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renewable energy

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

by Carl J. Fleming, Edward Zaelke, Heather Cooper, Philip Tingle, Elle Hayes and Seth B. Doughty | Apr 28, 2021 | Project Development and Finance, Renewables, Tax, U.S. Congress

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:

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

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

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

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

by Philip Tingle, Heather Cooper, Carl J. Fleming, Elle Hayes, Brian Moore and McDermott Will & Emery | Apr 23, 2021 | Project Development and Finance, Renewables, Tax, U.S. Congress

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

by Tom Conaghan and Carl J. Fleming | Apr 15, 2021 | Environmental, Project Development and Finance, Renewables

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:

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.
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.
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.
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.
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.

Seeing Beyond the Wall of Capital

by Christopher Gladbach and Seth B. Doughty | Nov 4, 2020 | Articles, Power Markets, Project Development and Finance, Renewables

In the United States, despite the continued spread of COVID-19 and the uneven approach to reopening, where that is even occurring, deals in the renewable energy sector are happening.

In a recent article for Project Finance International, Chris Gladbach and Seth Doughty discussed the state of the US market for renewable power projects, including how investments (and investment styles) have changed, new technologies and more.

Access the article.

Republished with permission from Refinitiv Project Finance International.

Six Takeaways: Developing and Financing Offshore Wind – Challenges and Opportunities

by Christopher Gladbach and Edward Zaelke | Sep 18, 2020 | Power Markets, Renewables

McDermott hosted James McGinnis, managing director at PJ Solomon, and Salvo Vitale, country manager at US Wind, on September 17 for an interactive discussion on the US offshore wind market.

Below are key takeaways from this week’s webinar.

1. The challenges facing the US offshore wind industry are similar to challenges that are faced with any newly-emerging industry: keeping the large number of stakeholders satisfied and maintaining support from the general public, which will need a concurrence of private interests towards common goals. Political winds in particular are subject to change, and therefore should be carefully monitored. Policy ultimately aligning with industry to carry the industry forward will be critical.

2. Managing timing expectations can be particularly important. As a new industry, logistics and development processes are continuing to develop and there may be unexpected issues that influence timing (including logistical, technical and policy issues) that in turn affect stakeholders in various ways. To the extent possible, the industry should be prepared for these unknown risks.

3. Availability of tax equity will be critical and there are open questions as to whether that capacity will be available to support the large amount of capital that will be needed. Oil Majors and Strategic players will of course be advantaged in the near-term given these challenges. In the medium term, additional pools of tax-advantaged capital will need to be identified to fill the gap (or policy solutions will need to be employed to address this issue).

4. As the industry matures certain players such as certain equipment suppliers or service providers will likely become more prominent and sometimes the only reliable resource for such product or service. However, there are players in the market that may not be known in the US but are participants in the global market. The industry should continue to seek out other suppliers or service providers that are outside its comfort zone.

5. The enormity of capital needed to support all of the offshore development cannot be over-emphasized. Significant opportunities are and will become available for private equity investors to participate in a prudent and meaningful way (and to obtain outsized returns).

6. While some uncertainties and risks still exist in the US offshore wind industry, recent developments indicate that there is interest in the market and capital that is available to be deployed. As more projects move forward and permitting and other obstacles get resolved, barriers to additional capital deployment will be lowered.

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Six Takeaways from Wind Turbine Vendor Update: A Conversation with GE Renewable Energy

by Edward Zaelke, Lloyd J. MacNeil and Seth B. Doughty | Jul 31, 2020 | Power Markets, Project Development and Finance, Renewables

McDermott hosted GE Renewable Energy North America Services Sales Leader Ben Stafford, Commercial Director of Onshore Wind for the North Region Rob Bienick and Commercial Director of Onshore Wind for the West Region Matt Lynch on July 30 for a discussion about COVID-19’s impact to turbine supply chain and construction, the effects of the Production Tax Credit (PTC) safe harbor extension, and how GE is preparing for 2021 and beyond.

Below are key takeaways from this week’s webinar.

1. COVID-19 continues to impact both supply chain and construction – requiring more communication with customers, subcontractors, and within GE, but products continue to be manufactured, delivered, installed, and maintained.

2. The large wind project pipeline in the United States (even prior to the PTC extension) shows that there remains great optimism for the wind industry, despite the current PTC phase-out schedule.

3. The repowering market for wind is growing, providing many benefits including renewed PTCs, increased energy yield, increased reliability, lowered maintenance cost, and optimization of existing site infrastructure over greenfield development.

4. The trend toward longer blades continues, but logistics remain the largest hurdle to wider deployment.

5. Service agreements are trending towards longer terms with greater flexibility to meet customer needs, including opportunities to align interests with revenue and risk sharing terms.

6. GE is available to support both new and repowering projects with available safe-harbor equipment.

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Key Takeaways: Achieving Low-Cost Decarbonization Through Power Markets, Infrastructure and Grid Operations

by Jacob Hollinger and Edward Zaelke | Jul 21, 2020 | FERC, Power Markets, Project Development and Finance, Renewables

McDermott hosted Rob Gramlich, Founder and President of Grid Strategies, LLC, on July 16 for a discussion of low-cost decarbonization strategies for the electricity sector. We framed the discussion around 2020 US Presidential Candidate Joe Biden’s recently announced goal of getting to zero carbon emissions from the electricity grid by 2035.

Here are three takeaways from our conversation:

1. Three Areas of Change. Rob highlighted three areas where improvements can be made to substantially increase the deployment of wind and solar resources: Power markets, grid infrastructure and grid operations. With respect to power markets, Rob emphasized that regional transmission organizations (RTOs) can play a bigger role in achieving very fast dispatch over large geographic areas. With respect to infrastructure, he emphasized that new transmission lines will be required to reach the best wind and solar resources, but also that many of those new lines can be built on existing rights-of-way. And with respect to grid operations, he emphasized that there are technologies and operating practices that can help us improve the efficiency of the grid.

2. Flexible FERC. Rob suggested that under a new Democratic administration, FERC would likely prioritize flexibility in pricing design and in FERC’s interactions with states. He emphasized the importance of a flexible design for the pricing of “capacity” services and suggested that a Biden administration would likely be supportive of state level efforts to promote renewable energy.

3. Transmission Costs vs. Electricity Costs. Rob suggested that over the next ten years transmission costs will become a greater share of the overall cost of electricity, but that building out transmission would help bring that overall cost down.

Five Takeaways: What’s New in Energy Private Equity? Trends and Developments in a Shifting Investment Landscape

by Edward Zaelke, Christopher Gladbach and Seth B. Doughty | Jun 26, 2020 | Power Markets

McDermott recently hosted Andrew Ellenbogen of EIG Partners and Jeff Hunter of Apollo Global Management for a lively discussion about the trends and developments in today’s shifting investment landscape.

Below are key takeaways from this week’s webinar.

1. The most impactful changes in energy investment over the last decade have been the drop in natural gas prices, the decrease in the cost of capital for renewable investments and the increase in renewable capacity factors (and a dramatic decrease in equipment pricing).

2. As the energy market has become crowded for traditional operating assets, some investors are seeking opportunities in non-traditional spaces, such as investing in non-traditional technologies (such as solar plus storage or offshore wind) or investing in service providers or construction companies.

3. In search of returns, some investors are continuing to take a greater amount of merchant risk or development risk than they previously would have accepted, and some investors are investing in platforms rather than projects.

4. There are smart investments in power to be made in areas with higher barriers to entry (if you can make reasonable projections on the regulatory environment). For example, California peaking resources have provided interesting opportunities in recent years. Larger returns come from taking thoughtful positions on the market and taking carefully analyzed risks.

5. Prudent investors pay attention to intrinsic risks of power investments, including risks that the market may not be pricing correctly. A successful investment in power assets requires realistic (and conservative) estimates of both basis risk and the merchant tail (and a view on back-end electricity prices).

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Key Takeaways | Developments in the PJM Market

by David G. Tewksbury, Neil Levy and Stephanie Lim | Jun 18, 2020 | FERC, Renewables

On June 18, 2020, McDermott partners Neil Levy and David Tewksbury were joined by Paul M. Sotkiewicz, PhD, of E-Cubed Policy Associates, LLC, to discuss recent developments in the markets operated by PJM Interconnection (PJM).

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Below are key takeaways from this week’s webinar.

In December 2019, the US Federal Energy Regulatory Commission (FERC) issued an order requiring PJM to expand its Minimum Offer Price Rule (MOPR). Under the expanded MOPR, a capacity resource that receives a state subsidy will be subject to a minimum offer floor price in PJM’s capacity auctions, unless it is entitled to one of the exemptions set forth by FERC.
The expanded MOPR is not expected to have significant impacts on the results of PJM’s capacity auctions, particularly in the near term. There are at least three reasons for this: First, there are various exemptions to the expanded MOPR, including, but not limited to, exemptions for existing renewable resources, as well as for resources used for self-supply. Second, default offer floors are determined based on the technology of the resource, and certain of these default offer floor prices are low enough to allow resources to continue to clear in PJM’s capacity auctions. Third, and most importantly, a resource can submit offers below the default minimum offer floor price if it can demonstrate that its costs are below the default price.
FERC acted relatively quickly on requests for rehearing of its December 2019 order, and issued an order on rehearing in April 2020. Petitions for review of FERC’s orders are pending in the US Court of Appeals for the Seventh Circuit and the US Court of Appeals for the District of Columbia Circuit, and are expected to be consolidated in the Seventh Circuit.
PJM has made two compliance filings in response to the December 2019 and April 2020 orders. Given the speed with which FERC acted on rehearing, there is the possibility that FERC could also act quickly on the compliance filings. PJM has indicated that it intends to hold the Base Residual Auction for 2022/2023, which was originally scheduled to take place in May 2019, six and a half months after FERC issued an order accepting the compliance filings.
Various states are considering opting out of PJM’s capacity markets by using the Fixed Resource Requirement (FRR) alternative. The FRR alternative could give state regulators more control over the mix of resources in the state, but has historically resulted in higher costs for ratepayers in the FRR states.
FERC also recently approved modifications to PJM’s rules to provide additional compensation for operating reserves. At the same time, FERC also required PJM to adopt a forward-looking, rather than historical, methodology to calculate the energy and ancillary services offset (E&AS Offset) that is used in the capacity market. Notwithstanding the expected increase in energy and ancillary services revenues as a result of the operating reserves rule change, using a forward-looking methodology may not result in significant changes to the E&AS Offset [...]

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Six Takeaways: Utilization and Structuring for Section 45Q Carbon Capture Credits

by Philip Tingle, Heather Cooper, Jacob Hollinger and Brian Moore | Jun 12, 2020 | Environmental, Natural Gas, Project Development and Finance, Renewables, Tax

On Thursday, June 11, McDermott partners Phil Tingle, Heather Cooper and Jacob Hollinger were joined by Ken Ditzel, managing director at FTI Consulting, to discuss their insights into the proposed Section 45Q carbon capture and sequestration credit regulations.

The Treasury Department and IRS recently published proposed regulations implementing the Section 45Q carbon capture and sequestration credit. The regulations clarify some questions about the credit, though many questions remain. For further discussion, see our On The Subject.

Below are six key takeaways from this week’s webinar:

1. Carbon capture projects are likely to be economically important moving forward. Ken Ditzel estimated there are more than 600 economically viable projects, including both secure geological storage at deep saline formations and enhanced oil recovery projects.

2. The proposed regulations provide a compliance pathway for satisfying the reporting requirements. For long-term storage, taxpayers should comply with Subpart RR of the Clean Air Act’s greenhouse gas reporting rule. For enhanced oil recovery projects, taxpayers may choose either Subpart RR or alternative standards developed by the American National Standards Institute (ANSI).

3. Taxpayers can claim the credit if they utilize the captured carbon for a purpose for which a commercial market exists, instead of storing it. Additional guidance is needed to determine what commercial markets the IRS will recognize and how they will go about making those determinations.

4. The proposed regulations offer considerable flexibility to contract with third parties to dispose the captured carbon and to pass the section 45Q credit to the disposing party. Contracts must meet certain procedural requirements, including commercially reasonable terms and not limiting damages to a specified amount.

5. If the captured carbon dioxide leaks, the carbon capture tax credit is subject to recapture by the IRS. The taxpayer who claimed the credit bears the recapture liability, but IRS guidance permits indemnities and insurance for credit recapture.

6. The partnership allocation revenue procedure issued in February 2020 provides flexibility for the section 45Q credit relative to other tax equity structures, by only requiring 50% non-contingent contributions by an investor member. This may make projects easier to finance, especially in light of the other contracting flexibility in the proposed regulations.

Download the key takeaways here.

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