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On May 6, 2022, the U.S. Department of Energy (“DOE”) issued a Notice of Intent and Request for Information (“Notice”) regarding establishment of a Transmission Facilitation Program (“TFP”) to support the construction of electric power transmission lines and related facilities. As part of the Infrastructure Investment and Jobs Act, DOE may borrow up to $2.5 billion to carry out the TFP. According to a May 10, 2022 announcement from DOE, “[t]he TFP is an innovative revolving fund program that will provide Federal support to overcome the financial hurdles to large-scale new transmission lines and upgrade existing transmission as well as the connection of microgrids in select States and U.S. territories.”
The TFP will assist with the construction of new and upgraded high-capacity transmission lines through three financing tools for eligible projects: capacity contracts, loans from DOE, and participation by DOE in public-private partnerships. Eligible projects are generally defined in the Notice as a project “(a) to construct a new or replace an existing eligible electric power transmission line; (b) to increase the transmission capacity of an existing eligible electric power transmission line; or (c) to connect an isolated microgrid to an existing transmission, transportation, or telecommunications infrastructure corridor located in Alaska, Hawaii, or a territory of the United States.” Beyond this general definition, the applicant seeking to carry out the project must also certify that the project meets certain eligibility criteria. DOE will then assess whether the given project may receive TFP support based on the application information outlined in the Notice.
DOE proposes to conduct an initial solicitation in 2022 for capacity contracts for eligible projects that will begin commercial operation no later than December 31, 2027. Here, DOE may purchase the right to use transmission capacity of up to 50 percent of the total proposed transmission capacity of the transmission line from an eligible project for up to 40 years. The goal of this financing tool is to “provide certainty to developers, operators, and marketers that customer revenue will be sufficient to justify the construction of a transmission line that meets current and future needs.”
DOE indicates in the Notice that it anticipates seeking applications for all forms of support from the TFP, including DOE loans and public-private partnerships (in addition to capacity contracts) in early 2023. For the DOE loans, DOE may make loans for the costs of carrying out an eligible project and the interest rate will be fixed by DOE, accounting for market yields on outstanding marketable obligations of the United States of comparable maturities as of the date of the loan. For public-private partnerships, DOE may enter into public-private partnerships in which DOE will partner with an eligible entity in “designing, developing, constructing, operating, maintaining, or owning an eligible project.” The Notice also requests comment on certain elements of the TFP in addition to other related topics such as how to ensure skilled workforce availability. Comments must be provided by June 13, 2022. DOE is offering a public webinar to provide additional information on May 26, 2022.
As we noted in Utility Dive’s article on the release of the Notice, market watchers will be looking to see if the tools available in the TFP will be sufficient to provide developers and investors the certainty needed to turn more potential transmission projects into viable, financeable ones.
Foley is committed to helping our clients in the Energy sector in markets nationwide. If you have any questions about these developments, please contact Lynn Parins, Rikaela Greane or your Foley attorney.
On May 2, 2022, the U.S. Department of Commerce (“Commerce”) released a memorandum to “All Interested Parties” that clarifies the scope of the investigation into the alleged circumvention of tariffs on certain solar cells and solar modules imported into the United States from Malaysia, Thailand, Vietnam or Cambodia, originally announced by Commerce on March 28, 2022 (the “Investigation”). For additional background, please see Foley’s article regarding the launch of the Investigation.
Among other things, the three-page memorandum, entitled “Circumvention Inquiries with Respect to Cambodia, Malaysia, Thailand, and Vietnam, - Potential Certification Requirements” (the “Memorandum”) provides more clarity on (i) what type of certification requirements would be placed on solar cells and modules, (ii) what types of inputs would be subject to the duties, and (iii) what the amount of the duties would be, in each case, in the event of an affirmative preliminary or final determination in the Investigation.Certification Requirements
The Memorandum notes that in previous affirmative circumvention inquiries, Commerce established certification procedures for importers and exporters regarding the source of the materials used in the subject products, and indicates that Commerce would utilize a similar certification process here. In the past, only imports that were found not to comply with the certification requirements were subject to the orders and applicable cash deposits, and imports that satisfied the certification requirements were considered not subject to the orders. The only exception to this was the exclusion of companies that “did not cooperate” to the best of their ability in the circumvention inquiry and companies that were unable to trace the input from the subject country to the actual merchandise that the company shipped to the United States.Inputs
Importantly, Commerce makes clear that wafers made from polysilicon sourced from China but actually sliced into wafers outside of China are outside the scope of the circumvention inquiries. Similarly, Commerce noted that only Chinese-origin inputs that have not undergone further manufacturing processes in another country are subject to the investigation. This added clarity will allow panel manufactures to better assess their risk of circumvention duties and may give manufacturers that do not use wafers manufactured in China an advantage in commercial negotiations.Potential Duties
Importantly, Commerce stated that solar cells and modules made from non-Chinese wafers are not covered by the circumvention proceeding and will not be subject to cash deposit requirements even if Commerce issues an affirmative determination. Commerce states that in the event of an affirmative determination, if solar cells or modules have Chinese inputs that are traceable to a specific Chinese manufacturer and are found to be subject to the duties, the intended cash deposit rate for such imports will be equal to that Chinese manufacturer’s company-specific rates, as if they had been shipped directly from China. Even though Commerce identifies the origin of silicon wafers as the determining factor as to whether a panel is subject to the investigation, Commerce does not say that cash deposits would be required to cover only the value of the wafer. If Commerce issues an affirmative circumvention determination, then cash deposits will be based on the entire value of the cells and modules incorporating Chinese wafers. For imports that cannot be tied to a specific Chinese manufacturer, the U.S. Customs and Border Patrol will be instructed to suspend liquidation of the entry and collect cash deposits at the rates applicable under applicable law relevant to Chinese-produced solar cells and modules.1
The Department of Commerce is requesting any interested parties to provide comments and other factual information related to the material in the Memorandum prior to 5:00pm Eastern Time on May 9, 2022.Foley’s Renewable Energy practice has deep experience in all aspects of the solar industry, as well as extensive experience with the Department of Commerce. If you have any questions about Commerce’s determination or its impact on your business, please contact Mike Walsh, Jeff Atkin, or your Foley lawyer. Jeff is the co-chair of Foley’s Energy practice, and Mike is the former chief of staff and acting general counsel at the U.S. Department of Commerce.
1 See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules from the People’s Republic of China: Amended Final Determination Letter of Sales at Less Than Fair Value, and Antidumping Duty Order, 77 FR 73018 (December 7, 2012); and Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the Republic of China: Countervailing Duty Order, 77 FR 73017 (December 7, 2012)
On May 2, 2022, The U.S. Department of Energy (“DOE) issued through its Office of Manufacturing and Energy Supply Chains (“MESC”) and Office of Energy Efficiency and Renewable Energy (“EERE”) Funding Opportunity Announcement (“FOA”) No. DE-FOA-0002678 directing $3.1 billion from the Infrastructure Investment and Jobs Act (“IIJA”) to support a domestic battery supply chain, specifically, “new, retrofitted, and expanded commercial facilities as well as manufacturing demonstrations and battery recycling.” A separate FOA was also announced providing an additional $60 million for “second-life applications for batteries once used to power EVs, as well as new processes for recycling materials back into the battery supply chain.”
DOE’s announcement described both FOAs as "key components of the Administration’s whole-of-government supply chain strategy to strengthen America’s energy independence to reduce our reliance on competing nations and support the President’s goal to have electric vehicles make up half of all vehicles sales in America by 2030.”
Under the $3.1 billion FOA, DOE anticipates 17-34 awards between $50 million and $400 million.
The FOA organizes 12 specific areas of interest into two broad grant categories:Battery Material Processing Battery Component Manufacturing and Recycling
Applicants are required to submit a Letter of Intent by May 27, with a full Application Submission Deadline of July 1, 2022.
The separate $60 million recycling FOA requires submission of Concept Papers by May 31 and a full Application Submission by July 19, 2022.
DOE noted that the IIJA authorized more than $7 billion to strengthen the U.S. battery supply chain, from raw materials to domestic manufacturing, along with other funds set aside for more downstream battery storage deployment and EV charging infrastructure.
This week’s funding opportunities come on the heels of a diverse array of Executive Branch actions to spur domestic investment in U.S. battery storage technologies for electric vehicles and stationary energy storage.
On April 18, the DOE’s Loan Guarantee Program announced a conditional commitment to lend up to $107 million to Syrah Technologies, LLC to expand its facility in Vidalia, Louisiana to ramp up production of natural graphite-based active anode material (AAM) for electric vehicles. If the loan closes, it will be the first Advanced Technology Vehicles Manufacturing (ATVM) program loan in over 10 years and the first loan to an upstream supply chain entity rather than an electric vehicle manufacturer.
In late March, President Biden invoked the Defense Production Act with respect to raw materials for large-capacity batteries, including lithium, nickel, cobalt, graphite, and manganese. The invocation requires the U.S. Department of Defense to support feasibility studies to support the securing of a domestic supply of such materials through “environmentally responsible domestic mining and processing; recycling and reuse; and recovery from unconventional and secondary sources, such as mine waste.” Read Lauren Loew’s coverage of rising lithium prices and the dearth of U.S. capacity.
Foley is continuing to follow developments in this area. The Foley team has significant experience, knowledge and expertise related to the battery and storage industry, including the automotive, manufacturing, supply chain, regulatory, IP, private equity, tax equity, project finance, and public-private financing issues related to the same, and we are ready to help clients navigate this evolving landscape.
On April 21, 2022, the Federal Energy Regulatory Commission (“FERC”) approved a draft proposed rule (the “Proposed Rule”) regarding transmission planning and transmission cost allocation. According to a FERC news release issued that day, “[t]he proposed rule addresses the need for our nation’s energy infrastructure to be more resilient and reliable while also achieving cost savings for consumers.” The Proposed Rule is a component of a larger advanced notice of proposed rulemaking announced in July of 2021 (the “Advanced Notice”).
The transmission planning aspect of the Proposed Rule includes timeframe, identification of needs, evaluation of facility benefits, and increased transparency. Transmission providers would be required to identify transmission needs based on changes in resource mix and demand via long-term scenarios that meet the requirements set forth in the Proposed Rule. They would further be required to assess the benefits of regional transmission facilities to meet the identified needs over a minimum timeframe of 20 years from the in-service date of the given facilities. The Proposed Rule would also mandate the establishment of transparent and not unduly discriminatory criteria to select transmission facilities and further coordination between regional and local transmission planning to identify “right-size” replacement transmission facilities. Certain technologies such as dynamic line ratings and advanced power flow control devices would also need to be considered.
The regional transmission cost allocation part of the Proposed Rule emphasizes state involvement. Specifically, public utility transmission providers would be required to seek the agreement of the relevant state entities within the given transmission planning region with respect to the cost allocation methods that would apply to transmission facilities selected in the regional transmission plan. These providers would then revise their open access transmission tariffs to include those methods. Initial comments on the Proposed Rule are due 75 days after its publication in the Federal Register.
The Advanced Notice had also included a request for comments on interconnection queue reform (among other topics), but the Proposed Rule did not address this topic directly. Instead, FERC indicated that it would continue to evaluate the record and would address other possible inadequacies in subsequent proceedings. The need for changes to the interconnection queue process has recently been a major topic of discussion, including PJM’s proposal announced April 28, 2022 (“Interconnection Proposal”), to have a two year transition period to work through backlogged projects submitted before 2021. The Interconnection Proposal also includes plans to address projects on a first-ready, first served basis instead of first come, first served. PJM would further simplify its cost responsibility analysis of individual projects by combining projects within the same cycle. Projects that would not increase network upgrade needs or would not need facilities studies would also be expedited. PJM plans to file the Interconnection Proposal with FERC in May.
Foley is committed to helping our clients in the Energy sector in markets nationwide. If you have any questions about these developments, please contact Lynn Parins, Rikaela Greane or your Foley attorney.
In our March 15 article, EV Buses: Arriving Now and Here to Stay, we discussed the opportunities being created when fleet operators shift powertrains from internal combustion engines (ICE) to electric vehicle engines (EV). With reduced maintenance costs, government subsidization, and vehicles predicted to operate more reliably than current fossil fuel consuming alternatives, the case for switching fleet operations from ICE to EV seems to sell itself, in theory. When you look at an EV, it’s more than just a hunk of metal, rubber, and fuel – it’s all of that and an extremely large battery pack with tremendous amounts of potential energy stored within. Is there the potential to harness a large collection of battery packs for energy storage banks, grid demand normalization, and backup-battery services? The answer is a resounding “yes!”
For many, an ICE vehicle serves a wonderful purpose while in use. They’re reliable, fuel is abundant, and they are great at moving people and goods at low cost over long distances. But, ICE fleets don’t provide any services when they are sitting idle. When not in use, they act as cost centers, not accretive to the bottom line. They don’t offer supplemental income when not in use and you can’t really rent out your bus fleet overnight without risking availability for the morning route. In fact, the average school bus is in use approximately six hours a day, 200 days annually, and are otherwise parked or idled when not in operation (which is particularly true during summer months). During the summer, when demand for electricity is often at its highest), clean energy stored in idled electric school buses can provide an energy resource to the grid that traditional ICE vehicles can’t provide.
EVs, on the other hand, can be something else entirely; their collection of battery packs are capable of repetitively collecting, storing, and discharging energy. The energy they store can come from a variety of sources such as renewable, nuclear, and even traditional fossil fuel sources. With no limitations on their source of power for storage, it’s the battery packs in these EVs that are key. Modern battery systems are capable of charging and discharging without prohibitive degradation. The potential energy stored within, and the ability to consistently replace it, can be harnessed to stabilize the grid when energy supply and demand are volatile, to act as a backup power supply when the grid goes down, as a mobile power supply source, or to store energy and sell back to the grid when electric prices are more favorable. This usage underpins the concepts of Vehicle-2-Grid (V2G) and the microgrid application for EVs.
Vehicle-2-Grid is the process of allowing power to flow in both directions for electric vehicles, from the grid to the vehicle and from the vehicle to the grid, when needed. The U.S. Department of Energy defines a microgrid as ”a group of interconnected loads and distributed energy resources within clearly defined electrical boundaries that acts as a single controllable entity with respect to the grid.” Microgrids often have a form of energy generation (such as localized renewable or fossil fuel generation systems), load, and storage (like a fleet of EV buses), all locally defined within a boundary, and typically controlled by a microgrid controller. In the framework of a microgrid, V2G technology fills the void required to be filled by a home or community battery backup or energy storage unit. Rather than large, single use battery banks – capable of only storing and discharging electricity – the integration of V2G technology into the microgrid provides a multifaceted use for the battery bank. With V2G, you have a primary usage as transportation fleet, and energy storage in the form of batteries when transportation services are not needed.
Vehicle-2-Grid and microgrids are a match made in heaven, with idle EVs being used as storage banks for surplus power, and that power being transferred back to the grid when the opportunity or need arises. In current applications, these storage banks take the form of large battery packs stored in isolation (such as Tesla’s Megapack in Australia). And, of course, there are some instances of vehicles being used to power homes in recent natural disasters (such as the new Ford Lightning). These two applications are merged and put into use in V2G technology and microgrid systems, with the fleet vehicles serving the dual purposes of both the Megapack and Lightning.
While this may all seem merely theoretical, V2G and the microgrid process has already seen real-world applications in the White Plains, NY and Beverly, Mass. school districts. In December 2020, the White Plains district’s five EV buses started selling excess power stored on their bus battery packs back to Con Edison, the community’s local energy provider. According to news reports, “[t]he buses serve as mobile microgrids, charging and discharging at a depot in North White Plains. They plug into a charger when demand for power from Con Ed is low, and reverse the flow into the grid when the buses aren’t taking kids to and from school.” Similarly, the Beverly, MA school district delivered power back to the energy grid for over fifty hours during the summer of 2021. Utilizing a Thomas Built Buses Saf-T-Liner C2 Jouley electric school bus with a Proterra Powered battery system, the district’s school buses discharged nearly three megawatt-hours of electricity to the electric grid over the course of 30 events that summer. The Beverly, MA district noted “[b]y delivering stored clean energy back to the grid when it’s needed most, electric school buses can help create a more resilient local power system and reduce the dependence on expensive fossil fuel power plants.” And with the added benefit of the local energy grid compensating participants for distributing stored energy to the grid, participants are able to further defray the cost of V2G early adoption as well as improving the economics of community transportation systems.
More recently, the Santa Clara Valley Transportation Authority (VTA) announced their plan to install a microgrid consisting of 34 new bus chargers, solar panels, and over 45 electric buses. Driven by the California Air Resources Board’s requirement for public transit agencies to be 100% zero emission by 2040, the microgrid is expected to draw power from both the grid and enter “island mode” in the event of grid disruption and provide operational flexibility for purchasing power from the grid. The VTA noted “This project combines several VTA goals. It shifts us toward greener sources of energy, saves VTA money that can be reallocated to other operating needs, and provides the infrastructure to charge our next batch of zero-emission buses. Our riders will benefit from a newer, quieter fleet and we will decrease our contribution toward climate change and poor air quality.”
Using their EV fleets for their primary purpose, transportation, and secondary purpose, energy storage for reselling back to the grid, fleet operators could find alternative revenue streams during non-operational times for better capital asset utilization, and increasing ROI, as has been showcase in Beverly, MA’s recent fleet operations. While the establishment of these frameworks is in an early stage, it’s safe to say the future of greener mobility will likely have a solid foundation in EV fleet operations that help communities better manage access to reliable and affordable energy resources.
Foley Associate Hillary Vedvig recently presented at the American Bar Association’s 51st Annual Conference on Environmental Law in San Francisco, California. The Conference focused on the future of environmental law and how emerging topics and trends are fundamentally changing environmental law practices, including COVID-19, climate change, and emerging contaminants. The conference explored how the transformative movements over the past year have impacted business, environmental protection, and the engagement of diverse stakeholders. Panels and speakers addressed novel approaches on solutions to climate change, sustainability, clean air, agriculture, chemical management, natural disaster response, and other transformative issues.
Hillary also had the opportunity to present on a panel titled “ESG for Gen Z: Sustainable Finance and How Young People Are ‘Voting with Their Wallets’ and Raising the Bar on What’s Expected of Green-Minded Corporations.” In their discussion, they dug into questions related to sustainable finance, the proposed rulemaking by the Securities and Exchange Commission addressing greenhouse gas emissions reporting, and a variety of Environmental, Social, and Governance (“ESG”) initiatives and issues. The panel was moderated by Jill Cooper, Senior Principal at Geosyntec Consultants and Hillary’s co-panelists were Roger Martella, Chief Sustainability Officer at General Electric and Maram Salaheldin of Clark Hill. They addressed how consumers, investors, and employees are looking at the environmental and social impact of companies, especially from a Gen Z perspective. As companies start the process of making more extensive commitments on ESG metrics, they stressed the need for careful consideration of making ESG promises or commitments and how accountability will factor into whether such commitments by companies will truly make a difference, both the environment, and to consumers. The panel touched on topics that continue many new and existing discussions on ESG, which is becoming a more central topic in every day conversations in a variety of industry sectors, and from boardrooms to living rooms.
Stay tuned as new developments come up on ESG considerations, where Foley is committed to helping our clients navigate in this evolving area. For more information, please contact Hillary Vedvig or your Foley attorney.
The State of Wisconsin adopted a suite of amendments to its PACE statute (Wis. Stat. § 66.0627(8)) on March 14, 2022 through 2021 Wisconsin Act 175 (the “Act”).1 The Act was the only major clean energy bill that passed during the 2021-2022 legislative session in Wisconsin, and it made some key modernizations to the Wisconsin PACE statute summarized as follows:Eligible Measures: The Act expanded the suite of improvements to real property that are eligible for PACE financing. These expansions include the following: Reliability improvements such as energy storage, backup power generation or microgrid improvements; EV infrastructure improvements; Resiliency Improvements that increase resilience or improve the durability of infrastructure, including storm, wind fire and flooding resiliency measures (provided if a floodplain zoning ordinance applies to the subject property, and the building is nonconforming, the improvements must bring the property into conformance, and if the local municipality participates in the National Flood Insurance Program, the property owner obtains required flood insurance); and Storm water control measures, which include structural or nonstructural measures designed to mitigate storm water runoff (such as green roofs, infiltration systems, constructed wetlands and swales—but not including rain barrels). Lien: The amendments clarified that the PACE special charge runs with the land (and still has the same priority as a special assessment lien in Wisconsin).The PACE special charge lien remains a springing lien, however, triggered on delinquency. Term: PACE financings may now not exceed a 30-year term. Expansion of Private Enforcement Rights: The Act now specify that the foreclosure of a PACE special charge must occur through the in rem procedures set forth in Wis. Stat. § 75.521 (which the vast majority of Wisconsin PACE financing agreements and/or ordinances already specify).(This in rem procedure was previously in alternative to the tax deed and certificate sale procedure that is now otherwise available only to non-PACE special charge delinquencies.)Additionally, the Act clarified that a county may delegate to a private third party the “right to take judgement” to a parcel subject to an in rem foreclosure process using the pre-existing assignment procedures set forth in Wis. Stat. § 75.106 (subject to certain exceptions to make the assignment more streamlined and ignore certain procedures relevant only to environmentally contaminated properties).This change should bring greater certainty to PACE capital providers with respect to the voracity of their security from the PACE special charge. Energy Assessment in Place of Savings Guarantee: The Act eliminated the prior requirement that PACE financings over $250,000 require the borrower to obtain an energy savings guarantee from a contractor or engineer for a savings-to-investment ratio of greater than 1.0.In its place, the Act now require that for energy efficiency, reliability or water efficiency improvements, the borrower obtain an assessment of the expected monetary savings—or in the case of a renewable energy project, the expected monetary benefit from energy generation. This requirement does not apply to an EV charger, resiliency, customer-side water service line replacement (which the statute also allows to be financed through PACE) or storm water control measures. Consent of Mortgage Holder: The Act now makes explicit the requirement that the consent of all holders of a mortgage on the premises consent to the PACE financing as a condition to entering into the PACE loan agreement. Lender consent has been a de facto requirement for PACE financings in Wisconsin in light of pre-existing program requirements. This statutory change simply makes this a legal requirement.
With a record-setting 2021 for PACE in Wisconsin, resulting in over 21 C-PACE transactions representing $53,212,264 in direct clean energy and energy efficiency financing in Wisconsin, the changes to the Wisconsin PACE statute represented by the Act should act as a further catalyst for the growth of clean energy financing in the state. Foley has an active PACE practice in Wisconsin and in every major PACE market in the country. We are well positioned to assist you with your PACE financing or PACE program development.
1 For background on PACE and the suite of applications for PACE financings, refer to Foley’s article on the same available here.
Foley was a Silver Power Sponsor of the WEN 2022 Conference, which was held in person in Fort Worth from April 3-5, 2022. A number of Foley team members attended the conference along with over 500 attendees from various areas of the energy industry, including development, logistics, operations and management, consulting, financing and legal representatives. The attendees represented a broad range of the energy sector, ranging from more traditional oil and gas companies to renewable energy developers and everything in between.
Approximately 65 speakers participated in general presentations as well as break-out sessions throughout the conference. The general sessions focused on broader topics, such as leadership; Diversity, Equity & Inclusion (DE&I); and energy transition. These presentations discussed attributes of effective leaders (namely, courage, authenticity and inclusivity), the role of women in sustainable energy development, and one presenter’s prediction for future energy transition trends based on data collected by BloombergNEF.
The break-out sessions drilled down into more specific topics centered around four “tracks”: DE&I; leadership; regulatory, legal and financial; and technical. Popular topics included:Energy Transition: Emerging/growing industries, such as carbon capture, utilization and storage (“CCUS”), hydrogen fuel, batteries and offshore wind. Panelists discussed technological improvements and future challenges and the need for balance between historical and new energy sources. Decarbonization, including new and emerging technologies as well as the strategies adopted by various companies to reach a goal of “net-zero” and the challenges that they face. Venture Capital - panelists discussed how clean energy transition has impacted investment strategies, new opportunities, and emerging trends in venture capital activity.
Regulatory: Environmental, social and governance (“ESG”) matters, including an in-depth look at each category and how companies can address each area. Panelists also discussed the SEC’s climate disclosure proposal and the growing importance of metrics, tracking and reporting on these topics. The state of the past and present energy policy in Mexico. Clean Water Act, including an overview of the Waters of the United States (“WOTUS”) and a recent policy shift by the Army Corps of Engineers.
Cybersecurity: Panelists discussed trends in cyber-attacks, including attack techniques, and what companies can do to protect themselves from an attack.
Foley is committed to helping our clients in the Energy sector. For more information, please contact Natalie Neals, Jill Hale, Colleen McKnight, Vi Tran, Dania Abbasi, Jenny Gardner, Elizabeth Nevle or your Foley attorney.
A large number of key players in the renewable energy industry, including investors, developers and banks converged in Scottsdale Arizona on March 7-March 9 for the Annual Infocast Solar + Wind Finance & Investment Summit. This was the first annual in person Finance & Investment summit since the beginning of the pandemic and, as was extremely well attended. A large team of Foley attorneys were there from offices across the US and Mexico City. Foley's event on March 7 was attended by over 290 clients, friends and attendees.
Foley partner David Markey moderated a panel on the topic of "Opportunities & Value Drivers in a Dynamic M&A Market”. The panel focused on topics such as what is driving investment strategies in the renewable energy sector, which sector might be more favorable, whether the booming year of 2021 would be followed by a similar 2022 and other key trends in the M&A market.
The panel, with representatives from Southern Power, Nautilus Solar, Boralex and Scale Microgrid Solutions had a very insightful conversation. Some key takeaways were that money continues to flow both domestically and internationally into the US renewable energy market and that as of the beginning of March 2022, sellers were well placed to take advantage of that dynamic. The consensus was that this trend may continue throughout 2022. IPP investors and buyers would need to be creative in finding value in specific projects given the amount of institutional dollars that were available in the market. For some, those investment strategies may center around specific projects where value could be optimized such as state and local incentives, rather than the traditional ITC drivers. Strong projects with clear supply chain would continue to be sought after.
For others, it may be that if they do not have an urgency to deploy capital because of investment criteria it may be a game of patience and waiting for the right project or some other shift in the market (whether it be a larger geopolitical shift or otherwise). It should be noted that the panel had this discussion prior to the announcement by the US Department of Commerce to take up an investigation into anti-circumvention claims with respect to solar equipment. The conversation may have been different had it occurred after that announcement.
For more information on the Department of Commerce anti-circumvention investigation, please see Foley’s blog post here.
On March 28, 2022, the U.S. Department of Commerce announced it would launch an investigation into alleged circumvention of duties for solar panels imported into the United States from Malaysia, Thailand, Vietnam, and Cambodia. Commerce based its decision on a petition from a domestic solar manufacturer that alleged, in effect, Chinese manufacturers improperly shifted certain aspects of production to those four countries solely for the purpose of evading duties originally imposed in 2012. The domestic petitioner argues this alleged circumvention makes it impossible for domestic manufacturers to compete against panels made in Asia. Last December, Commerce rejected a similar domestic petition on the grounds that it was filed anonymously and sought duties on specific companies instead of specific countries.
Here the Commerce Department found “[i]nformation provided by [petitioner] indicates that multiple companies in Cambodia, Malaysia, Thailand and Vietnam, rather than a single company, have the facilities necessary to conduct the processing in question and that subsidiaries of Chinese companies that are located in these countries source numerous solar cell and panel inputs from China.” Solar panel imports from these four countries account for approximately 80% of overall solar panel imports to the U.S.
Solar industry trade groups opposed the petition and warned of severe market disruptions in the event of a Commerce investigation. Commerce stated this investigation is just a “first step,” but it remains to be seen whether this will calm the market. Commerce stated it will issue a preliminary determination in 150 days, on August 25.
Foley’s Renewable Energy practice has deep experience in all aspects of the solar industry, as well as extensive experience with the Department of Commerce. If you have any questions about Commerce’s determination or its impact on your business, please contact Mike Walsh, Jeff Atkin, or your Foley lawyer. Jeff is the co-chair of Foley’s Energy practice, and Mike is the former chief of staff and acting general counsel at the U.S. Department of Commerce.
We were very keen to put on a solar battery to backup our solar panels and it was a way of obviously using solar electricity into the nighttime to contribute to the greater picture, to even out the peaks and troughs because there’s a lot of people taking on solar panels. But I do like the idea of generating power close to the source and using it where we are and using the battery to sustain things through the evening for our local use and for moving to the whole grid.
We’ve put on high quality panels with this latest installation, and they’ve been very good. Our first set of panels that we installed around 2008 wasn’t nearly as efficient as the new ones so we’ve moved those to a less good part of the roof and put our best panels in the best sunspot. So many people say that panels don’t work when the sun’s not up, but we see that on a grey day, even on a wet day, we are actually producing quite a lot of power and it’s really impressive and we’re really thrilled.
I do like the way we can now also check the output of our panels through the apps, which we weren’t able to do with the panels we had in the beginning so we can see they actually perform very well.High Quality Solar Power System Installation by E-Smart Solar
I particularly wanted to get a local company (E-Smart Solar) that we knew would have to have a good reputation locally. It was good to have somebody come to the house and do a quotation, look at your situation. The team from E-Smart Solar were very consultative. They asked what we wanted every step of the way, they did very neat work and worked extremely hard and our little cottage looks very good. I also liked the fact that the battery and solar installation is quite visible so I can share it with friends and visitors and say, look, this actually works.
Planning on going solar but you’re not sure where to start? E-Smart can help you with that. Contact us today for more information.
Meet our dear customer, Fiona. Read her story of what her environmental reasons are for buying a high quality solar power system.
I’m Fiona, we’re in Katoomba in the Blue Mountains. John and I are both very keen and passionate birdwatchers, and we’re conservationists and I see alternative energy as a wider umbrella that we all fit together to contribute back to the planet.
I love nature. I want things to continue to be beautiful and I think we’re part of a bigger picture and we all need to contribute to that but we need to make this planet last longer and be as beautiful as it always has been.
We’ve been very happy to become more self-sustainable, environmental and I thought doing solar energy was our first step. It was very achievable and I do like that domestic way of making a contribution to the larger picture.
Solar energy is a big part and something we have really concentrated on. We really wanted to be early adopters on taking on the solar revolution so that we could personally make a contribution that we felt we could do and we’ve actually found it quite easy to do, not as intimidating or as difficult as you’d think. We’re now completely self-sufficient without electric power. I think we’ve paid about 18 cents in power since we went solar.High efficiency solar panels
I would recommend a high quality solar. I’ve always been very keen on buying good quality products and E-Smart Solar was able to provide that. I want things to last and don’t want things to go to the tip all the time, it’s a lot of waste. If you can buy good quality stuff in the beginning, make it go for a long time. It’s good to have a local company like E-Smart Solar that will come and give you back up if there are any problems, tweak things a little bit if they need to be and if you want to expand in the future, which we plan to do.
Help the environment today by going solar. Talk to us.
The potential cost-of-living savings is always a big factor when Aussies are deciding to purchase a solar system. E-Smart Solar customers recognise once their solar system is in place, their household can begin to drive down energy bills and even earn some income back from their system exporting energy via a feed-in-tariff (FIT). But this isn’t the only area in which the right solar system can deliver big savings in the long term.
There’s a big difference between a quality solar installer and the alternative, and this applies to solar products too. If you get a reputable solar installer to install well-made components with a long-term warranty, you’ll be set to reap the rewards for years to come. So let’s look now at how a long-term warranty on solar parts can save you money.
How Warranties Work
For anyone yet to be familiar with the warranties process in Australia a quick overview will help. It’s necessary to keep in mind some variables can exist here. For example, if a manufacturer has an office in Australia they’re responsible for their warranties, yet if not, it’ll be the importer who is responsible for them. But the following is an overview of the regulations and common approaches to warranties across the nation.
Australian Consumer Warranties
As the ACCC details Australian Consumer Law (ACL) confirms goods sold in Australia must be of acceptable quality and fit for purpose. There can be certain exceptions to this. For instance, if someone clearly advertises and sells a used car for sale as ‘for parts only’, then it wouldn’t be reasonable for someone who has purchased it to complain the car wasn’t working properly. But there is no ‘opt-out’ clause for any business in following the ACL – it’s mandatory when operating in Australia. So unless the seller specifically makes a potential buyer aware parts are not of acceptable quality and fit for purpose, the buyer has a right to expect what they buy is in good working condition.
This warranty is commonly offered by an installer of a solar system. Although this does not directly cover the parts and operation of the solar system, it covers the workmanship. If it emerges that a mistake has occurred or a fault has arisen as a result of the installation and/or subsequent workmanship within the warranty period, then the installer will be on the hook to remedy it.
A manufacturer’s warranty is an important consideration when looking to save on costs over the years. This warranty is provided by a manufacturer to cover the parts (AKA panel product) and operation (AKA performance) of a solar system. A manufacturer that offers a long-term warranty sends a signal their products are made with quality parts, and they warrant their performance. Yes, a long-term warranty is by default a long time to make a promise, but given a manufacturer gets a competitive advantage over other businesses who will not warrant an extended period, it’s certainly right and fair to expect they’ll honour that promise.
Saving Time and Money
What can make a long-term manufacturing warranty so worthwhile from a savings perspective? It comes down to the two aforementioned promises that a manufacturer offers. They give an undertaking surrounding the parts and operation of their products.
If at any time during the parts warranty its components fail due to a manufacturer’s defect, the customer will have a remedy available to them. While solar systems are unquestionably a great investment, it’s no secret the upfront cost of purchase and installation can require many Aussies households to save up for a time. A long-term warranty can help ensure a household won’t be left having to fork out another chunk of cash to get new solar products. This is unfortunately something many Aussies have had to do when they’ve purchased solar products from providers who maximise affordability at the expense of quality. Ultimately these Aussies have had to eventually pay for repair or replacement – and financially this can be a very painful lesson to learn.
It’s necessary to note the inverter is of course a part of the solar system but is usually treated differently for warranty purposes. We discuss the particulars regarding inverter warranty timelines in the conclusion below.
An inferior system might work on day 1, but over time its performance can decline. This means it won’t generate as much electricity as it once did – certainly not as much as a reputable system would – and may stop working altogether! This is really unfortunate, but in absence of a performance warranty, the solar system owner has little option but to put up with the performance decline, or opt for the previously mentioned avenues of costly repairs or replacement of the whole system. Where it concerns the operation of a system with highly respected solar products, a long-term warranty on the components will ensure the system’s operation will continue effectively* during this period.
*Subject to the specific terms of the warranty.
No Daily Dramas
Obtaining a warranty from a reputable manufacturer also offers peace of mind as you go about your daily life. This is because you can usually have a far greater certainty that a trusted business will still be trading in many years’ time as opposed to one that seems to offer a ‘great’ deal today – but may not even be there next year! If utilising a questionable installer with questionable parts, the odds of them ceasing operation in time – and thus leaving customers high and dry – is far greater.
Making the Most of the Years
Warranties help provide some peace of mind when it comes to a solar installation. But it’s true there are additional steps that are always good form to practice where it concerns managing a solar installation from one year to the next. Ensuring a system gets regular checks and maintenance done is a great way to keep it in optimal condition from one year to the next.
So How Long is the Right Warranty?
E-Smart Solar are a talented team of qualified electricians and solar specialists. You can enjoy access to the very best products on the market, at the very best price.
LG Solar Panel Warranty. LG solar panels are manufactured in a fully automated manufacturing facility in Gumi, South Korea and come with a 25 year parts and labour product warranty and 25 year performance warranty held here in Australia by LG Electronics.
SMA inverters offer multi-award winning inverter design with quality European components. Their 5 year manufacturers warranty can be extended to an optional 25 years
Fronius inverters offer extended warranties (of up to 20 years) with award-winning design, and are reliable and efficient in Australian conditions
SolarEdge Inverters come with warranties of up to 12 years. They can also monitor the performance of each module for enhanced, cost-effective module-level maintenance.
Whichever combination of these warranties you acquire with your new solar system, hiring a quality solar installer that utilises trusted components and pursuing long-term warranties surrounding their system provides many benefits. There will be much greater peace of mind knowing the odds of something going wrong are far smaller, and in the unlikely event it does they’ve some additional protection to remedy it with their long-term warranties in place.
E-Smart Solar delivers only the best for our Blue Mountains and Hawkesbury customers. For more information on our warranties contact us today.
We are proud that E-Smart Solar is the first solar company in NSW to be Climate Active certified. Climate Active certification is an important step in our journey to being a more sustainable and environmentally conscious organisation.
We are located at the base of the World Heritage listed Blue Mountains, so we understand the importance of our environmental impact as a business. We have chose to be carbon neutral, hoping this heritage site can be enjoyed, as it is today, for generations to come.So what does this all mean?
The Climate Active brand is a simple yet powerful way for companies to demonstrate to customers and stakeholders that they have a credible and transparent claim of carbon neutrality. It is the only government accredited carbon neutral certification scheme in Australia.
The Climate Active brand represents Australia’s collective effort to calculate, reduce, and offset carbon emissions to lessen our negative impact on the environment. The Climate Active certification is awarded to businesses and organisations that have credibly reached a state of achieving net zero emissions, otherwise known as carbon neutrality.
“Understanding where our carbon emissions are coming from and where we can reduce these emissions has helped us manage parts of our business more efficiently.” What can homeowners do?
The best thing homeowners can do to support us is to take the time to understand the solar system they are buying. Additionally, customers can also support us through understanding that the environmental benefits of solar power are the main reason we do what we do as well as helping homeowners and business owners to reduce their carbon footprint – not just their power bills.
Speak to our expert solar team about how you can reduce your carbon footprint.
We first started thinking about solar to be more environmental, and we’re quite environmentally aware here at home and we’d thought it’d be a great benefit better for us. We decided that it’s the right thing to do. I think it’s very important to try to be as environmental as possible, renewable energy is the way to go.
Fossil fuels are obviously causing damage to the environment so we’ve got to think about our future energy usage. It’s our environment, it’s the future. We’ve got to think about what’s going to happen, it’s just so important. We’ve got to think about climate change, biodiversity, the environment, and just got to look after the world and start somewhere.Contributions of solar in renewable energy
Renewable energy is growing and we’ve got to use it. Every little step that people can do is fantastic. Solar, solar panels, solar energy, is a small thing we can do. It’s getting less expensive all the time and it’s worth giving a go if we can. We’re actually exporting power to the grid. At the moment, we’re getting 21 cents a kilowatt which is making it a little bit more financially rewarding as well too. We’re using energy from the sun to power our house and we’re also exporting power to the grid. It’s a win-win situation.
From the initial contact we make with our clients in the Blue Mountains and Hawkesbury, we try to find out what their expectations are around what they’re going to get out of the solar system and that’ll almost always involve going to the site, meeting them face-to-face, getting a good understanding of what the site’s like and just managing their expectations about what it’s going to achieve.
If they’re looking at other solar systems online or from other providers, they might see a system that is $3,000 or $4,000 and it’s just not going to do what they think it might do. Being able to have a face-to-face with the client and explain the pros and cons of what we offer, versus what that system might offer, gives them a better understanding of what solar can do to help them.The importance of researching about Solar
There’s a lot of misinformation online about what’s good and what’s bad. So again, being able to have a face-to-face discussion with a customer is always helpful. People that do more research before we get there and before we start the conversation is always beneficial because the more educated the customer is, the more they understand and the more research a customer can do and the better the understanding they have of the products that are out there, the better the decision they will make at the end of the day.
Planning on going solar but you’re not sure where to start? E-Smart can help you with that. Contact us today for more information.
We initially did have a system put in several years ago. It was a small system of 1.5 kilowatts, but it was a start for us. It cost about $3,000 for the system at that time. The new panels are probably twice the power of the old panels and only marginally 50% bigger, giving us a greater output from the same sized space we’ve got on the house. They’re twice the efficient and we’re getting more power out of the sun. We had the old panels sided to a less efficient part of the house -the roof and so we got the new panels on the more efficient part of the roof, which was fantastic. There was a combination of the old and the new and it’s working tremendously.High efficiency solar panels
We decided to spend more on our panels this time because we wanted something that we could trust, something that was reliable and we decided that we just wanted quality solar panels. That, as well as the brand name which also gives the best performance. We wanted to have quality products.
Since we’ve had the new panels and a power wall installed, we’ve been 100% self-sufficient energy-wise. It’s all worked tremendously, it’s been seamless. If the power goes out in the street, we don’t even notice it at home. It just completely kicks in.
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The Tennessee Valley Authority (TVA) filed a draft Environmental Impact Statement, or DEIS, last week to analyze the potential environmental impacts of various possible replacement options for its retiring Cumberland coal plant,…
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The American Lung Association (Lung Association)’s Zeroing in on Healthy Air assessment unpacks the public health and economic consequences of pollution from transportation and electricity generation and the opportunities to solve these…
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The American Forest Foundation wins donors. The planet wins trees. KSV wins three shiny new friends: Gold. Gold. And Silver.
In our previous EnergyWire, we revisited a few Industry Expert Interviews that we’ve had over the past two years. As we wind down yet another year of unexpected twists and turns, we find ourselves reflective and looking at the year ahead, gleaning inspiration and gearing up for whatever comes next in 2022.
There’s no better way to do that than to revisit a few more interviews with some of the best and brightest leaders at purpose-driven companies in the US and Canada. Check out our final round up of Industry Expert Interviews and let us know: as your organization heads into 2022, what are some of the thoughts, ideas and conversations inspiring you the most? We’d love to hear from you!
2021 sure has thrown the agency world its fair share of curveballs. But with it came new opportunities. We just had to find the right places to take some swings. Among the most notable: a shift in our staffing approach, and how we’ve been able to leverage the MAGNET Global Network, 40 of the most innovative, independently-owned agencies located around the globe.
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The COVID-19 pandemic catalyzed a marked shift in the average consumer, highlighting health and well-being as a top consideration for consumer purchasing decisions while simultaneously creating a shift in how consumers made those purchases. The growing urgency of the call to act on climate change, coupled with renewed vigor around support for BIPOC businesses, also meant that consumers significantly changed how and where they were spending their money.
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Today’s consumers are clamoring for the brands they support to be a part of creating a better, more sustainable future. This is readily apparent when it comes to the beauty industry, which after decades of creating countless enemies and being one of many major contributors to the climate crisis, has undergone a period of serious self-discovery and a very public, consumer-driven transformation journey.
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CARB opts to stay the course on Cap-and-Trade Program. By Joshua T. Bledsoe, Michael Dreibelbis, and Alicia Robinson On May 10, 2022, the California Air Resources Board (CARB) released its Draft 2022 Scoping Plan Update for public review and comment. Assembly Bill (AB) 32, the California Global Warming Solutions Act of 2006 (AB 32), required...… Continue Reading
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CCUS and clean hydrogen will play a significant role in the Administration’s efforts to address hard-to-decarbonize industries to promote clean US manufacturing. By Janice Schneider, Nikki Buffa, and Kevin Homrighausen On February 15, 2022, the White House announced important actions in furtherance of the Biden Administration’s broader decarbonization goals — this time with an eye...… Continue Reading
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A multistate cap-and-invest program to reduce carbon emissions from the transportation sector is dead after several participating states pulled out. By Jean-Philippe Brisson, Joshua T. Bledsoe, Benjamin Einhouse, and Brian McCall Less than one year ago, the governors of Massachusetts, Rhode Island, and Connecticut, as well as the mayor of the District of Columbia, announced...… Continue Reading
The State and eNGOs seek to defend an emissions rule that trucking and airline trade groups are challenging in federal court. By Joshua T. Bledsoe and Jennifer Garlock On October 13, 2021, the State of California, on behalf of the Office of the Attorney General and the California Air Resources Board (CARB, and together, the...… Continue Reading
CEQ report calls for widespread CCUS deployment to achieve climate goals. By Joshua T. Bledsoe, Nikki Buffa, and Nolan Fargo On June 30, 2021, the White House Council on Environmental Quality (CEQ) issued a report to Congress that outlines a framework for how the US can accelerate carbon capture, utilization, and sequestration (CCUS) technologies and...… Continue Reading
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