Energy Department Announces $30.5 Billion Loan Guarantee Solicitation

The U.S. Department of Energy Monday formally put in motion a solicitation process that will provide $30.5 billion in federal loan guarantees for a variety of projects employing advanced energy technologies to reduce air pollution and greenhouse gas emissions.

In a statement, energy officials announced three solicitations that fall into the broad categories of energy efficiency, renewable energy and advanced transmission and distribution, which will qualify for a total of up to $10 billion; nuclear power facilities, for a maximum of $18.5 billion; and advanced nuclear facilities for the front end of the nuclear fuel cycle, an element getting up to $2 billion in guarantees.

Ellen S. Friedman (pictured), a New York energy partner for Thelen, who has recently written about the program, said Monday that the department's announcement and the materials it made available have formally started the clock by setting forth a number of critical deadlines. Those include a Sept. 29 due date for "Part I" applications relating to nuclear facilities. Friedman said the department has recognized that because of the scope and complexity of nuclear power projects, applicants may be unable to submit a fully complete "Part II" application by the December 19, 2008, deadline. Applicants therefore are required by the solicitation to update "substantially complete" Part II applications every 90 days.

In addition, Friedman said:

"This solicitation gets into much more detail and has much more specificity about how they are going to evaluate the applications they receive."

She noted, for instance, that officials have included charts showing what weight will be given to each of the various factors it will use in weighing the projects' qualifications. In each case, creditworthiness of the project is defined as the most significant factor in the department's evaluation matrix.

In the department's announcement, Jeffrey Kupfer, acting deputy secretary of energy, outlined the program's goals:

“Loan guarantees from the department will enable project developers to bridge the financing gap between pilot and demonstration projects to full commercially viable projects that employ new or significantly improved energy technologies. Projects supported by loan guarantees will help meet President Bush’s goal of diversifying our nation's energy mix with energy projects that will improve the environment while increasing energy efficiency.” 

The department said the process was organized into four phases, including application, project evaluation, conditional approval and closing of a loan guarantee agreement. Criteria for awarding the guarantees will focus on the project's ability to "avoid, reduce or sequester" air pollutants or greenhouse emissions; the speed with which the technologies can go into commercial service; the prospects that the guaranteed debt will be repaid and the potential for the long-term success of the technologies in the marketplace.

Friedman cautioned that prospective applicants would have their work cut out for them:

"The department's application requirements force potential applicants to think through and present a complete project finance proposal which must comply in all respects with DOE guidance."

This isn't the last solicitation this year. The department said that later in the summer it expects to issue a similar call for advanced fossil energy projects hoping to qualify for up to $8 billion in guarantees.

    

Thelen Attorneys Analyze Energy Department's $38B Loan Guarantee Program

This month, the U.S. Department of Energy is scheduled to solicit applications for more than $30 billion in federal loan guarantees for projects that are geared toward reducing greenhouse gas emissions and other forms of pollution, according to a detailed overview of the program prepared by two Thelen attorneys.

About two-thirds of the guarantees are slated to support efforts associated with advanced nuclear energy facilities. But significant amounts also are targeted toward renewable energy, energy efficiency and transmission, transportation, and fossil fuel improvements, such as carbon capture and sequestration, wrote the attorneys, energy partner Ellen Friedman (pictured at left) and business associate Matthew Murphy (pictured at right).

According to their analysis, “New Support for New Alternatives: A Preliminary Look at the Department of Energy Title XVII Loan Guarantee Program for Innovative Alternative Energy Projects," energy officials have indicated that in evaluating the initial applications they will focus on a number of criteria. Those include the degree to which the projects avoid greenhouse gas emissions and other air pollution; the speed with which the technology can go into commercial use; potential cost savings to consumers; the likelihood of repayment to the projects’ sponsors and the potential for commercial success. The department also has noted that the technology must either be new or that it represent a “significant improvement” over technology already in use.

In connection with larger projects, applicants will be required to submit a preliminary credit rating assessment and will, as a condition to receiving a loan guarantee, need to obtain a credit rating. The department, the attorneys also noted, has backed away from automatically assigning a negative connotation to projects that receive assistance, such as tax credits, from other government agencies.  

Another round of solicitations is expected to be made later this summer for projects qualifying for $8 billion in loan guarantees. Those guarantees would help support fossil fuel projects, such as carbon capture and sequestration, industrial gasification and advanced coal gasification.

 

In Other News (May 30)

"Frank Lindh is an excellent choice for the CPUC general counsel. He is not just a good attorney who really knows about energy regulation at both the state and federal levels, but he is also a pleasant person to work with. Even when we were on opposite sides of an issue, Frank was always civil and professional. But perhaps the most important thing is that he has a good sense of humor."

Legislative Response to Brown A Win for Attorney General, Thelen Lawyer Writes

A California lawyer who has closely followed California's energy regulation, and once was part of it, has concluded that state lawmakers handed Attorney General Jerry Brown a victory last year when they passed a new law in reaction to his controversial greenhouse gas litigation.

The statute  was passed as SB 97 (see full text here). The legislation codifies Brown's argument that that increased emissions of the gases and their effects constitute an environmental impact that must be considered by agencies issuing permits that are subject to review under the California Environmental Quality Act. That's according to Thelen attorney Peter V. Allen (pictured) in an article originally published in  Ecology Law Currents, vol. 35 (2008). The publication is produced at the University of California-Berkeley's law school Boalt Hall (see full article here).

The law was approved last year after Brown sparked controversy in the Legislature by weighing in on county land use and transportation plans and other proposals that warranted scrutiny under the state environmental law. Brown ultimately sued San Bernardino County and reached a settlement requiring the county to take account of greenhouse gases and come up with a plan to reduce them (see text of lawsuit here; text of settlement here; press statement here).

Republicans in the Legislature had held up the state budget and attempted to pass a law limiting Brown's power to bring such lawsuits in the future, a clash that ultimately produced SB 97. Critics viewed Brown's work as a premature effort to enforce the state's law limiting greenhouse emissions, AB 32. Brown, who has maintained the state needs to move forward quickly with efforts to reduce heat-trapping gases, argued that San Bernardino had not adequately analyzed the effects of development on global warming.  

In addition to constituting "a win for the attorney general's position," the bill also will make many CEQA reviews more complex and will require more costly mitigation measures for many projects, Allen wrote. But he noted it should also provide some potential opportunities, especially for renewable energy providers. 
 

Law, Water, Earthquakes, Sun and Wind -- Barriers to Nuclear Plants in California

This Commentary was written by Thelen attorneys Peter V. Allen and Richard M. Shapiro:

With the recent increase in concern about global warming and energy security, supporters of nuclear power are arguing that it is now time to restart the construction of nuclear power plants in the US. The national debate around nuclear power has focused on cost, safety, and waste disposal issues, but California presents additional constraints on the siting of nuclear power plants. These constraints, along with California’s significant renewable energy resources, combine to make renewable generation a better choice in California.

Even beyond California’s statutory moratorium on the construction of new nuclear power plants, other factors, including the politics and economics of water, the prevalence and location of earthquake faults, and California’s hybrid electricity market structure, render nuclear power a far less attractive option in California than in other parts of the US. At the same time, California has abundant renewable resources, including solar, wind, and geothermal. The result: in California, it is more practical to get additional electricity from new renewable plants, not new nuclear plants.

The Law

California has in place a long-standing moratorium on construction of new nuclear power plants. The moratorium can only be lifted when there is a demonstrated method for the “permanent and terminal disposition” of high-level nuclear waste. (Public Resources Code section 25524.2.) Since under the law the state will not even consider granting permits for the construction of new nuclear plants until there is a permanent waste storage solution, at present there is little incentive for anyone to put much money or energy into developing a proposal for a new nuclear plant in California.  

Presumably the moratorium could end if the proposed Yucca Mountain nuclear storage facility becomes functional, but the future of Yucca Mountain is also uncertain. The other possibility is repeal of the moratorium statute. All legislative attempts to repeal it have been unsuccessful, and last year backers of an initiative that would have repealed the moratorium pulled it off the ballot when poll numbers showed it unlikely to pass. In short, the legal climate for building a new nuclear plant in California is decidedly chilly.

Water and Earthquakes

Nuclear plants need tremendous amounts of water for cooling, and given the time needed to recover the plants’ high capital cost, the sources of water need to be reliable for quite a while. If there is a commodity in California that is scarcer and more politically fraught than electricity, it is water. Nevertheless, there is water in California, mostly in rivers and the ocean.

Rivers in California, however, are increasingly impractical and unavailable for nuclear power. In addition to environmental pressure to restore salmon runs and preserve rivers in their wild state, there is continued demand for fresh water from agriculture, industry, and residential development. In the southern US, recent droughts have resulted in nuclear reactors being shut down due to low water levels and high water temperatures in rivers and lakes. The bulk of California’s rivers are fed by Sierra snowmelt, which means that drought and global warming (combined with the other demands for water), tend to make river water an unreliable long-term source, particularly in the quantities needed by nuclear plants.

The Pacific Ocean provides the water for California’s two operating nuclear power plants, Diablo Canyon (on the Central Coast) and San Onofre (between Los Angeles and San Diego), and there is certainly plenty of it. One problem in siting new nuclear plants on the coast becomes apparent upon looking at seismic hazard maps – the coastal region of California is also largely an area of significant seismic risk. Even the staunchest advocates of nuclear plants should hesitate to locate a reactor in an earthquake-prone area.

In short, siting a nuclear plant in California presents a dilemma – if you site it where there is plenty of water, you are increasing your earthquake risk. The backers of the one nuclear plant that has been proposed for California are planning to site it in Fresno, an area with little seismic risk, and propose to use municipal waste water for cooling. This is a fairly elegant solution to this particular dilemma, but given the increasing pressure on California’s water supplies, it is not clear how long such water will continue to be considered otherwise unusable “trash” water.

Hybrid Electricity Market

California currently has a “hybrid” electricity market, with electric generation being provided by both utilities and independent power producers.

On one hand, it would seem like the large investor-owned utilities would be the most likely to build a nuclear plant; they can get rate recovery of costs, they don’t have to find a buyer for the energy, and they also currently own and operate successful nuclear plants. Nevertheless, California’s investor-owned utilities appear unlikely to seek to build new nuclear power plants. 

First, the California Public Utilities Commission (CPUC) is likely to require a reasonableness review of any nuclear power plant built by the utilities under its regulation. It would be difficult for the CPUC to abdicate such a post-hoc review, given the high costs involved and the rather embarrassing history of nuclear development in California, which includes the infamous “mirror-image error,” where the plans for Diablo Canyon got flipped, and the “hole in the head,” the abortive attempt to build a reactor on Bodega Head north of San Francisco (and directly on the San Andreas Fault).

By itself this type of regulatory oversight would not appear to be much of a barrier, as after-the-fact reasonableness reviews are a traditional utility regulatory tool. In recent years, however, California’s investor-owned utilities have been extremely reluctant to submit themselves to reasonableness reviews. In the wake of California’s 1996 industry restructuring, the utilities refused to sign long-term electric supply contracts unless the CPUC exempted those contracts from reasonableness reviews. When the CPUC maintained its right to after-the-fact reasonableness reviews, the utilities chose to purchase electricity only on the spot market, with now well-known consequences. Given the utilities’ reluctance to subject themselves to reasonableness reviews for relatively uncontroversial and inexpensive contracts, it seems unlikely they would want to take on the risk of a reasonableness review for a politically contentious and extremely expensive nuclear power plant.

If the investor-owned utilities will not build new nuclear plants, the other possibilities are the municipally-owned utilities and independent generators. The Sacramento Municipal Utility District, which shut down its Rancho Seco nuclear plant in 1989 due to high costs and chronically poor performance, is unlikely to want to go down that road again. 

The Los Angeles Department of Water and Power, which is probably the only other muni in California big enough to build a nuclear plant, might be thinking about it, as its heavily coal-based supply portfolio is looking problematic in a carbon-constrained future. Given its currently somewhat strained relationship with Los Angeles city government, including questions regarding maintenance of its infrastructure, building a new nuclear plant may be a bigger bite than LADWP wants to try to chew in the near term. 

While the moratorium only bars new nuclear plants within the state, AB 32 constrains carbon from both in-state and out-of-state plants whose power is consumed within the state. So if LADWP’s carbon costs associated with its out-of-state coal-burning sources become too high, perhaps it would seek to replace those sources with nuclear plants. But since LADWP could improve its compliance with AB 32 by purchasing electricity from out-of-state nuclear plants, it would more likely invest in an out-of-state plant than attempt to build one in California.

That leaves the independent developers. In fact, the facility proposed for Fresno is by a local group, not a utility. The risks, though, may be higher than investors may want. The cost of a new nuclear plant is high, and the construction process is lengthy and much less standardized and much more complicated than building a gas-fired plant. It will take a long time (and a lot of money) until the plant is up and running and generating electricity and revenue. Since nuclear plants are largely non-dispatchable, the developer will need to find a buyer (presumably under a long-term contract) for significant amounts of baseload power, although the possible return of direct access, currently under consideration by the CPUC, could make this easier. These factors, combined with tightening credit markets and California’s shifting regulatory framework, may make it difficult to find investors who want to put their money into a California nuclear plant. 

Better Alternatives

Compared to many other states, California is rich in potential for development of renewable generation. Wind in the Tehachapis, geothermal in the Imperial Valley, solar in the Mojave, tidal and wave power along the coast – all of these are relatively untapped resources. The California Independent System Operator (ISO) currently has interconnection requests for over 42,000 megawatts of renewable energy (albeit not all of it viable). In short, there are a lot of energy resources in California other than nuclear.

Context is everything – in the southern US, a region with few earthquakes, plenty of water, lots of coal plants and fewer renewable resources, a carbon-constrained future starts making nuclear plants look fairly attractive, especially when compared with a coal plant. But in California, we have other and better choices. Nuclear power plants are simply not the best option for California. And besides, it is the law.

(Photographs, L-R: Peter V. Allen, Richard M. Shapiro)

Report Assesses Transmission Access Future for Renewables

It’s not billed as picking winners and losers but a new report issued by consultants to a multi-agency effort planning California’s transmission infrastructure gives some idea of what types of renewable energy projects have a bright future, at least when it comes to getting access to the grid.

The document in effect recommends that for some technologies, including anaerobic digestion and landfill gas, no further planning should be done on access to transmission lines. But it is much more favorable toward technologies such as biomass, solar (both thermal and photovoltaic), small hydro, wind and geothermal. Wave and marine current energy fell into a gray area, with the consultants recommending no further planning right now but instead keeping an eye on further developments.

Prepared by Black & Veatch Corporation, a large international consulting and contracting firm, the report, dated March 14, could be significant because it constitutes a first step in the state’s Renewable Energy Transmission Initiative, which is often known by its acronym, RETI. The project is designed to take a strategic and unified approach to siting transmission lines to serve renewable generation resources located in California or elsewhere in the West. The next phase of the process involves ranking the cost-effectiveness of delivering power from specific interconnection points.

 

The report noted that meeting California’s ambitious goals for renewable power “will require a substantial amount of new transmission development, as most large-scale renewable resources are located in remote areas rather than near the state’s major load centers.” State law, although it has some flexibility, requires that 20 percent of electric energy come from renewable resources by 2010 and a 2005 executive order signed by Gov. Arnold Schwarzenegger anticipates that figure should hit 33 percent by 2020 as part of the state’s strategy for meeting the requirements of the greenhouse gas reduction law, AB 32.

The report incorporated a variety of assumptions, including renewable demand, and information about current generation and the transmission system. It also looked at resource operating and cost assumptions, as well as economic assumptions. A key criteria was the development of the “base case,” or group of resources the RETI process included as the starting point. For power generation, that incorporated renewable projects that are operating or currently under construction, or those that are in advanced planning stages with contracts and permits in place.

Whether or not to include a technology in the next phase, known as Phase 1B, of study depended on a number of factors, according to the report, including the likelihood the resource had enough potential to contribute to the state’s renewable portfolio standards, the ability to deliver power cost-effectively to the grid and the maturity of the technology. According to the report: 

“Based on these assessments, resources with limited potential to provide energy to California are eliminated from further review in Phase 1B. While there may be discrete resources in these regions that might provide energy to California, there are not sufficient resources in these areas to merit exploring potential new transmission to access these resources.”  

The report concluded that anaerobic digestion -- which generates power from such sources as municipal sewage treatment plants and livestock operations -- and landfill gas were, among other things, too small to include in the next phase. On the other hand, it concluded the potential for solar voltaic was "virtually unlimited" and that for biomass was “substantial.”

Interested parties can participate in a Webcast scheduled for March 26 and can submit comments until March 28. Overseeing the RETI project are the California Public Utilities Commission, the California Energy Commission and the California Independent System Operator, as well as several publicly owned utilities.

An article recently prepared by Peter V. Allen and Paul C. Lacourciere of Thelen contains further details and background about the RETI process. It is available here

(Wikipedia photograph of electrical transmission lines in Sweden)