Clean Energy Investment Tax Credit Final Regulations Issued by Treasury

Earlier this week, on December 4, 2024, the U.S. Treasury Department released final regulations for Section 48 – also known as the clean energy investment tax credit.

After much industry push back, of particular note is, that the proposed definition of what qualifies as applicable “energy property” was modified to include functional components of various systems in calculating what the total energy credit is worth.

The revised definition reflects what Treasury intended to be broad but functional descriptions of integral components for various renewable energy technologies eligible under Internal Revenue Code Section 48.

To avoid limiting future energy technologies, Treasury, in consultation with the U.S. Department of Energy, determined that “the best option is to adopt a function-oriented approach to describe the types of components that are considered energy property”.

Per Treasury, the ITC has fueled US clean energy development by providing a tax credit for investments in qualifying clean energy projects – generally 30% of the cost of the project.

The Inflation Reduction Act extended the ITC as well as the production tax credit (the “PTC”), until 2025, at which point the ITC and PTC will switch to a technology neutral approach with investment tax credits that will be available in full for projects beginning construction through at least 2033.

The final rules now allows project owners to include the costs of upgrading equipment in the basis, which is used to calculate the value of the Section 48 credit.

Additional clarity was provided for offshore wind equipment (allowing owners to claim the credit for power conditioning and transfer equipment and cables), geothermal heat pumps (allowing owners of underground coils to claim the ITC if they own at least one heat pumps used in connection with the coils), biogas (clarifies what property is qualified biogas property and what is integral part of the project), co-located energy storage (allows that claimed energy storage technology that is co-located with and shares power conditioning equipment with a qualified facility will also qualify) and hydrogen storage (allows that energy storage property does not need to store hydrogen that is solely used as energy to qualify).

The proposed rules, released November 2023, initially prohibited upgrading equipment to qualify. Moreover, initially, Treasury said in the proposed rules that the ownership of only geothermal components is not considered ownership of the entire unit of the energy property. The final rules modified both of these provisions to allow for upgraded equipment and component ownership to qualify.

The regulations also revised the definition of “energy project” so that multiple properties with the same owner can claim the credit. Such properties must meet at least 4 of the 7 factors of an energy project listed in the final regulations, such as the facilities share a common substation or are financed by the same loan agreement.

Energy storage equipment located in the same area as power conditioning equipment for a facility that claims a related renewable energy production tax credit is also eligible for the credit under the final regulations.

The final regulations implemented start with a base credit of 6% of a renewable energy development’s basis or qualified investment. The value of the credit can increase to 30% for projects that meet certain standards, such as the prevailing wages and apprenticeship requirements. The law also made newer renewable energy technologies, such as electrochromic glass, energy storage, microgrid controllers and biogas properties, eligible for the incentive.

The 2022 law created a new clean electricity ITC that has a much longer expiration date under Section 48E. This new provision will apply to any energy property designed to emit zero greenhouse gas emissions, including nuclear facilities. Section 48E, along with the related clean electricity production tax credit under Section 45Y will take effect in January, 2025 but the effectiveness of those incentives could be scaled back as President-elect Donald Trump and Congress seek revenue sources to offset the renewal of expiring provisions under the 2017 Tax Cuts and Jobs Act.

Duane Morris has a robust industry facing Energy Group focused on incentives, regulatory, permitting, financing and development of energy projects internationally including renewables, solar, wind, geothermal and power purchase agreements and P-3 procurements. If you have any questions or follow ups, please do not hesitate to contact Brad A. Molotsky, Brad Thompson, Phil Cha, Shelton Vaughan or the lawyer in the firm whom you normally deal with on other matters.

Have No Fear with AI Here; Opportunities for Adoption in Sector

Last year, President Joe Biden signed Executive Order 14110 on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” Since the issuance of the executive order, a lot of attention has been focused on the provision requiring “the head of each agency with relevant regulatory authority over critical infrastructure … to assess potential risks related to the use of AI in critical infrastructure sectors involved, … and to consider ways to mitigate these vulnerabilities.” Naturally, government agencies generated numerous reports cataloging the well-documented risks of AI. At the same time, nearly every company has implemented risk-mitigation guidelines governing the use of artificial intelligence. To be sure, the risks of AI are real, from privacy and cybersecurity concerns, to potential copyright infringements, to broader societal risks posed by automated decision-making tools. Perhaps because of these risks, less attention has been focused on the offensive applications of AI, and relatedly, fewer companies have implemented guidelines promoting the use of artificial intelligence. Those companies may be missing out on opportunities to reduce legal risks, as a recent report by the Department of Energy highlights.

Read The Legal Intelligencer article by Duane Morris partners Phil Cha and Brian H. Pandya

SCOTUS Hears Argument That Could Change Administrative Law As We Know It

Recent oral argument before the Supreme Court of the United States has raised significant questions concerning the Chevron doctrine, a 40-year-old ruling that requires federal courts to defer to an agency’s reasonable interpretation of certain statutory provisions that Congress charged the agency with implementing. Because a majority of the Supreme Court appears inclined to overturn or at least modify that doctrine, many in the regulated community are bracing for potentially significant changes in the administration of regulatory law. Still others are warning that there may be a “flood of litigation” seeking to overturn prior decisions that relied on the doctrine. The Supreme Court’s decision on the issue is expected before July 2024.

Read the full Alert on the Duane Morris LLP website.

New Jersey – Developing, Investing and Leasing Healthcare Facilities

Fresh off a panel of distinguished contributors at the MidAtlantic Real Estate Healthcare Conference in Edison, NJ earlier today featuring Andrew Antognoli, Blake Goodman, Randy Horning, Cory Atkins, Pasquale Avallone and Jonathan Marks, where they discussed and debated a wide range of topics focusing on healthcare related real estate issues.

As you may be aware, New Jersey ranks 8th in the US in terms of healthcare satisfaction, with over 113 hospitals and 72 acute care facilities in the State.  Over 150,000 employees are employed in these facilities making them the largest private sector employee base in the State with over 15 Million patients being served a year.

Key Take Aways:

Development – limited new development due to interest rates and constructions costs despite there not being many if any new facilities for rent at the moment.  Adaptive reuse of existing buildings continues to be the main game noting that some of the older B and C product in the marketplace will not be able to meet current design specifications of the users.

Construction Costs for Medical Office – continue to be at or near an all time high in NJ.

Key Design Issues – access, parking, visibility, redundant sources of power, sewage capacity and growing desire to have more sustainable spaces.

Acquisitions – muted at the moment due to interest rates and slow moving product historically.

Cap Rates – generally around 6-6.5% on single tenant, good credit buildings and 7-7.5% for multi tenant buildings.

Average Lease Size – approximately 3,000 SF but as more and more systems continue to consolidate, the larger systems want larger spaces for back office operations of around 10,000 SF.

Rents – depending on product type but mid to high $20s depending on what part of the state and how old the building is with approximately $3.00 in electric.

Leasing Velocity – our team of top shelf brokers felt that leasing velocity is picking up and relatively strong due to the lack of new space availability.

Tenant Improvement Dollars – owners prefer tenants to be investing in sophisticated equipment to create more “stickiness” but willing, with the right tenant, to provide T/I dollars of approximately $50 psf for a 7 year term.

Urgent Care – continued activity in this space with multiple engagements for 10 sites or more around the state.

Sustainability – more important to some owners than in the past.  Electric Car chargers are being considered and requested by more and more tenants and owners but surprisingly solar was less of interest to the panelists, despite the ability to use state incentives and reduce power costs.

Section 179-D – with changes under the Inflation Reduction Act to allow non-profits to monetize and transfer the tax deduction or reduce the cost of their building out, many of the owners and brokers in the room thought this was worth exploring to see how the potential $5.25 PSF in tax deduction could be utilized by their clients.

A super turn out, packed house and folks engaging in networking and learning.  Kudos to MARE for yet another excellent, well attended event.  Duane Morris, LLP looks forward to our continued involvement with the group.

Duane Morris has a robust real estate group and healthcare group focused  on regulatory, permitting, executive compensation and real estate related and incentive issues and programs. f you have any questions or follow ups, please do not hesitate to contact Brad A. Molotsky, Erin Duffy or the lawyer in the firm whom you normally deal with on other maters.

 

Survey Indicates Future of International Energy Arbitration

Queen Mary University of London has undertaken a major International Arbitration Survey, focusing on the energy sector entitled “Future of International Energy Arbitration, Survey Report 2022”. This was led by Professor Loukas Mistelis FCArb[1] and his team. The Survey was based on feedback from over 900 respondents from a diverse range of jurisdictions, end users, leading practitioners, arbitrators and experts, as well as arbitral and academic institutions.

To read the full text of this post by Duane Morris partner Vijay Bange, please visit the Duane Morris International Arbitration Blog.

In-situ PFAS Groundwater Remediation: A Good Test Case

Much is being discussed today about the prevalence of PFAS (per- and polyfluoroalkyl substances) in groundwater, the potential health effects of exposure to PFAS in groundwater, and the development of groundwater cleanup standards by USEPA and state environmental protection departments.  Less discussed (at least in the news media) is the subject of remediation.  Notwithstanding the inference of the “forever” label, can these chemicals be effectively remediated, in-situ, in groundwater?

Answering this question may be aided by a remediation pilot study being undertaken at a PFAS site in East and West Rockhill Townships, Bucks County, Pennsylvania – the Ridge Run PFAS Site.  Ridge Run became a state superfund site (under Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”), 35 P.S. §§ 6020.102-6020.1303) in 2016 when a combined concentration of PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonate) exceeding the United States Environmental Protection Agency’s (EPA) then-applicable Health Advisory Level (HAL) (70 parts per trillion) was discovered in a public water supply well. Continue reading “In-situ PFAS Groundwater Remediation: A Good Test Case”

Enforcement of New Solar Panel Tariffs Delayed in Move to Boost Industry

On June 6, 2022, President Joe Biden signed an order that will exempt Southeast Asian nations from any new tariffs on solar panels for two years in order to alleviate concerns about the crippling effects of an ongoing Commerce Department investigation into whether manufacturers of solar panel components in Southeast Asia are being used to circumvent U.S. tariffs on Chinese solar companies. Biden will also invoke the Defense Protection Act to drive U.S. manufacturing of solar panels and other clean energy technologies in the future, with the support of loans and grants. If production ramps up as expected, the administration expects domestic solar manufacturing to triple by 2024.

To read the full text of this Alert by Duane Morris attorneys Brad Thompson and Patrick Dinnin, please click here.

The Invisible Enemy is Cybercrime (UK Construction)

Cyber fraud is a real and present danger across almost all industry sectors, and the construction sector is not immune as our recent article demonstrated. According to the FCA there has been a jump of 52% in incident reports and recent global conflict may possibly increase this threat.

One of the primary types of fraud affecting the construction industry is the prevalence of payment diversion fraud. It is estimated that contractors pay out around £100m per year in fake invoices. In some cases, a single instance of payment diversion fraud can amount to millions of pounds. In such cases it is easy to see how the fraud would place intolerable pressure on the cash flow of a business and in extreme instances even lead to insolvency. In an industry already under pressure through factors such as super-inflation and rising energy costs, fraud is yet another unwelcome factor which can be detrimental to cash flow on a project.

To read the full text of this post by Matthew FriedlanderChris Recker and Sam Laycock, please visit the Duane Morris London Blog.

North Carolina Seeks to Face Climate Change with Head in the Sand

As Florida’s “Don’t say gay” bill  (SB 1834) occupies the front pages of many media outlets today, one is reminded of an earlier (2012) state legislative exercise in prohibiting engagement with reality: North Carolina’s “Don’t say climate change” bill (H819).Unhappy with the perceived prospect of dampened economic development resulting from the state’s Coastal Resources Commission estimating that the sea level would rise by 39 inches in the next century, the state legislature chose to bury the state’s head in the sand. It passed a bill prohibiting the state’s coastal management and environmental agencies from defining the rate of sea level rise for regulatory purposes for the next four years. (“The Coastal Resources Commission and the Division of Coastal Management of the Department of Environment and Natural Resources shall not define rates of sea-level change for regulatory purposes prior to July 1, 2016.”)

Well, the climate didn’t care. Based on a 5-year report newly released by NOAA (full NOAA report), the estimate generated by NC’s Coastal Resources Commission has proven to be very much on target.

To read the full text of this post by Seth v.d.H. Cooley, visit the Environmental, Social and Governance Blog.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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