Wednesday, November 14, 2018

Court Halts New England Clean Energy Contracts

By William Opalka

A federal appeals court has halted the award of clean energy contracts sought by three New England states while it considers an appeal filed by a New York-based clean energy developer (16-2946).

The 2nd U.S. Circuit Court of Appeals issued a temporary injunction on Nov. 2 in response to Allco Renewable Finance’s emergency petition.

Connecticut, Massachusetts and Rhode Island last month announced they would commence negotiations with developers of solar and wind projects totaling 460 MW. (See New England States Move Toward Renewables Contracts.)

Solar Energy Project Schematic | Allco - new england clean energy contracts

Solar Energy Project Schematic | Allco

“Defendants-appellees are enjoined from awarding, entering into, executing or approving any wholesale electricity contracts in connection with the current energy solicitation during the pendency of this appeal,” the court said.

The three-judge panel expedited the appeal, set up a briefing schedule and ordered oral arguments in New York City as soon as the week of Dec. 5.

In its motion for the injunction, Allco tried to establish parallels with the U.S. Supreme Court ruling earlier this year in Hughes v. Talen, in which the court invalidated a contract between Maryland and a natural gas generator. Allco said the Maryland contract was “just like what Connecticut plans to do here.” (See Supreme Court Rejects MD Subsidy for CPV Plant.)

In the schedule set up by the states, negotiations are supposed to be completed by mid-January. The solicitation imposed a 20-MW minimum on the contracts that could be considered.

Allco said the 20-MW minimum is arbitrary and violates the Public Utility Regulatory Policies Act and the Federal Power Act. The company develops small solar qualifying facilities under PURPA.

The company filed a lawsuit against Connecticut officials after the multistate solicitation was announced last year. (See Allco Challenges New England’s Renewable Procurement Plan.) A U.S. District Court dismissed Allco’s challenge over the summer, saying the company lacked standing. The company appealed to the 2nd Circuit and then filed its emergency motion last month as the states’ solicitation process was ending.

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