Latham's Clean Energy Law Report

Interior Department Excludes Incidental Take Liability Under the Migratory Bird Treaty Act

Posted in Environmental and approvals

By Janice Schneider, Sara Orr, Jennifer Roy and James Erselius

Reversing a long-standing federal legal position, the US Interior Department recently stated that the Migratory Bird Treaty Act (MBTA) does not impose liability for the incidental take of protected birds. The 41-page Solicitor’s Opinion (number M-37050) withdraws and replaces a prior Solicitor’s Opinion (number M-37041), issued during the Obama administration. The prior Solicitor’s Opinion had interpreted the MBTA to prohibit “incidental take,” and concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental take and killing.” The new legal position means that the Trump administration will not consider the non-directed and unintentional death of birds by energy companies and other businesses in the course of their otherwise lawful activities to be a crime under the MBTA.

The MBTA, enacted in 1918, prohibits the take of over 1,000 species of birds, and the take of any migratory bird’s parts, nest, or eggs without a permit. The regulations define take as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt any of these acts. Violations of the MBTA are criminal offenses, and courts have held that the MBTA imposes strict liability, regardless of intent. Courts have debated, however, whether the scope of strict liability under the MBTA extends to the incidental take of migratory birds resulting from otherwise lawful activities. As discussed in a previous post, the Fifth Circuit joined courts in the Eighth and Ninth Circuits in ruling that the MBTA does not prohibit incidental take. In contrast, other circuits, such as the Second and Tenth, have extended liability under the MBTA to incidental take in at least some instances. Continue Reading

California Air Resources Board Clarifies 2018 LCFS Targets and POET II Case Approaches Major Milestone

Posted in Environmental and approvals, Permitting

By Joshua Bledsoe and Kimberly Farbota

Recent guidance published by the California Air Resources Board (ARB) clarifies the treatment of diesel fuels under the Low Carbon Fuel Standard (LCFS) in light of the Court of Appeals’ May 30, 2017 decision in POET I. Meanwhile, in POET II, ARB recently filed a Motion for Judgment on the Pleadings (MJOP), in an attempt to have the lawsuit dismissed as moot before a hearing on the merits occurs. While the MJOP addresses all of the claims in POET II and various other filings have been made by the parties in connection with the motion (e.g., Requests for Judicial Notice, a Motion to Strike, etc.), this blog entry focuses only on the key aspects of the MJOP and POET’s opposition thereto.

New Guidance Regarding Implications of the POET I Decision

On November 22, 2017, the ARB posted regulatory guidance to clarify the scope of the writ of peremptory mandate issued by the Fresno County Superior Court on October 18, 2017 (the Modified Writ) to implement the May 30, 2017 POET I decision.

As we have discussed in previous posts, the POET I case arose from Petitioner POET, LLC’s challenges to the original LCFS regulation adopted by ARB in 2009. On April 10, 2017, the Court of Appeal ruled that ARB had failed to faithfully execute a writ of peremptory mandate requiring it to remedy violations of the California Environmental Quality Act (CEQA) that occurred during adoption of the original LCFS. In response to a petition for rehearing filed by ARB, the Court of Appeal reissued its opinion on May 30, 2017. Continue Reading

California Continues to Drive Toward Lower NOx Standards for Heavy-Duty Diesels

Posted in Energy regulatory

By Arthur Foerster and Jamie Friedland

On January 12, 2018, the California Air Resources Board (CARB) will conduct a public workshop regarding CARB staff’s potential amendments to California’s heavy-duty vehicle (HDV) emission warranty requirements. According to CARB staff, the workshop will focus on potential changes to Title 13, California Code of Regulations, Section 2036, and specifically, amendments to required emission warranty periods and manufacturer-scheduled maintenance. CARB staff will present the workshop as a webcast (available here).


Under United States law, the federal Clean Air Act (CAA) generally preempts individual states from adopting their own emission standards. The Act, however, grants California the ability to seek authorization to set the state’s own more stringent standards. See 42 U.S.C. § 7543(b). Manufacturers generally prefer a single national standard and, as a practical matter, often follow CARB standards when they are stricter.

Under current CARB rules, the applicable warranty period for heavy-duty diesel vehicles and engines (i.e., class 4 through 8) is whichever of the following comes first: five years, 100,000 miles, or 3,000 operation hours. See 13 CCR § 2036(c)(4). CARB staff’s proposal would maintain the five-year limit, while eliminating hour limits and lengthening mileage limits. Specifically, the proposal would increase the mileage limits to the following:

  • 350,000 miles, for class 8 vehicles;
  • 150,000 miles for class 6 and 7 vehicles; and
  • 110,000 miles for class 4 and 5 vehicles.

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DOI Identifies Burdens to Energy Development on US Tribal Land

Posted in Environmental and approvals, Finance and project development

By Janice M. Schneider, Tommy P. Beaudreau, Stacey L. VanBelleghem, and Nikki Buffa

Stakeholders interested in energy development on US tribal lands will welcome recent Department of Interior (DOI) efforts that identify a key burden to energy development on these lands — as well as the Bureau of Indian Affairs’ (BIA’s) plans to address it. DOI issued the Review of the Department of the Interior Actions that Potentially Burden Domestic Energy report (DOI Burden Report) in response to Executive Order (EO) 13783, Promoting Energy Independence and Economic Growth, which required agencies to evaluate and report on all existing agency actions that “potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources.” (For more on the DOI Burden Report, please see this November 2017 Latham & Watkins Client Alert.)

The BIA, a federal agency within DOI, is charged with managing trust assets of American Indians, Indian tribes, and Alaska Natives. As BIA noted in the DOI Burden Report, royalty income from energy production on tribal lands totaled US$534 million in 2016 and constitutes the largest source of revenue generated from tribal trust lands. BIA identified its existing regulations governing Tribal Energy Resource Agreements (TERAs) as a policy that potentially burdens domestic energy. Continue Reading

BOEM Renewable Energy Task Force Discusses Potential New Wind Energy Areas Offshore New York

Posted in Finance and project development

By Tommy Beaudreau, Janice Schneider, and David Amerikaner

The Bureau of Ocean Energy Management (BOEM) convened the Intergovernmental Renewable Energy Task Force for the New York Bight to discuss BOEM’s draft Call for Information and Nominations (Call) on December 4, 2017. The meeting, which was held via a webinar, marked an important step in the process to identify potential new wind energy areas (WEAs) in federal waters off of New York. BOEM plans to publish the Call in the Federal Register for formal public comment in late January or early February 2018 after considering inter-governmental input on the draft Call areas. With publication of the Call, BOEM will initiate the area identification process to delineate up to four potential new WEAs in the New York Bight, each with the estimated potential to generate at least 800 megawatts of electricity in support of the state’s renewable energy goals.

BOEM issued the draft Call, including the four new potential WEAs, in response to the New York State Research and Development Authority’s (NYSERDA) request to review proposed WEAs in the waters off New York and to expedite the permitting process for offshore wind development. More information, including maps of New York’s Area for Consideration, is available on NYSERDA’s website.

New York is prioritizing the development of renewable energy, and adopted a Clean Energy Standard (CES) in 2016. The CES mandates that 50% of New York’s electricity come from renewable sources by 2030, with a phase-in schedule beginning in 2017. Offshore wind energy stands to play a key role in meeting New York’s CES goals, which include a target of 2.4 gigawatts (GW) of offshore wind power. New York is currently preparing an offshore wind Master Plan that outlines information about project siting and environmental and use conflicts within a 16,740 square-mile study area. The State is expected to issue the Master Plan soon.

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US Climate Science Special Report Reveals Significant Findings

Posted in Energy regulatory

By JP Brisson, Michael Dreibelbis, and Chris Antonacci

The  US Global Change Research Program (USGCRP) has released the Climate Science Special Report (CSSR or the Report). Published on November 3, 2017, this US-focused authoritative climate change science assessment  serves as a foundation for assessing climate-related risks and informing decision-making.

As Volume I of the Fourth National Climate Assessment (NCA4), the CSSR provides:

  • Updated analyses of climate change findings
  • Executive summary and other materials providing the basis for discussion of climate science found in Volume II  (forthcoming in 2018)
  •  Foundational information and projections for climate change ranging from “likely” to “worst case” scenarios

A previous draft of the CSSR was leaked to the New York Times in August 2017, in what some commentators saw as a way to prevent the Trump Administration from drastically altering the final version’s findings . With the exception of wording changes intended to water down some of the report’s conclusions, the final CSSR’s substance and core discussion was not materially different  from the August version — and reports indicate that there was no political interference with its drafting. For more information, please see Lisa Friedman and Glenn Thrush’s New York Times commentary, U.S. Report Says Humans Cause Climate Change, Contradicting Top Trump Officials.  The CSSR comes on the heels of the Government Accountability Office’s  climate change report, released on October 23, 2017 [GAO Releases Climate Change Report] which provides economic valuations, and policy recommendations associated with US climate change risks.
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GAO Releases Climate Change Report

Posted in Energy regulatory

By J.P. Brisson, Michael Dreibelbis, and Chris Antonacci

On October 24, 2017, the Government Accountability Office (GAO), the auditing agency of the US Congress, released a report on climate change titled, “Information on Potential Economic Effects Could Help Guide Federal Efforts to Reduce Fiscal Exposure” (the Report). GAO prepared the Report at the request of the US Senate’s Committee on Energy and Natural Resources to review potential economic effects of climate change and risks to the federal government. The Report represents the latest installment of GAO’s attempt to monetize and frame climate change’s risk to the federal government, following the GAO’s inclusion of “Limiting the Federal Government’s Fiscal Exposure by Better Managing Climate Change Risks” on its “High-Risk List” in 2013 and its 2015 “High-Risk Update” on climate change adaptation.

The Report finds that climate change could result in significant impacts to the US economy that may be unevenly distributed across US sectors and regions, and recommends that the Executive Office of the President work with appropriate federal entities to identify significant climate risks and develop appropriate responses. The Report highlights that the federal government has already incurred direct costs of more than US$350 billion dollars due to extreme weather and fire events over the past decade.


In preparing the Report, GAO reviewed two national-scale studies and 28 other available studies and interviewed 26 experts and knowledgeable stakeholders, and compared government-wide efforts to manage climate risks with leading practices for risk management. This performance audit was conducted from December 2015 to September 2017. The Report notes the inherent uncertainties of climate modeling and the difficulty of forecasting climate change’s effects due to the confluence of two erratic factors – weather and economics. It is somewhat surprising that GAO, in 2017, could not find more than two reliable and comprehensive national studies on climate change, given its primacy in national and world politics in the last decade or longer.

Economic Impacts

The Report concludes that economic impacts associated with climate change could be significant and could increase over time as the end of the century approaches. The Report cites a study finding that the estimated net economic costs increase over time and that the likely combined direct economic effects of climate change on six sectors analyzed (health, labor, coastal communities, energy, agriculture, and crime) could reach between 0.7 and 2.4 percent of the US gross domestic product per year by the end of the century. For example, the Report adds, estimated costs for coastal property losses from sea level rise and increases in frequency and intensity of storms would result in US$4-6 billion per year in the near term to as great as US$51-74 billion per year by end of the century. The Report also cites another study finding similar potential economic impacts across its broad spectrum of sectors analyzed, including health, infrastructure, electricity, water resources, agriculture, and forestry.

Uneven Impacts Across Sectors

The Report, relying on the same two studies, states that potential economic effects of climate change will be likely be unevenly distributed across sectors. The human health, labor, coastal infrastructure, and energy sectors would likely be more heavily impacted than others such as agriculture and crime. For example, the Report suggests that infrastructure in coastal areas faces higher financial risks than other sectors or geographic regions.

The disparity is attributable to a combination of factors, chief of which include: (i) an increase in premature mortality from higher temperatures; (ii) reduced number of hours worked because of high temperatures; (iii) infrastructure damage from increased flooding and storm surge; and (iv) increased energy demand. The CCIRA study similarly suggested that emissions reductions would generally generate larger effects on sectors related to human health, water resources, and electric power, with driving factors including: (i) lost labor hours and premature mortality from poor air quality and extreme health in the health sector; (ii) costs to water users when sufficient water is not available; (iii) and costs to expand power system capacity in the energy sector.

Climate Change: Information on Potential Economic Effects Could Help Guide Federal Efforts to Reduce Fiscal Exposure, GAO (Oct. 24, 2017),

The Report notes that each sector’s ability to adapt to its climate change risk will produce uneven impacts on sectors. For example, “protective adaptation measures – such as beach nourishment, property elevation, shoreline armoring, and property abandonment – can reduce projected coastal property damage.”

Uneven Regional Impacts

The Report suggests that potential economic effects of climate change will be likely be unevenly distributed across regions as well. To illustrate, ACP reported that individual states could experience uneven impacts. By the end of the century, Vermont could possibly see a 0.8 to 4.5 percent annual benefit to economic output compared to Florida’s 10.1 to 24% net annual economic costs.

The Report also identifies anticipated types of climate impacts specific to different regions of the US, ranging from increases in coastal infrastructure damage and heat-related mortality in the Southeast, to a decreased agricultural yield and decreased cold-related mortality in the Midwest. A key study cited by the report notes that the Southeast, Midwest, and Great Plains regions will likely experience the greatest economic impacts in coming years.

Report’s Recommendations

The Report finds that collecting and identifying information on potential economic impacts of climate change is the first step toward effective climate risk management at the federal level. The Report points out the absence of any government-wide strategic planning efforts to help set clear priorities for managing significant climate risks before they become federal fiscal exposures, suggesting that, “climate change risk management efforts need to be focused where immediate attention is needed and that, by prioritizing federal climate risk management activities well, the federal government can help to minimize negative impacts and maximize opportunities associated with climate change.” The Report calls for more comprehensive information on economic effects to better understand potential costs of climate change to society to better inform decision maker’s cost-benefit analysis of different adaptation options. GAO recommended that the appropriate entities within the Executive Office of the President, including the Council on Environmental Quality, Office of Management and Budget, and Office of Science and Technology, use the information presented in the Report to help identify significant risks and craft appropriate responses to climate change on the federal level.

New York Public Service Commission Adopts Compensation Values for Distributed Energy Resources in Reforming the Energy Vision Proceeding

Posted in Energy regulatory, Solar PV/Rooftop solar

By Michael Gergen, David E. Pettit and Christopher Randall

solar panelsOn September 14, 2017, the New York Public Service Commission (NYPSC or the Commission) issued its Order on Phase One Value of Distributed Energy Resources Implementation Proposals, Cost Mitigation Issues, and Related Matters (the Implementation Order). The Implementation Order sets the methodologies by which utilities throughout the state of New York will determine the Value of Distributed Energy Resources (VDER). It follows the Commission’s March 9, 2017 Order on Net Metering Transition, Phase One of Value of Distributed Energy Resources, and Related Matters (the VDER Phase One Order), which the Commission issued in furtherance of the State’s Reforming the Energy Vision (REV) initiative and is analyzed in a prior Latham & Watkins Client Alert.

In accordance with the VDER Phase One Order, each utility in the state submitted an Implementation Proposal addressing calculation and compensation methodologies for Distributed Energy Resources (“DERs”). The Implementation Order largely approves the utilities’ Implementation Proposals, with certain modifications relating to the recovery of VDER costs, the methodology behind the Installed Capacity credit, and the calculation of Market Transition Credits. The Order also addresses certain issues associated with the Value Stack for DERs and cost mitigation.

In general, solar energy advocates have reacted negatively to the Implementation Order. They assert that there is significant variation in how utilities calculate their respective Utility Marginal Cost of Service (MCOS), which is used to establish demand reduction value (DRV) and locational system relief value (LSRV) for DERs in their service territories. Because the DRV and LSRV inform the overall Value Stack associated with DERs, solar advocates claim that DER compensation will vary wildly from utility to utility. To illustrate this point, they note that proposed utility MCOS values range from $226/kW (Con Edison) to $15/kW (Central Hudson). While the Commission’s Order acknowledges the desire among some commentators for a more standardized valuation methodology, it concludes that Phase One is too early to implement such measures and instead will consider this issue as part of VDER Phase Two.

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California’s Supreme Court Denies ARB Petition To Review LCFS Case

Posted in Finance and project development, Permitting

By Joshua T. Bledsoe and Kimberly Farbota

In a previous post, we described how potential delays in the resolution of the case commonly known as POET I could create uncertainty regarding the future of the California Low Carbon Fuel Standard (LCFS). On August 23, 2017, the Supreme Court of California issued an order: (1) denying California Air Resources Board (ARB)’s petition for review of the appellate decision in POET I; (2) denying ARB’s request for an order directing depublication of the associated opinion; and (3) remitting the case to the Fresno County Superior Court.

As we have discussed in previous posts, the POET I case arises from petitioner POET, LLC’s challenges to the original LCFS regulation adopted by ARB in 2009. On April 10, 2017, the Court of Appeal ruled that ARB had failed to faithfully execute a writ of peremptory mandate requiring it to remedy violations of the California Environmental Quality Act (CEQA) that occurred during adoption of the original LCFS. In response to a petition for rehearing filed by ARB, the Court of Appeal reissued its opinion on May 30, 2017. The revised opinion narrows the holding to focus more squarely on the facts of the case, but does not substantively alter the April 10, 2017 opinion. On July 10, 2017, ARB filed a petition with the California Supreme Court seeking depublication of the May 30, 2017 opinion, or in the alternative, Supreme Court review. In the petition, ARB argued that the decision should be depublished because it creates unnecessary confusion about how agencies and courts should address uncertainty under CEQA. ARB also argued that Supreme Court review could provide clarification regarding the standards by which compliance with a CEQA-related writ should be measured. As is common practice, the Supreme Court’s August 23, 2017 order did not provide the Court’s reasons for denying ARB’s petition and request.

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Uncertainty Looms with Delays to Resolution of California’s Low Carbon Fuel Standard Program Challenges

Posted in Environmental and approvals, Finance and project development, Permitting

By Joshua Bledsoe and Kimberly Farbota

Two recent developments in the interrelated legal challenges commonly known as POET I and POET II may create additional uncertainty for the future of the Low Carbon Fuel Standard Program (LCFS).

Earlier this year, the California Court of Appeal for the Fifth Appellate District (Court of Appeal) issued two opinions in the POET I case, both of which were adverse to the California Air Resources Board (ARB). As we have discussed in previous posts, the POET I case arises from petitioner POET, LLC’s challenges to the original LCFS regulation adopted by ARB in 2009. On April 10, 2017, the Court of Appeal ruled that ARB had failed to faithfully execute a writ of peremptory mandate (the Writ) requiring it to remedy violations of the California Environmental Quality Act (CEQA) that occurred during adoption of the original LCFS. In the opinion, the Court of Appeal largely agreed with petitioner POET, LLC, finding that ARB failed to comply with CEQA’s requirement that it analyze the degree to which nitrogen oxide (NOx) emissions would be impacted by implementation of the LCFS.

In response to ARB’s petition for a rehearing, the Court of Appeal reissued its opinion on May 30, 2017. The revised opinion narrows the holding to focus more squarely on the facts of the case, but does not substantively alter the April 10, 2017 opinion. In the revised opinion, the Court of Appeal assigned continuing jurisdiction to the Fresno County Superior Court (Superior Court) over POET I pending ARB’s completion of the revised NOx analysis and discharge of a reissued writ. Continue Reading