Colorado

The legislature of the state of Colorado has been very active on renewable energy issues over the last few months. Three bills were introduced in either the House or Senate in Denver to varying levels of success, each of which could have had a noticeable effect on the renewable industries in the state.

Coal-Mine Methane as a Renewable Energy Source

House Bill 1160 seeks to amend Colorado’s renewable energy standard to include electricity generated by burning captured coal-mine methane. The legislation has passed in the House, and is now being considered by the Senate Local Government Committee. The bill faces strong opposition by many environmental and renewable energy advocacy groups, including Western Resource Advocates (WRA), based in Boulder, Colo. In a March 23, 2012, guest commentary in the Denver Post, John Nielsen, the energy program director at WRA, stated as follows:

“By allowing coal-mine methane to qualify as “renewable energy,” something it is not, HB 1160 would diminish further investments in Colorado’s wind and solar resources. Those resources are sustainable, emission-free, use little or no water, provide important health and economic development benef its, and reduce greenhouse gases.”

This legislation has passed the House and, as of this writing, has been reengrossed for the 2012 session.

Prohibition on Severance of Wind Rights

House Bill 12-1105 seeks to establish a nonseverable wind energy right in real property. Essentially, under this proposal a landowner would not be able to sell fee simple title to the wind rights on his or her property, but must instead execute a lease, license, easement or other agreement to develop or participate in the income from or the development of a wind project on the property. The legislation has passed in the House, and is now being considered by the Senate Local Government Committee. This proposal law is in line with a national trend against severance of wind and solar rights, and effectively prohibits a landowner from selling the wind or solar rights to a project developer while retaining the ownership of the underlying property. Interestingly, however, this legislation seems to expressly contemplate and allow for the transfer of the rights to receive the income from the wind project to a third party, which could potentially lead to many of the same downstream ownership concerns that commonly give rise to severance restrictions in the f irst place. K.K. DuVivier, professor of law at the University of Denver Sturm College of Law and author of the excellent resource “The Renewable Energy Reader,” was recently interviewed by Colorado Public Radio about this legislation.

This legislation passed the House and Senate, and was signed into law on May 29, 2012.

Ending PUC’s Authority Over Transmission Siting Issues

House Bill 12-1312 seeks to modify the Colorado Public Utilities Commission’s approval process for transmission line certificates of convenience and necessity, so that the PUC no longer has jurisdiction over the land use rights or siting issues related to the location or alignment of the proposed transmission lines. Instead, those issues would be left to the discretion of the county and local governments. Ms. Becky Quintana, a representative of the PUC, recently testified before the House Committee on Transportation about this legislation and stated that the PUC neither supported nor opposed the legislation. From the PUC’s perspective, the legislation does not restrict the authority of the PUC, but rather more clearly defines the jurisdiction of the PUC and local governments, though she noted that, under the proposal, any transmission project that spanned multiple counties would require intergovernmental agreements as each county’s jurisdiction would end at the county line.

The legislation has passed both the House and Senate and was signed into law on April 12, 2012.

Arizona

Capping off what has been a tumultuous history, Arizona House Bill 2789 appears to have stalled in the State Senate. The legislation, which began its life as an attempt to provide the legislature veto authority over decisions by the Arizona Corporation Commission and ultimately was amended into a mandate against increasing the state RES beyond its current level, has not made any positive headway in the Senate since March and appears less and less likely to gain serious traction.

Missouri

RES Ballot Initiative Falters

A ballot initiative that would have sought to increase Missouri Renewable Energy Standard to 25 percent by 2025 failed to collect enough signatures to be placed before voters in the fall. Renew Missouri, the Columbia-based group behind this initiative as well as Proposition C, the initiative that gave rise to Missouri’s current RES, released a letter to supporters stating that “[w]e had tremendous support from volunteers, but ultimately collecting 180,000 signatures in three months is something that can’t be done with volunteers alone.”

Save the Date: 2012 Midwest Energy Policy Conference

The Missouri Energy Initiative will be holding its sixth annual Midwest Energy Policy Conference on Oct. 23-25, 2012 at Kansas City’s Bartle Hall. The conference, held in conjunction with the Clean Transportation Expo on Oct. 23, will bring together leaders in the fields of energy and energy policy for a comprehensive examination of federal, state and local energy priorities. MEI is a nonprofit association of public and private sector entities united together with the sole purpose of enhancing and improving energy-related activities in the state of Missouri. Both Frank Caro, Chair of the Polsinelli Shughart Energy Group, and Alan C. Anderson, Vice-Chair of the Polsinelli Shughart Energy Group, will be speaking at this event.

Nebraska

New Legislation Clarifies Nebraska

Wind and Solar Requirements Recently enacted legislation in Nebraska, LB 828 clarifies the existing statutory requirements that govern agreements between landowners and developers pertaining to solar and wind energy facilities. In order to correct inconsistencies between various statutory provisions relating to these wind and solar energy agreements, LB 828 centralizes the main statutory provisions, which were previously scattered in a number of locations throughout the statutes, into Chapter 66. Additionally, LB 828 clarifies that severance of wind and solar rights from the ownership of the underlying property is prohibited, sets forth specific terms that must be included in an abstract for recording purposes, and clarifies that landowners and developers may renew agreements beyond an initial 40-year term.

Nebraska Public Power District Issues Quasi- Moratorium on Wind Projects Until 2017

The Nebraska Public Power District (“NPPD”), the state’s largest public utility and a political subdivision of the state, has passed a resolution stating that after the completion of two wind farm projects currently being developed, it does not plan to add more wind generation until 2017. This decision appears to be largely driven by the fact that NPPD currently has 232 megawatts of wind generation in its portfolio, which is well ahead of schedule for meeting its state-mandated goal of 430 megawatts by 2020.