A facility owner who elects the ITC option must reduce the depreciation basis for the

facility by half the amount of the credit (i.e., 85 percent of the cost of the facility may be

depreciated). The facility owner may make the ITC election on a project-by-project basis;

however, the election cannot be made by another party on behalf of the owner.

Geothermal facilities were previously eligible for a 10% ITC, which has now been

increased to 30% under the ARRA’s ITC provision. This provision allows for wind,

biomass, trash/landfill gas, marine, and incremental hydropower facilities, which

previously did not qualify for the ITC, to be financed through leveraged leases, which is

not an option when the PTC is being claimed due to the requirement in Section 45 of the

Internal Revenue Code that the taxpayer be the producer of electricity.

 

Historically, extensions of renewable energy tax credits have coincided with a sharp

uptick in the development of qualifying renewable facilities, spurred largely by

institutional investors that could offset their tax liability while providing needed equity

through sale-leaseback, lease pass-through, and partnership flip financing structures. The

Senate Finance and House Ways & Means Committees recognized, when conferring on

the final draft of this provision, that “[b]ecause of current market conditions, it is difficult

for many renewable projects to find financing due to the uncertain future tax positions of

potential investors in these projects.” While the ARRA gives some certainty by extending

availability of the PTC and ITC for many renewable project types, it is notable that the

“placed-in-service” deadline extension is generally more favorable for projects with

shorter lead times or projects that may be incrementally installed (such as wind turbines).

 

Projects that may require lengthy regulatory approvals or other time-intensive activities

prior to construction (e.g., hydropower facility expansions and marine/hydrokinetic

projects subject to Part I of the Federal Power Act) will call for particular attention to

process management and activity coordination to meet applicable in-service deadlines.

Planning for these projects, if it is not already in progress, will likely need to commence

promptly if the credit regime is to be achievable.

 

Additionally, the ARRA makes minor adjustments to the carbon dioxide sequestration

credit that was enacted late last year. The carbon dioxide sequestration tax credit is a

credit of $10 to $20 for every ton of carbon dioxide that is captured and sequestered in

secure underground geologic formations. Prior to the ARRA, only the Environmental

Protection Agency (“EPA”) was required to develop regulations governing the

sequestration and storage of carbon dioxide. Now the EPA, Department of Energy

(“DOE”), and Department of Interior have such regulatory authority.

 

Grants in Lieu of Production and Investment Tax Credits

 

Although stronger and more reliable tax provisions provide an avenue for renewable

investment from remaining institutional investors, development may continue to be

slowed by reluctant credit markets and diminished opportunities for monetization of

PTCs and ITCs. The ARRA includes provisions to fill the private credit void by making

cash available for renewable projects in the form of government grants to spur

investments in renewable energy.

 

The ARRA provides for the Department of the Treasury to issue grants of up to 30

percent of the basis of “qualified facilities,” which include: wind, closed-loop biomass,

open-loop biomass, geothermal energy, solar energy, landfill gas, municipal solid waste,

incremental hydropower production attributable to efficiency improvements or additions

to capacity, marine and hydrokinetic renewable energy, and certain fuel cell facilities.

Microturbine and cogeneration facilities may be eligible for grants of up to 10 percent of

the facility’s basis.

 

The grants may only be accepted in lieu of PTCs or ITCs and apply to (1) facilities

placed in service in 2009 or 2010, and (2) facilities that initiate construction in 2009 or

2010 and are completed by the “credit termination date,” which ranges from January 1,

2013 to January 1, 2017 depending on the type of facility. The grants generally would be

payable upon achievement of the commercial operation date for the applicable facility. It

is intended that the Secretary administer the grant program by implementing rules similar

to those governing the ITC.

 

DOE Clean Energy Programs

 

The ARRA also channels significant DOE spending to both pilot and commercial

renewable/low-emissions energy projects. Approximately $3.4 billion is appropriated to

DOE for allocation to “Fossil Energy Research and Development” projects, which

include the development of emission reducing technologies such as carbon capture and

sequestration demonstrations to help develop the technologies needed by the nation’s

current energy infrastructure to respond to public health and climate change concerns. An

additional $2.6 billion will be spent on renewable energy and energy efficiency

demonstration and deployment activities (including biofuels, hydrokinetics, geothermal,

wind and solar projects).

 

Loan Guarantees for Existing Transmission and Renewable Technologies

 

Near-term stimulus is intended through this expansion of a loan guarantee program that

was originally enacted under Title XVII of the Energy Policy Act of 2005 (“EPAct

2005”) to spur the development and deployment of innovative energy technologies. The

program expansion provides $6 billion of loan guarantees for certain renewable energy

systems, leading edge biofuel projects and electric power transmission facilities that are

important in meeting reliability needs and have a positive effect on a state’s or region’s

environment (including climate change) and energy needs. Perhaps most troubling is that

the loan guarantees are limited to projects that commence construction by September 30,

2011. Only a very small number of transmission projects, particularly new projects, could

meet this requirement due, among other things, to the typical lengthy siting proceedings.

 

Under the expanded Title XVII, “renewable energy systems” include those that generate

electricity or thermal energy (or manufacture component parts of such systems). Leading

edge biofuel projects are limited to those that are likely to become commercial

technologies and will produce transportation fuels that substantially reduce life-cycle

greenhouse gas emissions compared to other transportation fuels. Loan guarantee funding

is limited to $500 million per biofuel project. The limited guarantees may help speed the

development and commercialization of alternatives to corn-based ethanol, such as

cellulosic ethanol.

 

Given the speedy action that will be required to issue loan guarantees for renewable

energy and transmission projects that will commence construction by September 30,

2011, DOE will be constrained in its ability to engage in time-consuming rulemaking.

Thus, DOE’s current loan guarantee regulations, issued by final rule on October 4, 2007,

are likely to influence strongly how DOE solicits, evaluates, approves, and monitors its

expanded renewable and transmission project loan guarantee program. Under the existing

regulations, DOE may guarantee up to 100 percent of a loan, provided that the loan is

issued by the Treasury Department’s Federal Financing Bank. Loans from private lenders

can be guaranteed, provided that the guarantee is for less than 100 percent of the loan

amount. Greater weight will likely be given to applications that rely upon a smaller

guarantee percentage. Of note, DOE likely will issue a loan guarantee only where the

project sponsors make a significant equity contribution toward the project cost. Under the

current regulations, loan guarantees will not be issued unless the credit subsidy cost and

administrative fees have been paid, which will most likely be the responsibility of the

borrower. The preliminary credit subsidy cost estimate is to be made available to the

borrower when the term sheet is provided to the project sponsor.

 

That regulations are in place for the existing loan guarantee program does not provide

great assurance that transmission and renewable project loan guarantees will be rapidly

approved and disbursed. At this time, DOE has not approved and disbursed a single loan

guarantee under the innovative technology program established by EPAct 2005.

 

However, during DOE Secretary Steven Chu’s confirmation hearings, he committed to

reform DOE to speed up the loan guarantee process. In a later interview with The Wall

Street Journal, Secretary Chu stated that he expects the guarantees to start being made

within five months of the enactment of the stimulus package and that he would like DOE

to spend half of its total appropriations within one year. He also indicated that in order to

get more money to the private sector, he will streamline the review process and give less

scrutiny to each loan guarantee application.

 

Smart Grid Development

 

The appropriations for activities related to smart grid development are among the largest

of the energy appropriations in the ARRA, totaling approximately $11 billion. Within this

amount, DOE will receive $4.5 billion for investment in “smart grid” technologies. The

DOE Smart Grid investment is intended to set up digital technologies in the transmission

grid that will modernize the electric grid and save energy and costs, as well as facilitate

recovery from disruptions to the energy supply. Of the $4.5 billion that DOE will receive,

$100 million will be available for worker training activities and $80 million will be

allocated to conduct a resource assessment and an analysis of future demand and

transmission requirements after consultation with the Federal Energy Regulatory

Commission. DOE is also directed to provide financial assistance to utilities of up to 50

percent of the costs of qualifying advanced grid technology investments.

 

New Borrowing Authority for WAPA

 

The Western Area Power Administration (“WAPA”) is provided authority under the

ARRA to borrow money directly from the Treasury. In addition to retaining the

appropriations from DOE that it currently receives, the bill permits WAPA to maintain

$3.25 billion in outstanding repayment balances to the Treasury at any one time.

 

WAPA’s Administrator may allocate the borrowed funds to: (i) constructing, financing,

and studying new or upgraded electric power transmission lines and related facilities; and

(ii) facilitating the delivery of power from renewable energy resources that are

constructed or reasonably expected to be constructed in the future.

 

Expanded Borrowing Authority for BPA

 

For the past 35 years, the Bonneville Power Administration (“BPA”) has had the

authority to borrow funds directly from the Treasury. The ARRA expands the amount of

Treasury debt BPA is authorized to have outstanding at any one time from $4.45 billion

to $7.8 billion. The bill instructs BPA to use the funds borrowed to assist in financing the

construction, acquisition and replacement of its transmission system. After President

Obama signs the stimulus bill, BPA will have around $5.5 billion of unused borrowing

capacity.

 

In the past two years, WAPA and BPA each have received over 100 requests for

interconnection to the grids that they operate. Many otherwise viable wind projects were

cancelled or suspended because of problems with accessing the WAPA and BPA grids.

 

As the WAPA and BPA service areas encompass some of the nation’s prime areas for the

development of large-scale wind and solar energy projects, these entities will have

significant influence on domestic renewable generation investment. WAPA’s new and

BPA’s expanded borrowing authorities are expected to enable a greater level of grid

access for potential renewable project developments.

 

II. Specific Appropriations for Energy-Related Projects

 

• Fossil Energy Research and Development: $3.4 billion

 

Taking note that the current energy infrastructure in the country is reliant on fossil fuels

and that the transition to renewable energy will not occur overnight, the ARRA makes

$3.4 billion available for “Fossil Energy Research and Development.” The DOE’s Fossil

Energy Research and Development program issues grants for the development of

emission reducing technologies, including carbon capture and sequestration projects.

 

• Transmission Upgrades and Smart Grid Investments: $11 billion

 

An amount of $4.5 billion is appropriated for research and development, pilot projects

and federal matching funds to modernize the electricity grid. To promote smart grid

technology, matching grants for smart grid demonstration projects would be increased to

50 percent of investment costs from the previous 20 percent.

 

The ARRA also stipulates that the Office of Electricity Delivery and Energy Reliability,

in coordination with the Federal Energy Regulatory Commission, will provide technical

assistance to the North American Electric Reliability Corporation, the regional entities,

the states, and other transmission owners and operators for the formation of

interconnection-based transmission plans for the Eastern and Western Interconnections

and ERCOT.

 

• New Borrowing Authority for WAPA and BPA

 

WAPA may now have $3.25 billion in Treasury debt outstanding at one time, and BPA

may have $7.8 billion outstanding. The ARRA directs these power-marketing

administrations to allocate the borrowed funds to projects that expand and update their

transmission lines and also to projects that will facilitate the transmission and delivery of

electricity generated by renewable energy projects. The ARRA also provides that

WAPA’s Administrator is responsible for achieving the personnel staffing levels that are

necessary to cost-effectively and efficiently address WAPA’s obligation and new

mandates.

 

• Efficient and Renewable Energy: $2.5 billion

 

An additional $2.5 billion is appropriated for renewable energy and energy efficiency

research, development, demonstration and deployment. Biomass and geothermal projects

 

have been marked for special treatment, receiving $800 million and $400 million,

respectively. Remaining funds go to research and demonstrations for additional

renewable energy technologies, including water power and solar energy, and industrial

and commercial energy efficiency demonstrations. Finally, within available funds,

$50 million is directed to support research to increase the efficiency of information and

communications technology.

 

• Renewable Energy and Transmission Loan Guarantee: $6 billion

 

An appropriation of $6 billion in loan guarantees is expected to support more than

$60 billion in loans for renewable energy systems, incremental hydropower and

transmission technologies (through amendment of EPACT Title XVII) that will

commence construction prior to September 30, 2011. Upgrades to existing transmission

systems will be eligible for the loan guarantees, as will “leading edge” biofuel pilot or

demonstration projects (up to $500 million in funding).

 

III. Specific Tax Incentives for Energy-Related Projects

 

• Renewable Energy Production Tax Credit: $13.143 billion

 

The current version of the PTC is extended for wind facilities placed in service on or

before December 31, 2012. The existing PTC is also extended for the following facilities

placed in service on or before December 31, 2013: closed- and open-loop biomass,

geothermal, solar, trash and landfill gas, qualified hydropower, and marine and

hydrokinetic facilities.

 

• Temporary Substitute Election of the Investment Tax Credit: $285 million

 

Wind facility owners may elect to claim a 30 percent ITC on costs of new equipment in

lieu of the PTC for facilities placed in service between January 1, 2009 and December 31,

2012. Owners of biomass, landfill gas, trash, geothermal, marine and incremental

hydropower facilities may elect to claim the ITC on costs of new equipment in lieu of the

PTC for facilities placed in service between January 1, 2009 and December 31, 2013.

A facility owner who elects the ITC option must reduce the depreciation basis for the

facility by half the amount of the credit (i.e., 85 percent of the cost of the facility may be

depreciated). The facility owner may make the ITC election on a project-by-project basis;

however, the election cannot be made by another party on behalf of the owner.

 

• Treasury Grants for Specified Energy Property in Lieu of Tax Credits

 

Treasury grants are available for solar, wind, biomass, fuel cell, geothermal, trash,

landfill gas, incremental hydropower, and marine energy facilities placed in service in

2009 or 2010 and for geothermal, solar, qualified fuel cell, qualified microturbine,

combined heat and power system, qualified small wind energy, and geothermal heat

pump property placed in service in 2009 or 2010, in amounts of up to 30 percent of the

tax basis of such facilities or property. In addition, so long as construction begins in 2009

or 2010 and the grant application is received before October 1, 2011, the grants will be

available for wind facilities placed in service by January 1, 2013; for biomass, trash or

landfill gas, hydropower, and marine and hydrokinetic facilities placed in service by

January 1, 2014; and for geothermal, solar, qualified fuel cell, qualified microturbine,

combined heat and power system, qualified small wind energy and geothermal heat pump

property placed in service by January 1, 2017. The grant program is limited to recipients

that would otherwise qualify for an ITC election (including through the election to claim

the ITC in lieu of the PTC) and is not available to governmental or tax-exempt entities,

clean renewable energy bond lenders or cooperative electric companies. Those projects

and facilities that receive Treasury grants in lieu of tax credits would not be able to claim

the PTC or ITC and any previously claimed ITCs would be recaptured. The grant

provision is intended to mimic the operation of the ITC, including that grant money

received would generally not need to be reported as taxable income and the depreciable

basis of facility equipment would be reduced by half the amount of the grant.

 

• Repeal of Certain Credit Limitations

 

The $4,000 cap on the ITC applicable to qualified small wind energy property is

eliminated. In addition, the rule limiting the amount of credit for property financed by

subsidized energy financing or private activity bonds is repealed.

 

• New Clean Renewable Energy Bonds

 

An additional $1.6 billion is provided for bonds for certain renewable energy facility

capital expenditures incurred by governmental bodies, public power providers or

cooperative electric companies. Holders of such bonds may claim a tax credit equal to the

product of their bond’s credit rate and the face value thereof.

 

• Qualified Energy Conservation Bonds

 

An additional $2.4 billion is provided for bonds related to capital expenditures incurred

by state and local governments for qualified energy conservation purposes (i.e., programs

and initiatives that reduce greenhouse gases). Holders of such bonds may claim a tax

credit equal to the product of their bond’s credit rate and the face value thereof.

 

• Refueling Property Credit Expansion: $54 million

 

The ARRA provides for an increase in the alternative fuel vehicle refueling property

credit for property placed in service during calendar years 2009 and 2010, including

property relating to ethanol, natural gas, compressed natural gas, liquid natural gas, liquid

petroleum gas, biodiesel, hydrogen and electricity.

 

• Credit for Investment in Advanced Energy Facilities: $1.647 billion

 

A new investment credit, in the amount of 30 percent, is established for facilities engaged

in the manufacture of advanced energy property. “Advanced energy property” includes

technology for the production of renewable energy, energy storage, energy conservation,

efficient transmission and distribution of electricity, and carbon capture and

sequestration. To be eligible for the credit, a project must be certified by the Secretary of

Treasury, in consultation with the Secretary of Energy, through a competitive bidding

process. The certification program must be established by the Secretary of the Treasury

no later than 180 days after the date of enactment. Up to $2.3 billion may be allocated

under the program.

 

• Depreciation Bonus: $5.074 billion

 

A 50 percent “depreciation bonus” is available for capital expenditures related to new

equipment placed in service within the United States in 2009 and is not specific to

energy-related expenditures. This bonus is only available to taxpayers that were not

committed to the investment prior to January 1, 2008. When claiming the bonus, a

taxpayer would be able to depreciate 50 percent of the cost of equipment placed in

service for year 2009 (or a lesser percent if the taxpayer also elects the ITC), and would

then follow the regular depreciation schedule for following years.

 

• Net Operating Losses: $947 million

 

The maximum carryback period for net operating losses is extended to five years for

losses in 2008 or 2009, for businesses with gross receipts up to $15 million. This is a

dramatic turnaround from the provision in both the Senate and House bills, which would

have applied to all businesses that were not beneficiaries of the Troubled Assets Relief

Program.

 

The time is now.  Your moment has come.  Seize the green.ä

(Special Thanks to Ahren Tryon, Dewey & LeBoeuf)

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