By: Clare Frederick and Jason Engel
According to the joint EPO-IEA report summarizing patent trends in the hydrogen economy (summarized here), technologies related to storage, distribution, and transportation of hydrogen are among the most critical challenges for large-scale deployment. Standardized infrastructure for hydrogen trade is essential to allow the market to function and flow.
Read MoreBy: Kimberly B. Frank, Ruta K. Skucas, Maria C. Faconti, and Theodore L. Kornobis
On 22 May 2023, the Federal Energy Regulatory Commission (FERC) issued two orders approving stipulation and consent agreements that resolve enforcement investigations by FERC’s Office of Enforcement (FERC Enforcement) of two demand response providers, Leapfrog Power, Inc. (Leapfrog) and OhmConnect, Inc. (OhmConnect), regarding their participation in the California Independent System Operator (CAISO) market.1 FERC Enforcement’s focus in both cases concerned whether the companies violated a provision of the CAISO tariff requiring market participants to have a reasonable expectation that they could fulfill the bids they submitted.
Read MoreIn August Congress passed the Inflation Reduction Act, a landmark climate and clean energy bill. Six months later, we’re asking: where are we now?
Read MoreOn June 6, 2022, President Biden issued a declaration of emergency and authorization for temporary extensions of time and duty-free importation of solar cells and modules from SE Asia under 19 USC 1318(a). The basis for the declaration of emergency is the need to ensure electric resource adequacy and address the unavailability of solar cells and modules that is jeopardizing new, planned solar installations.
In short, there is an emergency because the US is unable to import solar modules in sufficient quantities to ensure solar capacity additions necessary to achieve US climate and clean energy goals, ensure electricity grid resource adequacy, and help combat rising energy price.
Statutory authority. The statutory authority cited in the declaration (19 USC 1318(a)) is a catch-all provision that allows the president to authorize CBP to permit duty free entry of certain items if the president declares the existence of an emergency.
Specifically, the statute provides for “the importation free of duty of food, clothing, and medical, surgical, and other supplies for use in emergency relief work.” Expect arguments from stakeholders that solar products don’t fit within the list, but this law is about as good as gets if you want to find a way to stop the application of antidumping and/or countervailing duties (“ADCVDs”).
Here’s how this is going to work—
New Commerce regulation. Commerce likely will publish an interim final regulation – before the date of the preliminary determination in the solar circumvention proceedings – that will allow Commerce to instruct CBP to not collect duties on cells/modules from the four SE Asian countries for a period of 24 months (starting from the date of the proclamation). The new regulation will not apply to the current ADCVDs on imports of Chinese or Taiwanese solar cells/modules.
Current regulations (19 CFR Part 358) set forth the procedures for importation of supplies for use in emergency relief work free of ADCVDs, as authorized under 19 USC 1318(a). These regulations were published in 2006 (71 FR 63230 (October 30, 2006)).
Commerce will continue with the circumvention inquiries. Commerce officials put out a press release on June 6 clarifying that the agency will continue the ongoing circumvention inquiries. The release states that “whatever conclusion Commerce reaches when the [circumvention] investigation concludes will apply once this short-term emergency period [24 months] is over. In accordance with the President’s declaration, no solar cells or modules imported from Cambodia, Malaysia, Thailand, and Vietnam will be subject to new antidumping or countervailing duties during the period of the emergency. Existing duties on Chinese and Taiwanese imports of solar cells and modules remain in effect.”
Commerce could still go negative at the prelim or final. Commerce is proceeding with the circumvention inquiries related to imports of cells/modules from the four SE Asian countries. Commerce’s preliminary determination is due no later than August 29, 2022; Commerce’s final determination is due by January 26, 2023. Commerce could still issue a negative determination at the prelim or final stage of the circumvention inquiries.
What happens if Commerce goes affirmative? If Commerce goes affirmative, per its regulations it must direct CBP to suspend liquidation and require a cash deposit of estimated duties. Pursuant to the emergency declaration and new regulation, Commerce would have the authority to not follow its regulations. In other words, Commerce would instruct CBP to not suspend liquidation or collect cash deposits for imports of solar cells/modules from the four SE Asian countries.
What could go wrong with this plan? Possible risk is that an interested party to the circumvention inquiries (such as the domestic manufacturer that requested the inquiries) will sue on the new regulation and/or Commerce’s application of the current regulation (19 CFR Part 358), arguing duty free treatment of solar cells/modules is beyond the scope of products covered under the statute (19 USC 1318(a)). The litigation could take at least a couple years to play out.
If the plaintiff were to prevail (and assuming an affirmative final regarding circumvention), suspension of liquidation and estimated duty payments would kick in. It is unclear whether suspension/duty payments would be retroactive (ie, to date of affirmative preliminary determination) or prospective (eg, from the effective date of the final court decision). The latter seems more likely.
The bottom line. Implementation of the Declaration should provide a two year window during which developers and other solar system providers should be able to import panels from Cambodia, Malaysia, Thailand and Vietnam without the risk of retroactive tariffs.
Relevant documents
By Kathleen Nicholas and Tim Peckinpaugh
Today, the House Energy and Commerce Committee convened its eleventh hearing in its “Powering America” series. The series goal is to examine all aspects of the U.S. electricity sector, and today the focus was on energy storage. Members on both sides of the political divide agreed utilization of battery and other storage systems presents an opportunity to better optimize the country’s electricity system, and help bolster vulnerable places like Puerto Rico and rural areas.
The witnesses today were:
A variety of topics were broached during the hearing, including ways the federal government can be helpful to the storage industry and how large-scale storage can be applied to the grid in ways that increase resiliency and reliability, and are beneficial to ratepayers.
You can view an archived video of the webcast here.
K&L Gates is pleased to invite you to our September 20th Distinguished Speaker Program breakfast featuring A. Stanley Meiburg, Acting Deputy Administrator of the Environmental Protection Agency (EPA).
Meiburg spent 18 years as Deputy Regional Administrator of EPA’s Region 4 office in Atlanta, Georgia, following service as Deputy Regional Administrator in EPA’s Region 6 office in Dallas, Texas. He is the second person in EPA history to serve as Deputy Regional Administrator in more than one region.
From 1990 to 1995, Meiburg was Director of Region 6’s Air, Pesticides and Toxics Division. From 1985 to 1990, he was Director of the Planning and Management Staff of EPA’s Office of Air Quality Planning and Standards in Durham, North Carolina, leading work on the 1990 Clean Air Act Amendments as well as planning and budgeting for the air program.
Meiburg joined EPA in 1977, serving in a variety of positions in Washington, D.C., Research Triangle Park, N.C., and Dallas, Texas, before coming to Atlanta. Meiburg holds a B.A. degree from Wake Forest University and M.A. and Ph.D. degrees in political science from The Johns Hopkins University.
RSVP:
To attend, please email Kristen Hughes or call +1.202.661.3795 by 5:00 p.m. EDT, Monday, September 19.
This event is not a fundraiser. To maintain the informality of this event, it is strictly off the record.
K&L Gates, SovereigNET, The Fletcher School’s Network for Sovereign Wealth and Global Capital, and the International Forum of Sovereign Wealth Funds are pleased to announce our fourth symposium on global infrastructure.
The central theme of the symposium will be Bridging the Public-Private Divide through Pooled Investment Platforms. The discussion will focus on the design of innovative financing platforms to narrow the global infrastructure investment gap.
Gathering representatives from the World Bank and the institutional investor community together with policy makers, development banks, service providers, academics, and public sector partners, the symposium will explore the role of investment fund structures – sovereign, multilateral and private – in mobilizing capital in scale to finance critical infrastructure needs in both developed and emerging economies.
The symposium will be organized into four discussion panels and several interactive lunch breakouts. All sessions will feature speakers who are actively involved in sponsoring, funding, managing, and governing global infrastructure and strategic investment funds.
Keynote Speaker: Adrian Orr, Chief Executive Officer, New Zealand Superannuation Fund; Chair of International Forum of Sovereign Wealth Funds
To RSVP for this program, please click here.
We invite you to join us for Infocast’s Corporate Renewables 2016 program on September26-28, 2016 in Washington, D.C. Portland partners Teresa A. Hill and William H. Holmes will be co-sponsors, along with faculty from Renewable Choice Energy, of a one-day, interactive Corporate Renewables 101 workshop on Monday, September 26. Topics discussed will include developing a procurement strategy, offsite renewable energy options, and executing on your renewable energy strategy. The workshop will help corporations, universities, non-profits and other non-utility purchasers of renewable energy build a strong foundation in renewable energy procurement.
To read the full alert, click here.
By Craig Wilson, Cliff Rothenstein, Sandra Safro, Ankur Tohan, David Wochner and Michael L. O’Neill
On August 2, 2016, the White House Council on Environmental Quality (CEQ) published a final version of its guidance to federal agencies requiring the consideration of greenhouse gas (GHG) emissions and effects on climate change when evaluating potential impacts of a federal action under the National Environmental Policy Act (NEPA). CEQ explains that it does not expect the Final Guidance to be applied to federal actions for which a NEPA review has been concluded or actions for which a final environmental impact statement or environmental assessment has been issued. As discussed in greater detail below, although the Final Guidance is not legally binding on federal agencies, various aspects of the document have the potential to delay permitting timelines as agencies determine whether and how to incorporate the Final Guidance into their reviews and very likely will add to the level of review that agencies undertake.
To read the full alert, click here.
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