FERC, DOE to hold Security Investments for Energy Infrastructure Technical Conference

The Federal Energy Regulatory Commission and the United States Department of Energy have scheduled a joint technical conference to discuss current cyber and physical security practices used to protect energy infrastructure and possible federal and state incentives for related security investments.

According to a notice issued on February 4, the Security Investments for Energy Infrastructure Technical Conference will be led by one or more FERC Commissioners and DOE senior officials. Its agenda addresses two high-level topics: types of current and emerging cyber and physical security threats, and how federal and state authorities can facilitate investments to improve the cyber and physical security of energy infrastructure.

In a supplemental notice issued on March 1, the agencies noted that the Commission has adopted a "well-developed set of mandatory and enforceable reliability standards that set baseline protections for both cyber and physical security of the bulk electric system" as well as "policies that allow for the recovery of prudently incurred costs to comply with those mandatory reliability standards." The supplemental notice describes the technical conference as aimed at better understanding:

1. the need for security investments that go beyond those measures already required by mandatory reliability standards, including in infrastructure not subject to those standards (e.g., natural gas pipelines);
2. how the costs of such investments are or could be recovered; and
3. whether additional incentives for making such investments are needed, and if so, how those incentives should be designed.

The supplemental notice describes two panels, the first of which will discuss types of cyber and physical security threats to energy infrastructure, particularly electric transmission, generation, and natural gas pipelines, as well as best practices for cyber and physical security mitigation beyond those measures already required by mandatory reliability standards and industry and government engagement needed to address these matters. The second panel will explore how federal and state authorities can provide incentives and cost recovery for security investments in energy infrastructure, particularly electric transmission, generation, and natural gas pipeline infrastructure

The federal agencies' Security Investments for Energy Infrastructure Technical Conference has been scheduled for on March 28, 2019.

Can challenges or prize competitions solve water supply problems?

How can challenges or prize competitions help society address barriers that may prevent long-term access to low-cost water supplies?

The U.S. Department of Energy's Office of Energy Efficiency and Renewable Energy (EERE) has published a Request for Information, seeking information from the public to understand the key technical and other barriers that may prevent long-term access to low-cost water supplies that could be best addressed through challenges and prize competitions.

Water is essential for human health, economic growth, and agricultural productivity, and plays significant roles in the U.S. energy sector. The Department of Energy uses the term "energy-water nexus" to describe the interconnected nature of energy and water systems. While the U.S. has generally benefited from access to low-cost water supplies, according to the Energy Department, "new challenges are emerging that, if left unaddressed, could threaten this paradigm" including competing uses and water quality problems.

The Energy Department operates a variety of programs to advance domestic energy policy, including programs focused on research and development and grant funding. But could the Department of Energy be more effective by offering challenges or prize competitions? Unlike traditional R&D funding in which participants are selected up front with funding provided at the beginning in order to pursue a target or goal, challenges and prize competitions typically define a problem and offer a reward to anyone finding a solution.

Challenges and prize competitions have been adopted by the federal government as well as private actors. Since 2010, federal entities have awarded millions of dollars in prize money and other incentives through over 740 challenges and prize competitions, and nonprofits and private companies have launched many more.

In a Request for Information published in the Federal Register on March 19, 2018, the Energy Department identified challenges and prize competitions as "tools and approaches the Federal government and others can use to engage a broad range of stakeholders, including the general public, to develop solutions to difficult problems. Challenges and prize competitions rely on competitive structures to drive innovation among participants and usually offer rewards (financial and/or other) to winners and/or finalists."

Through the request, the Energy Department asks for public feedback on a variety of issues relating to using prizes and challenges to solve problems around the energy-water nexus, including an identification of challenges whose solution would allow for a significant increase in the volume of available water produced from non-traditional sources, significant improvements in industrial and power-sector water efficiency, or reductions in the cost to treat and deliver drinking water and wastewater to consumers without harming water quality.

Responses to the Request for Information are due no later than 5:00 p.m. (ET) on May 14, 2018.

Energy dept adopts grid emergency order rule

U.S. energy regulators have issued a final rule governing the procedures through which the Secretary of Energy may issue an emergency order under the Federal Power Act to respond to an electric grid security emergency.

Under the Fixing America's Surface Transportation Act of 2015, Congress authorized the Secretary of Energy to order emergency measures after the President declares a grid security emergency. Such an emergency could occur as the result of a physical attack, a cyber-attack using electronic communication, an electromagnetic pulse (EMP), or a geomagnetic storm event. The FAST Act added these powers to the Federal Power Act, which contained additional language authorizing the Secretary to order temporary emergency measures as needed to serve the public interest.

On January 10, the U.S. Department of Energy published its final rule governing grid security emergency orders.  According to the Department, the procedures established by this final rule "will ensure the expeditious issuance of emergency orders under the Federal Power Act." It says the final rule establishes a "consistent yet flexible set of procedures" for regulatory engagement with impacted parties as the Department issues emergency orders. The Department says it "expects that these emergency orders would be issued rarely," but emphasized its need for flexibility in tailoring a response to the particular circumstances of any grid disruption.

The new final rule is codified in 18 C.F.R. section 205.380 et seq.

FERC invites comment on grid reliability and resilience pricing proposal

U.S. electricity regulators have invited public comment on a draft rule proposed by the Secretary of Energy that would require some grid operators to buy electricity from certain generators at rates that allow the generators to recover their costs and a return on equity.  The Secretary has set the grid resiliency pricing rulemaking proceeding on a fast track -- but some energy industry associations have asked regulators to allow more time for public participation before finalizing "a proposed rule that could affect electricity prices paid by hundreds of millions of consumers and hundreds of thousands of businesses, as well as entire industries and their tens of thousands of workers."

On September 28, Secretary Perry directed the Federal Energy Regulatory Commission to open an expedited rulemaking proceeding to consider a proposed rule affecting the compensation paid to certain "grid reliability and resiliency resources" with a 90-day fuel supply on site and capable of providing "essential energy and ancillary reliability services, including but not limited to voltage support, frequency services, operating reserves, and reactive power."

Acting under Section 403 of the Department of Energy Organization Act, Secretary Perry directed the Commission to consider and complete final action on his proposed rule proposed within 60 days.  But he also suggested that circumstances warrant faster action -- such as issuing the proposed rule as an interim final rule, effective immediately, with provision for later modifications after consideration of public comments.
 
On October 2, the Commission issued a Notice Inviting Comments in Docket No. RM18-1-000.  That notice invited interested persons to submit comments regarding the proposal on or before October 23, 2017, with reply comments due on or before November 7, 2017.

Also on October 2, a coalition of energy industry associations filed a joint motion asking the Commission to take more time in its consideration of the proposed grid resiliency pricing proposed rule or "NOPR".  In that joint motion, the associations note that no emergency or other circumstance exists which justifies the use of an interim final rule.  They cite the "importance and potential implications of the NOPR for Commission-jurisdictional markets," calling it "one of the most significant proposed rules in decades related to the energy industry."  The associations argue that because the time limits set by the Secretary are "unreasonable," so the Commission should set its own timeline allowing more time for participation.

The energy industry associations who filed the joint motion represent a fairly broad slice of the energy sector.  Participating associations include Advanced Energy Economy, American Council on Renewable Energy, American Petroleum Institute, American Wind Energy Association, American Public Power Association, Electric Power Supply Association, Electricity Consumers Resource Council, Interstate Natural Gas Association of America, National Rural Electric Cooperative Association, Natural Gas Supply Association, and Solar Energy Industries Association.

The grid resiliency pricing rule proceeding continues before the Commission.

Section 242 hydroelectric incentive program funding

For the first time, the U.S. Department of Energy has funding for its Section 242 hydroelectric incentive program.  The program, arising from Section 242 of the Energy Policy Act of 2005,  provides incentive payments for adding new turbines or other hydroelectric generating devices to existing sites. The Department is accepting applications for the incentive payments through February 1, 2016.

In 2005, as part of the Energy Policy Act of 2005, Congress created the Section 242 hydroelectric incentive program to support the expansion of hydropower energy development at existing dams and impoundments.  Section 242 establishes an incentive for qualified hydroelectric facilities, defined as "a turbine or other generating device owned or solely operated by a non-Federal entity which generates hydroelectric energy for sale and which is added to an existing dam or conduit."  The incentive is set at up to 1.8 cents per kilowatt-hour of net electric energy generated and sold by a qualified hydroelectric facility, indexed for inflation (about 2.3 cents per kilowatt-hour today) up to a maximum of $750,000 per year, for a specified 10-year period.

To get this money, an owner or operator must apply for the incentive payments.  An application for an incentive payment for electric energy generated and sold in a calendar year must be filed during the applications period defined by the Department of Energy in the Federal Register.  But according to the Energy Department's final guidance for the Section 242 program, "DOE will accept applications and make payments to qualified hydroelectric facilities in years when appropriations are available for this purpose."  Until recently, no such appropriations were available.

In Congressional appropriations for Federal fiscal year 2015, the Department of Energy received funds to support this hydroelectric incentive program for the first time. As shown in the conference report to the law that made appropriations for Fiscal Year 2015, Congress appropriated $3,960,000 for conventional hydropower under section 242 of EPAct 2005.

With funding now available, the Energy Department is only accepting applications from owners and authorized operators of qualified hydroelectric facilities for hydroelectricity generated and sold in calendar year 2014. Applications for this round of Section 242 funding are due by February 1, 2016.

ORPC Maine files Western Passage preliminary permit application

A Maine-based tidal energy company has applied to federal regulators for a preliminary permit for a tidal energy project proposed for development off the coast.  ORPC Maine, LLC, a wholly-owned subsidiary of Ocean Renewable Power Company, LLC, filed its application with the Federal Energy Regulatory Commission on December 4, 2015, seeking a preliminary permit for the Western Passage Tidal Energy Project off the downeast city of Eastport.  The preliminary permit could set ORPC up to develop hydrokinetic energy generation at the site, though process and uncertainty lie ahead before the project could be developed.

ORPC filed its application for preliminary permit for the Western Passage project on December 4, 2015.  The FERC docketed the filing under P-14743.  As described in its application, the project would entail "a next generation TidGen® Power System with a buoyant tension mooring system (BTMS)."  The turbine generator unit, or TGU, would be similar to that installed by ORPC in Cobscook Bay in 2012.  While ORPC noted that it will determine the ultimate project configuration based on activities conducted during the preliminary permit phase, ORPC estimates the project will consist of approximately 15 total TGUs. The nameplate rating of each will be up to 500 kilowatts (kW) with the total project output capped at 5 MW.

ORPC previously held preliminary permits for the Western Passage site (P-12680) which expired on December 31, 2013. ORPC requested a successive preliminary permit on January 1, 2014, but the FERC issued an order denying a third preliminary permit for lack of extraordinary circumstances.

In its recent application, ORPC notes that it has "continued environmental studies and engagement with local stakeholders and regulatory officials regarding the Cobscook Bay Project, and have kept them informed regarding potential future plans for Western Passage," and highlights its other recent successes, including support from the U.S. Department of Energy and local stakeholders.

It is unclear whether the FERC will grant ORPC's application.  Assuming it does, the preliminary permit will give ORPC exclusive rights for 36 months to study the site, and priority to file an application for a project license.  That preliminary permit term should enable ORPC to study any technical and economic challenges relating to the Western Passage project -- after which the developer may be in a better position to evaluate the project's feasibility and support an application for a license.

Energy Dept 2015 Quadrennial Technology Review

The U.S. Department of Energy has released its second Quadrennial Technology Review, a 505-page report describing the nation’s energy landscape and the dramatic changes that have taken place over the last four years.

The 2015 Quadrennial Technology Review examines the current status of energy technologies and research opportunities to advance them in addition to key enabling science and energy capabilities.  The updated report comes four years after the Energy Department's original Quadrennial Technology Review, issued in 2011.

The 2015 report notes, "The last four years have been defined by dramatic change in the nation’s energy landscape." Huge growth in domestic production of oil and natural gas has made the U.S. the world leader in combined oil and natural gas production for the last three consecutive years. Wind energy capacity has increased by 65 percent and wind energy generation has nearly doubled; solar capacity has increased 9 fold and solar photovoltaic generation over tenfold; old, inefficient power plants are being replaced by cleaner, more efficient ones; transportation efficiencies continue to improve.

It also highlights the Energy Department's view of "the most promising research, development, demonstration, and deployment (RDD&D) opportunities across energy technologies to effectively address the nation's energy needs. Specifically, this analysis identifies the important technology RDD&D opportunities across energy supply and end use in working toward a clean energy economy in the United States."  Individual chapters focus on specific technology types, including grid modernization, clean power, buildings, manufacturing, fuels, and transportation. 

The report also draws some overarching conclusions:

• Energy systems are increasingly interconnected through the internet and other technologies, which could enable new paradigms for cost and emissions reduction. 
• Increasingly diverse options are available to meet the nation’s energy needs is increasing, creating a more dependable and flexible energy system for consumers.
• Substantial energy efficiency opportunities remain untapped.
• More research and development could lead to innovation and breakthroughs in how to deliver clean energy cheaper and faster.

Cross-border infrastructure and presidential permits

A recent report casts doubt on whether proposed federal legislation would actually accelerate decisions on the siting of cross-border energy infrastructure.

Cross-border pipelines and electric transmission lines play an important role in the North American energy industry.  Under U.S. law, cross-border energy infrastructure projects require a presidential permit and a finding of consistency with the national interest.  Executive orders give the State Department jurisdiction over cross-border oil pipelines, the Department of Energy jurisdiction over electric transmission lines, and the Federal Energy Regulatory Commission jurisdiction over natural gas pipelines. 

Recent projects like the Keystone XL pipeline have focused attention on the presidential permit process, as that project's presidential permit application has remained pending for years.  Some have raised questions about the scope of agency review and perceived differences in the approaches taken by the State Department, Energy Department, and FERC.

As a result, several members of Congress have proposed legislation designed to accelerate the permitting process.  These bills include:

• the Keystone XL Pipeline Approval Act (S. 1): passed in Congress but vetoed by President Obama
• the American Energy Renaissance Act of 2015 (S. 791 and H.R. 1487)
• the North American Energy Infrastructure Act (S. 1228)

These bills take various approaches, including limiting agency jurisdiction over cross-border energy infrastructure or the scope of agency review, or setting strict deadlines for agency action following completion of environmental review.

Could federal legislation like this speed up the process for reviewing proposed cross-border pipeline and electric transmission projects?  A recent report by the Congressional Research Service suggests that overall timelines for project review are driven by the scope of the environmental review process, not by delays following that environmental review or agency idiosyncrasies.

In particular, the report found that agency review is "driven largely by the National Environmental Policy Act (NEPA)", which requires federal agencies to consider the environmental impacts before acting.  Moreover, the report notes that the same NEPA requirements apply to all three:

Faced with Presidential Permit applications for energy projects of similar physical scope, the agencies appear to perform NEPA reviews of similar proportion. Very short, smaller projects are generally reviewed more narrowly and quickly, whereas multi-state projects of large capacity are subject to more expansive environmental review and tend to face much greater public scrutiny and comment—regardless of which agency has jurisdiction. 

The report also found that NEPA review is the key driver of overall permitting decision timelines:

As long as agencies apply NEPA to Presidential Permitting decisions, changes to the delineation of, or jurisdiction over, the border-crossing portion of large projects for permitting purposes may not change the scope of project environmental review. The imposition of decision deadlines on the permitting agencies after NEPA review is complete, either for national interest or public interest determination, could provide greater process certainty to stakeholders. However, the overall project review would still be contingent on the completion of NEPA review. Thus, the effects of legislative proposals to change cross-border infrastructure permitting on the review or approval of future border crossing energy infrastructure projects are open to debate. 

It's unclear how the Congressional Research Service report will affect pending legislation.  Likely more influential may be any final action by the State Department on the Keystone XL project's application for a presidential permit.  Nevertheless, interest in cross-border energy trade will likely continue to grow.

House subcommittee considers reliability draft

A congressional committee is considering legislation to assure reliability and security of the U.S. electricity grid.  The House Subcommittee on Energy and Power's discussion draft includes a series of provisions designed to harden the grid against disturbance.

To understand the discussion draft, you must first understand its context.  2015 is a time of great change for the U.S. electricity system.  The grid continues to shift away from coal-fired generation and towards use of natural gas and renewable energy sources.  New environmental regulations affecting power plants are taking effect.  Smart grid technology now enables real-time communication and coordination between supply and demand for electricity, but creates millions of potential access points for hackers to target the grid.  Meanwhile utilities plan to invest more than $60 billion in transmission infrastructure over the next decade. 

Faced with these shifts, the House Subcommittee on Energy and Power held a hearing today on a "discussion draft" of proposed measures to strengthen grid reliability, security and readiness to survive disturbance.  The discussion draft includes measures that would:

• Resolve conflicts between choosing whether to comply with an emergency order from the Department of Energy or violate environmental obligations;
• Require the Federal Energy Regulatory Commission to complete an independent reliability analysis of any proposed or final major federal rule that affects electric generating units;
• Direct the Secretary of Energy to develop and adopt procedures to enhance communication and coordination between governmental entities and the private sector to improve emergency response and recovery;
• Give the Secretary of Energy powers to address grid security emergencies, and facilitate information sharing;
• Require the Energy Department to submit a plan to Congress evaluating the feasibility of establishing a Strategic Transformer Reserve for the storage, in strategically-located facilities, of spare large power transformers in sufficient numbers to temporarily replace critically damaged large power transformers;
• Direct DOE to create a voluntary Cyber Sense program to identify cyber-secure products and technologies intended for use in the bulk-power system, like controls and SCADA systems;
• Directs state public utility commissions and utilities to improve grid resilience and promote investments in energy analytics technology to increase efficiencies and lower costs for ratepayers while strengthening reliability and security; and
• Require FERC to work with each regional transmission organization to encourage a diverse generation portfolio, long-term reliability and price certainty for customers, and enhanced performance assurance during peak period.

As noted in the opening statements of Chairmen Ed Whitfield and Fred Upton, elements from this discussion draft may be included in a bipartisan energy bill expected to emerge from the House committee later this session.

Maine considers nuclear energy law change

The Maine legislature is considering a proposal to amend state laws regarding the siting and construction of new nuclear power plants. The bill known as LD 1313, "An Act To Amend the Laws Regarding Nuclear Power Generating Facilities", is listed as a "Governor's Bill", indicating its origin from Maine Governor Paul LePage. What might LD 1313 mean for Maine?

Maine is not currently home to any operating nuclear power plants.  From 1972 to 1996, the Maine Yankee Nuclear Power Plant operated a 900 megawatt reactor in Wiscasset.  While it operated, Maine Yankee was the state's largest generator of electricity.  But a Nuclear Regulatory Commission investigation launched in 1995 identified safety and other problems that ultimately rendered continued plant operation uneconomic; the site was decommissioned from 1997 through 2005, with spent fuel remaining on site to date.

Maine Yankee was controversial from its inception, with significant opposition to its construction from anti-nuclear groups and others.  Partially in response to this controversy, in 1987 Maine enacted a law "to provide for citizen participation in any decision to construct a nuclear power plant within the State."  As part of that law (as amended in 1999), the Legislature enacted a finding "that construction of a nuclear power plant is a major financial investment, which will have consequences for consumers for years to come."  The law also included a finding that, "In the recent past, investments in nuclear power plants have caused severe financial strain on consumers."  In addition, the law required a statewide voter referendum prior to the construction of any nuclear power plant in Maine, and prohibited construction of a nuclear power plant without this voter approval.

Governor LePage's proposal would amend those two sections of existing law relating to the process for siting nuclear power plants.  First, LD 1313 would delete the legislative finding that "In the recent past, investments in nuclear power plants have caused severe financial strain on consumers." Second, LD 1313 would limit the referendum requirement to nuclear power plants "with capacity greater than 500 megawatts."

LD 1313 would appear to encourage the construction of relatively small nuclear power plants in Maine -- that is, those with capacity of 500 megawatts or smaller, roughly half of Maine Yankee's size.  But of the approximately 100 nuclear power plants in commercial operation in the U.S. today, nearly all can generate more than 500 megawatts of power.  The Omaha Public Power District's Fort Calhoun plant in Nebraska is rated at 476 megawatts, and is one of the only commercial reactors in the U.S. smaller than 500 megawatts.  The technical and security aspects of nuclear power have traditionally pushed utilities to develop relatively large nuclear power plants, making the development of small but traditional nuclear power in Maine relatively unlikely.

Perhaps more likely to benefit if LD 1313 is enacted would be the development of small modular nuclear reactors.  According to the U.S. Department of Energy, small modular reactors offer the advantage of lower initial capital investment, scalability, and siting flexibility at locations unable to accommodate more traditional larger reactors.  They also have the potential for enhanced safety and security.  The Department of Energy has expressed interest in advancing small modular reactor technology.  If LD 1313 is enacted, it could eliminate the requirement of statewide voter approval of the construction of a nuclear power plant using small modular reactor technology.

But whether LD 1313's enactment would actually lead to the construction of small modular reactors in Maine is unclear.  Is the voter referendum requirement really the chief obstacle to small modular reactor construction in Maine?  Or can Maine's lack of small modular reactors be explained by other limitations -- like technology, financing, or safety regulations?

LD 1313 has been referred to the Maine State Legislature's Joint Standing Committee on Energy, Utilities and Technology.  To date, no public hearing has been scheduled.

Energy Department to fund low-impact hydropower R&D

The U.S. Department of Energy has announced $7 million in funding for the research and development of advanced low-impact hydropower systems.  The Energy Department's competitive solicitation is designed to fund projects that help advance hydropower drivetrains -- the systems passing turbines' rotational energy along to their attached generators -- and structural foundations enabling low environmental impacts and reduced lifetime operating and maintaining costs.

The funding is available from the Energy Department's Office of Energy Efficiency and Renewable Energy.  This office, known as EERE, runs programs designed to speed up the development and deployment of energy efficiency and renewable energy technologies and market-based solutions.  hydropower manufacturing. 

This funding opportunity is designed to attract innovations that enable rapidly built, removable, and replaceable hydropower systems.  It solicits proposals to develop alternative hydropower systems with low civil infrastructure development costs, deployable within 2 years with relatively low environmental impacts, and which can be removed or replaced after their intended life is completed.  According to the funding opportunity announcement, these concepts and systems will be able to operate at a cost that is competitive with traditional sources of generation.

The complete funding opportunity announcement -- DE-FOA-0001286: RESEARCH AND DEVELOPMENT OF INNOVATIVE TECHNOLOGIES FOR LOW IMPACT HYDROPOWER DEVELOPMENT -- is available through the Office of Energy Efficiency and Renewable Energy's Funding Opportunity Exchange.

While this funding opportunity supports a wide variety of technological innovations for new hydropower development, specific areas of interest include:

• New, rapidly deployable and removable hydropower technologies, such as innovative prefabricated structures, water impoundment structures, and water conveyance systems.
• Innovative methods and materials for the construction of conventional hydropower facilities, including, but not limited to, concrete alternatives, in-water construction, and innovative advanced tunneling methods.
• Design and lab testing of innovative conventional hydropower powertrain and generator components, such as advanced composite materials and replaceable blade technologies for turbine runners, new generator technologies, and materials and coatings for powertrain components.

The Energy Department will hold a webinar on this funding opportunity announcement on Tuesday, April 21, 2015 at 3:00 pm (ET).  Applicants must first submit a concept paper (currently due no later than 5:00 PM (ET) on May 7), with full applications currently due by 5:00 PM (ET) on June 15, 2015.

US Presidential Permits for cross-border infrastructure

As the U.S.'s international trade in energy grows, so too has interest in the process for securing a federally required approval known as a Presidential Permit.

A marker shows the route of a natural gas pipeline in Utah.

The construction, operation, and maintenance of infrastructure that crosses the U.S.'s border with Mexico or Canada -- think pipelines, transmission lines, and bridges -- generally requires prior authorization by the federal government in the form of a Presidential Permit.  How you obtain a Presidential Permit depends on the type of facilities in question, as permits may be issued by several federal agencies under different legal authorities.

Presidential permits for oil, petroleum products, and other liquids pipelines have been issued by the U.S. State Department since since the promulgation of Executive Order 11423 in 1968.  Executive Order 11423 provided that, except with respect to cross-border permits for electric energy facilities, natural gas facilities, and submarine facilities:

The Secretary of State is hereby designated and empowered to receive all applications for permits for the construction, connection, operation, or maintenance, at the borders of the United States, of: (i) pipelines, conveyor belts, and similar facilities for the exportation or importation of petroleum, petroleum products, coal, minerals, or other products to or from a foreign country; (ii) facilities for the exportation or importation of water or sewage to or from a foreign country; (iii) monorails, aerial cable cars, aerial tramways and similar facilities for the transportation of persons or things, or both, to or from a foreign country; and (iv) bridges, to the extent that congressional authorization is not required.

The State Department's Bureau of Energy Resources Office of Energy Diplomacy receives and processes permit applications for liquid product pipelines, including water and petroleum products.  The standard by which the Secretary of State reviews applications for presidential permits is prescribed by an executive order issued in 2004.  Executive Order 13337 directs the Secretary of State to authorize those border crossing facilities that the Secretary has determined would “serve the national interest."

By contrast, cross-border natural gas pipelines are regulated by the Federal Energy Regulatory Commission, while electric transmission infrastructure is regulated by the Department of Energy.  Section 3 of the Natural Gas Act requires any person desiring to export any natural gas from the United States to a foreign country or to import any natural gas from a foreign country to the United States to obtain an order from the Federal Power Commission authorizing it to do so.   Section 202(e) of the Federal Power Act requires any person desiring to transmit any electric energy from the United States to a foreign country to obtain an order from the Federal Power Commission authorizing it to do so.

Executive Order 10485 designated the FERC's predecessor agency, the Federal Power Commission, to receive applications for natural gas and electricity facilities.  When the Department of Energy Organization Act of 1977 eliminated the Federal Power Commission, it shifted most of the FPC's responsibilities to the FERC, but Section 402(f) of that act specifically reserved import/export permitting functions for the Department of Energy.  For facilities governed by the Department of Energy, the Presidential Permit process is governed by Part 205 of the Department's rules.  In 2006, the Department delegated its authority to issue Presidential Permits for natural gas pipeline border crossings to FERC, via DOE Delegation Order No. 00-004.00A.

Infrastructure projects subject to the Presidential Permit process range widely in type, scope, and controversy, from the proposed Keystone XL oil pipeline from Canada to the proposed Champlain Hudson Express high-voltage direct current electric transmission line.

Washington tidal energy project cancelled

A tidal energy project proposed off the Washington coast will be scrapped due to cost overruns, according to the project developer.

Public Utility District No. 1 of Snohomish County's proposed Admiralty Inlet Pilot Tidal Project was envisioned as a temporary, experimental project to evaluate the commercial viability of tidal energy development in Puget Sound.  The 600-kilowatt hydrokinetic project would have generated electricity from the force of water moving through turbines mounted in tidal currents.  Earlier this year, the project won a pilot license from the Federal Energy Regulatory Commission, making it among the first tidal projects to qualify for the Commission's pilot licensure program.

But the estimated costs of the project were significant relative to its projected energy output.  Since it was first proposed in 2006, the Public Utility District estimated that the project would cost $20 million to build.  Based on these numbers, the Commission estimated that the levelized annual cost of operating the project would be about $1,848,294.  Dividing this by the project's expected production of energy, the power could cost $7,574.98 per megawatt-hour of energy generated -- an amount over 250 times higher than the estimated $30/MWh cost of alternative power.

Nevertheless, the PUD had designed the project's finances to avoid the need for ratepayer financing.  Rather, the project relied on funding from federal grants and in-kind contributions from project partners, as well as some money from the sale of excess renewable energy credits from the District's wind power projects.  To date, the District has invested about $3.5 million in the effort, over the past 8 years.

With the FERC license in hand, the District moved forward to solicit bids for project engineering and construction.  When those bids came in, the District realized the project would likely cost closer to $37 million, or $17 million more than previously expected.  According to a September 30 announcement by the Public Utility District, the District tried to seek more funding for the project from the U.S. Department of Energy and other project partners, but did not succeed.  As a result, the District has announced that it will not move forward with the project.

While the District is no longer actively pursuing the Admiralty Inlet Pilot Tidal Project, some other developer may try to pick up where the District left off.  Indeed, the District's announcement notes that the project "remains worthwhile to pursue on behalf of the nation to further the potential development of marine renewable energy."  Will another developer seek to advance the Admiralty Inlet Pilot Tidal Project?  Will other tidal current and marine hydrokinetic projects be developed given the challenges of ocean energy project economics?

Feds approve Quebec-to-NY power line

A proposed electric transmission line connecting Quebec to New York will receive a key federal approval, according to the U.S. Department of Energy.  The Energy Department's decision to issue a Presidential permit to Champlain Hudson Power Express, Inc. focuses attention on the nation's international trade in electricity, and may suggest increased reliance on power imports.

Pursuant to two Executive Orders -- EO 10485 (September 9, 1953), as amended by EO 12038 (February 7, 1978) -- no electricity transmission facilities may be constructed, operated, maintained, or connected at the U.S. border without first obtaining a Presidential permit from the Department of Energy.  In 2010, Champlain Hudson Power Express, Inc. applied to DOE for a Presidential permit to construct, operate, maintain, and connect a 1,000-megawatt (MW), high-voltage direct current (HVDC) merchant electric power transmission system across the U.S./Canada border.

As currently envisioned, the Champlain Hudson Power Express project would cross the U.S./Canada border near the town of Champlain in northeastern New York State.  From there, the line would extend southward about 336 miles to the Consolidated Edison Company of New York, Inc. Rainey substation in Queens, New York.  Notably, the aquatic portions of the transmission line would primarily be buried in sediments of Lake Champlain and the Hudson, Harlem, and East rivers, while the terrestrial portions of the line would be buried within existing roadway and railroad rights-of-way.

The Department may issue or amend a permit if it determines that the permit is in the public interest and after obtaining favorable recommendations from the U.S. Departments of State and Defense.  In making this determination, DOE considers factors including the proposed project's potential impacts on the environment and electricity reliability.

In the case of the Champlain Hudson Power Express, the Department of Energy's record of decision states that its decision to grant the Presidential permit was based on "consideration of the potential environmental impacts, impacts on the reliability of the U.S. electric power supply system under normal and contingency conditions, and the favorable recommendations of the U.S. Departments of State and Defense."  With the Presidential permit in hand, the project developer will be one step closer to success -- but additional steps remain, including both securing regulatory approvals and completing the commercial arrangements necessary for project development.

If the project is built, New York consumers may soon have increased access to electricity generated from Canadian hydropower and other resources across their northern border.  Will the U.S. soon import more power from Canada?  If so, how much, and at what cost?  How will market forces and regulatory agendas combine to affect Canadian exports of electricity to the U.S.?

Energy Department offers $4 billion loan guarantee program for renewable energy and efficiency projects

The U.S. Department of Energy has announced a $4 billion loan guarantee program for renewable energy and energy efficiency projects.

The Renewable Energy and Efficient Energy Projects Loan Guarantee program is intended to support the first commercial-scale deployments of the next wave of innovative clean energy technologies. Through the program, the Energy Department solicits applications for loan guarantees.  When a successful applicant borrows money for project finance from a commercial bank, the federal government promises to assume the borrower's debt obligation if that borrower defaults.  This guarantee serves as a credit backstop for the borrower, ultimately reducing its cost of financing because the lender knows it has resort to federal funds if the borrower cannot repay the loan.

The current program follows a series of previous Energy Department loan guarantee programs.  These programs have helped finance projects including the NRG Solar, LLC's 290-megawatt Agua Caliente solar photovoltaic array (the world's largest), NRG Energy, Inc.'s 392-megwatt Brightsource concentrating solar power (CSP) plant (also the world's largest), the 845-megawatt Caithness Shepherds Flat wind project, and Abengoa Bioenergy Biomass of Kansas LLC's cellulosic ethanol plant.  While not all of the previous programs' awardees have been successful -- for example, failed solar panel maker Solyndra -- the Department touts the programs as aligned with President Obama's Climate Action Plan, by supporting investment in domestic energy resources and reductions in greenhouse gas emissions.

To be eligible for the present solicitation (48-page PDF), a project must be located in the United States and meet both of the following criteria:

1. Use renewable energy systems; efficient electrical generation, transmission, and distribution technologies; or efficient end-use energy technologies; and

2. Meet both of the following requirements : a) Avoid, reduce, or sequester anthropogenic emission of greenhouse gases; and b) employ new or significantly improved technology as compared to commercial technology in service in the United States. 

Beyond these general criteria, the Energy Department's Loan Programs Office has identified five target areas for awards:

• Advanced Grid Integration and Storage: mitigating issues related to variability, dispatchability, congestion, and control of renewable energy systems by incorporating technologies such as demand response or local storage, enabling enhanced integration of renewable energy into the grid.
• Drop-In Biofuels: developing biofuels that are more compatible with today’s engines, delivery infrastructure and refueling station equipment, enabling nearly identical bio-based substitutes for crude oil, gasoline, diesel fuel, and jet fuel. 
• Waste-to-Energy: projects using waste materials which are otherwise discarded, such as landfill methane and segregated waste, as energy sources.
• Enhancement of Existing Facilities: incorporating renewable generation technology into existing renewable energy and efficient energy facilities to significantly enhance performance or extend the lifetime of the generating asset. 
• Efficiency Improvements: projects incorporating new or improved technologies to further improve on energy efficiency that would substantially reduce greenhouse gases. 

Under the solicitation, the first round of application materials is due on October 1, 2014.  For more information on the opportunity, contact the Energy Department, or consult a professional experienced with financing and developing energy projects.

The Preti Flaherty team advises our clients on all aspects of energy project development, including the pursuit of federal funding and financial support. For more information, please contact Todd Griset at 207-623-5300.

NJ offshore wind project faces dilemma

Fishermen's Energy's proposed offshore wind project off the New Jersey coast has essentially all its permits in place to start construction -- but the project's future is in doubt over a question of financial support from electricity ratepayers.

Fishermen's Energy has proposed building a 25-megawatt wind project about 2.8 miles off the coast of Atlantic City.  The $200 million project would be connected to the mainland electricity grid, enabling the power it produces to be sold to New Jersey electric customers.  The project has already received key permits, such as approval by the Army Corps of Engineers to begin construction.

Building what could be the nation's first commercial offshore wind project will be expensive.  While future offshore wind projects could be cost-competitive against more traditional electric generation resources, the New Jersey pilot project's finances rely on a portfolio of federal and state financial incentives.  These include federal tax credits, a grant from the U.S. Department of Energy, and a state commitment that utility ratepayers will shoulder above-market costs.

A 2010 New Jersey law established an offshore wind renewable energy certificate program known as OREC that was designed to provide that ratepayer commitment.  For over a year, Fishermen's Energy has been waiting for the New Jersey Board of Public Utilities to decide whether to require mainland utilities to purchase the project’s renewable energy output.  But that case remains pending, with no clear state-law timeline for its resolution.  Issues in play include the project's cost to ratepayers, particularly if the project fails to win further competitive grants from the federal Department of Energy.

In the meantime, Fishermen’s Energy needs to spend at least $10 million on the project this year to remain eligible for the federal investment tax credit.  Yet the developer is presumably reluctant to commit those funds before learning whether it will also win ratepayer support.  As December 31 draws nearer, this dilemma makes it more challenging for Fishermen's Energy to sustain project development efforts.

What federal shutdown means for energy

With Congress's failure to pass a budget, today the U.S. federal government entered shutdown mode.  For 800,000 federal workers, shutdown means being furloughed until Congress resolves the budget.  What does the shutdown mean for the energy sector?

Each federal agency is reacting differently to the shutdown.  For the Federal Energy Regulatory Commission, it means continued normal business operations - as long as it still has funds on hand.  What happens after that?  According to a contingency plan issued last week, when those funds run out, FERC will continue "only those excepted activities authorized by law" to the extent that they protect life and property.  These activities include the work of the Commissioners themselves, hydroelectric and liquefied natural gas inspections, managing the reliability of the nation's electric and gas systems, and monitoring market operations.

The U.S. Department of Energy faces similar impacts from the shutdown.  It has some funds remaining on hand, but when those funds run out, according to its "lapse in appropriations plan", of its 13,814 employees, only 1,113 excepted personnel and 11 Presidentially-appointed and Senate-confirmed employees will remain on the job.

The Bureau of Ocean Energy Management will continue some operations.  According to its contingency plan, between 35 – 40% of Bureau employees will continue to report for full time duty, and BOEM will continue to work on current offshore wind projects and other renewable energy plans.

Northern Pass transmission line faces public hearings

A proposed high-voltage transmission line across the U.S.-Canada border in northern New Hampshire faces a series of public hearings this month.  The Northern Pass transmission line would provide an additional tie between Hydro-Quebec's electric grid and the New England grid, and would expand U.S. imports of electricity from Canada.

The project is proposed by Northern Pass Transmission LLC, an entity jointly owned by NU Transmission Ventures, Inc., a wholly-owned subsidiary of Northeast Utilities, a publicly held public utility holding company, and NSTAR Transmission Ventures, Inc., a wholly-owned subsidiary of NSTAR, a publicly held public utility holding company.

The project includes a high-voltage direct current or HVDC transmission line capable of transmitting up to 1,200 megawatts of power from Canada to the U.S. or from the U.S. to Canada.  45 miles of line would connect the northern HVDC converter terminal in Québec to the U.S.-Canada border into New Hampshire.  The line would extend south from the international border approximately 140 miles to an HVDC converter terminal that would be constructed in the city of Franklin, NH. 

Federal law governs the import and export of electricity.  To construct, operate, maintain, or connect an electric transmission facility crossing the borders of the United States, Northern Pass must first obtain a Presidential permit issued by the U.S. Department of Energy.  Under the National Environmental Policy Act, this approval requires the Department of Energy to consider the environmental impacts of granting the permit.

Since its unveiling in 2011, the Northern Pass project has provoked controversy.  The public has voiced concerns over the environmental and economic impacts of large-scale Canadian hydropower, the risk of private property being seized by the developer through eminent domain, and a route through New Hampshire's White Mountain National Forest and nearby mountains and woodlands.  In response, Northern Pass retooled its route, triggering a need to revise the project's environmental impact statement.  As part of that process, the Department of Energy has scheduled four additional scoping meetings in New Hampshire:

• Concord, NH, Grappone Conference Center, 70 Constitution Avenue, Monday, September 23, 2013, 6-9 p.m.;
• Plymouth, NH, Plymouth State University, Silver Center for the Arts, Hanaway Theater, 17 High Street, Tuesday, September 24, 2013, 5-8 p.m.;
• Whitefield, NH, Mountain View Grand Resort; Spa, Presidential Room, 101 Mountain View Road, Wednesday, September 25, 2013, 5-8 p.m.; and
• West Stewartstown, NH, The Outback Pub at The Spa Restaurant, 869 Washington Street, Thursday, September 26, 2013, 5-8 p.m.

Thousands of stakeholders attended the first round of scoping meetings in 2011, overwhelmingly expressing concerns about the project and its route.  While Northern Pass has made some efforts to address and accommodate these concerns, many - like New Hampshire Governor Maggie Hassan - continue to express concerns about the project's potential impacts on the White Mountain National Forest, as well as on New Hampshire's economy, environment, natural resources, communities and people.  This month's events may draw similar attendance to those in 2011 - the New Hampshire Congressional delegation has asked the U.S. Department of Energy to move the West Stewartstown meeting to Colebrook to accomodate more seating.  Public testimony at this month's scoping sessions will shape the Department of Energy's environmental review process, and may affect whether and how the line is eventually developed.

TVA to lose largest industrial customer

The Tennessee Valley Authority is losing its largest industrial customer, a government-owned uranium enrichment plant.  When the plant near Paducah, Kentucky closes next year, TVA will lose about 5 percent of its electricity sales, resulting in a loss of about $600 million in annual revenue. What does this mean for TVA and for its fleet of coal-fired electric generating facilities?

The Tennessee Valley Authority is the nation's largest public power provider and a corporation of the U.S. government.  TVA provides electricity for about 9 million people in seven southeastern states: Alabama, Georgia, Kentucky, Mississippi, North Carolina, Tennessee, and Virginia.  TVA is independently financed, meaning it neither receives no taxpayer money nor retains any earnings as profits.  It owns the most operating electric capacity of any utility in the U.S. (33,804 MW as of 2011), and leads the nation in both volume of annual energy sales (167,730 million kilowatt-hours) and annual revenue ($11.841 billion).

TVA's largest customer has been the Paducah Gaseous Diffusion Plant.  Originally built by the U.S. Department of Energy to enrich uranium into fuel for U.S. nuclear power plants, the plant has been leased to and managed by USEC, Inc. since 1993.  Paducah has been the nation's only facility for processing low-enriched uranium since 2001.

Last month, USEC announced that it plans to close the Paducah plant in 2014.  When that happens, TVA will face a new, smaller landscape of demand for its power.  As a result, some observers expect TVA to close the nearby Shawnee Fossil Plant.  The Shawnee facility is a 1,200-megawatt coal-fired power plant built at the same time as the Paducah enrichment plant at a site about 2 miles away.

TVA has not yet indicated whether it will close Shawnee, but in recent months it has announced plans to close 3 other older coal-fired power plants: the Widows Creek Fossil Plant in northeast Alabama, and the John Sevier and Johnsonville fossil plants in Tennessee.  On the other hand, TVA continues to modernize and invest in refurbishing other older coal-fired plants, including the Gallatin Fossil Plant near Nashville, Tennessee.  TVA is investing about $1.1 billion in Gallatin to install pollution controls including sulfur dioxide capture technology.

How TVA responds to the loss of the Paducah uranium plant remains to be seen.  TVA's relatively low rates for power may attract another large industrial customer to the region.  If that happens, it may continue to operate the Shawnee facility and other plants that can be made economical.  Otherwise, TVA may find itself faced with choices to mothball Shawnee or to do something else with its newfound surplus power.

Maine launches first grid-connected floating offshore wind turbine

The U.S. renewable ocean energy industry achieved a milestone last week with the launch of the nation's first grid-connecting floating offshore wind turbine.  A consortium led by the University of Maine developed and deployed a 1:8-scale prototype in the Gulf of Maine.  What does it mean for ocean energy?

A sailboat catches the wind off the Maine coast.

Offshore wind presents a significant energy resource.  The National Renewable Energy Laboratory has estimated that U.S. waters could host a gross wind power resource of 4,223 gigawatts -- about four times as much generating capacity as the current U.S. electric grid.  If even a fraction of this can be developed in a cost-effective and environmentally friendly way, it could power a significant portion of our electricity needs.

While land-based wind projects represent a relatively established technology -- with over 60,000 megawatts installed in the U.S. by the end of 2012 -- and European waters are home to over 5,000 megawatts of offshore wind, no commercial offshore wind projects have been built in the U.S.  The rigors of the ocean environment create engineering challenges for offshore wind, which drives costs up.  Particularly in U.S. waters, the best wind resources are located in deeper waters farther offshore.  This means that floating wind turbines may be the most cost-effective way to harness offshore winds.

While several prototype floating offshore wind systems have been deployed off Europe, no grid-connected projects have been deployed in U.S. waters.  Using $12 million in funding from the U.S. Department of Energy, the University of Maine and its project partners have developed the VolturnUS prototype.  This unit has several features that may lead to a breakthrough in the cost curve of floating offshore wind.  While most models to date have relied on steel, the VolturnUS semi-submersible platform uses a concrete foundation and composite tower.  While the prototype is just 65 feet tall, its design characteristics are hoped to lead to lower construction costs for larger-scale units closer to 500 feet tall.

The University of Maine is also planning a larger offshore wind demonstration called Aqua Ventus I.  Using a separate $4 million Energy Department grant, the University is engineering and designing a pilot floating offshore wind farm with two 6-megawatt direct-drive turbines on concrete semi-submersible foundations near Monhegan Island. If selected for further funding in 2014, the Aqua Ventus I project could be constructed and installed in several years.