Legislation Introduced in Pennsylvania to Support SREC Market

Legislation has been introduced in the Pennsylvania State Senate to help the State’s declining solar renewable energy credit (“SREC”) market. Pennsylvania’s SREC market has been in decline as a result of oversupply. To increase the demand for SRECs Senate Solar Bill (SB 1350) proposes to: (1) increase Pennsylvania’s alternate energy portfolio standard solar carve out requirements starting with compliance years 2015 to 2015: (2) change the alternate compliance payment to $285 per SREC starting with compliance years 2013 to 2015; and (3) allow for solar thermal facilities to qualify. While previous versions of the Senate Bill included language to close the market to out of state systems such language was not included in the current version of the Bill. If passed this Bill would spur Pennsylvania’s declining SREC market.

New Financing Models for Energy Retrofits

The energy retrofit of a building is the analysis and implementation of energy efficiency measures such as energy efficient equipment, air sealing, moisture management, controlled ventilation, insulation, and solar control so that dramatic energy savings are achieved alongside optimal building performance. One of the greatest barriers to improving energy efficiency in buildings is the high capital cost of projects. However, new financing techniques for energy retrofits have developed which include anchor tenant financing, shared saving agreements, capital leases, power purchase agreements, property assessed clean energy bonds, green leases, and on bill financing. These innovative financing methods now make it easier to complete retrofits which result in cost savings as well as an increase in the value of the property.

Duane Morris Forms Puerto Rico Renewable Energy Practice Group

Combining the capabilities of several strong practice areas of the firm, Duane Morris LLP has formed a Puerto Rico Renewable Energy Interdisciplinary Practice Group.  This interdisciplinary practice group works with developers, lenders, investors, and private equtiy funds in the development of renewable energy projects in Puerto Rico.  Dependent upon the importation of fossil fuels, Puerto Rico’s energy costs are very high making renewable energy a very cost effective alternative. In addition, the Puerto Rico Electric Power Authority has encouraged the development of renewable energy projects in the Island though the issuances of power purchase agreements with renewable energy developers. Members of the group consist of Larry Diamond and Marco Gonzalez of the firm’s Puerto Rico Practice Group, Jim McTarnaghan, and Phyllis Kessler of the firm’s Renewable Energy Practice Group, Nat Abramowitz ,who practices in the finance and bond field, and Art Momjian, who specializes in Federal tax credit programs including the federal renewable energy investment tax credit.

After Historic Boardwalk – A New Look at the Wind “Safe Harbor”

In the aftermath of the Historic Boardwalk case, the Historic tax credit investment community is struggling with a partnership investment structure which will not be challenged by the Service. Conceptually one may only need to look to Rev. Proc. 2007-65 in which the Service set forth a safe harbor for investors in partnerships owning qualified energy facilities. The positions advanced by the Service in its appeal of the Tax Court decision in the Historic Boardwalk case mirrored many of the safe harbor requirements of the Rev. Proc. 2007-65. As a result, to follow the safe harbor of Rev. Proc. 2007-65 one would conclude at a minimum future historic tax credit partnership agreements should: (1) provide both cash flow and tax credits to the investor; (2) no longer be structured as “pay as you go” transactions; (3) no longer have tax credit indemnities in favor of the investor; and (4) no longer have an investor “put” to the developer for nominal consideration. To sum up, developers and investors looking for guidance after the Historic Boardwalk Case may find comfort in the “safe harbor” of Rev. Proc. 2007-65

Private Equity Roll Ups for Small Scale Renewable Energy Projects

Renewable Energy projects can be viewed as falling into one of three categories. A large and growing industry is the residential solar project market. This market consists of large operators which through their dealer networks have developed a very popular and profitable model for homeowner installation. A well-established market is the utility-scale projects. This market benefits from the demand from traditional owners of energy plants, infrastructure funds and private-equity funding. The third category is the small scale commercial market. While the economics of the small scale market are strong, the market suffers from the inability of sponsors to access the debt and tax credit markets for small commercial projects. In addition, the complexity of renewable energy projects generates substantial transactional costs which are more difficult to be absorbed by smaller commercial projects. Attorneys in the interdisciplinary renewable energy group at Duane Morris are working with middle-market renewable energy sponsors to aggregate small scale renewable energy projects to a critical mass. These projects will then be rolled up to a private equity fund which has access to capital at very favorable interest rates. In addition, the aggregation of the projects generates a larger renewable energy investment tax credit which is more attractive to tax credit investors.

Proposal to Extend Wind Production Tax Credit

On August 2nd the Senate Finance Committee voted to renew the wind power production tax credit that is set to expire at the end of this year with the proposed Wind Powering America Jobs Act. The bill is expected to go to the Senate floor when Congress returns from summer recess. Wind farms can generally choose to receive a continuing credit of 2.2 cents per kilowatt-hour of electricity produced or receive a one-time payment equivalent to 30 percent of the cost of developing a project. Currently the production tax credit and the option to elect the 30 percent renewable energy investment tax credit will expire at the end of 2012. In contract, the renewable energy investment tax credit for solar projects will continue through the end of 2016. However, it is unclear if the House will support a renewal of the wind production tax credit.

Duane Morris Works with Potential Middle Market Energy Tax Credit Investors

The expiration of the Section 1603 grant in lieu of the federal renewable energy tax credit has had a substantial adverse impact on the development of renewable energy projects in the Country. While some projects were able to grandfather the benefits of the Section 1603 grant by incurring the required costs in 2011, these projects will disappear during the year. In addition, although the grant provides money in lieu of the tax credit it does not monetize the losses associated with the project which most developers do not have the taxable income to use. As a result, less equity is generated for these projects. Historically the renewable tax credit investment community has serviced the very large utility size projects and not the middle market. Duane Morris attorneys are working with investors in the low-income housing, historic, and new markets tax credit industries to educate these investors to the structures and opportunities available for middle market renewable energy tax credit transactions. It is hoped that in the near future a group of investors will emerge to service middle market renewable energy tax credit transactions.

Forbearance Agreements in Renewable Energy Financing Transactions

With the expiration of the legislation which provided the 1603 grant in lieu of the energy investment tax credit, renewable energy developers must now “sell” the investment tax credit to a tax credit investor. Recapture of the investment tax credit to a tax credit investor occurs if the energy property is foreclosed by a lender during the 5 year tax credit compliance period. As a result, tax credit investors routinely require a lender to forbear exercising its rights against a borrower during the 5 year tax credit compliance period to avoid recapture of the investment tax credit. Obviously forbearance is contrary to the goals of a lender which wants the right to exercise any and all remedies in the event of a default by the owner of the energy property. As a result of the stress between the positions of the tax credit investor and the lender a variety of alternatives to absolute forbearance have evolved. These alternatives include limiting forbearance to solely the energy property, providing the lender with a security interest in the equity interests of the borrower and permitting the lender to exercise its pledge of the equity interests of the borrower, and the exercise of rights against the energy property only in the event of a major default and after notice and an opportunity to cure to the tax credit investor as well as providing the tax credit investor with a purchase right of the energy property. The syndication of the energy investment tax credit to the tax credit investor creates a conflict between the interests of the investor and the lender which can only be resolved by a negotiated forbearance agreement between the parties.

Renewable Energy Opportunities in Puerto Rico and the Virgin Islands

Caribbean islands such as Puerto Rico and the U.S. Virgin Islands have historically been dependent upon imported energy for their energy needs. As a result electricity prices in these Caribbean islands are more than five times the average in the United States. The high cost of electricity makes renewable energy sources such as solar and winds a cost effective alternative. Duane Morris has been active in Puerto Rico and the Virgin Islands representing both governmental agencies as well as clients doing business in both Islands. With the recent dramatic decrease in the cost of solar technology and the availability of a renewable investment tax credit for both solar and wind projects, there should be execellent opportunities for the development renewable energy projects in both Puerto Rico and the Virgin Islands.

Crowd funding: A tool for non-profits developing new projects

The origin of the concept of crowd funding is attributed to 1997 efforts by fans who underwrote an entire U.S. tour for the British rock group Marillion. Fans of the band raised $60,000 with donations following a fan based internet campaign. More recently, the web based company Kickstarter elevated the original Marillion concept into a sophisticated model of raising funds for a variety of business ventures. At the Kickstarter site donations from the public are requested in return for gifts, memberships or pre-ordered products; however, donors are not given an interest of any kind in the venture. Another aspect of crowd funding is tied into the JOBS Act which allows for a wider pool of smaller investors with fewer restrictions. Crowd funding is a potential vehicle for non-profits to develop projects with the support of their donor base. As an example, a non-profit developing a renewable energy project may use crowd funding to appeal to supportors for donations in exchange for renewable energy certificates generated by the renewable energy facility. In states where the purchase of renewable energy certificates is not compulsory by utilities these certificates may not have much economic value but evidence an individual’s commitment to clean energy. This is one example of crowd funding as a potential tool for non-profits.

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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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