Foley Hoag LLP

SUMMARY

On October 24, 2011 MassDEP released the framework for a regulatory reform proposal that would streamline environmental permitting and approval processes in Massachusetts. Although the major impetus for these reforms is an effort to apply the agency’s declining resources more efficiently – since 2002 MassDEP’s budget has declined by more than 25 percent and the number of full-time MassDEP employees has declined by 30 percent – new commissioner Ken Kimmell has prioritized reforms that would simultaneously reduce permitting obstacles for environmentally beneficial projects. Several of the reforms outlined would specifically facilitate the development of renewable energy projects by consolidating or streamlining existing permitting requirements.  [continues...]

SUMMARY

The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “2010 Tax Relief Act”) was enacted today. Among its provisions, the 2010 Tax Relief Act extends a tax benefit whereby gains from the sale of certain qualified small business stock (“QSBS”) can qualify for a total exclusion from federal income taxation.  [continues...]

SUMMARY

The Small Business Jobs and Credit Act of 2010 temporarily permits a total exclusion from federal income taxation of gain from the sale of certain qualified small business stock (“QSBS”). To take advantage of this tax benefit, the stock must be acquired from a qualifying issuing corporation after September 27 and on or before December 31, 2010, and the investor must then hold the stock for more than five years. The investor must be a non-corporate taxpayer and for any one investor, the maximum amount of gain eligible for the exclusion with respect to the stock of a single issuer is the greater of $10 million or 10 times the investor’s basis in the stock of the issuing corporation.   [continues...]

SUMMARY

The Small Business Jobs and Credit Act of 2010 temporarily permits a total exclusion from federal income taxation of gain from the sale of certain qualified small business stock (“QSBS”). To take advantage of this tax benefit, the stock must be acquired from a qualifying issuing corporation after September 27 and on or before December 31, 2010, and the investor must then hold the stock for more than five years. The investor must be a non-corporate taxpayer and for any one investor, the maximum amount of gain eligible for the exclusion with respect to the stock of a single issuer is the greater of $10 million or 10 times the investor’s basis in the stock of the issuing corporation.   [continues...]

SUMMARY

In the final hours of the session, the Massachusetts Legislature passed sweeping economic development legislation which included, as section 173, what has come to be known as the Permit Extension Act. The purpose of the Permit Extension Act is to recognize that the economic downturn has meant that projects that were otherwise “shovel-ready” may have difficulty in the short-run obtaining financing. If we want to help the economy get back on its feet, we shouldn’t make those projects have to go through the Massachusetts state and local permitting gauntlet again, just because the financing problems may have meant that permits would expire before the develop can get in the ground.  [more... ]

SUMMARY

On July 6, 2010, the United States Environmental Protection Agency (“EPA”) released a proposed rule designed to address the transport of certain air pollutants across state boundaries. Once finalized, the proposed rule, dubbed the “Transport Rule”, would replace the Clean Air Interstate Rule (“CAIR”), promulgated in 2005. Although still in effect, in 2008 CAIR was remanded to EPA by the U.S. Court of Appeals for the District of Columbia Circuit in North Carolina v. EPA. EPA anticipates that the Transport Rule will be finalized in the late spring of 2011. [more... ]

SUMMARY

On May 12, Senators Kerry and Lieberman introduced their long-awaited energy/climate bill, the “American Power Act.” Kerry and Lieberman introduced the bill with support from environmentalists, power production companies, and industrial interests, but without any Republican support, after Senator Graham removed himself as a co-sponsor several weeks ago, citing concerns about Majority Leader Reid’s decision to take up immigration reform before this bill. Although passage of the APA is anything but assured, it does seem likely to provide the basis for Senate negotiations over energy/climate legislation, so it is worth understanding the bill’s highlights.   [continues...]

SUMMARY

At a meeting held yesterday by the Massachusetts Wind Working Group, representatives of National Grid (NGrid) and NSTAR indicated that their companies, as well as Western Massachusetts Electric Company and Fitchburg Gas and Electric, are considering a moratorium on interconnecting certain renewable generating facilities.

SUMMARY

A financing concept for energy efficiency and renewable energy projects that seems to be sweeping the nation has made its way to Massachusetts. A provision of a major bill now pending in the House Ways and Means Committee would enable Massachusetts municipalities to issue Property Assessed Clean Energy ("PACE") bonds to finance energy efficiency or renewable energy generation projects in commercial and residential properties. PACE bonds are typically issued by municipalities. The proceeds are lent to property owners to finance energy efficiency retrofits or the up-front costs of installing renewable energy systems. The projects are treated as "betterments", much like a sewer or septic system fees; the borrower repays the loan over time through annual assessments on their property tax bill.

SUMMARY

On January 28, 2010, the Massachusetts Department of Public Utilities (DPU) approved three-year energy efficiency plans submitted by the state’s investor-owned electric, natural gas utilities, and the Cape Light Compact, which serves portions of Cape Cod. The goal of the plans is to achieve a 2.4 percent reduction in electricity use across the state, and a 1.15 percent reduction in natural gas use.

SUMMARY

The system by which Congress awards earmarks during the annual appropriations process has recently come under increased scrutiny. As a result, both the President and congressional leaders have introduced initiatives aimed at increasing the transparency of the earmark process. The most recent reforms are two new policies—enacted in FY10 appropriations bills and thus now law—that require executive branch review of all congressionally-requested earmarks and a “competitive bidding process” for all earmarks designated for for-profit entities. Understanding these significant new restrictions on earmarks is therefore essential for any company or organization that is considering applying for federal earmark funds. Of the new reforms, Congressman David Obey (D-WI), Chairman of the House Appropriations Committee, recently stated that "in practical terms, it ends the practice of earmarks being the functional equivalent of sole source contracts."

SUMMARY

On December 21, 2009, President Barack Obama signed into law an extension of the federal COBRA subsidy created by the American Recovery and Reinvestment Act of 2009 (“ARRA”).

SUMMARY

The U.S. Department of Treasury is now accepting online applications for cash grants pursuant to Section 1603 of the American Recovery and Reinvestment Act.

The online application largely reflects Treasury’s sample application published July 9^th on its web page. However, two additional documents have been provided to supplement the application materials:

• Additional guidance related to an independent accountant’s attestation of eligible cost basis. This attestation is required for grant applications for which the eligible cost basis of the specified property exceeds $500,000.
• Specific instructions related to an applicant’s assignment in full of its right to receive payment of the cash grant in connection with project financing.

SUMMARY

On July 9th, the U.S. Treasury Department published guidance (“Guidance Materials”) for applicants seeking cash grants for qualifying renewable energy projects pursuant to Section 1603 of the American Recovery and Reinvestment Act of 2009 (“ARRA”).  This alert provides an overview of key provisions of the Guidance Materials.  Although not stated in the Guidance Materials, Treasury personnel have said that they expect to begin accepting web-based grant applications on or about August 1, 2009.  If you are intending to apply for a cash grant, we encourage you to carefully review the Guidance Materials and begin preparation of the grant application in consultation with legal counsel and engineering professionals.

SUMMARY

On June 26, 2009, the U.S. House of Representatives voted 219-212 to pass the American Clean Energy Security Act (the “House Bill”) [.pdf], which included a national combined renewable electricity/energy efficiency standard (“RES”). Currently, twenty-nine states and the District of Columbia have in place some form of renewable energy portfolio standard [.ppt], but the adoption of a federal RES is widely thought to be important for the creation of a national renewable energy and energy efficiency market. The RES passed by the House would not preempt state programs with stricter compliance targets, meaning that the federal program would preserve to some extent the patchwork of state standards. The interaction between state programs and a federal RES may be particularly important where there are significant differences with respect to what generation technologies qualify and whether or how electricity savings may be used to meet compliance goals. Although the final contours of the RES will remain uncertain until it is enacted, the degree of federal preemption will be a key issue for states with aggressive clean energy agendas.

SUMMARY

The narrow passage by the House of Representatives of H.R. 2454, the American Clean Energy and Security Act of 2009 [.pdf], by a vote of 219-212 on Friday, June 26, marks the first time that major legislation on global warming has passed either house of Congress.  The Bill, which is 1,428 pages long, includes many key concepts from the draft introduced by Representatives Henry Waxman and Edward Markey in May, as well as a number of revisions and additions that ensured its passage. 

Attention now turns to the Senate, which, according to statements by key committee members and Obama Administration officials, will likely not reach a vote on global warming legislation until this fall, at the earliest.  Should the Bill fail to pass in the Senate, greenhouse gas emissions may still be regulated through other methods, such as state and regional climate change initiatives and possibly direct regulation by the EPA through the Clean Air Act, under its endangerment finding.

SUMMARY

As part of broad-based federal support for the renewable energy sector, the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”) changed federal tax law to allow developers of certain types of renewable energy projects to elect the Section 48 investment tax credit (the “ITC”) in lieu of the Section 45 production tax credit (the “PTC”). On June 5, 2009, the Internal Revenue Service (the “IRS”) issued Notice 2009-52 outlining the procedures taxpayers are to follow in making this election.

SUMMARY

The U.S. Department of Energy (“DOE”) has announced $467 million in American Recovery and Reinvestment Act (“Recovery Act”) funding to support the development, commercialization, and deployment of solar and geothermal energy technologies.  This alert describes the opportunities available to businesses working in the solar energy space and explores how to take advantage of these funds.  More information on funding for geothermal projects and technologies is available by reviewing the solicitations available on FedConnect and Recovery.gov.  As with other opportunities created by the Recovery Act, taking full advantage of the solar and geothermal energy funds will require rapid action to develop an application strategy and navigate the submission process in time to meet DOE’s aggressive timeline.  The deadlines for applying to the solar funding programs fall in mid to late July 2009 .

SUMMARY

Included in this Issue:

• Get Your Pole Vaults Out - Mark Haddad
• The Numbers - Amanda Vendig
• Selected New England Series A Round Transactions: First Quarter 2009
• Selected New England Series B and Later Round Transactions: First Quarter 2009
• Terms of Selected New England Series A Rounds 2009
• Terms of Selected New England Series B and Later Rounds
• The Activity Level Summary
• New England Series A and First Round Transactions by Industry
• New England Series B and Later Round Transactions by Industry
• National Series A and First Round Transactions by Industry
• National Series B and Later Round Transactions by Industry
• Size of New England 2009 Series A and First Round Transactions by Industry
• Size of New England 2009 Series B and Later Round Transactions by Industry

SUMMARY

Monday’s Supreme Court’s decision in Burlington Northern v. United States (.pdf) will significantly affect the outcome of many pending and future Superfund disputes. The opinion’s two principal holdings narrow the scope and extent of many parties’ liability at Superfund sites and breathe new life into defenses that had long been given little credence by the United States EPA and the courts. First, in a major departure from prior lower court decisions, the Court held that a defendant must actually intend that waste be disposed of before it can be found liable as an arranger under § 107(a)(3) of CERCLA. Second, it expanded the circumstances under which a party could show that the harm attributable to it is divisible from other harms at a site and thereby avoid joint and several liability. In this part of the decision, the Court held that imposition of joint and several liability was inappropriate because the District Court had permissibly and reasonably apportioned liability of the landowner based on the percentage of the site that it owned and the time period during which operations that led to contamination occurred on that parcel. Prior lower court decisions imposed a much higher burden on a party attempting to show why it should not be jointly and severally liable, which in turn frequently made minor contributors to site conditions responsible for the entire cost of cleanup.