2015 – Page 5 – Global Power Law & Policy

Energy Storage Council Conference

Mar 13 2015

K&L Gates is pleased to announce that partner Jenny Mee will be a presenter at the inaugural Energy Storage Council Conference, on May 13-14, in Melbourne, Australia. This informative and comprehensive two day conference will explore important issues relating to the advancement of energy storage solutions in Australia and globally, including market developments and trends, technology integration, policy and industry case studies.

Click here for full event details.

A Bright Outlook for Solar Energy in South Carolina

Mar 12 2015

South Carolina’s major utilities recently submitted their proposed distributed energy resource programs to the South Carolina Public Service Commission (PSC) for approval. The proposals come in the wake of the South Carolina Distributed Energy Resource Act of 2014 (commonly referred to as Act 236), which went into effect on June 2, 2014. Applauded as landmark legislation resulting from collaboration among utilities, electric cooperatives, environmental advocates, and solar businesses, Act 236 paves the way for the development of solar power and other renewable energy sources in South Carolina. Read more here.

Regulatory implications of new products and services in the Australian electricity market

Mar 03 2015

The Energy Market Reform Working Group in Australia released a consultation paper at the end of 2014 regarding the regulatory implications of new products and services in the national electricity market.

New products and services include energy supply from generation facilities installed at the customer’s premises (which may be combined with energy storage), products and services relating to demand management and energy information and advice.

The paper outlines some of the potential regulatory implications of these new products and services. It seeks feedback from stakeholders as to the types of new products and services which may be offered to small customers and whether regulatory reforms may be necessary – from either a consumer protection or a power system operations perspective.

Stakeholders are invited to make submissions on the issues raised by the consultation paper by close of business on 20 March 2015. Written submissions can be sent by email to energycouncil@industry.gov.au. Alternatively, please contact us and we would be happy to assist you in preparing a submission.

To read more about this consultation paper and the key findings and issues identified, please click here.

Australian Government Announces First Emissions Reduction Fund Auction

Feb 19 2015

The Australian Government recently announced that the first Emissions Reduction Fund auction will occur in April 2015. The Emissions Reduction Fund provides proponents of carbon abatement projects with opportunities to enter into contracts with the Government, via the Clean Energy Regulator, under which the proponent receives payment for undertaking carbon abatement. In the reverse auction process project proponents will submit sealed bids for the Clean Energy Regulator to purchase (in the form of Australian carbon credit units) emissions reductions generated by their projects.

Successful auction bids will be those with the lowest price, and successful proponents will then enter into Australian Carbon Contracts with the Clean Energy Regulator. The first auction will be open from 9.00am (Australian Eastern Standard Time) on 15 April 2015 and close at 5.00pm on 16 April 2015 (Australian Eastern Standard Time). The auction will occur through the online bidding platform Austender.
Read More

The Australian Energy Regulator is considering its approach to regulating innovative energy selling business models.

Feb 12 2015

The Australian Energy Regulator (AER) is currently considering its approach to regulating new and innovative energy selling business models, for example business models which incorporate electricity storage, under the National Energy Retail Law.

The AER released an issues paper on this topic at the end of 2014 and has sought feedback on the issues paper from interested stakeholders. The AER has indicated that it will publish its final position in the second quarter of 2015. Read More

FERC Issues Proposed Policy Statement Clarifying the Use of Hold Harmless Commitments in Section 203 Applications

Feb 04 2015

On January 22, 2015, the Federal Energy Regulatory Commission (“Commission”) issued a Proposed Policy Statement on Hold Harmless Commitments (“Policy Statement”), in which it proposed changes to the basis on which it will review transactions subject to Section 203 of the Federal Power Act (“FPA”).[1] Specifically, the Policy Statement proposes clarifications to the rules regarding the identification of transaction-related costs and use of hold harmless commitments, which are often included in Section 203 applications for transactions involving traditional franchised public utilities as a means of demonstrating that a proposed transaction will not adversely affect ratepayers. As part of a hold harmless commitment, an applicant typically commits not to seek recovery of transaction-related costs in Commission-jurisdictional rates unless the applicant can demonstrate that the costs are off-set by transaction-related savings. The Commission must ensure that a proposed transaction does not have an adverse impact on jurisdictional rates and has traditionally allowed applicants to use a hold harmless commitment to satisfy this prong of the Commission’s analysis. Read More

Department of Commerce Issues Final Antidumping and Countervailing Duty Determinations on Crystalline Silicon PV Products from China and Radically Reinterprets the Scope of the Investigations

Jan 20 2015

As we reported in June 2014, the U.S. Department of Commerce (the “Department”) announced that certain crystalline silicon photovoltaic (“CSPV”) products from the People’s Republic of China (“PRC” or “China”) had been produced by taking advantage of subsidies, and that such products could therefore be subjected to countervailing duties when imported into the United States (http://www.globalpowerlawandpolicy.com/2014/06/department-of-commerce-issues-preliminary-countervailing-duty-determination-on-crystalline-solar-pv-products-from-china/). Read More

K&L Gates Advises Boralex Inc. on €280 Million Acquisition of Enel Green Power France, Making Boralex the Largest Independent Wind Power Producer in France

Jan 20 2015

New York – A cross-border team of lawyers from global law firm K&L Gates LLP has advised Québec-based Boralex Inc. (TSX: BLX) on its acquisition of French wind farm owner and operator Enel Green Power France SAS for a total net consideration of approximately €280 million in cash. The transaction makes Boralex the largest independent wind power producer in France, and the third largest onshore wind player, behind only the two incumbent French utilities.

The K&L Gates team advising Boralex on the acquisition and on the related approximately €175 million project financing was led by New York corporate partners Sandy Feldman and Holly Hatfield. Other members of the team include New York tax partner Adam Tejeda and corporate associate Justin Purtle; Paris corporate partners Olivia Lê Horovitz and Caroline Ledoux, tax partner Bertrand Dussert, real estate counsel Joanna Klat, corporate associates François Lan, Nawal Sabsibo, and Alexandre Brossier, and labor and employment associate Julie Bouchard; and Frankfurt finance partners Matthias Grund and Bastian Bongertz and finance associate Dominik Pauly.

K&L Gates regularly represents Boralex in both the U.S. and Europe, including in previous transactions in France such as the 2012 acquisitions of French wind company interests from both U.S.-based AES Corporation and French company InnoVent SAS.

See original post here.

IRS Releases New Guidance on Small Wind Turbine Projects

Jan 15 2015

On January 13, 2015,, the Internal Revenue Service (IRS) released Notice 2015-4, which provides new guidance on the small wind energy project credit under Section 48 of the Internal Revenue Code (IRC). In particular, the guidance provides that small wind energy projects must meet certain performance and quality standards to qualify for the credit. The official notice is scheduled to be published on January 26 in Internal Revenue Bulletin 2015-4.

Notice 2015-4 provides that Section 48-eligible property must use a wind turbine that has a nameplate capacity of not more than 100 kW and meets the performance and quality standards as set forth in either:

(1) American Wind Energy Association (AWEA) Small Wind Turbine Performance and Safety Standard 9.1-2009; or

(2) International Electrotechnical Commission (IEC) 61400-1, 61400-12, and 61400-11.

Small wind turbines must meet the AWEA or IEC standards that are in effect at the time of acquisition of the turbine.

The manufacturer of the turbine may provide a taxpayer with a certification that the manufacturer’s turbine meets one of the standards listed above, and taxpayers may rely on such certifications when claiming the credit under Section 48. However, manufacturers should be aware that issuing erroneous certifications or failing to satisfy certain documentation requirements could trigger penalties under IRC Section 7206 (fraud and making false statements) or IRC Section 6701 (aiding and abetting an understatement of tax liability).

Notice 2015-4 is effective for small wind energy property acquired or placed in service after January 26, 2015.

Private Company M&A: Post-Closing Purchase Price Adjustment Provisions: New Decision Holds Some Common Mechanics Unenforceable

Jan 08 2015

In private company acquisitions, it is common for the buyer to require that a portion of the merger consideration be set aside in escrow as an accessible source of funds to cover the buyer’s post-closing indemnification claims relating to breaches of the target company’s representations and warranties and other specified contingencies. However, the buyer might demand additional protection if its losses under such claims exceed the escrow amount by insisting upon collection of the full loss from the target company’s stockholders. If the losses are significant and the indemnification obligations are uncapped or have a sufficiently high cap, this could require the target company’s stockholders to return their full pro rata share of the merger consideration to the buyer.

To read the full alert, click here.

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