Thursday, August 25, 2011

Time is Running Out on the Section 1603 Tax Grant Program for Renewable Energy Projects

In December 2010, the Department of Treasury Section 1603 tax grant program (“1603 Grant”) was extended through 2011.  The 1603 Grant offers renewable energy project developers cash payments in lieu of the investment tax credits (“ITC”).  The values of the awards are equivalent to 30% of the project’s total eligible cost basis in most cases.  Qualifying technologies include: biomass; combined heat and power; fuel cells; geothermal; incremental hydropower; landfill gas; marine hydrokinetic; microturbine; municipal solid waste; solar and wind. 
Another extension is not likely and so developers intending to take advantage of the 1603 Grant should be aware that construction must begin before 2012, i.e., developers must begin construction by December 31, 2011.  Developers must further file an application with Treasury no later than September 30, 2012, whether or not placed in service.  The purpose of submitting an application for a property that is not yet placed in service and will not be placed in service in 2011, is to demonstrate that construction has begun during the required time period in 2011. 
One common source of confusion is how to meet the construction test.  The Department of Treasury has provided guidance (http://www.treasury.gov/initiatives/recovery/Pages/1603.aspx) to use to determine whether construction has begun.  There are two ways to qualify: (1) “physical work of significant nature;” and (2) 5% safe harbor.  The safe harbor provision sets the beginning of construction at the point where the applicant has incurred or paid at least 5% of the total cost of the property, excluding land and certain preliminary planning activities.  While primarily an expenditure test, there are a number of pitfalls in satisfying the 5% safe harbor provision and developers should consult the Treasury or counsel to make sure that the test is satisfied.
It is important to note that even though time is running out on the 1603 Grant, developers still have time to take advantage if they can meet the construction test before December 31, 2011.

Wednesday, August 24, 2011

Western Grid 2050: Contrasting Futures, Contrasting Fortunes – A New Report For the Purpose of Informing Policy and Investment Decisions for the Western Electricity Sector


A new report, "Western Grid 2050: Contrasting Futures, Contrasting Fortunes" (the "Report") was issued today by the Western Grid Group ("WGG") with support from the Western Clean Energy Advocates ("WCEA"). The purpose of the Report is to inform policy and investment decisions for the Western electricity sector. Former Colorado Governor Ritter today joined advocacy groups in calling for western state leadership to work towards achieving the Report's vision.

The Report anticipates that the Western electricity sector will need to invest more than $200 billion by 2030 however, how this money is invested will significantly affect quality of life in the west. According to the report,

[s]ignificant investment will be required because coal, gas and nuclear facilities will need to be retired or replaced, population, economic growth, and electrification will drive gross electricity demand up, demand reduction efforts like energy efficiency programs will continue, new electric generation will be built and new transmission will be added. The question is not whether hundreds of billions will be invested but rather how they will be invested.

 To explore and evaluate the relative economic, environmental, energy security and public health consequences of the different investment choices, the report examined two trajectories: "Business as Usual" ("BAU") and "Clean Energy Vision" ("CEV"). In the study, the BAU trajectory focuses discretionary investment on retrofitting, repowering and adding coal generation and on meeting any incremental needs with new gas fired generation and the CEV trajectory focuses discretionary electricity resource investment on energy saving and renewable energy technologies.

One of the goals of the Report was to encourage an open dialogue on electricity system investment priorities in the West. In comparing the two trajectories, BAU and CEV futures will require different regulatory and policy mechanisms. The BAU paradigm is based on the existing infrastructure.

The utility regulatory structure in place today was chosen more than 50 years ago to induce utilities to invest in large, base load utility-owned generation. The cost based, rate of return regulation paradigm created incentives that are well-suited to the 5 to 10 percent annual growth in electric demand seen in the 1950s and 1960s. A BAU future is intertwined with the perpetuation of the 1950s regulatory paradigm, and thus no significant changes in institutions, regulations or policy are needed in the BAU future.

On the other hand, the report provides that the CEV trajectory will require different infrastructure, different planning and different regulation to support it.

A CEV future depends on aggressive amounts of electricity demand reduction, customer demand response and customer sited distributed generation. The cost of service, rate of return paradigm does not induce investor owned utilities to invest in customer side of the meter resources thus the regulatory paradigm must change in a CEV future. Furthermore, a CEV trajectory requires much greater regional coordination and cooperation to build the infrastructure that access and efficiently utilize the best renewable resources in the West. Conventional regulation does not adequately induce investor owned utility participation in regional projects, and so once again the regulatory paradigm must change. While Publicly Owned Utilities (POUs) do not profit from generation and grid investment in the same way that investor owned utilities do, POUs have also focused on developing resources within their own
boundaries to serve their own need and efficient implementation of a CEV trajectory will require these POU policy choices to change.

The Report is the first in a series of planned reports by the WGG and WCEA. In September, the WGG and WCEA intend to release the second phase of the report, "Clean Energy Vision Policies" describing mechanisms that can be used to guide transition to the CEV trajectory.

The Western Grid 2050 report can be found here: http://www.cleanenergyvision.org/wp-content/uploads/2011/08/WG2050_final_rev082211.pdf

Monday, August 22, 2011

SB11-045: First Meeting of the Colorado Transmission Siting Task Force

In Colorado, siting for transmission facilities is decentralized. Under the current system, all transmission lines require local government permits.  The process however, can vary from county to county which is only one of many challenges that can delay a project.  In recognition of the need for transmission development in the state, the Senate passed SB11-045 directing formation of a task force to study barriers to transmission siting and permitting in the state.  The task force is comprised of 17 members representing different stakeholder groups with an interest in the siting and permitting process for transmission in Colorado. The first meeting of the transmission task force pursuant to SB 11-045 was held on Thursday, August 19th at the Colorado Public Utilities Commission (the "Commission") and Chaired by Commissioner Tarpey. 

http://www.dora.state.co.us/puc/projects/TransmissionSiting/SB11-45/SB11-45.htm

1041 permitting at the county level for transmission lines arose out of the Areas and Activities of State Interest Act (“AASIA”).  In 1974, the AASIA was introduced in the General Assembly as HB 1041 to “encourage” local governments to designate certain geographic areas and specified activities as matters of state interest.  Under the AASIA, among other things, counties can designate construction of major facilities of a public utility as activities of state interest.  Once a county makes a designation under AASIA, the county must develop guidelines or “1041” regulations to control development of land resources within the designated area or that area affected by the designated activity. Prospective developers then must apply to the local government for a permit in order to develop in these designated areas.

Alamosa County adopted 1041 regulations in 2009 and Juan Altamirano, Community Coordinator that oversees all 1041 regulations for the Alamosa County Planning Department, provided an overview of the regulations that govern utility infrastructure projects in Alamosa County.  Mr. Altamirano noted that projects are generally approved within 3-6 months.  To save time up-front, the Alamosa regulations require submittal of a preliminary application to assess general feasibility and identify any major problems and issues in order to direct data gathering to accompany the final application. The regulations further provide for significant interaction between the permitting authority and the applicant under predefined timelines.  The purpose of the meetings and timelines are to determine submission requirements for the final application and to ensure targeted data collection for the final application.  The largest CPV solar project in the world and the San Luis – Calumet – Comanche line both touch Alamosa County. 

According to Mr. Altamirano, the 1041 regulations are important because the local jurisdictions are in the position to address: mitigation of project impacts, community development, community communication and community relationships.  A significant number of Colorado counties have identified development of transmission infrastructure as a key factor in their economic development efforts. One concern of the counties is that a one-size-fits-all approach, for example, a statewide siting authority, would preclude meaningful input from the county level and thereby minimize the county’s ability to mitigate any potential impacts of a project.
On the flip-side however, inconsistencies in the county regulations and a lack of communication and coordination across multiple jurisdictions can effectively stall a project.  Tom Dougherty, a consulting attorney to Tri-State and the Colorado Rural Electric Association, described the lengthy regulatory process that Tri-State worked through in order to obtain approvals for its Nucla-Sunshine and E-470 transmission line projects.  The timeline for the Nucla-Sunshine line approximates 17 years from identification of need.  In short, the objective/subjective considerations at the local level can challenge project progress.

The remainder of the meeting identified "choke points" and who the task force would like to have present in subsequent meetings. Choke points identified: (1) inconsistencies in the county regulations; (2) delays in the court system in appealing decisions; (3) delays in the PUC executing its backstop authority; and (4) delays introduced by sequential CPCN/siting processes.

Discussion relating to a statewide authority for siting will come later in the process.

Tuesday, August 16, 2011

Cleantech SBA Roundtable - Hosted by CREED and CCIA in Golden, CO

On Thursday, August 11, 2011, the Colorado Center for Renewable Energy Economic Development (CREED) (http://www.nrel.gov/news/press/2011/1450.html); the Colorado Cleantech Industry Association (CCIA) (www.coloradocleantech.com); Dr. Winslow Sargeant, Chief Counsel for Advocacy of the U.S. Small Business Administration's Office of Advocacy (http://www.sba/gov/advocacy/858/3177); Mike Landweber, Director of Regional Affairs for the Office of Advocacy; and John Hart, Region VIII Advocate for the Office of Advocacy covering the states of CO, WY, UT, MT, ND and SD, hosted a small business round table at CREED's facility in Golden, CO.  The sole purpose of the meeting was to provide a forum to discuss regulatory challenges facing small business in this region. 

The Office of Advocacy was established to represent the views of small entities before federal agencies and Congress and is an independent office within the U.S. Small Business Administration in order to give small entities a voice in the rule making process.  Dr. Sargeant, a co-founder of a start-up that was eventually acquired, is particularly well suited for this role as he brings the small business perspective to the table. His experience with and passion for small business was apparent in his responses to each of the challenges highlighted by the participants.

Three general themes were consistently expressed by the businesses present: (1) lack of access to capital; (2) the need to streamline and update regulations to address current issues and new business models; and (3) the competitive disadvantage created by federal agency matching requirements relating to how the regulations define the criteria for matching contributions and whether the SBA could be used to fill in any gaps to level the playing field for the small business in competing against large business.  Among other things discussed, one suggestion was to provide carve outs for small businesses for government solicitations.

Dr. Sargeant acknowledged that long latencies in the regulatory process hinder progress and they are acutely aware of the need to find a safe way to bring products to market.  The Office noted that through Executive Order 13563, the Obama administration directed a retrospective analysis of existing rules in order to consider how best to promote analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. The Executive Order exemplifies the problem facing cleantech small business in that the regulations need to catch up to innovation in addition to being clear, certain and predictable so that businesses can succeed.  Through Mr. Hart and this region's Office of Advocacy, small businesses in this region have the opportunity to participate in identifying outmoded or inefficient regulations specific to their business models. 

Another recurring theme throughout the discussion as emphasized by Mr. Hart, was the need for companies to have a certification mechanism to provide a tool that emerging technologies can use to prove commercial scale marketability.  For example, China promotes commercialization by providing "Competency Centers."  These Centers provide the infrastructure for companies to test their product under commercial conditions in order to provide the data that these companies need to take steps towards market acceptance and actual market integration.

From my perspective, one thing was clear from the round table discussion: The Office of Advocacy was on a fact finding mission to learn first-hand from small business the regulatory challenges that they are facing.  The time was spent listening to small business and comments from the Office were focused on discussing efficient pathways to use to effect change.  The next step is to identify and advocate for solutions. 

Monday, May 16, 2011

New Bill in Colorado Creates Task Force to Study Siting and Permitting for Electric Transmission Facilities


On the final day of the Colorado legislative session, the General Assembly passed Senate Bill 11-045, a bill creating a task force to study the siting and permitting framework for electric transmission facilities in the state. The bill calls for a 17 member task force to be convened by the Director of the Commission or its designee and provide a report to the Governor and the General Assembly no later than December 1, 2011. The bill directs the task force to address six concepts:
  1. An inventory and evaluation of Colorado's current siting and permitting framework for electric transmission facilities;
  2. Research into examples of how other states approach siting and permitting of electric transmission facilities;
  3. Identify possible models for improving Colorado's existing siting and permitting processes as applied to electric transmission facilities;
  4. Recommend actions to streamline siting and permitting processes applicable to electric transmission facilities, including balancing of environmental, land use and community effects with transmission project costs and schedule risks;
  5. Examination of the advantages and disadvantages of a state-wide transmission siting and permitting framework for electric transmission facilities; and
  6. An examination of the political acceptability of and potential strategies for, creating a state-level siting entity.
The task force will comprise the following ten stakeholders appointed by the Governor:
  1. One member representing cooperative electric associations that distribute electricity;
  2. One member representing cooperative electric associations that generate and transmit electricity;
  3. Two members representing investor-owned electric utilities;
  4. Two members representing municipally owned electric utilities;
  5. One member representing renewable energy electric generation interests;
  6. One member representing large commercial consumers of electricity; and
  7. Two landowners representing agricultural interests who reside in different geographic areas of the state.
The bill also calls for appointment of the remaining six members: One member will be appointed by the Speaker of the House; one by the President of the Senate; two members will be appointed by the Executive Director of the Municipal league; and two members appointed by the Executive Director of Colorado Counties.
The bill is now before the Governor.

Monday, April 25, 2011

Sustainability: The ‘Embracers’ Seize Advantage – A New Report Issued by the MIT Sloan Management Review Addressing Corporate Commitments to Sustainability-Driven Management

Sustainable business practices are being used by large corporate entities to open new markets and build or change a company’s reputation and image, as demonstrated in the recently issued report by the MIT Sloan Management Review (the “ 2011 Report”) entitled “Sustainability: The ‘Embracers’ Seize Advantage”.  This topic was also discussed during the recent Global New Energy Summit in Colorado Springs.  http://www.gnes.rmtech.org/

The 2011 Report summarized the findings of the 2010 Sustainability & Innovation Global Executive Study and Research Project (the “Project”).  The Project found that even in a down economy, commitments to sustainability-driven management are strengthening and that most companies believe sustainability will be necessary to be competitive in the future.  The result is that companies are accelerating adoption of sustainability-driven management in order to use sustainability as a source of advantage.  “The only way to continue growing and continue being a successful business is to treat sustainability as a key business lever in the same way that you treat marketing, finance, culture, HR or supply chain,” says Santiago Gowland, Vice President of Brand and Global Corporate Responsibility at Unilever.”  See Sustainability: The Embracers Seize Advantage, MIT Sloan Management Review, pg. 4 (Winter 2011).

The 2011 Report is in follow-up to the MIT Sloan Management Review 2009 report, “The Business of Sustainability: Finding and Insights from the First Annual Business of Sustainability Survey and the Global Thought Leaders’ Research Project” (the “2009 Report”).  In the 2009 Report, Wal-Mart was used as a case study to demonstrate repurposing of the supply chain.  Defined as its key moves towards sustainability, Wal-Mart was highlighted for establishing goals of being 100 percent fueled by renewable energy, producing zero waste, and selling products that will sustain the environment.  As one example,

            [Wal-Mart] began working with Unilever plc in 2005 to sell concentrated laundry detergent in a 32-ounce container (equivalent to 100 ounces under a previous formulation).  Consumers got a more powerful detergent in a smaller package.  Three years after rollout, the container saved 80 million pounds of plastic resin, 430 million gallons of water, and 125 million pounds of cardboard, according to the company fact sheet.

2009 Report, pg. 28.  Accordingly, whereas the 2009 Report was designed to assess the business implications of corporate sustainability programs, the 2011 Report was designed to assess key practices of sustainability management. 

A key finding that emerged from the Project is that while commitments to sustainability-driven management are strengthening, sustainability strategy leaders generally fall into two categories: “embracers” and “cautious adopters.”  “Whereas cautious adopters see the sustainability business case in terms of risk management and efficiency gains, embracer companies see the payoff of sustainability-driven management largely in intangible advantages, process improvements, the ability to innovate and, critically, in the opportunity to grow.  And the embracers, it turns out, are the highest performing businesses in the study.”  Id. at 4. 

The Project identified seven practices that tend to be shared by embracers. 

            1.  Move early – even if information is incomplete.  Movement diminishes uncertainty because action generates data to be used to inform additional decisions.

            2.  Balance broad, long-term vision with projects offering concrete, near-term “wins.”  “An ambitious vision might generate brand premiums, transform organizational culture and help attract capital, talent or public collaborators.  But smart embracers balance those aims with narrowly defined projects in, say, supply chain management, which allow them to produce early, positive bottom-line results.”  Id. at 19. 

            3.  Drive sustainability top-down and bottom-up.  The Project results indicate that embracers recognize the benefits of including employees in sustainability initiatives at all levels because it drives up levels of employee engagement and productivity and helps in recruiting.

            4.  Aggressively de-silo sustainability – integrating it throughout company operations.  According to Duke Energy’s Roberta Bowman, “[i]t’s the approach, it’s the process, it’s the mindset.”  Id. at 20.

            5.  Measure everything (and if ways of measuring something don’t exist, start inventing them).  Beyond establishing baselines from which to measure starting positions and progress, some embracers are developing ways to quantify the impact of sustainability on brand, innovation and productivity.

            6.  Value intangible benefits seriously.  Investment decisions tend to made on the basis of a combination of tangible benefits, intangibles and risk scenarios.  “Smart companies are realizing that conservation of natural resources they need is a fundamental part of risk management, as the work being done by companies such as Coca-Cola and PepsiCo on water conservation clearly demonstrates.”  Id. at 21. 

            7.  Try to be authentic and transparent – internally and externally.  “Companies leading the charge on sustainability are fundamentally realistic. They do not overstate motives or set unrealistic expectations, and they communicate their challenges as well as their successes.”  Id. at 21.  In this way, open communication can be used as a defense to claims of “greenwashing.” 

Also stressed in the study is that companies have realized that sustainability requires cooperation between entities.  Sustainability issues encompass environmental and social problems beyond the typical reach of large industrial energy users.  The results show an emerging trend of partnerships between corporations and nongovernmental entities or NGOs.  For example, Unilever, manufacturer of Dove brand soap, was used as a case study in the Project.  One issue faced by Unilever is that Dove contains palm oil, “whose impacts include deforestation and destruction of the habitats of endangered species.”  Id. at 14.  To address this challenge, Unilever is shifting its supply chain away from palm oil and developing new sustainable sources of oil.  To develop sustainable supplies, however, Unilever is using a coalition of government, industry and NGOs.  “The scale of the issue deserves a global response that cuts across sectors.  Otherwise, anything you do will be even more costly and less effective.”  Id. at 18. 

Improved brand recognition is also a benefit of addressing sustainability.  “The views of consumers increasingly resonate with some of the social, economic and environmental messages of brands . . . So I think that in some brands, the sustainability agenda can reinforce brand proposition.”  Id. at 10.  The results of the Project caution, however, that increased brand recognition in this communications driven global society, presents a reputation landscape that is increasingly risky.  “In short, unless reality matches rhetoric, making sustainability claims is a risky business.”  Id.   

The 2011 Report further identifies key drivers that support sustainability initiatives:

            These include increased margins or market share, greater potential for innovation in their business models and processes and access to new markets.  And when it comes to competitive advantage, a significantly larger group of embracers (38%) picked it as one of the top three benefits sustainability had brought to the organization (only 21% of cautious adopters selected it).

Id. at 12.  Thus, the findings indicate that embracers tend to weave sustainability into the fabric of their corporate culture and use this fabric to innovate new opportunities for company growth that would not have otherwise been identified, including innovations to measure progress and build consumer trust.

Finally, the findings indicate that embracers use broad strategies to analyze the risks associated with not fully addressing sustainability issues.  For example, larger embracer companies tend to focus on the regulatory environment and the concerns of investors.  These companies look ahead to emerging regulatory trends and how these trends will impact their business and how these companies can mitigate these potential regulatory impacts.  In this way, companies can take steps to position themselves to address emerging local, state, national and global regulatory changes. 



Thursday, March 24, 2011

U.S. Fish and Wildlife Service Draft Land-Based Wind Energy Guidelines – Comments Due May 19, 2011

The U.S. Fish and Wildlife Service (the “USFWS”) has issued “voluntary” Guidelines to be used for all utility-scale and community-scale land-based, wind energy projects regardless of whether they are proposed for private or public lands.  The Guidelines define a tiered process for collecting information in increasing detail in order to quantify and evaluate risks of proposed wind energy projects to fish, wildlife, and habitats to be used in making siting, construction, and operation decisions.  The Guidelines can be found here:  www.fws.gov/windenergy/docs/Final_Wind_Energy_Guidelines_2_8_11_CLEAN.pdf
Response from AWEA
The American Wind Energy Association (AWEA) has expressed concern that the Guidelines will negatively impact wind development.  According to AWEA, among other problems with the guidance as released, it could:
  • Delay construction of projects by up to three years, and require operating projects to retroactively conduct post-construction wildlife studies for a minimum of two and as much as five years, adding unforeseen costs to the operating budgets of these facilities.
  • Require “adaptive management”, which could include operational changes, such as shutting off turbines at certain times of the year, which will add further unquantifiable costs to even projects already permitted and operating.
  • Request analysis on wildlife-based sound impacts without any peer-reviewed scientific evidence that sound related to the construction and operation of wind farms has the potential to impact wildlife.
  • Greatly expand applicability under the National Environmental Policy Act (NEPA) to projects built on private lands, adding time and costs to developing wind projects, when there is no federal staff to perform this vastly increased amount of administrative work.
AWEA has indicated that they will file comments by the May 19, 2011 deadline.  AWEA’s statement can be found here:  www.americanwindenergyassociation.net/rn_release_02-15-11.cfm

Potential Impact to REC Trading Markets
A negative impact to the wind industry could further impact other markets that depend on wind development, like the market for renewable energy credits (RECs).  For example, the EPA Green Power Partnership (GPP) is a voluntary program implemented by the EPA to support increased use of green power.  The GPP supports corporate participation based on the purchase of a threshold quantity of eligible power proportional to their annual electricity use.  Among two other criteria, to be eligible, the power must be generated from wind, solar, geothermal, qualifying biomass, or low-impact hydropower.  Large corporations like Staples and Starbucks, both of which are ranked in EPA’s national top 50, are using the GPP to help reduce the environmental impacts of electricity use and support the development of new renewable generation capacity nationwide.  Regulations that impact wind development would likely impact the way that these corporations participate. 
The USFWS Guidelines
The Guidelines are based on recommendations of the Wind Turbine Guidelines Advisory Committee (the Committee); a Committee established in 2007 by the Secretary of the Interior to provide recommendations to replace the 2003 interim voluntary guidelines related to land-based wind energy facilities.  The tiered approach is designed to guide the developer’s decision process as to whether or not the selected location is appropriate for wind development and the information collected at each successive tier is designed to guide further analysis for additional tiers.  Specifically, the tiers address:
                Tier 1: Preliminary evaluation or screening of potential sites (landscape-scale screening of possible project sites)
                Tier 2: Site characterization (broad characterization of one or more potential project sites)
                Tier 3:  Pre-Construction monitoring and assessments (site-specific assessments at the proposed project site)
                Tier 4:  Post-construction monitoring of effects (to evaluate fatalities and other effects)
                Tier 5:  Research (to further evaluate direct and indirect effects, and assess how they may be addressed).
The Guidelines define a number of factors to be considered to assess the potential effects to various species: Collision and Barotrauma; Barrier Effects; Habitat Loss and Degradation; Habitat Fragmentation; Noise; Displacement and Behavioral Changes; and Indirect Effects.  The Guidelines note that indirect effects can manifest themselves later in time than the causing action.  Indirect effects can therefore introduce additional uncertainty under the Guidelines.
The Guidelines further include the concept of adaptive management for use in project assessment.  Adaptive management is defined as “[a] decision process that permits flexible decision making that can be adjusted in the face of uncertainties as outcomes from management actions and other events become better understood.”  The net effect is that the assessment process becomes a continual process requiring periodic reviews and adjustments as well as mechanisms for implementation of additional mitigation measures as necessary after the project is developed.  As noted by AWEA, incorporation of adaptive management will likely introduce greater project uncertainty and extended project assessment timeframes. 
The USFWS urges voluntary adherence to the draft Guidelines and communication with the USFWS when planning and operating a facility.  The USFWS will regard such voluntary adherence and communication as evidence of due care with respect to avoiding, minimizing, and mitigating adverse impacts to protected species and will take such adherence and communication fully into account when exercising its discretion with respect to any potential referral for prosecution related to the death of or injury to any such species. 

Summary
The Guidelines have the potential to negatively impact the wind industry by providing for increased project timelines and additional operational uncertainty.  The impact will not likely be limited to the wind industry but will reach related industries.  Without adequate wind development, utilities will struggle to meet state mandated RPS requirements; and less wind coming on-line equates to fewer RECs for REC trading markets.  Accordingly, stakeholders related to the wind industry may want to consider filing comments to the proposed Guidelines prior to the May 19, 2011 deadline.