An extract from The Renewable Energy Law Review, 5th Edition
Renewable energy is high on the agenda of the Norwegian government. Following up on its Paris Agreement obligations, Norway has announced a strengthened target to reduce emissions by 50 per cent (to increase to 55 per cent by 2030) compared with 1990.2 Approximately half of Norwegian energy consumption is renewable. As for electric power, 98 per cent comes from renewable energy, mainly hydropower.3 In June 2021, the previous Norwegian government issued a White Paper outlining a long-term plan for renewable energy in Norway.4 Despite a change of government in autumn 2021, the White Paper is still expected to form the basis for the energy policy, with some adjustments.
The past year has seen a dramatic increase in energy prices, bringing supply security and affordable prices to the top of the political agenda. The price hikes are a major concern for both industrial and household consumers. Interconnectors from Norway to the European energy markets – two of which were commissioned during 2021 – have drawn public criticism, as they are blamed by many for causing the price hikes. The long-standing ambition of electrifying petroleum installations on the Norwegian continental shelf with the aim of reducing CO2 emissions has also been brought into question. In December 2021, the Norwegian government launched a temporary compensation scheme, pursuant to which each household will get parts of its electricity costs covered by the Norwegian state during periods of high energy prices. The subsidised prices are, however, still high by Norwegian standards.
A key energy policy focus area is the ambition for Norway to become a leading country within offshore wind power production. In a May 2022 press conference, the government announced its ambition to award licences for areas with a total generation potential of 30,000MW by 2040.5 The first licences are expected to be awarded in 2023, with a second licensing round in 2025. State-owned Statnett has been appointed as the offshore transmission system operator (TSO). Other focus areas are the establishment of value chains for hydrogen, and for carbon capture and storage (CCS). The most notable project under development is the full-scale CCS demonstration project called Longship.
After a period of significant onshore wind development, the licensing process was suspended in April 2019 due to massive public resistance and political debate. In June 2021, the government allowed the case handling of existing licence applications to resume on the host municipality's request.6 In April 2022, the government allowed the processing of new licence applications with the host municipality's consent.7
The year in reviewi Hydropower
Hydropower constitutes the backbone of the Norwegian electricity system. A key measure to increase Norway's production of renewable energy is to preserve and further develop hydropower by repowering and expanding existing hydropower plants as well as constructing new, small hydropower plants. In 2021, a total of 1.4TWh of new hydropower production was put into operation, the highest volume in 30 years. Half of this relates to 53 new, small hydropower plants.8
In addition, two new interconnectors were put into operation: the Nord Link cable to Germany in March 2021 and the North Sea Link cable to the United Kingdom in October 2021.9ii Wind power
Granting new onshore wind licences was put on hold in 2019 following massive popular resistance due to negative impacts on nature, wildlife and people in areas of wind power development.10 The 2021 White Paper states that a key premise for future wind power licence awards is that the role of municipalities is to be strengthened and that the host municipality's consent will be a prerequisite for awarding a licence.11 The licensing process has now been resumed.
The Norwegian Water Resources and Energy Directorate (NVE) has been tasked by the Ministry of Petroleum and Energy (MPE) to outline new requirements in the licensing process. The NVE's recommendation was sent to the MPE in May 2022.12 The negative impact on the rights of the indigenous Sami people has been emphasised in the public debate on onshore wind power plants and, in October 2021, the Norwegian Supreme Court ruled in a landmark decision that the development of two wind power plants violated the indigenous rights of Sami reindeer herders in the area.13
Offshore wind power is an industry yet to be developed in Norway. The newly elected government has emphasised its commitment to developing a regulatory framework for the industry. In February 2022, the government announced its plans and the first steps of a process leading up to a future award of licences in the two open areas: Sørlige Nordsjø II (3,000MW) and Utsira Nord (1,500MW).14 The government also further clarified some key elements of the licensing processes, most notably that the power from the first licence in Sørlige Nordsjø II (limited to 1,500MW) will be transmitted to the Norwegian mainland only, which was a disappointment to the offshore wind industry. This industry has expressed a desire for hybrid export cables enabling transmission to Norway and to Europe, improving profitability. In May 2022, the government announced its ambition to award licences for offshore areas with a total generation potential of 30,000MW by 2040. The scale presupposes that a substantial share of the power will be exported to other countries. The government confirmed in its May 2022 press conference that the grid solution for each development project will be assessed on a case-by-case basis.
Offshore wind to power petroleum installations is one step ahead. The world's first floating wind farm to supply electricity to offshore oil and gas platforms, Hywind Tampen, is scheduled to start power production in 2022.15
Longship, a prestigious full-scale CCS demonstration project, is partly funded by the Norwegian state and partly by the participants of the Northern Lights joint venture (Equinor, Shell and TotalEnergies). The demonstration project reflects the government's ambition to develop a full-scale CCS value chain with storage off Norway's coasts commencing in 2024.16 In April 2022, the MPE awarded two new offshore licences.17 In addition, the MPE opened a new area for CO2 storage in the North Sea due to interest from the industry.18iii Hydrogen power
Norway's strategy for hydrogen entails the development of a value chain where production, distribution and use are developed in parallel. The aim is to reach an annual production of blue and green hydrogen by 2030. The government is also considering establishing a state-owned hydrogen company.19 Two interesting projects within the hydrogen sector are the Barents Blue project, which will produce blue hydrogen by establishing an ammonia factory to produce ammonia from gas combined with carbon storage, and Yara's project to make use of green hydrogen in fertiliser production.20iv Solar power
Solar power recently reached a milestone as the first licence to build a solar power plant in Norway was granted. Prior to this, only licence-free rooftop solar power panels have been installed.21
The policy and regulatory frameworki The policy background
The overall aim of Norway's energy policy is to ensure high levels of value creation through the efficient and environmentally friendly management of the country's energy resources.22 In essence, Norway shall:
- continue to provide for abundant and affordable access to power;
- reduce the industry's greenhouse gas emissions;
- continue to convert to increased electrification of industries as part of cutting emissions; and
- develop and grow new renewable energy industries.23
Four main goals for Norwegian energy policy have been established:24
- improving security of supply;
- profitable development of renewable energy;
- more efficient and climate-friendly energy consumption; and
- value creation based on Norway's renewable energy resources.
The largest share of renewable energy in Norway is related to hydropower. In addition to preserving and further developing hydropower, Norway has large potential for development of other renewable energy production due to its geography, topography and sea areas. The government has emphasised its particular commitment to facilitate large-scale investment in offshore wind power, and to further the development of CCS, the establishment of value chains for hydrogen and the establishment of a battery production industry.
A number of support schemes are in place to support renewable energy projects, including the distribution of funds through various state-owned companies and administrative agencies such as Enova, Innovation Norway and the Research Council of Norway. In addition, the Norwegian state provides direct support through state aid, such as for the Longship project, to which the Norwegian state will contribute approximately two-thirds of the costs.25
The main instruments to reduce greenhouse gas emissions are the CO2 tax and the emissions trading system. Another incentive is the guarantee of origin, which documents electricity that is produced from renewables. Other incentives include the joint Norwegian–Swedish market for electricity certificate schemes where producers of renewable electricity receive one certificate per MWh of produced electricity up to a period of 15 years, although this is about to be phased out as further outlined in Section IV.ii. The right to straight-line depreciation of wind turbines over a five-year period also ended after 2021.26
The tax regime consists of a corporate income tax at 22 per cent for hydropower and wind power. For hydropower, there is also a ground rent tax of 47.4 per cent (corporate income tax is deductible so that the total effective tax rate is 59 per cent). Wind power is not subject to ground rent taxation unless offshore installations are part of the electrification of the oil sector and financed by oil companies. A municipal property tax is tied to all three, but for offshore wind power installations, it applies only to possible assets attached to land. Hydropower is also subject to a natural resource tax or duty, which only serves to produce tax revenue for the local municipality without increasing the effective tax burden for companies.
As a general principle, the cost price for a fixed asset that functionally and physically constitutes one unit should not be divided into different subclasses of assets with different tax depreciation rates. The Norwegian Tax Administration has concluded that an onshore wind turbine is not such a combined fixed asset, and that it consists of different components that may be separated and replaced at different times. Therefore, the different components in wind turbines have varying tax depreciation rates.
Ground rent tax for hydropower is assessed on a cash tax basis, whereby all investments are immediately tax deductible by 100 per cent and any negative ground rent tax is refunded annually. Such cash tax-based systems do not apply for corporate income tax purposes to any type of business.ii The regulatory and consenting framework
Norway has a comprehensive legal framework related to renewable energy. As part of the European Union's internal energy market through the European Economic Area agreement, Norway is bound by several directives and regulations related to the industry, including the European Union's three energy packages.
The Energy Act concerns the production, conversion, transfer, trading, distribution and use of electrical and thermal energy, except in territorial waters.27 There is a substantial body of regulations and administrative guidelines that derive from this act.
The Offshore Energy Act concerns the production of renewable energy, and the transformation and transfer of electrical energy offshore.28 A comprehensive set of regulations and most likely amendments are, however, required before the act can become operational.
The Waterfall Rights Act lays down the conditions for obtaining licences to acquire waterfalls exceeding a certain generating potential. The Water Resources Act concerns the use and management of watercourses and groundwater. The Watercourse Regulation Act concerns licences for interventions in watercourses (e.g., dams and diversions).
Although not specific to renewable energy, the Planning and Building Act is one of the most important acts for the industry. Norway's land use shall be managed through plans. Plans for land use must therefore be researched through planning programmes, descriptions of plans and environmental impact assessments (EIAs). Some plans always require an EIA, while others only require an EIA if the project may have adverse effects on the environment, society and nature conservation.29 It is worth noting that these requirements are in addition to those that follow from the Energy Act, the Water Resources Act and the Watercourse Regulation Act.30
The principal responsibility for Norwegian energy policy lies with the MPE. The NVE is subordinated to the MPE. The NVE is responsible for managing the energy resources and is the licensing, preparedness and rationing authority. The Norwegian Energy Regulatory Authority (NVE-RME) is the regulatory authority for the electricity and natural gas markets. The Norwegian Electricity Appeal Board is an independent appellate body for complaints filed against the NVE-RME's decisions.
The Norwegian power grid is divided into three levels: the transmission grid, the regional grid and the distribution grid. The transmission grid is owned and operated by Statnett, a state-owned enterprise subordinated to the MPE. Statnett is the TSO and responsible for ensuring balance between power production and consumption. On the distribution level there are over 100 distribution system operators (DSOs), each responsible for power distribution in their geographical areas.
Building, owning or operating power plants and grid installations over a certain capacity or voltage onshore requires a plant licence pursuant to the Energy Act.31 The authority is the MPE, although licences for smaller projects are granted by the NVE.32 For new and large grid installations as well as electrical installations in conjunction with hydropower plants, licences are granted by the King in Council.33 Power plants and grid installations require EIAs if the projects may have substantial effects on the environment, society and nature conservation.34 The requirements depend on the scale and effect of the projects.
On the distribution level, the DSO will – instead of plant licences – for each installation be granted an area licence within its geographical area for building, owning and operating installations in the distribution grid.35 An area licence licensee is obligated to deliver electrical energy to all customers within the licence area.36
As the right to exploit hydropower resources is vested in the public (i.e., the state), the acquisition of leasehold or ownership rights to waterfalls for power production by anyone other than the state requires a licence from the government pursuant to the Waterfall Rights Act.37 Waterfalls with a generating potential less than 4,000 horsepower are exempted.38 Only publicly controlled entities may be granted a licence, which means that one or more public entities (i.e., the state and local or regional municipalities) must directly or indirectly combined hold at least two-thirds of the ownership interests and the voting rights in the licensee. Hydropower plants that do not require licences pursuant to the Watercourse Regulation Act are regulated by the Water Resources Act.39
Watercourse regulations and transfers for hydropower production over a certain capacity, or that substantially affect natural conditions or other public interests require licences pursuant to the Watercourse Regulation Act40 or the Water Resources Act, as applicable. The licensing authority is the MPE.
Watercourse projects that may be of notable damage or disadvantage to public interests normally require a licence from the NVE.41 All licences presuppose that the advantages exceed the damages and disadvantages to public or private interests.42
The state has the right to exploit renewable energy resources offshore.43 Building, owning or operating production facilities and grid facilities offshore requires a licence pursuant to the Offshore Energy Act. The MPE is the licensing authority, but licences will only be granted in areas opened for licence awards by the King in Council. Licences can be given for up to 30 years, but extensions are possible.44 An EIA is generally required as part of the licensing process.45 The MPE has recently proposed several changes to the Offshore Energy Act and it is expected that the licensing process will be adjusted prior to the first licensing round for offshore wind power.
To engage in the trading of electricity, anyone but the state will need a trading licence.46 This includes producers, grid companies, wholesalers and retailers. Licences are granted by the NVE-RME.
Owning or operating interconnectors requires a special licence pursuant to the Energy Act.47 This licence may only be obtained by the TSO, Statnett. Licences for interconnectors from offshore production facilities may, however, be granted to other entities. The MPE is the licensing authority. Organising and operating marketplaces for the trading of electricity requires a licence from the NVE-RME.48
Building, owning or operating district heating facilities with an output that exceeds 10MW requires a district heating licence from the NVE.49 The municipal zoning authority may mandate connection to the district heating grid for new buildings within the district heating licence area. This places an obligation on the building owner only and the district heating company has no duty to connect new customers. The building owner must cover the cost for physical connection to the grid and pay the annual connection fee. There is no duty to purchase energy from the district heating company once connected, but the district heating company has a statutory obligation to deliver energy to all connected customers. Where connection is mandated, the price that the district heating company may charge is limited to a statutory maximum price, equal to the price of electricity in the area.
The time frame for obtaining approval for the development of utility-scale renewable energy projects may vary depending on the project. A requirement for EIAs or public hearings, or both, will typically prolong the process. For example, the case processing for onshore wind power projects may take as long as 10 years due to long-lasting conflicts, and comprehensive processes and hearings.50
The process for offshore wind power is based on the framework onshore but with additional steps and is thus expected to be longer. The government is, however, working to streamline the licensing process.
In 2021, the NVE:
- approved 39 plants for electricity certificates;
- granted 245 plant licences for grid installations (of which 154 licences were new); and
- adopted decisions in 27 district heating cases (of which most decisions regarded rebuilding or expanding existing installations) and 22 hydropower applications (of which 12 applications regarded licences).51
Injection and storage of CO2 in geological formations require permits from the Norwegian Environment Agency and the MPE.52 Additionally, installations built in relation to injecting and storing CO2 require EIAs and planning programmes or notifications.53 CO2 from the offshore petroleum industry is regulated in the Regulation on the Petroleum Act Chapter 4a, while CO2 from other industries is regulated in the CO2 Storage Regulation. Despite this regulatory distinction, the regulations are largely identical. Applications for survey licences must be directed to the MPE, while exploration and exploitation licences presuppose approval by the King in Council. The exploitation licensee must also submit a plan for development and operation for the applicable subsea reservoir intended for CCS to be approved by the MPE.
Norway does not have a complete framework covering the hydrogen value chain. The production, storage and transport of hydrogen are not covered by the Energy Act. However, plants for the production of hydrogen must comply with the Energy Act.
The importance of considering environmental matters relating to renewable energy developments is emphasised throughout the renewable energy framework. Key instruments for environmental considerations in licensing processes are the requirement for EIAs and the use of public consultations prior to award.
Renewable energy developments must be carried out in accordance with, among other things:
- the Norwegian Nature Diversity Act;
- the Pollution Control Act;
- the Cultural Heritage Act;
- the Outdoor Recreation Act; and
- the Reindeer Husbandry Act.
Norway is also part of several international frameworks, including the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat, ILO Convention No. 169 on the Rights of Indigenous Peoples, and the European Human Rights Convention.
Renewable energy project developmenti Project finance transaction structures
Ownership structures in project financing of renewable energy projects vary depending on the particularities of the project, who the investors are and the source of financing. A typical project would, as in other markets, be set up by the investors with a project company as principal obligor. Depending on the requirements of the investors and the lenders, the project company may be established as a limited liability company. It is not uncommon that the project company instead be set up as an unlimited partnership and it is possible to arrange such a partnership so that each partner (or investment vehicle) has an unlimited but divided liability into such parts as may be agreed.
The principal documentation for renewable project finance typically consists of a loan market association-type loan agreement tailored to the relevant project. The sophistication of such loan agreements depends on the needs and expectations of the parties. Local project lending banks will often prefer a light-form agreement subject to Norwegian law, whereas international banks that may be less experienced with the Norwegian market and less familiar with Norwegian law may require a comprehensive loan agreement, possibly subject to English law. Other important finance documentation consists of inter-creditor and security agreements.
The tenor for debt for renewable energy projects is generally longer than that for corporate financings. In some instances, such as for wind power projects, the tenor may be in excess of 15 years after project completion.
There is no general charge over all of a company's assets in Norway, but fixed (and sometimes floating) charges may be created over most individual assets. Therefore, project finance deals often encompass a broad number of asset classes, including shares, property, bank accounts, operating assets and accounts receivable. Notably, security may, in most instances, not be taken over contractual position other than monetary claims. Direct agreements with step-in rights (e.g., to offtake agreements) are common, but their effectiveness under Norwegian law is uncertain.
Commercial banks are the primary source of loan financing of renewable projects in Norway. Only a handful of locally established banks are actively engaged in project finance transactions, but certain European financial institutions are regularly involved.
Over the past decade, financing of renewable energy projects has revolved around onshore wind power developments. When construction work started in 2016, the Fosen project was Europe's largest wind power development with six separate wind parks and a total installed capacity of 1,057MW. The park was completed in August 2020. Skandinaviska Enskilda Banken and the Danish export credit agency EKF provided project financing in the amounts of €76 million and €152 million, respectively. Several other large developments have been constructed since, with a significant portion of funding from project finance sources.
Due to the controversies surrounding onshore wind development, new projects have dried up over the past few years and project finance of renewable energy has consequently been in remission. Few other renewable sources of energy require large project construction, but development of offshore wind or a shift in public opinion could change this picture over the coming years. Related projects, such as within CCS or hydrogen production, could be a source of project financing as well going forward.ii Power purchase
Over the past century, Norwegian heavy industry has been shaped by access to cheap electricity from hydropower plants. Companies engaged in processing industry are typical buyers, but other energy-demanding players, such as operators of data centres, are becoming increasingly important.
There are two different types of energy attributes certificates: el-certificates (which are specific to Norway and Sweden) and guarantees of origin (which form part of the wider European system).
Large purchasers, such as in heavy industry, usually avoid guarantees of origin partly due to controversies on their appropriateness to promote the use of renewable energy. The current Norwegian government has followed suit and has proposed to remove such instruments from the market despite their promotion by the European Union as part of its Fit for 55 package.
El-certificates (each equivalent to production of 1MWh of renewable electricity), which are a joint arrangement with Sweden, are awarded to approved power producers for up to 15 years. The producers and certain buyers are required to cover a specified amount of the total amount of electricity traded, thereby creating a market for el-certificates. However, the arrangement is being phased out in Norway (but not Sweden) and only production facilities that were operational by the end of 2021 are eligible for certificates.
Today, most power consumption is traded at the power exchange Nord Pool, which also allows hedging options. Recently, the trend has been leaning towards increased use of power purchase agreements (PPAs) (supported by el-certificates) and the market for such agreements is quite active with wind farms dominating signings of new PPAs. Most of the PPAs in Norway are physical contracts with a fixed price.iii Non-project finance development
There are few renewable energy projects that are not financed through some sort of project finance structure if they are not fully funded by equity. A notable exception is small and medium-sized hydropower development, which has been important in Norway in recent years. These power developments may be bundled together in a company or corporate structure and financed with commercial banks as an ordinary balance sheet financing. Once a company holds a sufficient number of fully developed hydropower plants, they may be bundled and used to back a green bond in the Norwegian market.
Distributed and residential renewable energy
Distributed renewable energy production in Norway comes almost exclusively from rooftop solar power on residential and commercial buildings. By the end of 2020, the NVE estimated the total installed capacity to be approximately 160MW.54 In 2021, prosumed feed-in to the grid amounted to about 34GWh.55 This accounts for a very small fraction of total installed capacity (approximately 0.4 per cent) and production (approximately 0.02 per cent) from all sources combined, although the actual production is of course higher than the feed-in volume. The demand for new installations is, however, currently booming due to very high electricity prices. Notable players are Otovo, Solcellespesialisten and Fjordkraft, but the number of providers is rapidly growing.
Prosumers with feed-in capacity not exceeding 100kW are exempted from the fixed element of the feed-in tariffs but are charged a variable element (per kWh). The variable element is usually negative, as distributed production normally reduces marginal loss in the grid. Locally produced electricity consumed by the prosumer is also exempt from electricity tax. Surplus energy fed into the grid can only be sold to the prosumer's electricity supplier, normally at the Nordpool spot price in the area.
Enova has a support scheme for private households that wish to produce their own electricity with solar photovoltaic units. As at May 2022, the support amounts to 7,500 Norwegian kroner plus 2,000 Norwegian kroner per kWp installed capacity, capped at 47,500 Norwegian kroner. Support from Enova presupposes, inter alia, that the project is implemented and paid for by the private individual, and that it is installed by a registered company.
The use of solar photovoltaic units in many housing cooperatives and co-ownerships have good potential for the production of solar energy. However, as each household has its own meter and transfer of energy to other end users is not allowed under the prosumer feed-in tariff scheme, the individual residences will not benefit from the exemption from feed-in tariffs and electricity tax. Norwegian housing cooperatives and co-ownerships amount to more than 900,000 residences.56 In the previous government's revised national budget of 2021, adaptations to the prosumer scheme were suggested that would accommodate housing cooperatives and co-ownerships with respect to electricity tax. There is broad political support for this change, but the implementation has been delayed as the MPE is still developing the necessary detailed rules.
Mergers and acquisitions
Renewable energy supply chains
The development of a supply chain to support the growth of Norway's renewable energy industry is high on the political agenda. The Norwegian supplier industry has been, in recent decades, focused on petroleum technology and large construction projects for offshore petroleum production. Today, many Norwegian suppliers are manufacturing equipment or delivering large projects for both the petroleum industry and renewable energy projects in Norway and abroad. It is anticipated that the development of a Norwegian home market for offshore wind projects will contribute to the transition of the Norwegian supply industry. Supply to the Norwegian renewable energy industry is currently mainly focused on infrastructure projects, hydropower projects and onshore wind projects.
Most goods are not subject to import tariffs and there are no tariff or trade policies specifically directed towards renewable energy equipment. As outlined above, a number of incentive schemes have been established, particularly with respect to R&D for new technology. There is currently no requirement for local content or specific localisation requirements for suppliers to the Norwegian renewable energy industry.
Other key considerations
We note a trend of consolidation within the power market, both in terms of larger companies buying smaller companies and major companies merging. A high-profile merger has been announced by Agder Energi and Glitre Energi that, if effectuated, will become the second-largest power company in Norway. Also notable is the new company to be established by TrønderEnergi and HitecVision to facilitate growth of renewable energy, potentially starting a trend whereby private equity invests in and develops the renewable energy sector.
The offshore wind industry attracts major interest. In preparation for the upcoming licence processes, companies have formed joint ventures or consortiums consisting of actors from different industry backgrounds. Typically, traditional oil and gas producers with access to capital and offshore project development competence are teaming up with companies in the electricity sector. Among others, Equinor, Hydro REIN and RWE Renewables have partnered up, as have BP, Statkraft and Aker Offshore Wind. Other examples are the consortium consisting of Vårgrønn, Agder Energi and Green Investment Group, and the consortium of TotalEnergies, Iberdrola and Norsk Havvind.
Conclusions and outlook
Increasing renewable power production is high on the political agenda. While hydropower remains dominant, the ambition of Norwegian policymakers is to increase other sources of renewable energy production. Floating offshore wind is being earmarked as the energy source with the greatest potential for growth while simultaneously providing new business opportunities for the Norwegian offshore industry, which foresees a need for work within the renewable sector as the oil and gas industry is phased out over time.