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Tag Archive: Commonwealth of Virginia

Heading North for the Sierra Club

I am excited to have been invited by the Great Falls Group of the Sierra Club to join in the “Clean Energy Financing Workshop for Local Governments” that will be held this Friday (September 7) from noon to 1:30 p.m. at the Fairfax County Government Center. I’ll be talking about one of our favorite topics: solar power purchase agreements (SPPA), an accessible way for financing renewable energy projects that local governments can use.

This brown bag lunch event is free, but registration is required as space is limited. If you can’t make it on Friday, I understand you can register as a virtual attendee and get access to the video after the session. Maybe I will see you there. If we miss each other, I can answer any questions about this topic or renewable energy development here, or just contact one of our renewable energy lawyers.

Simple Guide to Electric Regulation Now New and Improved

If you have been wondering about the effect of Virginia’s 2018 General Assembly session on electric regulation in Virginia, we have good news for you. The GreeneHurlocker Principles of Electric Utility Regulation in Virginia, the firm’s complete guide to the state’s electric regulation laws, has been revised to incorporate legislation enacted by the 2018 General Assembly and signed by Governor Northam.
“The statutes governing Virginia’s electric utilities, found in Title 56 of the Code of Virginia, are extremely complex, but we’ve done our best to explain these laws in plain English,” one of the firms energy lawyers, explains. The guidebook and its glossary of key terms is intended to be a reference tool for those who want to gain a better understanding of utility regulation and energy policy in Virginia. In 2018, the General Assembly made substantial changes to the rate setting portions of the law and added new incentives for utilities to invest in clean energy and grid transformation projects. The updated guidebook summarizes the major amendments made by the legislature earlier this year.
If you would like a copy of the guidebook, contact any of our energy lawyers, or download the complete document here.

Top Lawyers Make the Virginia Legal Elite

Eric Hurlocker  of our business, energy law and regulation practices, are listed among the Virginia Legal Elite, published in the December issue of Virginia Business magazine, publisher Bernie Neimeier has announced.

Eric Hurlocker at his desk

Eric Hurlocker is co-managing member of GreeneHurlocker

“I am honored and pleased to be counted among the lawyers that our peers consider experienced and trustworthy, and to be recognized for the continued growth of the firm’s business and energy practices,” said Hurlocker.

Named to the list in Business Law, Hurlocker is a co-founder and co-managing member of the firm, with over two decades of practice in business and energy law. He has focused on advising clients in the areas of energy law as well as commercial transactions and general corporate work for energy and technology companies, manufacturers and services providers. After working in large law firms and for utility firms, Hurlocker joined with Brian Greene five years ago to form the GreeneHurlocker firm, which concentrates on work in energy law and for businesses operating in the mid-Atlantic.

The Virginia Business Legal Elite list is compiled from nominations and votes submitted by the members of the Virginia Bar Association and Virginia State Bar. It has been published annually since 2000 by the magazine.

Dominion Issues RFP for New Solar and Wind Energy

wind turbines and solar arraysEarlier this week Dominion Energy Virginia (“Dominion”) released a request for proposals (“RFP”) for 300 MW of new solar and onshore wind energy. The company is seeking to either sign power purchase agreements or purchase renewable energy projects that are under development. The facilities must be capable of producing power by 2019 or 2020.

Dominion released its RFP after announcing that it will offer a new renewable energy tariff (“Schedule RF”), which the company intends to file with the State Corporation Commission in the coming weeks. Schedule RF is intended to serve Facebook, which is building a one million square foot data center in eastern Henrico County, and other large commercial customers. Under the proposed Schedule RF tariff, participating customers would purchase the renewable energy attributes of new facilities that are added to the grid.

Notices of intent to bid are due by 5:00PM on October 27, 2017, and responses to the RFP are due on December 1, 2017. The RFP directs bidders to provide their best and final price when providing a proposal. In addition to the price, the RFP document states that Dominion will consider “non-price” criteria when evaluating proposals, including the economic development impacts for Virginia and the financial strength of the firm submitting a bid.

For more information about this RFP or the regulations affecting renewable energy development in Virginia, please contact one of our renewable energy lawyers or regulatory attorneys.

Virginia Commission Rejects Utility “Green Tariff” Proposal

wind turbines and solar arrays

Virginia Commission unanimously rejects utility “Green Tariff” proposal, representing major victory for renewable energy advocates

wind turbines and solar arraysOn September 14, 2017, the Virginia State Corporation Commission entered a final order rejecting a renewable energy tariff proposal (“Green Tariff”) filed by Appalachian Power Company, finding that the tariff rates were not just and reasonable. APCo’s Green Tariff was intended to offer customers the option to purchase 100% renewable energy instead of energy produced from coal and gas-fired facilities. Given the structure of APCo’s proposal, the Commission’s decision represents a major victory for renewable energy developers, environmental advocates, and clean energy suppliers in Virginia.

APCo’s application requested permission to offer a voluntary, 100% renewable tariff to its customers. But APCo proposed to simply repackage generation it was already purchasing via four power purchase agreements (“PPAs”), and then reallocate that energy to participating customers. Customers would have paid 18% more than their standard rates to participate in the program.

The so-called Green Tariff, if approved, would have represented the first time a Virginia utility offered a 100% renewable tariff option for its customers. But, if approved, the tariff would have also largely foreclosed competition for renewable energy and prevented customers from purchasing generation from competitive suppliers. Under current law, most customers are allowed to purchase renewable generation from third-parties only if their incumbent electric utility does not have an approved tariff for 100% renewable energy. See Va. Code Section 56-577(A)(5).

GreeneHurlocker represented the Maryland-DC-Virginia Solar Energy Industries Association (“MDV-SEIA”) in the case. MDV-SEIA argued that APCo’s proposal was not in the public interest and should be rejected for several reasons. For example, the per-MWh price of the Green Tariff was unreasonably high and not reflective of current prices for renewable energy. MDV-SEIA also noted that the Green Tariff did not contain any solar generation or any Virginia-based renewable resources of any kind.

The Commission agreed with MDV-SEIA, finding that “[APCo] has not established that the rate proposed under [the Green Tariff] is just and reasonable,” The Commission also cited MDV-SEIA’s arguments that the Green Tariff price “is much higher than prevailing prices for renewable energy.” But the Commission noted that APCo is not precluded from applying for approval of a redesigned renewable energy tariff.

APCo is permitted to appeal the decision to the Supreme Court of Virginia by filing a notice of appeal at the Commission on or before October 16, 2017.

The Commission is also currently considering a similar renewable tariff application filed by Dominion Energy Virginia (“Dominion”) in Case No. PUR-2017-00060. If approved, Dominion’s tariff would severely limit clean energy choices for its large customers and potentially other classes of customers in the future.

Please contact one of our renewable energy lawyers or regulatory attorneys should you have questions about this case. The Commission case number for the APCo matter is PUE-2016-00051, while Dominion’s proposal is currently being considered in PUR-2017-00060.

Virginia Closer to Regulating Power Plant Carbon Emissions

coal-fired plant in VirginiaThe advisory panel that will develop a carbon reduction program for Virginia power plants held its first meeting last week.  The panel is tasked with developing a draft regulation that would cap greenhouse gas emissions from Virginia’s fossil fuel generating facilities for the first time ever. The advisory panel, appointed by Governor McAuliffe, includes environmental advocates, utility representatives, and renewable energy developers.  Preston Bryant, who served as Virginia’s Secretary of Natural Resources under Governor Tim Kaine, will serve as a moderator.

The panel’s work was set in motion in May, when Virginia Governor Terry McAuliffe issued an executive action directing the Virginia Department of Environmental Quality (“DEQ”) to draft a regulation restricting the emission of carbon dioxide from electric generating facilities. Executive Directive 11 ordered DEQ to draft a regulation pursuant to Va. Code §§ 10.1-1300, et seq. that will “abate, control, or limit carbon dioxide emissions from electric power facilities.” The directive states that DEQ must propose a regulation that is “trading ready” and will allow for the exchange of carbon emissions allowances with other states.

The panel’s first job will be to determine how to structure a program where carbon credits or allowances can be traded among emitters. One option for a “trading ready” program would be for Virginia to join the existing Regional Greenhouse Gas Initiative (“RGGI”).  RGGI is a regional carbon “cap and trade” program with nine northeast member states.  Under RGGI, carbon allowances can be bought and sold at auctions, and the auction revenues can result in income for member states.  However, the Virginia General Assembly would likely have to approve Virginia’s participation in RGGI.  The General Assembly would also likely have to approve any carbon allowance trading program that results in revenues for the Commonwealth, as State agencies are generally prohibited from enacting revenue raising programs without legislative approval.

The Governor’s directive was issued at the same time that the federal Clean Power Plan, a greenhouse gas regulation promulgated by the EPA during the Obama administration, is under legal challenge and subject to a stay by the U.S. Supreme Court. The Trump administration has also indicated that it will attempt to suspend or repeal the Clean Power Plan.

Under the Governor’s executive directive, the advisory panel has until December 31, 2017, to present the proposed regulation to the Virginia State Air Pollution Control Board, which would then open up the proposed rule for public comment. Please contact one of our renewable energy lawyers or regulatory attorneys should you have questions about this matter.

SCC Hearing Examiner Recommends Denial of Appalachian Power’s Renewable Tariff

wind turbines and solar arraysOn Wednesday, June 21, a Virginia State Corporation Commission (“Commission”) Hearing Examiner issued a report recommending denial of a renewable energy tariff (“Green Tariff”) filed by Appalachian Power Company (“APCo”). If accepted by the full Commission, the Hearing Examiner’s findings would be a victory for renewable energy developers and competitive energy suppliers operating in Virginia.

APCo’s application requested permission to offer a voluntary 100% renewable tariff to its customers. APCo proposed to repackage generation it was already purchasing via four power purchase agreements (“PPAs”), and then reallocate that energy to participating customers. Customers would pay an 18% premium in order to participate in the program.

The so-called Green Tariff would represent the first time a Virginia utility offered a 100% renewable tariff option for its customers. But, if approved, the tariff would also largely foreclose competition for renewable energy in Virginia and prevent customers from purchasing generation from competitive suppliers. Under current law, most customers are allowed to purchase renewable energy from third-parties only if their incumbent electric utility does not have an approved tariff for 100% renewable energy. See Va. Code Section 56-577(A)(5).

Environmental and renewable energy advocates, including our client, the Maryland-DC-Virginia Solar Energy Industries Association (“MDV-SEIA”), opposed APCo’s proposed Green Tariff. MDV-SEIA argued that the proposal is not in the public interest and should be rejected for several reasons. First, the per-MWh price of the Green Tariff is unreasonably high and not reflective of current prices for renewable energy. MDV-SEIA also noted that the Green Tariff does not contain any solar generation or any Virginia-based renewable resources of any kind. The four PPAs that form the basis of the Green Tariff represent wind and hydrologic energy located in Indiana and West Virginia. Moreover, the Green Tariff would not encourage the development of any new resources; all of the Green Tariff’s out-of-state facilities were placed into service between 7 and 15 years ago.

The Hearing Examiner largely agreed with the arguments raised by MDV-SEIA, finding that the “per MWh cost of the [proposed tariff] is significantly higher than the average cost for new wind power in the PJM region” and that the tariff rate would be “18% higher than APCo’s standard rate for service.” The Hearing Examiner also cited data, obtained by MDV-SEIA through a motion to compel, indicating that the Green Tariff price was significantly higher than other renewable energy recently added to APCo’s portfolio. Finally, the Examiner noted that the Green Tariff “has the potential to suppress or even curtail customer access to 100 percent renewable energy by precluding sales by [competitive renewable energy suppliers] while at the same time offering an incumbent utility alternative that is simply too costly for customers to bear.” The Hearing Examiner determined that the Green Tariff, if approved, would not support the clean energy objectives of the Commonwealth’s Energy Policy, found in Title 67 of the Code of Virginia.

The Hearing Examiner’s report and recommendation now goes to the full Commission, which can approve or reject it. The Commission is also currently considering a similar renewable tariff application filed by Dominion Energy Virginia (“Dominion”) in Case No. PUR-2017-00060. If approved, Dominion’s tariff would also severely limit energy choices for most of its customers.

Please contact one of our renewable energy lawyers or regulatory attorneys should you have questions about this case. The Commission case number for this matter is PUE-2016-00051.

Virginia Governor Directs State to Regulate Carbon Emissions

McAuliffe’s Directive Requires State Regulation of Carbon Emissions from Power Plants

coal-fired plant in VirginiaOn May 16, 2017, Virginia Governor Terry McAuliffe issued an executive action directing the Virginia Department of Environmental Quality (“DEQ”) to draft a regulation restricting the emission of carbon dioxide from electric generating facilities. Executive Directive 11 orders DEQ to draft a regulation pursuant to Va. Code §§ 10.1-1300, et seq. that will “abate, control, or limit carbon dioxide emissions from electric power facilities.” The directive states that DEQ must propose a regulation that is “trading ready” and will allow for the exchange of carbon emissions allowances with other states.

This type of action would be a first in Virginia. While the state Air Pollution Control Board has previously enforced greenhouse gas rules promulgated under the federal law – including the Clean Air Act’s new source permitting provisions – the Commonwealth has never before attempted to promulgate carbon rules based solely on state law.

On May 12, 2017, in response to a legislative request, Attorney General Mark Herring issued an advisory opinion stating that carbon emissions constitute an “air pollutant” and thus are subject to regulation under state law. The Attorney General’s opinion noted that “the overwhelming body of scientific literature demonstrates a growing consensus among scientists” that carbon emissions “contribute to elevated global temperatures and may be harmful to the welfare of people, animals, and property.”

The Governor’s directive comes as the federal Clean Power Plan, a greenhouse gas regulation promulgated by the EPA during the Obama administration, is under legal challenge and subject to a stay by the U.S. Supreme Court. The Trump administration has also indicated that it will attempt to suspend or repeal the Clean Power Plan.

The Governor directed that the draft regulation should be presented to the State Air Pollution Control Board for consideration no later than December 31, 2017. After the regulation is proposed, it will be subject the notice and comment procedures established by Virginia’s Administrative Process Act. Executive Directive 11 followed a report and recommendation issued by a workgroup chaired by the Secretary of Natural Resources.

Please contact one of our renewable energy lawyers or regulatory attorneys should you have questions about this matter.

Governor McAuliffe Conducts Clean Energy Signing Ceremony

Governor McAuliffe singing clean energy billsGreeneHurlocker attorney Eric Hurlocker was among the invited guests attending the clean energy bill signing ceremony at the Governor’s mansion this morning. Governor McAuliffe signed eleven pieces of legislation passed by the 2017 General Assembly that will help promote further development of renewable energy in Virginia. The Governor noted that “Virginia is moving in the right direction, especially with the recent announcement of record growth in our solar industry, but there is still work to do.” The Governor also added that while there were only 17 MW of installed solar energy in Virginia at the beginning of 2014, the Commonwealth can now boast of over 1500 MW of solar generation that is either installed or under development today.

Among the legislation signed today was Senate Bill 1393 (Wagner), a community solar bill that will allow customers of Appalachian Power and Dominion to purchase 100% solar energy from new solar facilities located in Virginia. Customers will be permitted to voluntarily “subscribe” to a solar energy rate schedule. Currently, neither utility offers customers an option to purchase 100% solar energy.

Senate Bill 1395 (Wagner), also signed today, will expand the Virginia Department of Environmental Quality’s (“DEQ”) “permit-by-rule” (“PBR”) process to include larger renewable energy facilities. The PBR can often reduce the time and expense necessary to receive the state approvals required to begin construction and operation of a solar or wind facility. Senate Bill 1395 increases the facility size threshold, from 100 MW to 150 MW, which will allow more facilities to be permitted with fewer regulatory burdens from the state. Facilities receiving a PBR are exempted from State Corporation Commission review, so long as the project costs are not recovered from a utility’s ratepayers.

The Governor also signed House Bill 2390 (Kilgore), which will allow non-profit higher education institutions in Appalachian Power’s service territory to purchase 100% renewable energy from non-utility sellers. This bill is intended to address some of the economic challenges faced by colleges who wish to use renewable energy. House Bill 2390, by allowing non-profit colleges to purchase energy from third-party sellers, will permit these institutions to take advantage of federal tax benefits of renewable energy investments.

Please contact one of our renewable energy lawyers or regulatory attorneys should you have questions about these energy bills.

Virginia Commission Approves Settlement in Columbia Gas Rate Case

Results in Benefits for Competitive Suppliers

On March 17, 2017, the Virginia State Corporation Commission (“Commission”) entered a final order on a rate increase application filed last year by Columbia Gas of Virginia (“Columbia”). The Commission approved a comprehensive settlement (“Stipulation”) agreed to by Columbia, the Commission Staff, the Attorney General’ Office, and several intervening parties. We are very pleased that our firm was able to help negotiate a favorable settlement on behalf of a group of retail gas suppliers. The Stipulation approved by the Commission will reduce the fees associated with competitive gas service in Virginia and provide more operational flexibility for suppliers in several key areas.

In addition to requesting an increase to its revenue requirement, Columbia also requested several changes to its terms and conditions that would have adversely impacted both customers and suppliers in the competitive gas market. Our firm represented a group of competitive suppliers who provide gas transportation service to commercial customers in Columbia’s service territory. Among other issues, our clients were concerned that Columbia’s proposed changes to its terms and conditions would increase fees for gas transportation service and reduce suppliers’ ability to provide cost-effective service to customers. The Stipulation, however, resulted in several favorable tariff modifications, including reduced fees for daily gas transfer service and more reasonable penalties in the event suppliers over- or under-deliver natural gas on certain days.

The Stipulation approved by the Commission also authorized a total revenue requirement increase of $28.5 million and established a rate of return on common equity (“ROE”) of 9.5%. Columbia had originally requested a total revenue requirement increase of $37 million and an authorized ROE of 11.25%.

Please contact one of our regulatory attorneys for more information about this case, or should you have any questions about competitive energy markets in Virginia and the Mid-Atlantic.