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DISCLAIMER: This blog is published for general information only - it is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our authors, the submission of a comment or question does not create an attorney-client relationship between the Firm and you.

Wednesday
Jul062016

D.C. Circuit Remands BOEM Cape Wind Lease under NEPA and ESA, Punts on MBTA Challenge

The U.S. Court of Appeals for the D.C. Circuit has dealt another setback to the Cape Wind offshore wind power project by holding yesterday in Public Employees for Environmental Responsibilities v. Hopper that the Bureau of Ocean Energy Management (BOEM) and the U.S. Fish and Wildlife Service (USFWS) violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) in approving Cape Wind’s lease on federal land in Nantucket Sound.

However, the Court declined to rule on the more controversial question of whether BOEM’s regulatory approval of Cape Wind violated the Migratory Bird Treaty Act (MBTA) despite the fact that the parties stipulated that operation of the project would result in incidental take of protected migratory birds. The Court also declined to rule on the larger issue of whether the MBTA applies to incidental take at all.  

The D.C. Circuit referenced the 9th Circuit’s recent holding in Protect our Communities Foundation v. Jewell, which rejected the same “novel argument” that the MBTA prohibits federal agencies from authorizing activities that may or will result in prohibited take under the MBTA (or the Bald and Golden Eagle Protection Act), but chose not to engage the question in any substance. Instead, in a lengthy footnote 11, the Court sidestepped project opponents’ MBTA claim based on statements made by BOEM and Cape Wind at oral argument to the effect that Cape Wind would obtain an MBTA permit from USFWS prior to operation of the project. The Court acknowledged that USFWS is currently “considering” whether to adopt regulations that would allow issuance of an MBTA incidental take permit and that there is currently no established process for obtaining such a permit, but was apparently untroubled by those details.

The D.C. Circuit did note without comment that USFWS’s “longstanding position has been that the [MBTA] also applies to harm that occurs incidental to, and which is not the purpose of, an otherwise lawful activity.” The Court did not address the fact that this longstanding USFWS position is inconsistent with the law within the jurisdictions of the Fifth, Eighth and Ninth Circuit Courts of Appeals, which have held that the MBTA only applies to intentional take. The Tenth Circuit and, to a lesser extent, the Second Circuit have gone the other way and upheld the application of the MBTA to incidental take.

It is possible that this circuit split may be resolved before too long by the Supreme Court, but for the time being the D.C. Circuit has decided that it does not want to join the discussion.

And Cape Wind will continue to plod forward, Terminator-like in its apparent willingness and ability to withstand consecutive bludgeonings from opponents, utilities, regulators and the judiciary.  

Friday
Jun242016

Seeking Competition Among the Uncompetitive: Maine PUC Must Define “Competitive” in Biomass Subsidy Proceeding

What makes a competitive bidding process “competitive”? The Maine PUC is currently grappling with this question in Docket No. 2016-00084 in which it is tasked with awarding contracts for up to 80MW of biomass generation. Under a new law, P.L. 2015, ch. 483, the PUC must solicit bids from eligible biomass resources. Lawmakers passed the bill to support Maine’s forest products industry, which has suffered as a result of a string of mill closures in recent years. Under the law, the PUC may enter into “above-market” contracts with biomass generators and pay for the above-market costs from special revenue funds to shield ratepayers from higher energy costs that would result from the contracts. The law is designed to help loggers and other forest service employees that rely on biomass generators, which are struggling to compete against low oil and gas prices.

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Thursday
Jun162016

Maine PUC Opens New Proceeding to Explore Changes to Net Metering Rules

On Tuesday, the PUC opened a new docket (2016-00120) requesting comments from interested stakeholders about the future of net metering (also known as “net energy billing”). In January, CMP notified the Commission that in 2015 net metering resources had exceeded 1% of CMP’s peak demand, triggering PUC review under the rules. The PUC took no action on CMP’s petition while the Legislature debated LD 1649, a bill that would have replaced net metering with the “Standard Solar Buyer” model that emerged from the solar stakeholder process last fall. That bill failed to overcome Governor LePage’s veto at the end of the session. Now the PUC will decide whether to act on its own to make changes to Maine’s net metering rules.

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Friday
May272016

Maine PUC Opens Proceeding to Distribute RGGI Funds to Large Energy Consumers

The Maine Public Utilities Commission recently opened a new docket, 2016-00081, to process refunds to energy intensive manufacturers in Maine out of the fund created by the carbon cap and trade program under the Regional Greenhouse Gas Initiative (RGGI).

Maine is one of nine New England/Mid-Atlantic states that participate in RGGI. Under the program, CO2 is capped in the participating states and fossil-fuel generators in those states are required to purchase emissions allowances to offset their emissions. In Maine, the money raised from the sale of emissions allowances has been used to fund Efficiency Maine, which promotes energy efficiency for Maine business and residential consumers.

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Thursday
May052016

After Solar Bill Fails to Muster Veto-Proof Support, PUC Will Decide Fate of Net Metering 

Last Friday, the Maine House came within two votes of overriding Governor LePage’s veto of LD 1649, a bill that would have substantially increased installed solar capacity in Maine. The Senate had previously voted unanimously to override the veto. The bill would have sought to increase solar capacity nearly tenfold in Maine, from 20 MW to 196 MW in 2021. The bill would have phased out net metering in favor of a system of long-term contracts for rooftop solar and provided similar long-term contracts for community and large-scale solar installations.

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Wednesday
Apr202016

Hughes v. Talen Energy: Supreme Court Strikes Down Maryland Generation Subsidy on Narrow Grounds

On Tuesday, the Supreme Court issued its decision (8-0) in Hughes v. Talen Energy striking down a Maryland program that encouraged additional in-state generation. Hughes is the second decision of the term, following FERC v. Electric Power Supply Association, in which the Court has struggled to clarify the increasingly blurry boundary between state and federal jurisdiction over energy policy. In this case, the Court focused on the precise mechanism of the Maryland program which required load serving entities (LSEs) in Maryland to enter into a 20-year pricing contract with a new gas-fired generator owned by CPV Maryland, LLC (CPV). To understand the Court’s holding, it is necessary to understand a bit about FERC’s capacity auctions.

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Friday
Apr012016

Maine Commission Reviews Non-Transmission Alternative Pilot Project; Opens New Docket to Appoint NTA Coordinator

Eight years ago, Central Maine Power (CMP), Maine’s largest T&D utility, proposed the Maine Power Reliability Program (MPRP)—a comprehensive plan to upgrade transmission resources ensure reliable service to its customers throughout its service territory. As part of an agreement reached in that docket, a Non-Transmission Alternative (NTA) pilot project in Boothbay Harbor was implemented. Grid Solar was selected as the coordinator for the pilot project, which went live in 2013.

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