New York State Legislature Passes Renewable Energy Siting Law In Step Toward Meeting Ambitious Renewable Energy Mandates

By Steven C. Russo, Zackary D. Knaub and Lynelle Bosworth on Posted in Energy, Legislation, New York

With New York Governor Andrew Cuomo pronouncing the state’s process for siting renewable energy projects broken, the New York State legislature late yesterday passed sweeping reforms to the siting of large renewable energy projects proposed by the Governor, setting a firm one-year deadline for final siting decisions, as well as committing to study and plan for the transmission infrastructure needed to support it with a new structure that focuses on expediting the most critical major build-outs of the bulk transmission system to carry needed renewable energy from sites in Upstate New York and off-shore wind platforms to where it is needed by Downstate customers. In February, we wrote that Governor Cuomo’s proposal, submitted to the legislature as an amendment to the annual State budget, signaled a significant shift in thinking about renewable energy siting from a bureaucratic energy regulatory issue to an economic development initiative focused on meeting the progressive mandates of the Climate Leadership and Community Protection Act (CLCPA), while continuing to minimize environmental impacts. The bill that passed the legislature kept the governor’s underlying proposal largely intact while enhancing it in certain respects in ways that may further improve the structure and will become law when the governor approves the budget bills passed by the legislature, a step expected to take place today. The changes to the bill provide additional recognition of the role of local governments and citizens affected by renewable siting, and omit the attempt to standardize local property tax assessments and agreements for payments in lieu of taxes (PILOT). Overall, the new law aspires to site renewable projects in a timelier and more efficient manner.

Today’s new law, to be codified primarily in N.Y. Executive Law § 94-c, may be viewed as favorable by renewable energy developers seeking to site projects in New York as compared to the currently available structure. The law passed today establishes fast-track siting for large renewable projects of 25 MW and above, requiring that a final siting decision must be issued within one year of a complete application. The new law allows projects between 20 and 24 MW to opt into the new regime (the original bill was more inclusive, allowing projects as small as 10 MW to opt in), and allows projects that have begun the current Article 10 process to transition to the new process. The law creates an Office of Renewable Siting (the Office) within the Department of State (not within the state’s economic development agencies as in the original bill), and allows staff from other executive agencies to transfer to the Office with full civil service protections in place.

Under the new law, the Office must set uniform standards and conditions for siting design, construction and operation of renewable projects which is designed to enhance the efficiency of the process given similar issues faced by many of these projects. The standards will be based on conditions common for classes and categories of renewable projects (e.g., solar, wind, and storage), and must continue to avoid or minimize adverse environmental impacts to the extent practicable. The Office must hold four public hearings on the standard (DPS), and the Department of Agriculture and Markets (DAM), will have a consultative role in creating the new standards, but the new office will have the last word. Those environmental impacts that cannot be eliminated through the uniform conditions can be further mitigated by payment of funds dedicated to mitigation measures designed to offset such impacts. An endangered species mitigation bank is established to mitigate threatened and endangered species impacts, which have impeded renewable energy projects in the past. DEC is authorized to contract with a non-profit to administer the fund. A host community benefit also must be provided.

Some criticized the original proposal for “big-footing” local governments, and many of the changes and additions to the bill appear aimed at giving municipalities, local governments, and residents of host communities more of a voice in the siting process, while still retaining the Office’s ability to override local laws that are deemed “unduly burdensome” in light of the CLCPA goals and the environmental benefits of a project. While similar to what was contained in the Article 10 siting law, it now focuses on the need to meet CLCPA requirements in conducting this aspect of the siting process and it remains to be seen whether the Office will be more willing to override local laws seeking to impede renewable projects given the CLCPA requirements that mandate 100% carbon neutrality in the electricity generating sector by 2040. Before the Office may deem a permit complete, an applicant must provide proof of consultation with the affected local government on both substantive and procedural local laws.

The bill also clarifies that there will be an intervenor fund, administered by the New York State Energy Research and Development Authority (NYSERDA), available to local governments and “community intervenors” and paid for by a $1,000 per kW permit fee.   In contrast to the intervenor funding under Article 10, however, the fund here is for the participation in public comment or hearings, and to assist local governments in determining whether a project complies with local laws. Because the new law only requires a hearing if the Office finds that there is a substantive and significant issue, the use of intervenor funding to pay for adversarial hearings may be reduced, thereby potentially allowing such proceedings to be concluded more efficiently and in a more timely manner.

The permit completion stage may present some timeline concerns for developers. Under the law, the Office must make a permit completion determination within 60 days. But, the law does not provide a deadline for resubmission of an application in the event the Office determines that an application is incomplete. This may delay the permitting process, as similar delays of permitting determinations have been seen in other contexts, most notably, in natural gas pipelines seeking state-issued permits and certificates. The Public Service Commission’s (PSC) role in this process is reduced to enforcing the permit conditions that the Office puts in place.

Those unhappy with the Office’s final determination on a permit application may challenge the determination in court, but judicial review is expedited and circumscribed. Skipping the trial court altogether, litigants must bring their challenge in the Appellate Division where the host community is located, and, once there, the law directs the court to expedite these cases “with lawful precedence over all other matters.” A prospective litigant will find the court’s review limited to eight items, such as conformity with state and federal law and whether the decision is arbitrary and capricious. Further acknowledging the importance of citizen involvement, the court may also review whether the decision was made pursuant to a process that afforded meaningful involvement of the citizens affected by the facility regardless of age, race, color, national origin, and income.

The reforms do not include uniform local property tax assessment methodologies, or PILOT provisions, which were included in the original bill. The prior bill took on the patchwork of property taxes and PILOT agreements by dictating certain assessment methodologies and requiring consultation with NYSERDA on PILOTs. Those sections were cut from the final bill, and renewable energy developers will, for the time being, need to continue to navigate New York’s local taxing and industrial development authorities to have project property tax levels set or put PILOTs in place.

If developers cannot find, or are otherwise unable or unwilling to proceed with the permitting of, viable sites for projects, the provisions directing NYSERDA to find and permit shovel-ready sites to auction off to developers have been retained. The legislature did put some guard rails on this new program, making it subject to some additional requirements focused on environmental justice communities. NYSERDA also must reinvest any proceeds from the property sales in the program, preventing it from reallocating the funds received from the program, if any, without future legislation. The new law does not require developers to purchase properties from NYSERDA, but rather provides an alternative acquisition method through a public authority that may have substantial access to intelligence on sites such as brownfields, landfills, and retired electric generating facilities.

Finally, taking on transmission, the new law maintains the comprehensive transmission study proposed in the governor’s proposal, which directs that a capital plan and bulk transmission system investment program must be issued just under a year from now. The comprehensive transmission review is directed at both large scale, bulk transmission projects as well as the local and distribution level upgrades that will be needed for the state to meet the CLCPA requirements. The PSC retains its oversight role here, identifying “priority transmission projects” that NYPA then expedites outside of the ordinary NYISO process.  For bulk transmission projects, the original bill language was changed to recognize the NYISO process is to be used for a significant portion of public policy based upgrades, require NYPA to solicit interest from third-party “co-participants”, and, for priority projects not substantially in NYPA’s right of way, it must solicit private sector participants through a competitive bidding process, and the project cannot include upgrades to NYPA’s own transmission assets.

This law, implemented in the time frame and as the streamlined process envisions, paves the way for the state to meet the progressive mandates set forth in the CLCPA last year, while acknowledging the importance of the host communities and their residents in the process of siting, as well as the need to continue to minimize significant environmental impacts. By moving the Office out of the energy regulatory sector, and into the realm of DOS’s general state permitting, New York has sought to create a process that gets completed in a timely manner and results in the construction of solar generation projects, storage, and land-based wind projects to meet the CLCPA’s mandates. However, it remains to be seen if the new law will transform the current renewable siting landscape.

Environmental Enforcement Discretion During the COVID-19 Pandemic

By Candace Headen Uduebor on Posted in Compliance, COVID-19, Emergency Preparedness, Regulatory

The Coronavirus Disease 2019 (COVID-19) outbreak has affected every sector of our national and global economy, with profound impacts on business operations that stretch resources thin and create challenges to comply with state and federal environmental regulations. For example, stay-at-home orders or illness may keep employees or contractors away from work, making it difficult to comply with waste disposal, sampling, or equipment inspection requirements. Unanticipated shutdowns of non-essential businesses may generate excess emissions. Companies ramping up or shifting production in response to demand for COVID-19-related products may find that well-intentioned actions changed their permitting or some other regulatory status.

Faced with these challenges, a company’s first line of defense is compliance. If that is not possible, the scope, nature, and duration of non-compliance should be minimized.

While the coronavirus may be novel, enforcement discretion in times of national emergencies is not. The U.S. Environmental Protection Agency (EPA) and the states have used enforcement discretion as a flexible tool for decades – from national or statewide formal governmental pronouncements to case-by-case decisions e-mailed to individual companies. At the national level, EPA has issued “No Action Assurance” letters announcing it would not enforce certain environmental requirements in the wake of natural disasters such as Hurricanes Katrina, Maria, Michael, and Dorian. Earlier in March, major trade associations representing the petrochemical and waste management sectors were already asking EPA to make a formal enforcement discretion pronouncement during the COVID-19 crisis.

On March 26, 2020, EPA issued a memorandum outlining the Agency’s COVID-19 enforcement response and discretion policy. The policy retroactively takes effect on March 13, 2020, and provides enforcement flexibility for certain civil violations. Among some examples: routine compliance monitoring and reporting; settlement agreement and consent decree reporting obligations and milestones; certain air emissions and water discharges; timely disposal of hazardous and concentrated animal feeding operation waste; and drinking water monitoring.  EPA emphasizes that facilities should make every effort to comply, and that if compliance is not achievable, operators should act responsibly to minimize the effects and duration of non-compliance, document the nature and dates of non-compliance and how COVID-19 was the cause, actions taken in response (including best efforts to comply), and return to compliance as soon as possible. Critical infrastructure facilities may receive more tailored No Action Assurance on a case-by-case basis. EPA is not exercising its enforcement discretion in regard to criminal violations, Superfund or RCRA Corrective Action activities, accidental releases, or imports. EPA’s exercise of enforcement discretion is not limited to official pronouncements from Washington, D.C., like the March 26 memorandum. Depending on the circumstances, enforcement discretion may be sought on a more informal case-by-case basis by EPA Regional Offices to more rapidly and flexibly address specific situations.

States also have long implemented enforcement discretion policies on both state-wide and case-by-case bases, and several have already issued guidance in the COVID-19 context. For example, the Texas Commission on Environmental Quality has extended the deadline for certain air emissions inventory reporting and has established an email process to field case-by-case requests from facilities for enforcement discretion. The Oregon Department of Environmental Quality has announced that it will exercise enforcement discretion in “deciding whether to pursue potential violations caused by pandemic-related disruptions.” Some states, such as Virginia, New York, and Oklahoma, have not issued formal policies but have indicated they will use a “common sense” approach in evaluating non-compliance. Not all states have fully embraced enforcement discretion in the time of COVID-19. For instance, the California Water Resources Control Board has stated that timely compliance with its regulations is an “essential function,” and may only extend enforcement discretion if complying would be “inconsistent with current government directives or guidelines.”

Absent formal national or state-wide governmental pronouncements, companies should not assume that enforcement discretion will be available. The availability of enforcement discretion will vary depending on the compliance issue and who the lead enforcement agencies are. In addition, in programs where both EPA and state regulators can enforce the rules, enforcement discretion granted by one agency might not be honored automatically by the other; states typically have the option to be more stringent than the EPA. Similarly, an agency opting to exercise enforcement discretion would not mitigate potential citizen lawsuits; some environmental groups already have expressed concerns about the recent requests to the EPA for enforcement discretion.

 

New York Environmental Regulator Issues Guidance on Essential Construction in Support of Cleanup Activities

By Steven C. Russo and Peter Mezey on Posted in Brownfields, COVID-19, Emergency Preparedness, New York

The New York State Department of Environmental Conservation (DEC) recently released guidance on what constitutes “essential” construction in support of remedial activities pursuant to Executive Order (EO) 202.6 signed by Gov. Cuomo on March 18. EO 202.6 was tightened to limit non-essential construction activities in EO 202.13, issued March 29.

Empire State Development (ESD) has published  stating that non-essential construction must be shut down, “except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).” Essential construction “includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters.” Further, “[e]ssential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses including . . . emergency management and response” are considered essential businesses.

DEC announced its own interpretation of the ESD guidance as it pertains to DEC remedial and Brownfield projects on March 30, and updated by the agency on March 31, to make clear that it relates to activities overseen by DEC’s Division of Environmental Remediation:

  • Remedial construction activities, including new construction starts, at sites that DEC has determined pose a significant threat to public health and/or the environment, including Class 2 sites on the Registry of Inactive Hazardous Waste Disposal Sites and significant threat sites in the Brownfield Cleanup Program,
  • Completion of remedial construction already under way at non-significant threat sites as necessary to ensure site safety and prevent exposure to site contaminants, including completion of site cover systems,
  • Operation and maintenance activities for active remedial systems that are necessary for the continued protection of human health and the environment,
  • Interim remedial measures to address imminent human exposures and/or threat of significant contaminant migration,
  • Spill response actions,
  • Investigation, including pre-design investigations, of petroleum and hazardous waste releases as determined by DEC on a case-by-case basis to be necessary to address potential human exposures and/or threat of significant contaminant migration.

This guidance, developed by DEC’s Division of Environmental Remediation is helpful for determining when remedial activities may go forward under the more stringent limits on construction activities. In follow-up correspondence, the agency confirmed that a site participating in the Brownfield Cleanup Program (BCP) and currently engaging in remedial measures that also serve to advance project development such as contaminated soil excavation, installation of support for such excavation and related sampling would be deemed “essential” because (i) the work would be “unsafe to allow to remain undone” per ESD guidance and (ii) the remedial construction was determined necessary by DEC when it accepted the site into the BCP and approved the remedial action work plan. The guidance that site investigation activities be postponed will likely delay many Brownfield investigations, although there may be an opportunity to obtain exceptions under ESD’s health and safety exception in cases where the applicant can demonstrate that there is a significant risk to public health and the environment.

Site owners, environmental consultants and contractors should closely track DEC guidance on what constitutes “essential” construction for cleanup activities, and consult DEC representatives if unclear on a particular site. Further, every business is strongly urged by DEC and the state to maintain social distance to the extent possible.

For more information and updates on the developing COVID-19 situation, visit GT’s Health Emergency Preparedness Task Force: Coronavirus Disease 2019.

Mexico’s SENER and SEMARNAT Suspend Activity Until April 20

By Erick Hernández Gallego on Posted in Energy, Environment, Mexico

This past week, Mexico’s Ministry of Energy (SENER) and Secretariat of Environment and Natural Resources (SEMARNAT) published official communications to suspend activity until April 20. These decisions impact terms, deadlines, promotions, and administrative procedures. To learn more about how this decision applies, please refer to my Alerts:

Mexico’s Ministry of Energy Suspends Terms and Deadlines Due to Pandemic

Mexico’s SEMARNAT Suspends Activity Until April 20 due to Coronavirus Disease 2019 (COVID-19) Pandemic

For more information and updates on the developing situation, visit GT’s Health Emergency Preparedness Task Force: Coronavirus Disease 2019.

 

Before Making Pandemic Response Products, Consider Environmental Regulations

By Jillian Kirn and Candee Wilde on Posted in COVID-19, Emergency Preparedness, EPA, Manufacturing, Permitting, Regulatory

Yesterday, March 26, 2020, the U.S. Environmental Protection Agency (EPA) published a memorandum titled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. This guidance comes at a time when the Coronavirus Disease 2019 (COVID-19) has upended ‘business as usual’ throughout the country and the world. Consumers empty shelves of hand sanitizer, health care workers face shortages of personal protective equipment, and ventilators for patients are in short supply. Many industries are pivoting, altering their processes to provide these much-needed products. For instance, though major car plants in the U.S. (as well as Europe and Asia) have halted production in an attempt to prevent the spread of COVID-19, car manufacturers have pledged their support to offer resources to make more ventilators. Similarly, both small, local distilling companies and internationally recognized distilleries and perfumeries are taking part in producing hand sanitizer following the U.S. Food and Drug Administration’s (FDA) announcement last week that the agency will permit certain facilities and licensed professionals to produce hand sanitizer, so long as they follow the agency’s prescribed recipe. Companies in the textile industry that have never manufactured medically related products such as gloves, face shields, surgical gowns, and masks are considering doing so to meet the current demand.

If you are environmental, health, and safety (EHS) counsel or general counsel for a company considering a similar change, you may find it helpful to consider the following ways to address environmental requirements that accompany a new or significantly altered manufacturing process.

Making the ‘Right Stuff’: Considerations for Product Requirement Compliance

Companies making changes to their process should become and be well-versed in the regulations and guidance documents that apply to those products and determine whether the company’s facilities are capable of complying with the federal, state, and local standards. For instance, when a nonmedical-grade manufacturing plant retools its process to make surgical masks, the plant may find it is producing nonmedical-grade products while awaiting regulatory approvals from the FDA. There is some risk posed by running afoul of these requirements, including penalties or facing a future suit from the government or private parties, especially if it turns out that the plant produced materials that do not meet the relevant standards. To reduce this risk, companies may want to consider requesting that the relevant agencies exercise enforcement discretion to permit the plant to proceed with protection from later litigation.

Getting the ‘Right Permits’: Considerations for Environmental Compliance

If your company intends to make substantive changes to its operation, the new process may impact a facility’s emissions, effluent, and waste composition. Companies would do well to evaluate whether these changes require an alteration or modification of an existing permit, or an entirely new permit. As one example, manufacturing facilities that generate hazardous waste are potentially subject to Resource Conservation and Recovery Act (RCRA), 40 CFR pt. 260-279, or its state analogues. A company that increases the amount of waste generated as a result of ramping up operations may go from being a Small Quantity Generator (SQG) to a Large Quantity Generator (LQG), and would ordinarily be required to follow standards applicable to the new status. However, EPA’s March 26 memorandum notes that it will be exercising enforcement discretion for civil violations, so long as entities make every effort to comply with their environmental compliance obligations and, if compliance is not reasonably practicable, facilities with environmental compliance obligations should (according to the EPA):

a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
b. Identify the specific nature and dates of the noncompliance;
c. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
d. Return to compliance as soon as possible; and
e. Document the information, action, or condition specified in a. through d.

 

 

 

 

 

 

Though EPA’s March 26 memorandum has relaxed many requirements at the federal level, companies should still consider the implementation of state and/or local requirements. In the RCRA example, additional regulatory requirements, such as a reduction in the time waste can be stored on site, additional technical compliance standards for accumulation of waste, air emissions controls, and reporting and planning obligations, may be imposed. Violation of these requirements may result in civil or criminal penalties at the state level. Furthermore, EPA’s March 26 memorandum specifically notes that criminal penalties will still be authorized for facilities that display “an intentional disregard for the law.” Consideration should be given to complying with the most stringent set of requirements to reduce the risk of future penalties or suits.

If your facility needs to obtain a new environmental permit, it may find it difficult to get one promptly due to government agencies working remotely, with reduced capacity, and/or being delayed due to a surge in applications. If you do experience delays, two things to consider:

  • In addition to EPA, many other agencies have significant enforcement discretion and may be more willing to exercise discretion when a company provides notice to the agency and is fully transparent about its change in operations.
  • It may help to reevaluate your EHS management system to ensure that it is robust and can adequately identify and address any risks posed by the new manufacturing process.

U.S. Environmental Protection Agency Issues Enforcement Discretion Policy to Address Civil Noncompliance during the COVID-19 Pandemic

By Bernadette M. Rappold on Posted in Compliance, COVID-19, Emergency Preparedness, EPA, Regulatory

The U.S. Environmental Protection Agency (EPA) issued a memorandum (Susan Parker Bodine, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” U.S. EPA, March 26, 2020) (Discretion Memo) granting enforcement discretion for virtually all civil violations of federal environmental laws during the COVID-19 pandemic.

Timing

The policy will apply retroactively from March 13, 2020, the date on which the president declared a national emergency, and will last until further notice. The EPA has pledged to publish a notice on its enforcement and compliance policy website at least seven days in advance of any planned termination of the enforcement discretion policy.

Scope

While the scope of the enforcement discretion is broad, it does not apply to Superfund cleanups or RCRA corrective action. The agency plans to address those circumstances in a separate document. Likewise, the Enforcement Memo does not apply to criminal violations, nor does it apply to imports.

The Discretion Memo advises the regulated community that the EPA plans to exercise its discretion not to take civil enforcement actions or seek penalties for most noncompliance during the pandemic, so long as the entities comply with certain provisions. First, entities are generally required to “make every effort to comply with their environmental compliance obligations.” If they cannot comply, then they should: (a) act “responsibly to minimize the effect and duration” of any noncompliance caused by the pandemic; (b) identify the nature and dates of the noncompliance; (c) explain how the pandemic caused the noncompliance and the decisions and actions undertaken to comply; (d) return to compliance as soon as possible; and (e) and document the information identified in (a) – (d).

Read the full GT Alert here.

Coronavirus Disease 2019 and the Occupational Safety and Health Act: OSHA Update No. 2 – Essential Workers

By Michael G. Murphy on Posted in COVID-19, Emergency Preparedness, OSHA

Michael G. Murphy P.E. authored this update to a Jan. 31, 2020 Alert, which provided general information on the Occupational Safety and Health Administration (OSHA) requirements and steps for employers to consider as the Coronavirus Disease 2019 (COVID-19) was just starting to appear in the United States, and before work shut down and shelter orders were in place. This Update provides additional information to be considered by employers of essential workers who are required to work. It will address the Federal OSHA standards that apply to workplace safety and recording requirements and the Cal-OSHA standard for Aerosol Transmissible Diseases, which is applicable to COVID-19.

Federal OSHA has three primary requirements that come into play for employers addressing the spread of the COVID-19 virus: (1) the general duty clause; (2) personal protective equipment; and (3) recording and reporting requirements.

Read the full GT Alert here.

Pennsylvania and the Circular Economy: Turning Waste Into Something New

By Bernadette M. Rappold on Posted in Articles, Circular Economy, Climate Change, Pennsylvania

The “circular economy” is coming to Pennsylvania. And if recent polling data are correct, it cannot come a moment too soon—and Pennsylvania attorneys and advisers would be well-advised to become acquainted with the coalescing legal and market forces that are driving the transition. In the circular economy, resources are extracted, made into products and then repeatedly remade into new products, minimizing greenhouse gas emissions and maximizing value. Whether by transforming waste into energy or new products, employing modular production techniques that facilitate re-use, tightening supply chains, or finding alternatives for toxic chemicals, companies are increasingly heeding customer, shareholder and investor demand to utilize circular economy principles in their operations.

I discuss this approach in my column for the Legal Intelligencer supplement, Pa. Law Weekly titled “The Pennsylvania and the Circular Economy: Turning Waste Into Something New,” 43 Pa. L. Weekly 11 (Mar. 17, 2020). Read the full column. Read the full column here.

 

Meeting Environmental Compliance and Cleanup Requirements During the Pandemic

By Bernadette M. Rappold and Christopher Bell on Posted in Compliance, Emergency Preparedness, Environment, GT Alert

In addition to causing infection and illness, the COVID-19 pandemic is creating challenges for organizations contending with employee quarantines and isolation, supply chain and logistics disruptions, and other operational changes.

While environmental compliance may not be top-of-mind right now for most Americans, it still is a critical consideration for organizations with environmental compliance or cleanup obligations.

Many environmental laws and settlement agreements provide relief valves in certain emergency or force majeure situations. But given that the regulators themselves may be quarantined or teleworking in the coming weeks and months, organizations can take certain steps now to ensure they are able to maintain environmental compliance during the COVID-19 pandemic or to obtain relief based on force majeure, impossibility or impracticability of performance, compliance-with-all-laws clauses, enforcement discretion, or emergency relief provisions. Continue Reading

Summary of Guidance on Section 45Q Carbon Tax Credits Under 2020 Notice and Revenue Procedure

By Andrew W. Scher, James O. Lang, Philip R. Weingold and Margaret J. Weil on Posted in carbon emissions, Environment, Federal, GT Alert, Legislation, Natural Resources, Oil & Gas, Tax

On Feb. 19, 2020, the IRS released Notice 2020-12 and Revenue Procedure 2020-12 (together, the “Carbon Guidance”) which provide highly anticipated clarity on the Internal Revenue Code Section 45Q credit for carbon oxide sequestration. The Carbon Guidance provides details on determining when construction has begun on an eligible project, and valid partnership allocations (including a permissible partnership flip structure), which in each case are very similar rules to those applicable or relied upon in solar and wind tax credit tax equity transactions.

This article provides a useful summary of the background and requirements for Section 45Q credit qualification; and the Carbon Guidance, including the “Physical Work Test” and the “5% Safe Harbor” as relates to establishing commencement of construction on a qualified facility or carbon capture equipment.

Read the full GT Alert, “Summary of Guidance on Section 45Q Carbon Tax Credits Under 2020 Notice and Revenue Procedure.”

LexBlog