Category Archives: Uncategorized

Early this afternoon, Governor Janet Mills signed into law LD 1895, legislation directing the state to procure up to 3 GW of offshore wind by 2040. The final version of the procurement bill emerged after several weeks of negotiations between the Governor, legislature, industry, fisheries interests, labor groups, and environmental advocates. Now that the bill is signed into law, Maine is the seventh U.S. state to pursue a competitive solicitation of offshore wind energy.… More

On July 14, 2023, the New York Independent System Operator (NYISO) identified a grid reliability need in New York City of 446 megawatts (MW) beginning in the summer of 2025. If the City experiences a 98-degree heatwave that summer, the need could be as high as 555 MW. To prevent blackouts in the Big Apple, NYISO will solicit near-term, market-based solutions “which may include generation, storage, and/or new participation in programs that act to reduce demand on the grid.” If no timely solution is found,… More

The Federal Energy Regulatory Commission (“FERC”) hosted a forum on gas-electricity coordination issues in New England on June 20, 2023.  Now, FERC is seeking post-forum comments addressing items from the forum agenda as well as other topics raised at the forum.

Topics invited for comment include:

• Whether the Everett Marine Terminal (“Everett”), a liquefied natural gas (“LNG”) facility, should remain in operation,…

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[This is the fifth post in our Hydrogen Blog Series. Read the rest of the series here.]

The Bipartisan Infrastructure Law appropriated $8 billion for developing Hydrogen Hubs—regional networks to produce, distribute, and use clean hydrogen to curb greenhouse gas emissions without the need to build long pipelines or develop other costly shipping infrastructure to transport hydrogen from one side of the country to the other. … More

The U.S. Department of Energy recently awarded $46 million to eight U.S. companies working to advance the development of commercial fusion energy technology (including our client Commonwealth Fusion Systems), furthering the Biden administration’s goal of developing a pilot-scale fusion facility within the next decade. According to the announcement, “within the next five to ten years, the eight awardees will resolve scientific and technological challenges to create designs for a fusion pilot plant that will help bring fusion to both technical and commercial viability,” and solidify the U.S.… More

On May 25, 2023, the Supreme Court issued its long-awaited decision in Sackett v. Environmental Protection Agency, which significantly narrowed the Clean Water Act’s (“CWA”) test for determining whether wetlands are protected “waters of the United States” and the federal permitting requirements for development projects in covered wetlands areas.

The Court’s Ruling

The Supreme Court’s ruling has two basic parts:

1. It adopts Justice Scalia’s plurality opinion in Rapanos v.…

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Yesterday, the Biden-Harris administration outlined in a fact sheet its priorities for permitting reform to accelerate the build-out of America’s energy infrastructure “faster, safer, and cleaner.” The fact sheet provides an endorsement of the Building American Energy Security Act of 2023, establishes several major objectives for permitting reform, provides several recommendations to streamline federal permitting processes, and urges Congress to include the objectives and recommendations as part of bipartisan permitting reform legislation.… More

[This is the second post in our Hydrogen Blog Series. Read the first post here.]

In the first post, I alluded to the technical issues hydrogen developers are considering. Here we’ll look at how hydrogen is produced and what it will be used for.

How is hydrogen produced today?… More

It’s a well-worn cliché that siting clean energy projects in Massachusetts is difficult. The statutes, regulations, and permitting processes intended to protect the Commonwealth’s environment and communities can also slow development of the clean energy projects that Massachusetts needs to meet its GHG emissions reductions targets and protect against the worst effects of climate change.

The Healey-Driscoll Administration recently signaled that reform might be underway. On April 20th,… More

In tentative decisions issued on April 26, 2023 (here and here), the Massachusetts Energy Facilities Siting Board (EFSB) proposes to conclude that it lacks jurisdiction under current laws to review battery energy storage systems (BESS).  These decisions were issued in two dockets – Cranberry Point Energy Storage, EFSB 21-02, and Medway Grid, LLC,… More

On April 13, 2023, the Commissioners of the Nuclear Regulatory Commission (NRC) voted to approve a proposal that will accelerate the commercialization of fusion energy in the United States.  Specifically, the NRC determined that fusion energy be regulated under the Nuclear Regulatory Commission’s byproduct material framework contained in 10 C.F.R. Part 30, “Rules of General Applicability to Domestic Licensing of Byproduct Material.”

Part 30 requires general or specific licenses to manufacture,… More

March 31, 2023, the IRS released the long-awaited notice of proposed rulemaking for the federal EV tax credit revamped by the Inflation Reduction Act.  The purpose of this rulemaking is to establish which car and truck models are eligible for the tax credit and provide clarity to manufacturers regarding the battery component and critical minerals requirements. All of these conditions must be met for a vehicle to be eligible for the full $7,500 tax credit. … More

Four New England States – Connecticut, Massachusetts, Maine, and Rhode Island – recently submitted a concept paper to the U.S. Department of Energy (DOE) proposing to build up to three new high voltage direct current (HVDC) transmission lines and related onshore system upgrades to support the injection of new offshore wind resources in New England.

Onshore and offshore transmission constraints are a major barrier to the successful deployment of large-scale offshore wind along the Atlantic coast.… More

The new year brings new NEPA (interim) guidance on climate change.  It recommends several ways that federal agencies should consider climate change impacts for projects subject to NEPA review.  The guidance is effective immediately but is subject to a 60-day comment period that could lead to revisions.  Comments on the guidance are due to CEQ on March 10, 2023.

All projects that are federally funded or need federal permits,… More

Last month’s proposed rulemaking for the Renewable Fuel Standard (“RFS”) from the Environmental Protection Agency (“EPA”) proposed significant changes to the RFS Program, which we summarized in a prior post.  One of the major changes in the proposed rule is its treatment of biogas and renewable natural gas (“RNG”): the rule would open up new potential RIN generation from biogas through changes to the eRIN program and the establishment of RNG as a biointermediate. … More

Key Takeaways:

• The IRS issued initial guidance on prevailing wage and apprenticeship requirements for energy projects commencing construction on or after January 29, 2023. See our blog post on the details of and applicable tax credit implications of the guidance here.

What you should know about the labor impacts of the guidance:

• The prevailing wage requirements are largely derived from the prevailing wage regime established by the federal Davis Bacon Act.…

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On December 1, 2022, the Environmental Protection Agency (“EPA”) proposed a sweeping new rule for the Renewable Fuel Standards (“RFS”) Program, the federal government’s flagship program for facilitating the production of renewable transportation fuels to offset fossil fuels. Administered correctly, the Program could be a critical tool to combat climate change, including by incentivizing needed low-carbon fuels for air travel and other difficult-to-electrify sectors.

The proposed rule is significant in many ways.… More

The Internal Revenue Service (IRS) issued guidance on the prevailing wage and apprenticeship requirements under the Inflation Reduction Act (IRA) by publishing Notice 2022-61 (the Notice) in the federal register today. Meeting the prevailing wage and apprenticeship requirements will allow projects to qualify for the higher base credit rates for tax credits under various IRA provisions, including the full 30% renewable energy investment tax credit (ITC), the $26 per megawatt-hour production tax credit (PTC),… More

Federal Energy Regulatory Commission (FERC)-watchers have their eyes squarely on recent reports that Senator Joe Manchin, Chair of the Senate Energy and Natural Resources Committee, won’t schedule a hearing on Chairman Richard Glick’s re-appointment this year, meaning that Glick will leave FERC when his term expires in January 2023.  Glick has led FERC in pressing reforms to modernize the country’s transmission system and help bring more renewable and energy storage resources online. … More

Governor Baker signed the climate bill (H.5060), titled An Act Driving Clean Energy and Offshore Wind, into law on Thursday August 11, 2022. The act combines and modifies provisions from the House’s proposed offshore wind bill (H.4524) and the Senate’s proposed omnibus climate bill (S.2819). The legislation covers a wide range of policy changes focused on electrifying vehicles and transit, reducing fossil fuel connections in new construction,… More

On August 7, 2022 the Senate passed the Inflation Reduction Act – a sweeping piece of budget reconciliation legislation that touches on everything from energy and climate to Medicaid prescription prices.  Germane to the energy and climate sector, the Act includes $369 billion for spending on “energy security and climate change” over the next ten years and an additional $250 billion in additional authority for the Department of Energy’s Loan Programs Office. … More

On Friday, May 27, 2022, the Federal Energy Regulatory Commission (FERC) issued an order approving ISO-New England’s proposed tariff revisions, which phase out the ISO’s minimum offer price rule (MOPR) by 2024. The tariff revisions institute an interim Transition Mechanism to organize ISO-New England’s 2022 and 2023 capacity auctions, which will together allow 700 megawatts (MW) of state-sponsored renewable resources to participate without application of the MOPR.… More

This is the second post in our series on the recently enacted Infrastructure Investment and Jobs Act, covering how the Act invests in strengthening our electric grid, which could better prepare us for the shift from fossil fuel generated electricity to renewable power.

To decarbonize our energy system, electrify transportation and buildings, and drastically reduce our contribution to climate change, we’ll need to develop and deploy significant wind,… More

Maine, Massachusetts, and Maryland all passed legislation this summer that expands the raison d’etre of state utility regulatory bodies to include addressing the impacts of climate change. These efforts mark an emerging trend of legislative bodies directing utility regulators to help advance climate policies. This enhanced vision of utility regulation gives me hope in the fight against climate change.

Despite the fact that utility regulators play a huge role in our energy sector–the sector primarily responsible for historical U.S.… More

The managers of the New England States Committee on Electricity (“NESCOE”) recently released a report (“Report”) to New England’s governors to advance its shared vision for a clean, affordable, and reliable 21st-century electric grid. The Report is the latest development that highlights the growing tension between the states’ decarbonization policies on the one hand, and ISO-NE’s wholesale market rules, on the other. The Report calls for critical changes to three elements of New England’s regional energy system: wholesale market design,… More

As predicted in our recent article in Power Magazine related to international trade risks facing the clean energy industry, the Biden administration took action against several Chinese companies involved in the solar power industry over alleged human rights abuses.

On June 24, 2021, U.S. Customs and Border Protection (“CBP”) issued a Withhold-Release Order (“WRO”) on silica-based products and their derivatives (such as polysilicon) produced by Hoshine Silicon Industry Co.… More

On June 16, 2021, the U.S. House of Representatives passed legislation that would impose new ESG due diligence and disclosure requirements on publicly traded companies.  H.R. 1187 – the ESG Disclosure Simplification Act of 2021 – would require publicly traded companies to disclose their commitments to ensuring that environmental, social (human rights), and good governance standards (ESG) are reflected in their operations, activities, and supply chains.

The Legislation’s Impact on ESG Due Diligence and Disclosure

Specifically,… More

On May 10, 2021, the hacking group DarkSide succeeded in shutting down the Colonial Pipeline with a ransomware attack that highlighted the vulnerability of the U.S. energy sector to cyberattacks.  The attack led to a panic among many consumers in the Southeast, resulting in a fuel shortage throughout several states.  According to media reports, Colonial Pipeline paid $4.4 million in ransom to DarkSide to get its system back online.… More

As battery energy storage systems become a more common element of renewable projects, developers are increasingly adding the need to obtain fire code permits to their list of necessary project permits and approvals. Yet because battery storage is a relatively unknown technology for many local fire departments — who have the jurisdiction to issue fire code permits — interpretation and implementation of certain key fire code provisions codes often varies widely from municipality to municipality. … More

New York’s recent legalization of recreational marijuana for adult use has set off a flurry of entrepreneurial activity as businesses seek to establish a foothold in the State’s new and lucrative market. Renewable energy, energy storage and other technologies can help growers not only minimize their electricity bills – a substantial operation expense for the typical indoor farm – but also give them a leg up in the State’s licensing process.… More

This post is a follow up from our recent discussion of the cyberattack that took the 5,500-mile Colonial Pipeline offline last week and the growing threat ransomware poses to our nation’s energy system.  On May 10, 2021, a group called DarkSide took responsibility for the ransomware and the FBI has since confirmed the group’s involvement.  DarkSide indicated that the attack was financially, not politically, motivated. DarkSide,… More

It was not a matter of if, but when. On Friday, Colonial Pipeline Company, the largest U.S. fuel pipeline, closed its entire 5,500-mile pipeline system that carries liquid fuels, including gasoline, from the Gulf Coast of Texas to New York and surrounding communities. Colonial was forced to take these measures as result of a ransomware cyberattack. As of this Monday, Colonial’s main systems remain offline, but the company working to develop a restart plan for its pipeline system.… More

As anticipated, the pace of change around the Climate and broader ESG landscape is accelerating rapidly. In this timely webinar, we discussed:

• The multiple market developments leading towards a rationalized corporate reporting system
• The role of the board and governance around the ESG agenda
• Practical steps to navigate the changing ESG landscape

Speakers:

• Matthew Miller,…

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Following up on our prior post on this topic here, now Governor Baker has signed the comprehensive climate law passed by the legislature.

Now, as a session law, Chapter 8 of the Acts of 2021 implements, without modification, the property tax reforms sought in the Act as it was earlier passed by the legislature.

To recap:

The law makes several significant changes to Massachusetts law regulating cities’… More

This is the fifth in our First 100 Days series examining important trends in white collar law and investigations in the early days of the Biden administration. Our previous entry discussed investigations under the new Congress.  Up next, a deep dive on liability under the False Claims Act.

As the Biden Administration began to take shape, many observers (including here at Foley Hoag) predicted that the SEC would move toward requiring standardized disclosures by issuers regarding their ESG risks and opportunities. … More

Sometimes, “mostly dead” is just a pause before successfully storming the castle.  On January 14, Governor Baker vetoed the climate bill that passed the Massachusetts Legislature on January 4 with overwhelming support (see our posts here, here, and here).  I couldn’t resist the Princess Bride reference, but despite the veto, it is probably a stretch to refer to the bill as even “mostly dead.”… More

In a recent post, we examined the growing clash within the SEC over whether to mandate and standardize disclosure by public companies of business impacts and risks associated with Environmental, Social, and Governance (ESG) concerns.  Some at the SEC pushed for more standardized, comparable, and reliable disclosure of issuers’ exposure ESG risks.  Others, including former Chairman Jay Clayton, pushed back, arguing that current disclosure rules, which  already require companies to disclose material risks,… More

As has been discussed in several posts here, on January 4, 2021, a conference committee of the Massachusetts House and Senate has issued a wide ranging “omnibus” energy bill “An Act creating a next-generation roadmap for Massachusetts climate policy (S2995).” The bill still awaits Governor Baker’s signature. Among the many features of the legislation, it would make several significant changes to Massachusetts law regulating cities and towns taxation of wind,… 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

Yesterday, Massachusetts released its “2050 Decarbonization Roadmap.”  I’m tempted to call it a tour de force.  At the very least, it’s jam-packed with important issues.  One of the most valuable aspects of the Roadmap is its discussion of the potential tradeoffs among the different paths towards a decarbonized economy.  Acknowledging that the Roadmap contains much more good stuff than can be summarized in a single post,… More

Today, three of the states participating in the Transportation Climate Initiative – Massachusetts, Connecticut, and Rhode Island – and the District of Columbia released a Memorandum of Understanding describing a “cap and invest” program intended to reduce carbon emissions from fossil fuels and raise money “to accelerate the transition to an equitable, safe, and affordable low-carbon transportation sector.” Here are the big takeaways:

• The four participating states are eight short of full participation among the TCI states. …

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The Growing Threat of Ransomware

According to media reports, ransomware attacks against the manufacturing industry have more than tripled compared with last year. This dramatic rise in cyberattacks poses serious concerns about the vulnerability of critical energy infrastructure serving the nation’s electric grid and the government has responded with measures designed to thwart any such efforts.

In the manufacturing sector, a ransomware attack typically involves blocking access to a victim’s computer files.… More

On December 10, 2020, the Massachusetts Office of the State Auditor Division of Local Mandates (“DLM”) issued The Impact of State-Owned Land PILOT and Solar Taxation Policies on Municipalities report.  DLM Report

In part, this report focuses on the taxation of solar power installations and the use of solar PILOT agreements between solar developers and municipalities.  The report made key findings and recommendations related to Solar Facility PILOT Agreements

DLM Findings

1. The Appellate Tax Boards’ (“ATB”) interpretation of the solar property exemption has created confusion among municipal governments.…

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When the Massachusetts DPU opened docket DPU 20-75, I described it as a proposal to fundamentally change system planning and cost allocation in Massachusetts.  The interconnection process in Massachusetts has been a perpetual wellspring of challenges for installing distributed energy resources – challenges that have grown in scope and complexity in recent years.  Opportunities to rework the basic structure of that process do not come around every day. … More

Over the past decade, there has been an unprecedented shift in investor focus toward the analysis use of Environmental, Social and Corporate Governance (ESG) risks and impacts in investment decision-making.  While the Securities & Exchange Commission has acknowledged this shift, it has to date resisted calls for the adoption of standards governing issuers’ disclosure of ESG risks.

Outgoing SEC Commissioner Jay Clayton has repeatedly offered his view that the SEC already requires companies to disclose material risks,… More

On October 22, the Massachusetts DPU issued an Order opening a new docket (DPU 20-75) that seeks comments on a proposal to shake up the way the electric distribution system is planned and paid for in Massachusetts.  As I see it, the core idea is to move from being reactive—upgrading the system piecemeal when individual distributed resources seek to interconnect—to being proactive—planning prospectively for the integration of the distributed generation resources we know are coming.… More

Last week, ConocoPhillips announced a goal of reducing its emissions to net-zero by 2045-2055.  It’s a significant step and so it is important to note both what is in the plan and what is not.

First, what is in the plan?

• ConocoPhillips has set a 2030 target of reducing Scope 1 and Scope 2 emissions by 35%-45%
• It has an “ambition” to be net-zero by 2045-2055
• It has signed on to a World Bank initiative to eliminate routine flaring by 2030
• It will implement continuous methane emissions detection
• It addresses emissions from the use of its products by supporting the Carbon Leadership Council – which presumably means supporting the CLC proposal for a “Carbon Dividends Plan”

All of these are good steps. … More

Foley Hoag LLP counsel and United Nations practice group Chair Christina Hioureas and associate Alejandra Torres Camprubi will serve as panelists for a series titled “Climate, State and Sovereignty: Self-Determination and Sea-Level Rise,” to be held in consecutive months from September – December 2020.  The series, sponsored by the Liechtenstein Mission to the United Nations and the Liechtenstein Institute on Self-Determination (LISD) at Princeton University, will bring together academics and experts representing the States most affected by the rising sea levels to discuss the situation as it stands,… More

Read Foley Hoag attorney Zachary Gerson’s Law360 article, Mass. Clean Peak Standard’s Success Will Hinge On Details here. More

On July 23, 2020, the Massachusetts Department of Energy Resources (“DOER”) filed final regulations implementing a “Clean Peak Energy Standard,” which formally went into effect on August 7, 2020.  The final regulations are the latest step towards making reality out of an idea enacted through the 2018 Act to Advance Clean Energy and make Massachusetts the first state to adopt such a program.… More

On July 23, 2020, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), joined by the National Security Agency (NSA), issued a cybersecurity alert to operators of critical infrastructure.  This cybersecurity alert outlines a series of “immediate actions” companies should take to reduce the risk of operational interference resulting from cyberattack. Unlike the bulletin issued by the Department of Homeland Security in January of 2020,… More

Just over a year ago, the city of Berkeley, California, became the first City in the United States to ban natural gas hookups in new buildings.  The trend of municipalities enacting fossil fuel bans, driven by a desire to reduce greenhouse gas emissions and combat climate change, has spread across California and a few other states and has now reached the east coast.  Yesterday, the Massachusetts Attorney General’s Municipal Law Unit struck down the first such municipal fossil fuel ban to come across its desk as inconsistent with the general laws of the Commonwealth.… More

On Wednesday, June 24, 2020, the Federal Energy Regulatory Commission (FERC or “the Commission”) published a Notice of Inquiry (NOI) in the Federal Register soliciting comments on potential enhancements to the Critical Infrastructure Protection (CIP) Reliability Standards[1] that currently exist to help our energy infrastructure protect itself from attack. (Initial Comments are due by August 24, 2020, and Reply Comments are due by September 22,… More

Last week, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.”  Although Judge Rogers found many flaws in the rescission rule, I think that two are key. 

The first is the Court’s rejection, under Chevron, of BLM’s limitation of the definition of “waste” to economic waste.  I think that the Court’s holding is correct,… More

Last week, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the Agreement between California and Quebec to jointly operate a GHG cap-and-trade market did not violate either the Foreign Affairs Doctrine.  Judge Shubb had previously ruled that the Agreement did not violate either the Treaty Clause or the Compact Clause.

As before, I think Judge Shubb got it right,… More

On July 2, 2020, the Massachusetts Department of Public Utilities launched an “Investigation into the Modernization of the Electric Grid – Phase Two.”  In this investigation, the DPU will look again at deploying advanced metering capabilities in Massachusetts, this time with a specific focus on customers with electric vehicle charging (including site hosts).

There is history here.  Some readers will recall the previous phase of “Grid Mod,” which began in 2012,… More

On July 10, 2020, the D.C. Circuit upheld FERC Order 841, the landmark order requiring wholesale markets to allow participation by energy storage resources.  Challengers had contended that by prohibiting states from barring energy storage resources on the distribution system from participating in wholesale markets, FERC had exceeded its jurisdiction and infringed on state authority.

The D.C. Circuit rejected those claims. … More

On July 14, 2020, the Massachusetts Department of Energy Resources (“DOER”) filed the final version of the emergency regulations for the Solar Massachusetts Renewable Target (“SMART”) Program DOER filed in April 2020.  Foley Hoag discussed the emergency regulations in an earlier blog post. Responding to comments received from solar developers, lawmakers, and others, DOER made two major changes in the final version of the regulations, reworking provisions dealing with land use exclusions and behind the meter generation incentive payment calculations.… More

I don’t like to speculate, so I won’t say that July 6, 2020, was the beginning of the end of fossil fuel infrastructure in the United States.  I will say, with apologies to Judith Viorst, that it was a Terrible, Horrible, No Good, Very Bad Day. 

First came the news that even a recent Supreme Court win wasn’t enough to save the Atlantic Coast pipeline. … More

The Federal Energy Regulatory Commission (“FERC” or “Commission”) recently issued an Order approving a request by the North American Electric Reliability Corporation (“NERC”) to defer the implementation of several Reliability Standards scheduled to take effect later this year. This action, along with others discussed in an earlier post here, are the latest measures approved by FERC that demonstrate the Commission’s intent to exercise discretion in easing reliability compliance burdens in light of the national emergency related to the coronavirus pandemic.… More

On April 2, the Federal Energy Regulatory Commission (“FERC” or “Commission”) Chairman Neil Chatterjee announced additional steps the Commission is taking as regulated entities struggle to balance ensuring continued operations on one hand and regulatory compliance burdens on the other during the COVID-19 pandemic. According to Chatterjee, while “the Commission will continue its market surveillance efforts to protect market participants and consumers from the effects of anti­competitive behavior,” the Commission will exercise prosecutorial discretion in addressing events that arise during the pandemic and “will not second-guess the good faith actions that regulated entities take in the face of this emergency.”

With respect to enforcement actions related to operations occurring during the pandemic period,… More

Overview

On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), the third and by far the largest stimulus package passed by Congress to respond to the COVID-19 outbreak. As discussed in our main alert, the $2 trillion CARES Act amounts to what will be the biggest economic stimulus package in American history.

A number of specific provisions in the Act are aimed at energy infrastructure,… More

The electric power grid is subject to escalating threats of attack by foreign adversaries and individual bad actors.  While no U.S. utilities have been seriously compromised to date, in 2015, Ukraine’s electric grid was hit by a cyberattack that led to a lengthy blackout affecting approximately 250,000 people. There is growing recognition that cyberattacks have the potential to be even more malicious, disrupting increasingly digitized critical energy infrastructure.  … More

On Monday, August 19, the Massachusetts Department of Public Utilities (“DPU”) provided additional information on the timing, process, and scope of its investigation into DG interconnection.  The full memorandum from the Hearing Officer is here.  This procedural update follows the July 18 technical conference, which we summarized here.  A few key points from the memorandum:

• Three additional technical conferences have been scheduled in the docket for October 3,…

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On May 22, 2019, the Massachusetts Department of Public Utilities (“DPU”) opened a new docket (D.P.U. 19-55) to investigate the interconnection of distributed generation (“DG”) in Massachusetts.  (And yes, the DPU intends to include energy storage interconnection in this docket despite defining DG as “technologies that generate electricity”.)

While complaints about costs, delays, and increased volume of interconnection applications have been growing,… More

Governor Baker addressed a room full of offshore wind stakeholders at “The Future of Offshore Wind” Forum hosted by the Environmental League of Massachusetts on Wednesday morning.  He applauded the developers, environmental groups, legislators and local students for the progress made in recent years which has led to a dramatic decrease in the price of offshore wind energy to ratepayers in recent years.

Thanks to a bill Governor Baker signed into law in 2016,… More

The Massachusetts Department of Public Utilities (“DPU”) wants to know.  The DPU recently opened docket D.P.U. 19-07  to investigate whether improvements can be made to the retail electric competitive supply market in Massachusetts.  In opening the docket, the DPU posed over 20 detailed questions to stakeholders on which it is seeking comments by February 19, 2019.

Whether competitive supply markets are working for residential customers in Massachusetts is not a new question. … More

On February 7, 2019, the Energy Facilities Siting Board (“EFSB”) issued a notice and request for comments in EFSB 19-01, the docket we previously noted, in which the petitioner seeks a determination that its energy storage system is not within the EFSB’s jurisdiction.

Comments are due by February 20, 2019.

The EFSB identified five topics on which it is “particularly interested in receiving information:”… More

On February 1, 2019, the Massachusetts Department of Public Utilities issued two long-awaited orders in docket D.P.U. 17-146. The orders address a number of issues related to pairing energy storage systems (“ESS”) with net metering facilities and the rights to the capacity associated with net metering and SMART facilities. There are too many issues in these orders to address each fully here, but below are some high-level highlights.… More

As more energy storage projects are developed in Massachusetts, laws and policies may need to catch up. Energy storage can provide many benefits and play many roles, but it does not always fit neatly into familiar categories, which are sometimes embedded in the background legal landscape. A recent petition at the Massachusetts Energy Facilities Siting Board (“EFSB”) brings this issue to the fore.

The EFSB has jurisdiction over transmission lines,… More

November 26th was a big day for solar energy in Massachusetts.  As promised, the Massachusetts Department of Energy Resources (“DOER”) opened the application portal for the long-anticipated SMART Program.  Applications received between November 26th and November 30th will be considered to have been received at the same time.  Starting on December 1st, applications will be reviewed on a first come, first served, basis.

Also on November 26th,… More

As outlined in a previous post, SMART will kick off with the opening of the application portal on November 26. This post provides an overview of the application process.

The general process

The Department of Energy Resources (DOER) provides a list of documents that are required for projects to apply (but note that the list is subject to change based on the final SMART Tariff that is approved by the Department of Public Utilities).… More

In a series of October presentations, the Massachusetts Department of Energy Resources (DOER) reiterated that it plans to launch SMART on November 26, opening an online portal at http://masmartsolar.com/ to begin accepting applications. All applications received between November 26 and 11:59 PM EST on November 30 will be considered as submitted at the same time with respect to capacity block assignment.

For applications received in the initial one-week window,… More

It’s probably not news that the immediate prospects for a carbon tax aren’t great.  I still think that it’s going to seem impossible until, fairly suddenly, it actually happens.  Hope springs eternal.

In any case, there has been some news on the carbon tax front this month.  Here’s the quick summary.  The Climate Leadership Council, everyone’s favorite collection of Republicans who used to matter, released The Dividend Advantage,… More

The Internal Revenue Service has released a redacted copy of its private letter ruling 201809003 in which it concluded that a battery energy storage system charged 100% from an onsite solar system is eligible for the individual tax credit under Section 25D.

In the Letter Ruling, the Service reasoned that the “Battery meets the definition of a “qualified solar electric property expenditure” under § 25D(d)(2) of the Code” based on the taxpayer’s representation that “all energy that is used to charge the Battery can be effectively assured to come from the Solar Energy System” to which it would be interconnected.… 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

In April, Secretary of Energy Rick Perry ordered the Department of Energy (DOE) to perform a 60-day review and produce a report regarding the reliability of the energy grid and potential concerns regarding early retirement of baseload generators. Perry’s request explicitly solicited information concerning “[t]he extent to which continued regulatory burdens, as well as mandates and tax and subsidy policies, are responsible for forcing the premature retirement of baseload power plants.” Perry has argued that government subsidies for intermittent generators such as solar and wind and onerous environmental regulations lead to premature retirements of coal and nuclear power plants,… More

On June 30, 2017, the Massachusetts Department of Energy Resources (“DOER”) announced an “aspirational” target for Massachusetts’ utilities to procure 200 MWh of energy storage by January 1, 2020.  While solar targets are typically expressed in MW, the capabilities of energy storage facilities are often measured both in terms of power (MW) and energy (MWh), reflecting the multiple applications for which energy storage can be used.  … More

On September 23, DOER presented a straw proposal for the next phase of Massachusetts solar incentives. DOER’s ambitious proposal for a tariff-based program reflects a thoughtful development process and a laudable goal of crafting a program that is more efficient at promoting sustained solar deployment. There is plenty to like. But, DOER has bitten off quite a mouthful by proposing a structure that departs so dramatically from the SREC approach.  … More

The Massachusetts Department of Energy Resources (“DOER”) and the Massachusetts Clean Energy Center (“MassCEC”) released their long-awaited report on energy storage, “State of Charge” (the “Storage Study”) on Friday.  The Storage Study is a central component of the Commonwealth’s “Energy Storage Initiative” and is likely to serve as the basis for future policy initiatives.  It recommends a suite of policies designed to promote the development of 600 MW of advanced energy storage (i.e.… 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

The Massachusetts Legislature’s Joint Committee on Telecommunication, Utilities and Energy and the Baker Administration’s Department of Energy Resources have each delivered comments to the Department of Public Utilities in its Docket 16-64 implementing the Commonwealth’s transition to a “market net metering credit” rate for private net metering projects.

The DOER’s letter is available here and the Committee’s letter is available here.… 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

Last week, the Federal Energy Regulatory Commission (FERC) initiated a proceeding regarding the applicability of wholesale electricity market rules to energy storage resources. At this point, FERC is only gathering information. The agency requested data from Independent System Operators (ISOs) and Regional Transmission Organizations (RTOs) on “whether barriers exist to the participation of electric storage resources in the capacity, energy, and ancillary service markets in the RTOs and ISOs potentially leading to unjust and unreasonable wholesale rates.” FERC simultaneously requested public comment on these issues.… More

The Supreme Court handed down a decision on Monday in Federal Energy Regulatory Commission v. Electric Power Supply Association affirming FERC’s Order No. 745.  Order No. 745 generally requires market operators to pay the locational marginal price (LMP) for demand response (offers to voluntarily curtail electricity use)—the same price paid to generators for producing electricity.  (Seth Jaffe previously posted on the decision.)  The Supreme Court’s decision reverses a May 2014 decision from the D.C.… More

One key challenge to tapping the full potential of energy storage systems to improve the function of the electric grid is the absence of obvious paths for the owner of storage resources to realize the revenue opportunities associated with all of the various services that such a resource could provide.  Energy storage resources can frequently provide multiple services – often crossing lines between categories of traditional resources that are compensated under different regulatory schemes. … 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

Solar-related employment in the United States now accounts for more jobs than coal mining.  According to the 2015 Economic Report of the President, about 174,000 American jobs are attributable to the solar energy industry.  The report also includes data for coal-related employment, which has dropped from a high of almost 400,000 jobs in the early 1950s, to fewer than 100,000 jobs today.

Employment in the solar industry grew over 85% between 2010 and 2014,… More

Multiple news outlets (including the Boston Globe and PR Newswire) reported on Wednesday that National Grid is joining Eversource Energy (formerly Northeast Utilities) and Spectra Energy Corp. as a co-developer of the Access Northeast pipeline project.  The Access Northeast project, which Spectra outlined to the New England States Committee on Electricity (NESCOE) in June, is a compliment to previously announced expansions of Spectra’s regional pipeline infrastructure (specifically the Algonquin Incremental Market or “AIM” project and the Atlantic Bridge project). … More

On December 4, 2014, the Commonwealth of Massachusetts’ Appellate Tax Board (the “Board”) promulgated its Findings of Fact and Report in Forrestall Enterprises, Inc. v. Board of Assessors of The Town of Westborough.

Major Change

The Findings represent a major change in the application of the Commonwealth’s property tax exemption for off-site, net-metered and virtual-net-metered wind and solar systems. For some time now, the Massachusetts Department of Revenue (“DOR”) has taken the position that certain net metered solar and wind systems,… More

On October 22, Governor Cuomo announced the first seven projects that will receive support from New York’s Green Bank: a state-sponsored financial entity that aims to partner with the private sector to develop clean energy projects in New York.  The deals have not closed, but the projects represent more than $800 million in clean energy investment (most of which will come from private parties). … 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 a fascinating decision last week, a divided panel of the 5th Circuit Court of Appeals held that the Texas Public Utilities Commission had authority to limit the universe of “Qualifying Facilities” under the Public Utilities Regulatory Policies Act which can choose to enter into a “legally enforceable obligation” requiring a utilities to purchase power from a renewable energy producer. The decision could be a big problem for wind power facilities in jurisdictions less than fully hospitable to renewable energy.

FERC’s rules implementing PURPA provide in part that:

Each qualifying facility shall have the option either:

(1)… More

As explained in a previous post, the sequester beginning on March 1, 2013 required Section 1603 Payments under the American Recovery and Reinvestment Tax Act of 2009 face cuts of 7.2 or 8.7 percent dependent upon the effective date of the Award Letter. While guidance the Internal Revenue Service recently released clarifies how to calculate tax treatment of Section 1603 Payments affected by the recent sequester, it fails to provide any certainty beyond September 30,… 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