By James Lynch (Seattle), Raymond Pepe (Harrisburg), and Marie Quasius (Seattle)
The Fish and Wildlife Service recently released the Final Land-Based Wind Energy Guidelines to help developers and operators of wind facilities minimize impacts on wildlife, especially birds and bats.
This post reviews the Final Guidelines, discusses the Service's five-tier framework and presents some practical considerations for compliance.
By Stan Lewandowski (Palo Alto) and Aaron Schapiro (Palo Alto)
Each year the U.S. government relies upon mandatory data from companies that are part of the photovoltaic (“PV”) industry in order to satisfy its reporting obligations to the U.S. Congress. While providing the data on an annual basis is mandatory, many PV companies are unaware of the requirement to submit Form EIA-63B, Annual Photovoltaic Cell/Module Shipments Report (“Report”) to the U.S. Energy Information Administration. The deadline for submission of the Report for 2011 is April 30, 2012.
By Louise Adamson (San Francisco), Yusef Alexandrine (San Francisco) and Remsen Kinne (San Francisco)
Effective January 1, 2012, California companies are able to incorporate under two new forms of corporation: the Benefit Corporation and the Flexible Purpose Corporation. These new corporate forms facilitate companies’ efforts to advance social welfare and environmental sustainability objectives while creating profits and value for their shareholders.
California is the first state to adopt the Flexible Purpose Corporation form. It is among a growing number of states that have adopted the Benefit Corporation form. Similar Benefit Corporation laws exist in Hawaii, Maryland, New Jersey, New York, Vermont and Virginia. Benefit Corporation legislation is moving forward in Michigan, North Carolina, and Pennsylvania.
These corporate forms are new and have not yet been widely adopted. It is uncertain how they will be construed in states that have not yet adopted similar statutes. As more states adopt similar statutes this alert should facilitate planning to organize a company using one of these forms.
Tuesday, March 13, 2012
8:00 a.m. - 10:30 a.m
Computer History Museum
1401 N. Shoreline Boulevard
Mountain View, CA 94043
The successful federal Section 1603 cash grant program expired at the end of 2011. With the cash grant no longer available what will stimulate investments in utility and other solar energy projects in the U.S. market in 2012? How “safe” are Section 1603 safe harbored projects? Will the federal investment tax credit cover the gap? What financing structures will be used and what financial incentives continue to be available in 2012? What incentives are still available in California? Are renewable energy certificates (RECs) a predictable source of financing? Which lenders and tax equity investors are active in financing solar projects?
Please join us for this valuable event at the Computer History Museum in Mountain View on Tuesday, March 13 from 8-10:30 a.m. The panelists will address the questions above and discuss the financing of solar projects at a practical, hands-on level based on experience from real solar project financings, both utility scale and other projects, including:
- Lessons learned in a real project
- Pitfalls to avoid
- How these lessons can help in securing financing and ensuring successful implementation of other solar projects
Speakers:
Don Danh, Senior Vice President, East West Bank
Sharmila Ravula, Director, Finance and Strategy, Bosch Solar
Dirk Michels, Cleantech Practice Partner, K&L Gates
Moderator:
Fred Greguras, Cleantech Practice Partner, K&L Gates
To attend, please RSVP here.
For additional information or questions, please email Christina Hendry or call 415.882.8038.
By Fred M. Greguras (Palo Alto), Michael J. O'Neil (Washington, D.C.), and Chenhao Zhu (Palo Alto)
The clean technology business sector has become very important to China’s economy. As the U.S. is still a leader in clean technology innovation, the recent sector shakeout makes strategic business or asset targets in the U.S. attractive to Chinese companies. Controlling interests in a number of U.S. solar project developers with project pipelines have already been acquired by foreign solar module companies. The federal government's Exon-Florio review process is a significant planning consideration for any Chinese company looking to complete transactions in the U.S.
This article provides an overview of the Exon-Florio review process, the timeframe for decision-making and practical guidance for Chinese companies considering transactions in the U.S. While the focus is on the clean technology sector, the guidance is applicable to other business sectors as well.
By Vanessa Edwards (London), Philip Torbøl (Brussels), Christopher Tung (Hong Kong), and Sara Aparicio Hill (Brussels)
The Court of Justice of the European Union (CJEU) has delivered its Judgment on a Preliminary Ruling on the European Union’s Emissions Trading Scheme (EU’s ETS) extension to aviation. The Judgment substantially follows the Advocate General’s Opinion of 6 October 2011.
Background to the Dispute
The EU’s ETS Directive 2008/101 ("the Directive") requires all greenhouse gas emissions from aircraft landing or taking off within the EU to be included within the ETS, which aims to cut greenhouse emissions by creating a market for emission allowances. Accordingly, from that date all airlines – including those of non-EU countries – will have to acquire and surrender emission allowances for their flights which depart from and arrive at European airports.
By Fred Greguras (Palo Alto)
The SolarPraxis PV Power Plants - USA 2011 conference in Phoenix brought together solar project developers, bankers and other investors, utilities, regulators and other stakeholders to discuss the problems and solutions for getting more utility solar projects built, particularly in the Western states.
The conference sessions included presentations on the development and status of renewable energy generation in the Western states comprising the Western Electricity Coordinating Counsel and how these states could work together more effectively. There was a consensus of stakeholders that the current approach of both independent power producer and utility-owned solar projects are needed to meet RPS requirements in western states. Concern was expressed over California's amended renewables portfolio standard (RPS) law enacted this spring. The law has a strong in-state energy sourcing requirement to meet the new goals and limits the eligibility of out-of-state energy and RECs for RPS purposes.
With the fast approaching December 31st expiration of the Section 1603 cash grant in lieu of investment tax credit, there was speculation about whether the cash grant would be extended and, if not, how to quickly and effectively qualify projects for the year-end safe harbors. There were also discussions about how the expiration would impact the financing of solar projects in 2012 and thereafter.
By Fred Greguras (Palo Alto) and Stan Lewandowski (Palo Alto)
The power purchase agreement (“PPA”) is the primary source of revenue in a solar project financing for debt service to a lender as well as for returns to other investors and the project developer. If the solar facility must be removed from the rooftop or ground site because of foreclosure or other superior rights, then the project cannot generate any more electricity which means there will not be any more revenue from the PPA, from electricity production subsidies such as production-based incentives or from the sale of renewable energy credits or certificates. The predictability of the revenue (or lack thereof) is the key factor in the financeability of the project. There cannot be any revenues if the solar facility is no longer operating. The value of the installed solar equipment by itself is not adequate to protect lenders or investors. While the security interests in a loan financing will include a UCC-1 filed on the solar equipment, the equipment has little resale or salvage value once it is installed and will have little value for a lender or other investor.
Site control means control over the rooftop or ground site where a solar facility will be located for the term of the PPAso that the PPA revenues can be generated without any interruption. A key business objective in financing due diligence is to identify and implement site control protections which increase the probability that the solar facility will generate such revenues for the life of the PPA. A lender will want site control for the term of its loan. The borrower/project owner will want the revenues to continue for the life of the PPA to provide a return for itself and other investors. The investors and project owner have a common interest which should drive cooperation on these issues.
The title report for the property where the project will be located will identify the deeds of trust, easements for utilities, rights-of-way, mineral and other rights and encumbrances which may restrict or prevent the use of the land for the development of the solar project. For example, a project owner may be leasing the rooftop of a building which is subject to a financing party’s deed of trust. The most common encumbrances on a title report that must be addressed are deeds of trust or mortgages held by parties that financed the property. The risk to the solar project owner is removal of the solar facility if the land owner defaults and foreclosure occurs. The title report should be ordered and reviewed at the outset of the project to identify what site protections may be needed to mitigate the financing risks and to quickly determine if they can be obtained.
Continue Reading...By: John M. Sylvester (Pittsburgh) and Jonathan D. Christman (Pittsburgh)
In the nation’s first appellate decision of its kind, the Virginia Supreme Court has held that an insurer does not have a duty to defend an energy company policyholder for third-party liability claims alleging global warming-related damage. Specifically, in AES Corp. v. Steadfast Insurance Co., the Virginia Supreme Court upheld a lower court decision and determined that an insurer had no duty to defend AES Corporation with respect to a global warming claim lawsuit brought by a native Alaskan village against several energy and utility companies on grounds that the complaint did not contain allegations of an “occurrence” necessary to trigger the insurer’s relevant policies. This decision, however, is certainly not a conclusive statement on the issue of insurance coverage for global warming claims because the legal principles on which the decision is based are a minority view.
Program Details
Markets outside of the U.S. present an excellent opportunity to generate revenue – whether from investment, alliances or other cross-border transactions. K&L Gates and Deloitte bring together experts from four important regions – Asia, Europe, Latin America and the Middle East – to share success stories and strategies making the most of the unique business and regulatory environments in markets beyond our borders. With 4 panels of speakers focused on their regions, you will walk away with practical insights into the hottest revenue-generating opportunities of 2012.
Agenda
10:00 a.m. – Registration
10:30 a.m. – Opportunities in Europe
12:00 p.m. – Lunch with casual Q&A
1:00 p.m. – Generating Revenue in Latin America
2:30 p.m. – Tapping into Asia
4:00 p.m. – Opportunities in the Middle East
5:30 p.m. – Casual Q&A and wine reception
To attend, either register below, email Christina Hendry or call 415.882.8038 by Friday, October 28th. Please indicate which location you would like to attend. This program is complimentary.
REGISTER NOW
Thursday, October 20, 2011 8:30 - 10:30 a.m. PDT
Computer History Museum
1401 N. Shoreline Blvd.
Mountain View, CA
Register Now
On September 16, 2011, President Obama signed into law the Leahy-Smith America Invents Act (the “Act”), which will substantially affect the way that patents are procured and enforced in the United States. The Act makes very significant changes to U.S. patent law.
The Act includes many changes, large and small, affecting subjects as far-reaching as the available appeals from reexaminations to the subject matter eligibility of tax planning methods and human organisms. Please join us for a presentation and question and answer session at the Computer History Museum in Mountain View, CA.
Topics Include:
In addition to providing our audience with a summary of the changes in the above areas, the focus of our presentation will be on how these changes will impact your business.
Program registration is complimentary. CLE credit is available in the following jurisdictions: California, Illinois, Pennsylvania, New York, New Jersey and Texas. An application has also been made to the North Carolina Bar. Other applications will be submitted upon request. To register, please click on the link below.
For more information, please email Ellen Keiley or call 617.951.9075.
This event will be taking place in multiple K&L Gates offices.
By Vanessa Edwards (London/Brussels), Philip Torbøl (Brussels), Christopher Tung (Hong Kong), and Jonathan Blank (Washington, D.C.)
In an important case pending before the European Court of Justice (ECJ), the Advocate General Juliane Kokott (AG) delivered her Opinion on Thursday 6 October. The AG considers that the inclusion of international aviation in the European Union (EU) Emissions Trading Scheme (ETS) is compatible with international law.
The AG's Opinion is not binding on the judges of the ECJ but in the majority of cases the judgment of the ECJ comes to the same conclusion. The judgments in this case should be delivered in the course of next year.
September 21, 2011 7:30 - 9:30 a.m.
Computer History Museum
1401 Shoreline Blvd.
Mountain View, CA 94043
Register Now
SPONSORS:
Centaur Partners, K&L Gates, and Next Step
PROGRAM:
M&A is the best opportunity for most businesses to capture their enterprise value; but most companies don’t get it right! Are you ready for what is coming? Or will you end up having the value of your deal driven down because you were not prepared?
Being ready enables a business owner to respond effectively, maximize valuation, and avoid a missed opportunity in the hyper-competitive deal environment. Now is the time to prepare your Finance, Legal, Marketing, and Operational infrastructure so when an acquisition is imminent, you can survive the due diligence process and maximize your deal value.
The seminar begins with a brief update on current M&A trends. Then, our experts step you through the actions to:
COST:
$25.00, payable to Next Step, includes continental breakfast and all workshop materials.
For more information and to register for the seminar in San Mateo on Sept 14, click here and for Mountain View on Sept 21, click here.
August 17, 2011 6:00 - 9:00 p.m.
K&L Gates - San Francisco Office
Four Embarcadero Center, Suite 1200
San Francisco, CA 94111
Center, Suite 1200
San Francisco, CA 94111
SPONSORS: German American Business Association, Rheingold International, and K&L Gates
PROGRAM:
As an international research firm, Rheingold is often asked to help clients provide insights to psychologically translate their marketing campaigns to other countries. One of the biggest obstacles is to effectively reach consumers with a different cultural background, particularly when trying to transfer successful concepts to various countries. Rheingold’s research exemplifies the differences between the American and German culture that impact, in this case, sustainability considerations. The insights presented will help understand the marketing strategic pitfalls and success factors.
Rheingold explored current sustainability considerations in 40 2h in-depth interviews with American and German consumers. The research revealed significant cultural differences in sustainability perceptions and impacts on personal everyday lives. Rheingold’s research shows how marketing measures can account for these differences and successfully speak to the psychological needs of the American vs. German consumer.
Topics to be discussed:
• How do consumers define sustainability?
• What do they truly care about and what is “lip service”?
• What are differences between the American and German consumer and what are they rooted in?
Cost:
$15 Members, $25 Non-Members, $35 At the door.
For additional details and to attend, please click here.
By Greg Brucia (San Diego)
California may have a dominant position within the US solar market, but the US has only a modest position in the global solar market. That was a key message from two leading solar industry analysts, Paula Mints of Navigant Consulting and Stefan Pietzsch of EuPD Research, at a June 27, 2011 webcast presented by Intersolar North America titled US Solar Market Overview and Future Trends.
Both presenters emphasized the importance of government support for the development of solar markets. Mints noted early US dominance in the supply market gave way first to Japan and Europe in 1999 and later to China and Taiwan, with increased government support being the common driver for the successive leaders. Not surprisingly, Mints suggested that increased government support would be necessary for the US to return to a more competitive position in the supply market.
Domestically, the speakers agreed government support has been a key to California’s leading position within the US, driven in large part by the plethora of incentives in California – a leading renewable portfolio standard, feed-in tariffs, utility rebates and net energy metering. Pietzsch noted other supporting factors such as a culture in California that embraces protection of the environment and a willingness among consumers to change behavior to further that goal. This has been particularly important for the development of the residential and small business sector, the historical backbone of California’s solar market. But Pietszsch also sees these factors supporting growth in the utility-scale segment, which is predicted to be the highest growth segment of the California solar market.
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