Academic journal article Energy Law Journal

Report of the Renewable Energy & Demand-Side Management Committee

Academic journal article Energy Law Journal

Report of the Renewable Energy & Demand-Side Management Committee

Article excerpt

This report summarizes a selection of federal and state legislative, regulatory, and judicial developments in renewable energy and demand-side management during 2009.* Separate sections in the renewable energy portion of this report describe hydrokinetic and off-shore wind developments, each of which involve significant coordination between federal and state governments.


A. Federal Government Activity

1. Pending and Enacted Federal Legislation

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 (ARRA), a package of spending and tax measures intended to stimulate the economy and create or save jobs.1 The ARRA provided $787 billion in direct government spending or tax cuts: of that amount, about $65 billion was directed to various energy-related initiatives, including tax code changes and other provisions intended to stimulate increased development of renewable energy resources.

2. Tax Incentives

The ARRA included several renewable energy tax incentives. First, it extended the Production Tax Credit (PTC) for electricity produced from certain renewable energy resources.2 This extension moved the required in-service dates to claim the PTC to December 31, 2012 for wind power facilities, and to December 31, 2013 for other qualifying renewable energy facilities (including biomass, geothermal, incremental hydropower, landfill gas, waste-to-energy, and tidal and wave facilities).

The ARRA also created new tax incentives for renewable energy facilities. For example, the bill allows renewable energy facility owners to claim a onetime Investment Tax Credit (ITC) in lieu of the PTC.3 Like the long-term PTC extension, the ITC requires an in-service date of December 31, 2012 for wind facilities and of December 31, 2013 for other renewable energy facilities to claim its benefits.

To provide developers without enough income to benefit from tax credits the opportunity to capture similar incentives, the bill also created a new program within the Department of the Treasury that gives renewable energy facility owners the option to receive a cash grant up front in lieu of claiming either a PTC or ITC. Generally, the grants are equal to thirty percent of the cost of the facility (although in some cases, grants are equal to ten percent of the cost of the facility), and will be issued within sixty days of the date the facility is placed in service or within sixty days of the date Treasury receives the grant application, if later. To be eligible for a grant, facilities must be either be placed in service during 2009 or 2010, or begin construction in 2009 or 2010 and be placed in service before the date the PTC and ITC would expire for the particular renewable resource type constructed.

Other tax incentives in the ARRA aimed at developing renewable and alternative energy included an increase in the available tax credits for alternative fuel filling stations, such as hydrogen refueling stations,5 an increase in the tax credit for plug-in electric drive vehicles,6 and a new ITC for facilities and properties used to manufacture advanced energy equipment, including items such as wind turbines, solar panels, plug-in hybrid vehicles, fuel cells, etc.

3. Loan Guarantees

The ARRA also established a new temporary six billion dollar Department of Energy (DOE) loan guarantee program intended to boost near-term development of renewable energy projects.8 This program, which was created through a temporary amendment to the existing "Innovative Technology Loan Guarantee Program" under Title XVII of the Energy Policy Act of 2005/ allows DOE to pay the cost of loan guarantees for new renewable energy systems (including new incremental hydropower), electric power transmission systems (both new lines and upgrades to existing lines), and "leading edge" biofuel pilot or demonstration projects up to a maximum of five hundred million dollars. …

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