NEWS

Renewables Corner – Fall 2015

The Massachusetts Department of Energy Resources (DOER) is preparing draft regulations to include renewable thermal in the Massachusetts Alternative Portfolio Standard (APS) pursuant to Chapter 251 of the Acts of 2014.

The MassDEP has still not finalized its evaluation of wind turbine noise, which some wind energy advocates claim is stymying development of land based wind energy. In 2012 the MassDEP issued a Wind Turbine Health Impact Study  that stimulated a spirited discussion over the health effects of wind turbines including significant public comments and additional information. In response, in 2013 MassDEP convened the Wind Turbine Noise Technical Advisory Group (WNTAG) to provide advice on recommended changes to MassDEP noise regulations and/or policies as they apply to wind turbine noise. In July 2013, the MassDEP issued a Discussion Document entitled Potential Revisions to MassDEP Noise Regulations and Policy to Address Wind Turbine Noise.  Some in the field believe that the wind noise measurement techniques discussed by the MassDEP would inappropriately overstate the noise impact of turbines.  Unfortunately, since the Baker Administration has come into office, the MassDEP has not reconvened the WNTAG.

In May, the Baker-Polito Administration announced the launch of a new $10 million initiative aimed at making Massachusetts a national leader in energy storage. The Energy Storage Initiative (ESI) includes a $10 million commitment from the Department of Energy Resources (DOER) and a two-part study from DOER and the Massachusetts Clean Energy Center (MassCEC) to analyze opportunities to support Commonwealth storage companies, as well as develop policy options to encourage energy storage deployment.

In October, Entergy announced that Pilgrim Nuclear Power Station will close by June 1, 2019. Coupled with the planned shut down of large coal fired generating stations in the Commonwealth, this could open up the market for more renewable power.  However, it is likely that renewable energy producers in Massachusetts will face competition from Canadian hydro-power and new imports of natural gas, if the current Administration’s policies succeed.

Over the summer, Governor Charlie Baker filed two pieces of energy legislation that, if passed, will affect the renewable energy market.  In July, he filed An Act Relative to Energy Sector Compliance with the Global Warming Solutions Act, to diversify the state’s energy portfolio through the procurement of cost-effective, hydropower generation.  Among other things, the legislation will permit Massachusetts utilities to collaborate with other New England states, including Connecticut and Rhode Island, in the procurement of hydroelectric resources. Critics question whether a large amount of Canadian hydropower will crowd out other Massachusetts based renewable energy sources.  Ironically, others criticize republican Governor Baker’s proposal as a massive “re-regulation” of the deregulated energy market place and a “subsidy” for Canadian hydro-power.  In August, Governor Baker filed  An Act Relative to a Long-Term, Sustainable Solar Industry  to raise the private and public net metering caps two percent each, to six and seven percent, respectively. This represents a 50% increase for public entities, and a 40% increase for private entities, in the allowable amount of solar energy available for net metering credits. This increase will provide immediate support for projects being developed in service territories where the caps have already been reached, and provides the Department of Public Utilities with the authority to raise the caps further, as needed in the future.  Previously, the Administration announced a coordinated process with Rhode Island and Connecticut to issue a Request for Proposal (RFP) for clean energy resources. At the same time, the Governor instructed the DOER to commence a proceeding at the DPU to consider how the electric utilities can pursue gas capacity contracts that would improve winter reliability and lower winter electricity costs.  On October 2, the DPU issued its Order Determining Department Authority under G.L. c. 164, 94A that utilities can enter into such long term gas contracts to reduce electricity costs.

It’s Time to Restore the Promise of the Permit Session.

In the September 14, 2015 issue of Massachusetts Lawyers Weekly, Tom and Peter provide their opinion on recent judicial efforts to undermine the legislature’s intent in passing the Permit Session Statute. With this issue poised to go to the Supreme Judicial Court, this is a good time to restore the promise of the Permit Session.

False Claims Act – Be Warned

Although Charlie Baker sent business a friendly message with his Executive Order suspending new regulations, Attorney General Maura Healey and her staff of Assistant AGs in the Environmental Protection Division are not so charitable.  Yesterday, four senior AAGs presented on the use of the False Claims Act against environmental violators. The False Claims Act is a “very strong tool” and they are “anxious to use it.”  In translation, “watch out” if you are engaged in business with the government and unfortunate enough to get into a related environmental beef that is referred to the AG.

The AG’s Office is increasingly using False Claims allegations to soften up environmental enforcement targets with additional investigative tools, increased penalties and the specter of triple damages (i.e. disgorgement of up to 3X any economic benefit).  Liability can be established if a defendant makes a “false statement” to the government (or any of a host of other related parties like government contractors and subcontractors) that results in an underpayment to or overpayment from the government.
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