ESG – The Potential for a Biden Administration and Bi-Partisan Climate Change Action in 2021

As we almost turn the page from 2020 to 2021, many have cause for optimism with regard to the incoming Biden Administration and the potential for bi-partisan climate change engagement and action.  A hint of cautious optimism is, indeed, in the air.

Why???

President elect Biden campaigned on an ambitious climate action agenda and both R’s and D’s seem ready to address climate change and risk as part of a renewed focus on the environment.

President-elect Biden’s plans include re-engagement on various green energy and infrastructure projects and also include proposals to address environmental racism as part of the previously announced “Build Back Better” program.

So, what is first on the agenda:

Paris Accord – the U.S. will re-enter the Paris climate accord and will likely look to re-engage on various environmental regulatory rollbacks put into place by President Donald Trump — these can be done by executive action.

Other Executive Orders – President elect Biden has indicated an interest to limit oil and gas drilling on public lands and in public waters, increase gas mileage standards for vehicles and to block the construction of specific fossil fuel pipelines – these can also be done by executive order.

Legislation – much will depend on where the Georgia Senatorial run-off elections end up.  If the Republican party is able to hold onto control of the Senate, however, there still appears to be interest by both parties for climate change policy.

Policy – Biden has also promised to pursue:

  • a 100% clean electricity standard by 2035 (a proposal that could mean the shuttering or total renovation of all coal-fired and gas-fired power plants in the U.S.);
  • Net Zero – attempting to get to net-zero emissions by 2050, at the latest.
  • Renewable Energy – a $2 trillion investment in renewable energy projects, with 40% of the funds benefiting communities of color that have been harmed by pollutants.
  • Green Infrastructure – coordinated systems based approach to agency procurement to focus across the Federal landscape of agencies (e.g., on 
    Transportation, Interior and the GSA) to help build new green infrastructure and incentivize developing green energy sources
  • State Department is likely to be used to focus other international powers to similarly focus on climate policy and carbon emissions.

    Per reporting from ABC News, the Growing Climate Solutions Act, sponsored by Sens. Mike Braun, R-Ind.; Debbie Stabenow, D-Mich.; Lindsey Graham, R-S.C.; and Sheldon Whitehouse, D-R.I., focuses on carbon-capture technologies in the agricultural sector, while Sen. Lisa Murkowski, R-Alaska, and Whitehouse have put together another bipartisan bill focused on increasing carbon-capture methods that occur naturally within ocean and coastal ecosystems.
  • Moreover, Reps. David McKinley, R-W.Va., and Kurt Schrader, D-Ore., have proposed a 10-year public and private partnership to invest in clean energy and infrastructure and subsequent new regulations.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space.  We would be happy to discussion your proposed project with you.  Contact your Duane Morris attorney for more information.

If you have any questions about this post, please contact Brad A. Molotsky, Sheila Slocum Hollis, Patrick Morand, Brad Thompson or the attorney in the firm with whom you are regularly in contact.

From the Land of OZ – Timing for Filing Forms 8996 and 8997 and the 180 day investment period – Spring Forward!

Good morning/afternoon friends. As we draw close to March 15th, a magic day for partnerships and S corps. for required tax filings, if you have invested in a QOF or a QOZB, I wanted to politely reach out and remind you all of something your accountant is likely to have already covered but, just in case:

1. Individuals – have 180 days from their gain event to put as much or as little capital gains as they want into a QOF. The individual needs to file a Form 8997 for his/her individual OZ investments. This form is available on line at www.irs.gov and is due with your individual return in April.

2. Partners in Partnerships; Shareholders in S Corps. – as you likely know, the final regulations issued in December 2019 allow partners and shareholders to invest capital gains 180 days from when the return for the relevant entity is due. This due date, WITHOUT EXTENSION, is March 15th. 180 days from March 15th takes one to September 11th. Thus, if you are a shareholder in an S corp or a partner in a partnership that had 2019 gain that is distributed to you in your individual capacity, you have until September 11, 2020 (this year) to place your gain into an QOF and still qualify. That is for you in your individual capacity friends.

The entity that is the QOF (the qualified Opportunity Zone Fund) is required to file form 8996 with its tax return to tell the IRS it wants to be treated as a QOF. If the QOF files an extension, this form would be due with the extension. Note, the September date for the individual is NOT extended regarding the timing for their investments into a QOF and the individual is required to make a decisions 180 days from when the return was originally due (i.e., March 15th).

3. QOZBs – as discussed, if relevant to you, QOZBs do NOT need to file any forms with the IRS. That said, they still need to meet the 70% test, the 50% test and 5% tests in order for the QOF that has invested in them to qualify; so their paperwork is very very relevant, they just don’t need to file anything with the IRS. Please note that the QOZB’s information will still be needed for the QOF to file its form 8996 as there are specific questions about the QOZB contained in the QOF’s filing paperwork.

I know, clear as mud! Just note, I did not make up the rules just trying to keep friends and clients from running afoul of them. If you have any questions or concerns, please reach out via email. I am traveling with my family (yes, I know, wash my hands) the rest of this week through Monday but will have access to email, just please be patient as out with my family. Best regards.

Over and out from the Land of OZ. -Brad

Rapid increase in funds invested in Opportunity Zone Funds

Despite the laments that I have heard of late at various conferences and read in various articles, Opportunity Zones are, in our little slice of the world, very busy, very active and, per both Novogradac and Bisnow, OZ Funds who are focused on raising third party equity have seen a marked increase in funds under management in the last few months and have raised approximately $4.5B to date. While this is indeed less than the $6T of unrealized capital gains estimated to be available to invest, it is still a very sizable sum of money.

Per Novogradac, of the 366 funds that they track which represent a targeted funding level of $65.7B if fully funded, 184 Qualified Opportunity Funds have reported back and have raised $4.46B with a funding target for those 184 QOFs of $25.17B. This level of $4.5B is up significantly from September when these same funds had raised $2.5B.

Many folks we work with are focused on the 12/31/19 deadline to invest capital gains into a QOF in order to obtain the 15% reduction in amount subject to capital gains benefit; BUT, as indicated previously, the sky does NOT fall if you miss this date, Armageddon does NOT happen – rather, the investor is eligible for a 10% reduction in 2020 and 2021 if they invest capital gains in those calendar years. So, the program is far from over, far from reaching its potential but is alive and doing well and making progress and moving in the right direction, if right is to attract equity capital in low and moderate income areas that were designated as Opportunity Zones.

My team and I are in the office and working on closing the 39 OZ deals we are currently working on for clients who have pushed forward and are moving deals towards the goal line. Kudos and thank you to those 29 clients for whom we have already closed deals for. We appreciate your business and count our blessings to have worked with you on these fun and exciting projects.

If you have questions or comments, please let us know as we are happy to chat OZs and investments and deployment or anything else you would like to discuss.

Have a wonderful holiday season!

Climate Change viewed as a Major Problem in NJ according to a recent Stockton University poll

According to a Stockton University poll released earlier this week, 2/3 of New Jersey residents believe climate change is a crisis and almost 75% believe it is affecting New Jersey.

Per Stockton’s press release, “the results show climate change is a concern to people all over New Jersey and not just those who live along the Jersey shore,” said John Froonjian, interim director of the William J. Hughes Center for Public Policy at Stockton, who presented an overview of the results at Coast Day at Stockton Atlantic City on Oct. 13.

As reported in Bisnow, among those who believe climate change is currently affecting NJ, more than 75% cited rising sea level, earth warming, harming or changing the ocean, extreme weather, and worsening pollution as major problems they are concerned about.

Beach erosion was cited by 70% as a major problem, while harm to farming was mentioned by 68%, flooding by 66%, and health effects by 57%.

More than half of respondents (56%) believe government could or should do more, and 31% say the government response is totally inadequate.

Per the poll, views did vary along party lines. Democrats (92%) and independents (64%) were more likely to see climate change as a crisis or major problem than Republicans (35%). Women (72%) were also more likely to view it as a crisis or major problem than men (62%).

The results also showed while young people are the most concerned about the issue, concern cuts across age, racial, ethnic, economic, gender and geographic lines. Almost 80% of respondents ages 18-29 see climate changes as a crisis or a major problem. That percentage drops to under 70% for those over 65.

We will continue to monitor trends and thinking in ESG and climate change and report back. If you have any questions, please do not hesitate to contact me at bamolotsky@duanemorris.com and I will direct your question accordingly.

-Brad A. Molotsky, Esq., LEED AP – O+M