Legal resources regarding coronavirus response

Here's a quick roundup of legal resources regarding the U.S. response to the COVID-19 coronavirus disease pandemic.

• President Trump declared a national emergency under the federal National Emergencies Act on March 13.  This declaration authorizes the Secretary of Health and Human Services to exercise the authority under section 1135 of the Social Security Act to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the COVID 19 outbreak.
• President Trump also declared a emergency under Section 501(b) of the federal Stafford Act. This declaration authorizes the Federal Emergency Management Agency to provide, as appropriate, assistance pursuant to section 502 and 503 of the Stafford Act for emergency protective measures not authorized under other Federal statutes. It also directs relief from certain tax deadlines pursuant to 26 U.S.C. 7508A(a). Finally, the Stafford Act declaration expresses the administration's belief "that the disaster is of such severity and magnitude nationwide that requests for a declaration of a major disaster as set forth in section 401(a) of the Stafford Act may be appropriate." Section 401 of the Stafford Act allows states and tribes affected by a major disaster to request and receive additional federal assistance under certain circumstances, and the declaration explicitly encourages state governors and tribal leaders to consider requesting assistance under this section of the Stafford Act.
• www.usa.gov/coronavirus, the U.S. government's webpage for "Government Response to Coronavirus, COVID-19", which currently provides information on international travel restrictions, how you can prepare for coronavirus, and what the U.S. government is doing in response to the virus.
• Maine emergency legislation, LD 2167, taking a variety of actions with respect to coronavirus preparation and emergency authorizations.

Preparing the electric grid for coronavirus

As the world deals with pandemic illness due to a novel coronavirus, the electric reliability organization responsible for the bulk power grid in most of the United States is taking steps to prevent impacts to the reliability of the electric grid, including requiring NERC-regulated entities to acknowledge receipt of six recommendations and to report back on their preparedness.

The coronavirus-related disease known as COVID-19 is a respiratory disease caused by a novel virus first identified in Wuhan, China on December 8, 2019. Since its discovery, the virus and related illness have spread internationally.

NERC, or the North American Electric Reliability Organization, is the designated electric reliability organization for the U.S., charged with ensuring the reliability of the North American bulk power system. On March 11, 2020, NERC issued an announcement, a Level 2 NERC Alert recommendation, and a guidance document from the Electricity Subsector Coordinating Council providing resources on assessing and mitigating the virus's impacts.

As part of the Alert, NERC offers six specific recommendations to industry, including:

• Develop and maintain suitable situational awareness of the current status of the spread of COVID-19 and credible future estimates of its spread and impacts. Incorporate the CDC’s most current travel advisories into event planning and travel arrangements, and consider practices to increase awareness of employees’ personal travel plans to areas with active advisories.
• Reinforce good personal hygiene practices across the workforce. Consider measures to increase the frequency and extent of cleaning and disinfecting surfaces and equipment that comes into routine contact with multiple people, particularly in business critical spaces or confined spaces that may be more conducive to disease communicability. Such areas may include control rooms, shared vehicles, conference rooms, and break areas. Consider implementing additional access restrictions such as limiting visitors or non-essential meetings within these spaces, and segregation of crews on shift work schedules.
• Review and update existing business continuity plans to ensure they are adequate to mitigate the direct impacts of a pandemic outbreak in the organization’s footprint that creates staffing constraints for reliability and business functions. Recognize that a pandemic outbreak affecting the organization will also have similar effects on third-party contractors and supporting resources in the same footprint. Validate or develop thresholds and triggers for implementing increased flexible workforce arrangements and for more disruptive mitigations, and ensure these mitigations are harmonious with guidance from the CDC or PHAC and local health agencies. Consider testing or exercising business continuity plans against a pandemic scenario.
• Assess the organization’s resilience against disruption to the availability of critical components, materials, and support resources with supply chains originating or traversing significantly impacted regions globally. At the present time,this includes China and nearby southeast Asian nations, so the most likely impact is expected to be to electronics, personal protective equipment and sanitation supplies, chemicals, and raw materials that are eventually transformed into goods directly purchased and used by North American asset owners and operators. Global transportation disruptions will also have ripple effects on the availability of these goods, particularly for “just-in-time” logistics systems. Organizations should work with their suppliers to understand current inventories of critical components throughout the supply chain as well as their anticipated use and resupply rates, and identify changed risks to routine, planned, and contingency operations to prioritize efforts appropriately.
• Assess the need to adjust planned construction and maintenance activity schedules to prioritize the most important projects.Consider third-party support requirements and facility outage windows, and understand consumption rates of spare parts and supplies required for both planned and contingency work.Adjust plans as needed to maintain safe and reliable operations through potential workforce availability or supply chain disruptions.
• Anticipate and prepare for coronavirus-themed opportunistic social engineering attacks. Spearphishing, watering hole, and other disinformation tactics are commonly used to exploit public interest in significant events. Take steps to ensure continued visibility and maintenance of cyber assets in the event of staffing disruptions.Ensure information and communications technology resources are appropriate to accommodate increased use of remote work arrangements consistent with business continuity plans, without compromising security. Consider conducting planned stress tests for these arrangements.

Under NERC's rules of procedure, NERC registered entities are required to acknowledge receipt of the advisory within the NERC Alert System by midnight Eastern on March 12, and to report to NERC on the status of their activities in relation to the recommendation by midnight Eastern on March 20. NERC will then aggregate the data from U.S. respondents and provide an anonymized report to the Federal Energy Regulatory Commission.

Maine offshore wind port study announced

Maine Governor Janet Mills has announced that Maine state agencies will conduct an assessment of port opportunities related to the offshore wind industry.

State and federal waters off the Maine coast have significant potential for siting offshore wind electric generation projects. A 2009 report by the Maine Ocean Energy Task Force identified significant offshore wind resources off the coast of Maine, with a technical capacity potential quantified in a January 2020 report by the National Renewable Energy Laboratory as 94,498 megawatts -- roughly three times as much generating capability of all types as is installed in all of New England, or 36 times greater than Maine's electric energy demand.

In 2019, in pursuit of these opportunities and in an effort to address climate change, Governor Mills launched the Maine Offshore Wind Initiative, a state-based initiative to identify opportunities for offshore wind development in the Gulf of Maine, and determine how Maine can best position itself to benefit from future offshore wind projects. The Initiative's mandates include consideration of opportunities for job creation, supply chain and port development, and offshore wind’s impact on Maine’s energy future, as well as promoting compatibility between potential future uses and existing uses in the Gulf of Maine to inform offshore wind siting considerations and minimize any impact on Maine’s commercial fishing and maritime industries. 

On March 11, 2020, as part of the Initiative, Governor Mills announced that the Maine Department of Transportation, Governor’s Energy Office, and Department of Economic and Community Development will lead a Port Infrastructure and Market Potential Assessment study. The study will build on a 2017 report on the Mack Point Terminal in Searsport and associated intermodal commodity shipping infrastructure, to identify and assess short-term and long-term port opportunities related to offshore wind.

According to a press release, the new study will review current characteristics of the Mack Point terminal site, analyze possible offshore-wind-related users of the port, and identify any necessary capital investments and structural improvements. The study will also consider supply chain opportunities in the offshore wind sector, such as the assembly of foundations and turbines, as well as the workforce needed to support these activities in Maine.

NH C&I solar rebate program reopened

New Hampshire utility regulators have issued an order modifying and reopening the state's existing solar rebate program for commercial and industrial electric customers. The New Hampshire Public Utilities Commission's Order No. 26,336 creates new opportunities for nonresidential solar energy projects in New Hampshire.

By statute, the New Hampshire Public Utilities Commission is authorized to establish incentive or rebate programs and competitive grant opportunities for renewable energy projects sited in New Hampshire. In 2010, the Commission first approved a commercial and industrial (C&I) solar rebate program, which provides incentive funds to C&I electric customers for solar photovoltaic and solar thermal energy projects.

Since 2010, at various times the Commission has modified, closed, and reopened the C&I rebate program due to "high demand for the program and funding constraints." Most recently, in 2019, Commission staff filed a memorandum stating that it had received applications in excess of available funds, prompting the Commission to close the C&I program to new applicants. Following stakeholder discussions, Commission staff filed proposed modifications to the program, including to reduce the incentive amount to $0.20 per watt, with an overall maximum of $10,000 per project, to allow more projects to share in the progam's funding pool. Commission staff also proposed program changes, including measures designed to facilitate efficient application processing, effectively manage the application queue, and restrict applications to "shovel-ready" projects; to ensure that funding is directed toward projects that need incentives; and to simplify the application process and reduce administrative burdens on applicants.

Through the New Hampshire Public Utilities Commission's Order No. 26,336, the Commission generally approved and adopted its staff's proposed modifications to the program, and directed staff to conduct a public lottery to allocate initial queue positions for applications, to be held on April 21, 2020. The Commission noted that as it has previously found, "a lottery is an orderly and equitable method of administering applications for a limited amount of funds" -- and also that if the application and lottery process results in a significant number of waitlisted applications, the Commission "may have to once again close the program to new applications."

ISO-NE 2020 Regional Electricity Outlook

New England is unquestionably on the path to a clean-energy future, according to a report by the operator of the region's electric grid -- but while "decarbonizing the electricity industry is well underway, the journey to decarbonize the other sectors of the economy has really only just begun." ISO New England Inc.'s 2020 Regional Electricity Outlook notes that the region's power system will need to change significantly to accommodate the electrification of millions of vehicles, homes, and buildings with low-to-no-carbon energy.

Grid operator ISO-NE issues an annual Regional Electricity Outlook report describing its view of trends that could have an impact on the region’s power system. For 2020, these trends include a shift in state goals, away from strictly least-cost planning toward the inclusion of clean energy goals. The report notes that wind projects "currently dominate new resource proposals", while in 2019 coal- and oil-fired resources produced less than 0.5% of the region's electricity, corresponding with the lowest annual average wholesale price on record.

The report also notes the need for state and regional policymakers to consider "which policy instruments will best incentivize New Englanders to decarbonize and change important aspects of their lives—to adopt electric vehicles and convert their homes and businesses to electric heat." According to ISO New England, it expects the power system will look very different in the future, and says the "electrification of everything" will require dialogue about the overall architecture of the regional power system and wholesale marketplace.

The report concludes that the region can achieve states' clean-energy goals while keeping the power system reliable, by harnessing competitive market forces.

NJ offshore wind solicitation schedule proposed

New Jersey Governor Phil Murphy has proposed a series of five additional solicitations for offshore wind energy proposals, in support of the state's goal to reach 7,500 megawatts of installed offshore wind capacity by 2035.

New Jersey enacted the Offshore Wind Economic Development Act in 2010. In 2018, Governor Murphy issued Executive Order No. 8, directing all New Jersey state agencies with responsibilities under the Act to fully implement it in order to meet a goal of obtaining 3,500 MW from offshore wind by the year 2030.

In 2018, the New Jersey Board of Public Utilities issued a solicitation for 1,100 megawatts of offshore wind energy generation, and in 2019 selected developer Ørsted's Ocean Wind project for contracting. The Board also developed a proposed timeline under which it would solicit 1,200 additional megawatts of offshore wind generation in 2020 and 2022. Later that year, Governor Murphy issued Executive Order No. 92, which replaced the 3,500 megawatt goal with a new mandate that state agencies take actions supporting an expanded goal of 7,500 megawatts of offshore wind energy generation by the year 2035.

Now, Governor Murphy has announced a proposed schedule for solicitations to meet the 7,500 megawatt goal. As proposed, the Board would initiate the next 1,200 MW solicitation by September 2020, and would award a contract by the second quarter of 2021. Four more solicitations, for a total of six rounds, would occur with contracts awarded through 2029.

According to the Murphy administration, setting a solicitation schedule through 2035 "provides a crucial level of certainty for developers, original equipment manufacturers, and the supply chain."

New England solar growth leads to increasing duck curve

In a sign of increasing penetration of rooftop and customer-sited solar projects, New England's electricity grid is starting to experience the "duck curve" phenomenon, in which a mid-day drop in grid demand is followed by a steep evening increase -- a significant shift in the timing of consumer demand relative to historic patterns.

Regional grid operator ISO New England Inc. tracks demand for electricity across its six-state New England market. On a typical day, demand is lowest in the middle of the night, rises through the morning to reach a mid-day high, declines somewhat in mid-afternoon, and then rises in the evening to reach the daily peak in the evening. This aggregate pattern of consumer demand has historically been reliable.

But New England now has about 3,400 megawatts of solar power located in the region, most of which is generated locally or produced directly on site at retail customers’ homes or businesses. As a result, less electricity is used from the regional power system at midday when sunny conditions prevail.

With increasing solar penetration, this phenomenon can cause major shifts in the timing of demand for grid electricity, moving the time of daily low-demand from overnight hours to midafternoon. According to the grid operator, on seven days, afternoon demand for grid electricity has fallen below overnight low demand levels. This phenomenon first occurred on Saturday, April 21, 2018, which ISO-NE attributed to "the right combination of sunshine and mild weather led to light consumer demand on the high-voltage electric power system, coupled with record-high output from the more than 130,000 solar power installations in the region."

The following chart, prepared by ISO-NE, illustrates the effects of increasing quantities of behind-the-meter solar capacity on load shape.

Source: ISO-NE.

As ISO-NE observes, this "graph also demonstrates how the region will increasingly need power resources that are able to quickly ramp up their output to bridge the steepening slope between minimum and peak load hours."

Afternoon demand has fallen below overnight demand on six occasions since April 21, 2018 -- three of which occurred this month, on the weekend days February 15, 22, and 23, 2020. For the February 22-23 weekend, ISO-NE attributed the phenomenon to "mild temperatures and sunny skies".

ISO-NE expects at least 5,800 megawatts of behind-the-meter solar power in New England by 2027. As behind-the-meter solar power continues to grow in scale, ISO-NE forecasts "more occasions when demand may dip extremely low, particularly during the spring and fall".