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Nine Governors Issue Letter to President Biden Urging Continued Prioritization of Offshore Wind Development

On June 4, 2021, days before the Biden Administration announced its intent to consider further expansion of offshore wind development in the Gulf of Mexico, nine governors issued a joint letter to US President Joe Biden’s administration to commend its commitment to offshore wind development and provide recommendations to build upon the momentum to prioritize offshore wind development in the United States.

Signed by the governors of Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Virginia, the letter urges the Biden Administration to continue to prioritize offshore wind development while also focusing on the development of a long-term relationship and plan between the federal and state governments to advance the offshore wind industry. According to the governors’ joint letter, doing so will create thousands of jobs and cause significant investments to be made in aging ports and the accompanying US supply chain that will build, operate and maintain the new infrastructure.

The governors further noted that the expansion of the offshore wind industry “creates an unprecedented opportunity for the United States to capture significant economic development activity and build equity in coastal communities while improving air quality and increasing the option for energy diversity.” However, the governors also recognized in their joint letter that realization of this opportunity will depend on several variables, including “the pace and uniformity of the federal permitting process, the degree of regional coordination among states, the amount of available space in federal lease areas, the potential impacts on marine resources, and the availability of supporting infrastructure to deliver high-voltage power from project areas to the mainland.”

Notwithstanding, the governors aim to collaborate across their respective states to consult with one another regarding any permitting challenges, natural resource consideration, opportunities to coordinate schedules and to align construction timelines so that states’ respective clean energy targets may be met. Additionally, the governors provided the following strategies to support offshore wind development:

  • Set long-term targets for the Bureau of Ocean Energy Management’s lease area scoping and establishment that are informed by state clean energy goals
  • Supplement interstate coordination during project design and permitting processes
  • Consider setting long-term targets for offshore wind ports that can support the scale and timeline of state procurement targets
  • Ensure adequate transmission capacity
  • Provide support for other marine industries and users



DOI Announces Competitive Lease Sale for Offshore Wind Development off the Coasts of New York and New Jersey

The US Department of the Interior (DOI) announced plans to expand offshore wind development off the coasts of New York and New Jersey by proposing a lease sale it strives to complete by the end of this year. More specifically, the Biden Administration proposed a competitive sale of eight lease sites for over 627,000 acres of federal waters on the Outer Continental Shelf in the New York Bight. This proposed lease sale will support the administration’s goal of installing 30 gigawatts of offshore wind energy by 2030.

The proposed leases contain notable stipulations, including the encouragement of project-labor agreements during construction and the requirement of increased engagement with the fishing industry and other affected ocean users during the leasing process. “The development of renewable energy is an important piece of addressing climate change,” US Secretary of the Interior Deb Haaland said in the DOI’s statement, adding, the “new proposed lease stipulations puts a priority on creating and sustaining good-paying union jobs as we build a clean energy economy.”

The lease sites have the potential to generate an additional seven gigawatts of offshore wind energy, powering more than 2.6 million homes and creating thousands of new jobs. “A lease sale not only opens a door to investment in New York and New Jersey, but will support jobs and businesses throughout the U.S.,” National Ocean Industries Association President Erik Milito said. “Providing new offshore wind opportunities will boost critical investments into the supply chain, ports, and workers, and will provide a foundation for exceptional offshore wind growth.”

Despite the stipulations within the proposed leases, the DOI’s Bureau of Ocean Energy Management (BOEM) claimed that 11 offshore wind developers have already expressed interest in the leases. Should the lease sale occur, it would be the first competitive offshore wind lease sale for the administration. A Proposed Sale Notice has been issued in the Federal Register, which opens a 60-day public comment period and provides further information about the potential lease areas, proposed lease provisions and conditions, as well as auction details.

The lease sale announcement builds upon the Biden Administration’s commitment to advance offshore wind development, which includes approval of the Vineyard Wind project—the first large-scale project in federal waters—and the recent announcement to assess potential renewable energy opportunities in the Gulf of Mexico.




Biden Administration Aims to Fix “Structural Weaknesses” in Key Supply Chains and Rolls Out National Blueprint for Lithium Ion Batteries

The White House released a report on June 8, 2021, detailing the findings and recommendations of a crucial supply chains review ordered by US President Joe Biden in February. The order directed the examination of semiconductors, electric vehicle (EV) batteries, critical minerals and pharmaceuticals, four products that are critical to American national security, economic security and technological leadership. Tuesday’s report found “structural weaknesses” in the supply chains of all four products, which were only worsened by the COVID-19 pandemic.

The Biden Administration plans to take the following actions to address these structural weaknesses:

  • Issuing a national blueprint on lithium EV batteries to improve domestic production
  • Financing key strategic areas of EV battery development using the US Department of Energy’s loan authority
  • Forming a strike force to “propose enforcement actions against unfair foreign trade practices” that have harmed these crucial supply chains, including potentially using the controversial Section 232 of the Trade Expansion Act of 1962 to restrict imports of neodymium magnets (a key component of electric motors)
  • Establishing a public-private consortium to onshore the production of essential medicines

Taking a more holistic approach, the National Blueprint for Lithium Batteries (Blueprint) set five broad goals to improve the domestic lithium battery manufacturing industry. Those goals include:

  • Securing access to raw and refined materials, as well as discovering alternatives for critical minerals for commercial and defense applications
  • Supporting the growth of a US materials-processing base that’s able to meet domestic battery manufacturing demand
  • Stimulating the US electrode, cell and pack manufacturing sectors
  • Enabling end-of-life reuse, critical materials recycling at scale and a full competitive value chain in the United States
  • Maintaining and advancing US battery technology leadership by strongly supporting scientific research and development (R&D), science, technology, engineering and mathematics (STEM) education and workforce development

The report calls for a variety of policies to achieve these goals, including promoting private investment in the mining, battery manufacturing and recycling industries, training workers for employment throughout the lithium battery supply chain and making use of public-private partnerships to encourage investment and ensure industry alignment with the Blueprint’s goals.

The report also called for congressional action to fund at least $50 billion in semiconductor R&D and to incentivize the adoption of electric cars through the passage of legislation.

Michael Burnett, a summer associate in the Washington, DC, office, also contributed to this blog post.




Key Takeaways | How Traditional Energy Funds are Shifting Toward Green Energy: A Conversation with Encap Investments and Quantum Energy Partners

The energy market has undergone significant change in the past 12 months, with even more on the horizon. Our webinar series explores how these changes have shaped—and will continue to impact—the energy industry, including discussions of what’s to come.

Our latest webinar featured McDermott partners Edward Zaelke and Parker Lee, as well as Shawn Cumberland, Managing Partner of Energy Transition of EnCap Investments, and Alex Jackson, Director at Quantum Energy Partners.

Below are key takeaways from the webinar:

1. Although energy transition investment funds may have different focuses, they generally take an all-of-the-above approach, with respect to investing, in the various subsectors of the energy transition and are willing to invest in any technology, in any portion of the energy industry (except for highly capital intensive projects with binary risk profiles).

2. Similar to the approach for conventional oil and gas investments, investment funds are focused on investing in strong management teams with a successful track record, which is manifested either through a management team that already has an interesting business plan or a management team that can successfully implement the investment fund’s strategy for a new business.

3. Environmental, social and corporate governance (ESG) policies have become pervasive in all industries—especially within the energy industry—and must permeate all aspects of an investment fund’s strategy. Effective ESG policies and proper environmental stewardship have become licenses to operate within the energy industry and without them, operating companies and investment funds will have extremely limited ability to gain legitimate interest from potential investment partners.

4. When developing a relationship between an investment fund and a management team for a new investment, it is critical for both parties to ensure there are aligned interests and expectations between the two parties.

5. Investment funds see abundant opportunities within the energy transitions space and are bullish on those investments’ capability to satisfy energy demand over the next two to three decades but are also looking to achieve diversification to protect their limited partners from the cyclical nature of energy investment.

To access past webinars in this series and to begin receiving Energy updates, including invitations to the webinar series, please click here.




Biden Administration Explores Offshore Wind Development in the Gulf of Mexico

Earlier this week, the Biden Administration announced its intent to consider further expansion of offshore wind development in the Gulf of Mexico. This announcement comes two weeks after the Biden Administration announced an agreement to lease almost 400 miles off California’s northern and central coasts for wind development. Potential offshore wind leasing in the Gulf of Mexico may play an integral role in the administration’s goal of installing 30 gigawatts of offshore wind by 2030.

To continue its exploration into offshore wind development in the Gulf of Mexico, the US Department of the Interior’s Bureau of Ocean Energy Management (BOEM) will publish a Request for Interest (RFI) in the Federal Register on June 11 to evaluate development interest, potential environmental consequences and other possible uses of the proposed area. Interior Secretary Deb Haaland acknowledged that, “Offshore wind development has the potential to create tens of thousands of good-paying, union jobs across the nation. This is an important first step to see what role the Gulf may play in this exciting frontier.”

The RFI will focus specifically on the Gulf of Mexico’s Western and Central Planning Areas offshore to Louisiana, Texas, Mississippi and Alabama. Although the emphasis is on wind energy, BOEM is also seeking information on other renewable energy technologies, according to the Interior Department. Publishing the RFI will open a 45-day comment period, after which the agency will review comments and data received to determine the next steps in the renewable energy leasing process in the Gulf.

“The Gulf of Mexico has decades of offshore energy development expertise,” Mike Celata, regional director of BOEM’s Gulf of Mexico office in New Orleans, said. “Working directly with our partners in the Gulf, we will make sure that offshore renewable energy development proceeds in an orderly, safe, and environmentally responsible manner.”

Developing offshore wind projects in the Gulf may prove more difficult than projects on the east coast (or even deepwater projects in California) for a few reasons. First, other than the Electric Reliability Council of Texas (ERCOT), wholesale power markets are generally not developed in the region. Second, the wind resource (with some exceptions) is not as strong as the wind resource on the east coast. Finally, it is unclear whether states will provide the necessary incentive programs (in the form of offshore wind renewable energy certificate (OREC) programs or otherwise) to support development. There are a few mitigating counterfactors however, including the historic presence of major oil developers in the region that are collectively looking to “go green,” vocalized support from leadership—including the Governor of Louisiana—the declining price of offshore wind technology and the recently expanded offshore investment tax credit (ITC).

Currently, BOEM has leased approximately 1.7 million acres in the Gulf of Mexico’s Outer Continental Shelf for offshore wind development and has 17 commercial leases on the Atlantic— from Cape Cod to Cape Hatteras. After the comment period concludes on the RFI, information on offshore wind development in the Gulf is expected to [...]

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Biden Administration Advances California Offshore Wind Development

On May 25, 2021, the Biden Administration announced an agreement to lease almost 400 miles off California’s northern and central coasts for offshore wind development. The announcement expands on the recent approval of the first major offshore wind project in US waters. In an effort to decarbonize US power generation, the administration noted, “These initial areas for offshore wind development in the Pacific Ocean could bring up to 4.6 gigawatts of clean energy to the grid, enough to power 1.6 million American homes.”

Furthering the Biden Administration’s “whole-of-government approach” to clean energy, the US Department of Interior in connection with the US Department of Defense identified an area northwest of Morro Bay that will support three gigawatts of offshore wind. The Humboldt Call Area is also being considered as a potential offshore wind location, which would bring 4.6 gigawatts of energy to California. The Department of Defense played a significant role in identifying areas for offshore wind development, as they take part in significant training and operations off the coast of California that are essential to national security. Both the Department of Defense and Department of Interior plan to work closely together to ensure protection of military operations while pursuing new domestic clean energy resources.

To support this development in the deep Pacific Coast waters, new floating offshore wind technology will be deployed. The US Department of Energy (DOE) has invested more than $100 million in researching, developing and demonstrating floating offshore wind technology. Floating turbine technology will likely be a prime candidate for DOE Loan Programs Office support because it is (1) large enough in scale, (2) has a long lead time to develop and (3) is not commercially scalable in the same way as offshore technology that utilizes bottom anchoring. Lenders will have questions about the technology and having that guaranty could significantly aid project financing.

Ahead of yesterday’s announcement, California invested millions into its budget for environmental needs, including funding port upgrades and power lines that will carry electricity to California homes. We expect further developments in California from a legislative perspective to further offshore development.




Why 2030 is the New 2050 after the Leaders Climate Summit and What President Biden’s Accelerated Transition to a Sustainable Economy Means for Renewables Developers, Investors and Corporates

2030 is the new 2050 as US President Joe Biden has officially set a new goal for fighting climate change over the next decade in the United States. At the Leaders Climate Summit (the Summit) on Earth Day, he announced that America would aim to cut its greenhouse gas emissions at least 50% below its 2005 levels by 2030. If successful, this transition would lead to a very different America and would affect virtually every corner of the nation’s economy, including the way Americans get to work, the sources from which we heat and cool our homes, the manner in which we operate our factories, the business models driving our corporations and the economic factors driving our banking and investment industries. The effectiveness of this transition lies in the administration’s ability to pull on two historically powerful levers: Tax policy and infrastructure funding. However, tax policy will call upon multiple sublevers, such as increased tax rates, expanded tax credits, refundability, carbon capture, offshore wind, storage, transmission and infrastructure investment. All of this will be bolstered by the American corporate sector’s insatiable appetite for environmental, sustainability and governance (ESG) goal investment.

QUICK TAKEAWAYS

There were six key announcements at the Summit for renewables developers, investors and corporates to take note:

  1. The United States’ commitment to reduce its greenhouse gas emissions by 50% – 52% below its 2005 emissions levels by 2030
  2. The United States’ economy to reach net-zero emissions by no later than 2050
  3. The United States to double the annual climate-related financing it provides to developing countries by 2024
  4. The United States to spend $15 billion to install 500,000 electric vehicle charging stations along roads, parking lots and apartment buildings
  5. A national goal to cut the price of solar and battery cell prices in half
  6. A national goal to reduce the cost of hydrogen energy by 80%

President Biden’s goals are ambitious. It is clear from the history of renewable incentives in the United States as well as current developments that moving forward, the green agenda will predominately rely on two primary levers being pulled at the federal level: Tax policy and infrastructure funding. The federal tax levers mentioned above will not be pulled in a vacuum. Instead, they will be pulled in the midst of a tectonic shift among individual investors that now demand that institutional investors and corporations begin to create and meet ESG goals as individual customers are beginning to take a corporation’s climate goals and footprint into account when making purchasing decisions.

As a result, we discuss the following areas in greater detail below:

  1. Tax policy
    1. increased tax rates
    2. expanded tax credits
    3. refundability
    4. carbon capture
    5. offshore wind
    6. storage
    7. transmission
  2. Infrastructure bill
  3. ESG environment

DEEPER DIVE: BREAKING DOWN EACH LEVER AS WELL AS ITS OPPORTUNITIES AND CHALLENGES

  1. Tax Policy: The consistent message from the Biden Administration, at the Summit and elsewhere, makes clear that tax policy will likely play a significant role in the administration’s ambitious climate agenda. At [...]

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Senate Democrats Propose Overhaul of Clean Energy Incentives

US Senate Finance Committee Chairman Ron Wyden (D-OR) introduced the Clean Energy for America Act (the Act), along with two dozen Democratic co-sponsors, on April 21, 2021. The Act will likely be a starting point for the Biden administration tax proposals intended to limit carbon emissions. The Act would change the current system for incentives for the renewable energy industry to a technology-neutral approach for generation that is carbon free or has net negative carbon emissions. The Act would also provide tax incentives for qualifying improvements in transmission assets and stand-alone energy storage with the aim of improving reliability of the transmission grid. Instead of requiring that taxpayers who qualify for the clean energy incentives have current or prior tax liabilities, the Act would create a new direct pay option allowing for refunds of the tax credits.

The Act would replace the current renewable energy incentives with a new clean electricity production and investment credit, which would allow taxpayers to choose between a 30% investment tax credit (ITC) or a production tax credit (PTC) equal to 2.5 cents per kilowatt hour. The credit would apply to new construction of and certain improvements to existing facilities with zero or net negative carbon emissions placed in service after December 31, 2022. The Act would phase out the current system of credits for specific technologies. To provide time for transition relief and for coordination between the US Department of the Treasury (Treasury) and Environmental Protection Agency (EPA), the Act extends current expiring clean energy provisions through December 31, 2022.

The Secretary of Treasury, in consultation with the Administrator of the EPA shall establish greenhouse gas emissions rates for types or categories of facilities which qualify for the credits. To incentivize additional emissions reductions from existing fossil fuel power plants and industrial sources, the Section 45Q tax credit would be extended until the power and industrial sectors meet emissions goals. The Act would modify the qualifying capture thresholds to require that a minimum percentage of emissions are captured. Once certain emissions targets are met—namely, a reduction in emissions for the electric power sector to 75% below 2021 levels—the incentives will phase out over five years.

Qualifying transmission grid improvements are also eligible for the 30% ITC including standalone energy storage property. Storage technologies are not required to be co-located with power plants and include any technologies that can receive, store and provide electricity or energy for conversion to electricity. Transmission property includes transmission lines of 275 kilovolts (kv) or higher, plus any necessary ancillary equipment. Regulated utilities have the option to opt-out of tax normalization requirements for purposes of the grid improvement credit. However, the Act does not include a similar option to opt-out of the tax normalization provisions for other types of qualifying facilities, such as solar or wind projects.

Under the Act, investments qualifying for the clean emission investment credit, grid credit or energy storage property in qualifying low-income areas qualify for higher credit rates. The Act also includes new provisions requiring [...]

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Key Takeaways: SPACs and How to Plug into the Opportunities They Present in Renewable Energy and Green Infrastructure

On April 14, McDermott Will & Emery partners Tom Conaghan and Carl Fleming and Nicole Neeman Brady, CEO and director of the renewable energy SPAC, Sustainable Development Acquisition I Corp, discussed the rise of special purpose acquisition companies (SPACs), the opportunities they present in renewable energy and in the transition to green infrastructure and the complex legal and business challenges these vehicles present.

Below are key takeaways from the webinar:

  1. There has been an increase in SPAC activities in recent years, and this presents an opportunity for sponsors, investors and private companies. Each stakeholder has distinct advantages for entering into a SPAC transaction.
  2. Sponsors are able to take advantage of the industry experience they already have, including in the capital markets sector and the specific industry sector of the target company. Investors have downside protection with the money they invest, which may be refunded at a later date. Investors are also eligible to purchase warrants in connection with SPAC initial public offerings (IPOs), offering additional protection. Private companies are offered access to capital markets without having to undergo a traditional IPO, which is a burdensome process in complying with various regulations and underwriter requirements.
  3. Various SPACs consider different factors in making investments. Sustainable Development Acquisition I Corp, for example, looks for sustainability goals that balance profit and purpose as a B Corp. and prioritizes companies that have expertise and goals that are consistent with sustainable growth.
  4. Private companies that are hoping to do a SPAC transaction should prepare in advance to make sure it is ready to comply with public company laws and regulations. These rules are complex and will require long lead times before the company is in a position to be regulated as a public company. In particular, preparation of financial statements can be challenging to prepare. As there is an 18- to 24-month deadline for SPACs, private companies would benefit from getting a head start in preparation.
  5. The US Securities and Exchange Commission (SEC) has recently been more involved with IPOs conducted through SPACs, including publishing a primer on SPAC transactions and a statement on whether warrants should be treated as equity or liability for accounting purposes. In light of such recent developments from the SEC, all stakeholders should exercise more caution in performing SPAC transactions and avoid cutting corners.

To access past webinars in this series and to begin receiving Energy updates, including invitations to the webinar series, please click here.




The Energy Market in 2021: From Crisis to Opportunity | Tax Credit for Carbon Capture Products

The energy market has undergone significant change in the past 12 months, with even more on the horizon. Our webinar series explores how these changes have shaped—and will continue to impact—the energy industry, including discussions of what’s to come.

Our latest webinar featured FTI Consulting’s Ken Ditzel, Senior Managing Director and Fengrong Li, Managing Director, who are both in the Economic and Financial Consulting Practice.


Below are key takeaways from the webinar:

  1. The carbon capture and sequestration tax credit under section 45Q is an important source of predictable revenue for carbon capture projects. The section 45Q credit was substantially expanded in 2018 and is worth up to $50 per metric ton for carbon permanently sequestered and up to $35 per metric ton for carbon used as a tertiary injectant in connection with an enhanced oil or natural gas recovery project. Internal Revenue Service (IRS) guidance released last year and final regulations promulgated in January have provided more certainty for the market to move forward with carbon capture projects and claim the enhanced section 45Q credit.
  2. There are currently about 32 strong contender carbon capture projects in the US market. About half of the carbon capture projects are traditional power generation and another third of projects are ethanol projects. Deep saline formations represent almost 90% of carbon sequestration storage capacity with enhanced oil recovery representing most of the remaining storage capacity.
  3. Tax equity investors—including banks, financial institutions and energy companies—are closely monitoring and have expressed interest in carbon capture projects. To date, there are no closed transactions that include tax equity structures. Rather, project sponsors have claimed the section 45Q credit against their own tax liabilities. The recapture lookback period was reduced from five to three years in the final section 45Q regulations, which may encourage tax equity investments.

To access past webinars in this series and to begin receiving Energy updates, including invitations to the webinar series, please click here.




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