid’s service territory last March,… More

Solar and wind tax credits aren’t going to ride off into the sunset just yet.

On December 18, 2015, Congress extended the Investment Tax Credit (ITC) and Production Tax Credit (PTC) for five years.

The Section 48 ITC for commercial installations had been set to decrease from 30% to 10% at the end of 2016 and the Section 25D individual tax credit would have disappeared altogether.… More

Governor Baker recently submitted Senate Bill No. 1965 to the Legislature.  It calls for utilities to solicit long-term purchases of renewable energy.  We are talking about as much as 1/3 of Massachusetts’ annual electricity use over a 15-25 year period.  Two rationales are often provided to justify the large purchase of Canadian hydropower.  First, cheap hydropower will ameliorate the high cost of electricity.  Second, it will help Massachusetts attain its initial Global Warming Solutions Act goal of reducing GHG emissions by 25% below 1990 levels by 2020. … More

One week after the Massachusetts legislature departed for its summer recess, Governor Charlie Baker today released net metering legislation to rival the Massachusetts Senate’s recent bill.

Where the Senate bill would have simply raised the net metering cap to 1600 MWs and largely retained the current net metering credit calculations, the Governor’s bill would increase the metering cap but would substantially reduce the calculation of net metering credits.… More

The Baker Administration announced on July 9 that it filed a bill for sourcing long-term hydroelectric power in the Commonwealth.  Hydroelectric power currently provides a small portion of electricity consumed  in Massachusetts. According to the Energy Information Administration, it ranks behind natural-gas, nuclear, coal and other renewable energy sources.

The bill, titled “An Act Relative to energy sector compliance with the Global Warming Solutions Act,” would require the State’s electric distribution companies  to solicit proposals for hydroelectric contracts spanning 15 to 25 years. … More

Recently, the Mississippi Public Service Commission (PSC) unanimously voted to move forward in developing a net metering policy. This decision comes (somewhat) on the heels of an independent study commissioned by the state’s PSC concluding that distributed solar would provide levelized net benefits to the state over a period of twenty-five years. Adding to a growing body of work finding untapped value in distributed solar,… More

The latest volley in the ongoing debate over the economic value of solar policies comes from Maine, where the state’s Public Utilities Commission (PUC) released an independent study finding that the net value of distributed solar is $0.337 per kWh when levelized over the course of twenty-five years. That is significantly more than the state currently offers as offset credit to customers engaged in photovoltaic net metering.… More

The day before Governor Charlie Baker was sworn into office as the state’s 72nd chief executive, the Massachusetts Department of Environmental Protection released its proposed Clean Energy Standard (CES) to reduce greenhouse gas emissions in the state.

The CES would come into effect in 2020 and require a minimum percentage of electricity sold to retail customers in Massachusetts to come from “clean generation,” starting with a 45% requirement in 2020 and increasing to 49% by 2024.… More

When the Massachusetts Legislature recessed this summer without enacting the Clean Energy Bill, many stakeholders assumed the issue of creating incentives to encourage Canadian hydro imports would be deferred until the next legislative session and the next Administration. Not quite. Taking a page out of Gina McCarthy’s playbook, the Massachusetts Department of Environmental Protection has decided to rely on its existing statutory authority under the Global Warming Solutions Act (“GWSA”) to promulgate new regulations to accomplish,… More

Massachusetts may soon add hydroelectric facilities to the growing list of net metering eligible distributed generation in Massachusetts.

The Massachusetts Department of Public Utilities has issued a notice and order opening a proceeding (DPU 14-118) under which DPU will take the first steps towards developing legislation to enable net metering of small hydro.

Enabling small hydro to participate in net metering has the potential to provide benefits not only to owners of such current facilities but potentially also for the redevelopment of dams,… More

In the final hours of its legislative session, the Massachusetts legislature passed legislation to create a thermal energy REC program in the Commonwealth, lift the caps on the Commonwealth’s existing net metering regime and appoint a 17-member “Net Metering Task Force” to study the “future of net metering.”

Net Metering Caps

Rather than enacting an anticipated comprehensive overhaul of solar regulations and incentives in the Commonwealth (which would have completely lifted net metering caps and blended the state’s net metering compensation method with its solar SREC program),… More

Many in the clean energy community in Massachusetts are focused on the state legislature: the end of the legislative session is approaching and significant clean energy legislation (relating to clean energy procurement and net metering) is still in process. But the Department of Public Utilities (the DPU) has been busy, and two Orders issued earlier this month could dramatically change the way end consumers in Massachusetts use and pay for electricity – without any legislative changes.… More

The Massachusetts DOER has released its revised regulations amending the State’s RPS to implement the next phase of support for solar in the Commonwealth. Redlined pages are available here.

From here the regulations will be reviewed at most for 30 days by the Massachusetts Legislature’s Joint Committee on Telecommunications, Utilities, and Energy which may provide comments to DOER. After review of any such comments by DOER,… More

On December 23rd, the Massachusetts Department of Public Utilities (the Department) issued an Order opening an investigation into electric vehicles and electric vehicle charging .  That Order, issued the same day as the Department’s straw-proposal on grid modernization , looks to be a response to recommendations made by the Grid Modernization Stakeholder Working Group  that the Department conduct a separate investigation into policies to facilitate and accommodate adoption of plug-in electric vehicles (EVs). … More

On December 23rd, the Massachusetts Department of Public Utilities (DPU) issued a straw proposal in docket 12-76 outlining a regulatory mechanism intended to advance modernization of the electric grid in Massachusetts.  The DPU’s proposal follows a year of public process that resulted in a stakeholder “working group” that submitted a report to the DPU in July.  Comments on this important proposal are due by January 17th and hearings are scheduled for February.… More

Last summer, the Massachusetts Executive Office of Energy and Environmental Affairs announced an initiative to support municipalities, developers, and other stakeholders in improving the siting process for wind energy projects in Massachusetts. Part of that initiative was a directive that the Massachusetts Department of Public Utilities (DPU) investigate best practices and develop guidance for siting wind energy facilities. On October 31, the DPU formally started an investigation (docketed as D.P.U.… More