When faced with an unavoidable down round, a climate tech startup needs to tread carefully. This article – the third in a series – discusses some important things to keep in mind in managing a down round venture financing. See Part 1 of our series to learn about alternatives for averting a down round, and see Part 2 of our series to learn about common investor-favorable deal terms in a tough financing environment.
/continue readingBlog
Climate Tech Fundraising in Tough Times – Part 2 – Market-Driven Deal Terms
This article – part two of a series – examines venture financing deal terms that are more prevalent in difficult market conditions. See Part 1 of our series to learn about alternatives for averting a down round. See Part 3 of our series to learn about strategies for managing an unavoidable down round.
/continue readingClimate Tech Fundraising in Tough Times – Part 1 – Averting a Down Round
In a tougher venture financing environment, climate tech startups may need to consider strategies for averting a down round (a financing in which the pre-money valuation drops below the post-money valuation from the last round). This article – part one of a series – reviews current market trends and various strategies to avoid a down round. Part 2 of our series addresses how market conditions impact deal terms and Part 3 discusses how to manage an unavoidable down round.
/continue readingUnderstanding the Corporate Transparency Act: What Clean Energy Companies Need to Know
In 2024, millions of businesses will be faced with an unprecedented obligation to report information regarding their beneficial owners to the U.S. government under the Corporate Transparency Act. Check out our latest blog post for more information about the CTA, how it will impact clean energy project developers and startup companies, and key tips on what to do next.
In 2024, millions of businesses in the United States will be faced with a new and unprecedented obligation to report information regarding their beneficial owners to the federal government under the Corporate Transparency Act. Read on for more information about the Corporate Transparency Act, how it will impact clean energy project developers and startup companies, and key considerations for what to do next.
KLG Welcomes Samantha Rothberg
We are excited to announce that Samantha Rothberg has joined Klavens Law Group, P.C. as senior corporate counsel.
Sam’s practice focuses on companies and investors in the cleantech, climate tech and social enterprise sectors. She assists companies at each phase of their life cycle – from early-stage startups to established private companies – in a diverse array of areas, including startup formation, outside general counsel advising, corporate governance, equity compensation, venture financings, debt transactions, joint ventures, and mergers and acquisitions. Sam also supports the purchase and sale and financing of clean energy projects. In addition, she advises nonprofit organizations on formation, corporate governance and transactional matters.
Between graduating from Harvard Law School in 2015 and joining Klavens Law Group this summer, Sam practiced corporate law at WilmerHale.
Sam was named to Boston Magazine's Top Lawyers list in 2021 and 2022 in the area of corporate law.
Learn more about Sam by reading her bio.
DISCLAIMER
This document, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Klavens Law Group, P.C. or its attorneys. Please seek the services of a competent professional if you need legal or other professional assistance.
© 2023 Klavens Law Group, P.C. All rights reserved.
MA Clean Energy Act Eases Path for Agrivoltaic Projects
On August 11, 2022, Governor Baker signed into law Chapter 179 of the Acts of 2022, An Act Driving Clean Energy and Offshore Wind (the “Clean Energy Act” or the “Act”). The Clean Energy Act builds upon the 2021 climate act, which set forth the Commonwealth’s climate goals including net zero emissions by 2050. One significant feature of the Act is its prioritization of agrivoltaic projects as an integral part of the Commonwealth’s renewable energy and climate change policy. Agrivoltaic projects, often referred to as “dual use” projects, involve installing elevated solar panels on farmland to enable the land under and around the panels to be farmed. The Act clarifies that an agrivoltaic project is to be treated as an agricultural use, meaning that the land can continue to be classified as agricultural land for property tax purposes and that the project is exempt from special permit requirements. The Act also creates a new commission to identify obstacles to agrivoltaic projects and strategies to overcome those obstacles.
/continue readingMA SJC Rules in Favor of Solar Project in First Appellate Decision on Solar Zoning Exemption
On June 2, 2022, the Massachusetts Supreme Judicial Court issued the first appellate decision interpreting the limited exemption for solar energy systems provided in Section 3 of the Massachusetts Zoning Act (MGL c. 40A, § 3, ¶ 9). In Tracer Lane II Realty, LLC v. City of Waltham, the Court determined that the City of Waltham’s prohibition of solar energy systems from the vast majority of its land area violated Section 3’s bar against unreasonable regulation of solar energy systems. Below, we provide a brief overview of the facts of the case, then flag the key takeaways of which solar project developers should be aware.
/continue readingMA AG Rejects Restrictive Solar Bylaw Amendment
The Massachusetts climate act contains provisions relating to net metering that could have a significant impact on solar development.
In what appears to be a first, and following a concerted effort by Klavens Law Group, the MA Attorney General has rejected elements of a municipal solar bylaw aimed at blocking commercial solar energy projects. In the past, the AG’s office has routinely approved local solar bylaws – often with a stern warning that under paragraph nine of MGL c. 40A, § 3 the municipality can’t apply the bylaw so as to prohibit or unreasonably regulate solar facilities except where necessary to protect public health, safety or welfare. In a March 21, 2022 decision, however, the MA Attorney General flatly rejected the Town of Wareham’s effort to amend its zoning bylaw to place harsh restrictions on the siting of large-scale ground mount solar energy facilities.
/continue readingMA Climate Act Impact on Solar Development – Net Metering Provisions
The Massachusetts climate act contains provisions relating to net metering that could have a significant impact on solar development.
On March 26, 2021, Governor Baker signed Chapter 8 of the Acts of 2021, “An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy” (the “Climate Act” or “Act”). Many of the Climate Act’s headline provisions involve greenhouse gas emission reduction targets, utility offshore wind energy purchasing requirements, and other items that are exciting and commendable as part of the Commonwealth’s quest to decarbonize but do not directly impact solar development in Massachusetts. The Climate Act does, however, contain specific provisions relating to net metering and property tax matters that could have a significant impact on solar development. This post focuses on the net metering provisions. A companion post focuses on the provisions relating to property tax and PILOT agreement matters.
A Boost for Behind-the-Meter Private Net Metering Facilities
After much lobbying by the solar industry pressing the legislature to understand that the SMART program does not fully or fairly compensate behind-the-meter facilities, the legislature responded by including Section 85 in the Act to provide more net metering opportunities for such facilities.
Simplifying somewhat, Section 85 of the Climate Act amends the net metering statute to exempt (some) behind-the-meter facilities from the existing net metering program cap and provide these exempt facilities with “full value” Class II net metering credits (those calculated at the “full value” of basic service, distribution, transmission, and transition kWh charges) or Class III net metering credits (those calculated at the “full value” of basic service, transmission, and transition kWh charges) as opposed to market net metering credits worth only 60% of full value.
Background
Prior to this change, the net metering statute contained two caps for participation in the program set as a percentage of historic peak load for each electric distribution company. The first cap, applicable to public net metering facilities (defined by statute) and commonly known as the “public cap,” currently stands at 8%. The second cap, essentially applicable to everything that does not qualify for the public cap and commonly known as the “private cap,” is at 7%. All solar net metering facilities in the private cap that submitted an application for cap allocation after September 26, 2016 only generate market net metering credits (60% value).
The statute already had a cap exemption and Class I net metering credits (full value) for certain small facilities – those 10 kW AC or less on single phase lines and 25 kW AC or less on three phase lines. While the solar industry pushed to expand that category to all 25 kW or less facilities, the legislature did not incorporate that change into the final version of the Climate Act. It does, however, add language to remove the cap on “new” private behind-the-meter net metering facilities and allow such facilities to generate Class II or Class III (full value) net metering credits.
To be eligible for this new cap exemption and full value credits, a facility must: (1) be a renewable Class II or Class III net metering facility; (2) serve on-site load other than station service or parasitic load; and (3) have an “executed interconnection service agreement on or after January 1, 2021.”
The Climate Act does have one little wrinkle for these facilities – it provides that any net metering credits that are “accrued” in excess of annual electricity consumption (set at April-May), shall be “paid out” at the relevant utility’s avoided cost rate.
While on its face this is a fantastic opportunity for behind-the-meter facilities to leverage their value in serving load in ways that were limited by the SMART program’s structure (no alternative on-bill credits for behind-the-meter facilities) and the absence of net metering cap space in some service territories, there is also a fair amount of parsing of this language that will need to be done through regulatory proceedings at the Department of Public Utilities (“DPU”).
As is often the case with legislation of this heft and breadth that was heavily negotiated in a conference committee, implementation will require thoughtful and timely executive action. There are certainly some aspects of these changes that DPU will need to clarify with the benefit of substantial stakeholder input. For example, the phrase “executed interconnection agreement . . . on or after January 1, 2021” raises the question of which net metering facilities are cap exempt: facilities with an executed interconnection service agreement ("ISA") in effect on January 1, 2021 or those with an ISA executed on or after January 1, 2021? In addition, DPU will need to define “accrued” net metering credits and otherwise detail which credits will be paid out at the lower value of avoided cost. Will this mean any net metering credits generated above the annual load or will it be only those credits that “accrue” in the host customer account and are not allocated to other electric accounts or otherwise consumed?
As a result of these changes, developers of behind-the-meter solar energy projects should plan to take a close look at whether and how to take advantage of these new features of the Massachusetts net metering program, including whether to participate in the net metering program in addition to or instead of the SMART program.
Greater Flexibility for Sale of Market Net Metering Credits
Section 84 of the Climate Act amends the net metering statute to provide that a solar net metering facility can allocate market net metering credits (the 60% value credits mentioned above) to customers of any distribution company in Massachusetts. Prior to the Act, a net metering facility interconnected with the distribution grid of a particular distribution company could only allocate credits to other customers of the same distribution company and then only to customers located within the same ISO New England load zone. (There has been an opportunity for a standalone solar facility participating in the Commonwealth’s SMART program to generate alternative on-bill credits that could be sold to other utility customers regardless of load zone but only within the same distribution company territory.)
This minor modification of statutory language is likely to be of very significant benefit to community solar facilities located in Western Massachusetts that were developed under the net metering program (both the SREC II program and SMART) and that generate market net metering credits. Such facilities will now be able to sell their net metering credits to customers in the more populous Eastern portion of the state.
Victory for Small Facilities Serving Public Entities
In a somewhat convoluted belt-and-suspenders approach, Sections 82 and 83 of the Climate Act amended the net metering statute to allow Class I net metering facilities (those that are 60 kW AC or less) to qualify as public net metering facilities. Previously, the statutory definition of a public net metering facility had been limited to Class II or III facilities.
Implementation Hurdles
While these provisions of the Climate Act take effect immediately, accessing the benefits of these provisions is likely to take some time. DPU’s net metering regulations and the distribution company net metering tariffs will need to be updated to reflect these changes and solar stakeholders can expect that DPU will take the view (as it has with previous net metering statutory changes) that both of these steps will have to occur in order to implement these changes in law, and stakeholders should be prepared to participate actively in the regulatory process to ensure that the resulting regulatory and tariff changes are consistent with the ambitious climate policy roadmap laid out by the legislature.
FURTHER INFORMATION
For further information about these matters, please contact Courtney Feeley Karp at cfeeleykarp@klavenslawgroup.com or 617-502-6284 or Jonathan Klavens at jklavens@klavenslawgroup.com or 617-502-6281.
DISCLAIMER
This document, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Klavens Law Group, P.C. or its attorneys. Please seek the services of a competent professional if you need legal or other professional assistance.
© 2021 Klavens Law Group, P.C. All rights reserved.
MA Climate Act Impact on Solar Development – Property Tax/PILOT Provisions
The property tax and PILOT agreement provisions of the Massachusetts climate act could have a significant impact on solar development.
On March 26, 2021, Governor Baker signed Chapter 8 of the Acts of 2021, “An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy” (the “Climate Act” or “Act”). Many of the Act’s headline provisions involve greenhouse gas emission reduction targets, utility offshore wind energy purchasing requirements, and other items that are exciting and commendable as part of the Commonwealth’s quest to decarbonize but do not directly impact solar development in Massachusetts. The Act does, however, contain provisions relating to net metering and property tax matters that could have a significant impact on solar development. This post focuses on the provisions relating to property tax and PILOT matters. A companion post focuses on the net metering provisions.
Property Tax Exemption Eliminated for Some Facilities and Extended to Others
Until now, MGL c. 59, § 5, Forty-Fifth (“Clause Forty-fifth”) has allowed a 20-year property tax exemption for solar or wind energy systems utilized as a primary or auxiliary power system for the purpose supplying the energy needs of property subject to property tax. The Massachusetts Appellate Tax Board (the “ATB”) ruled in Quabbin Solar, LLC et al. v. Board of Assessors of Town of Barre (Nov. 2, 2017) and other cases that this exemption applied to solar facilities generating energy billing credits allocated to electric utility accounts serving taxable properties.
Section 61 of the Act completely reworks Clause Forty-fifth so that there will no longer be a property tax exemption based on the supply of energy or energy credits to taxable property. Under the new Clause Forty-fifth, the 20-year property tax exemption will still apply to solar systems (including those co-located with energy storage systems) but only if they meet certain size requirements. The revised exemption now applies to (1) systems that are 25 kW or less and (2) those that cannot produce more than 125% of the annual electricity needs of the underlying real property (which can include both contiguous and non-contiguous commonly owned real property in the same municipality).
As a result of this change in law, and depending in part on the application of the Act's transition provisions (discussed below), many solar facilities had been eligible for exemption under Clause Forty-fifth will no longer be eligible. One example would be a standalone ground mount solar facility supplying net metering credits to residential customers. Another example would be a large behind-the-meter rooftop solar facility that generates more than 200% of the annual load of the underlying building, meeting the host customer’s electricity needs and generating net metering credits allocated to other private businesses.
On the other hand, since the property tax exemption under Clause Forty-fifth will no longer turn on whether a facility supplies the energy needs of taxable property, the exemption will now be available to the many third party-owned solar facilities that serve buildings owned by nonprofits and public entities.
Note also that the amended Clause Forty-fifth does not require that a facility be installed behind a host customer meter in order to benefit from tax exemption or even that the electricity or energy billing credits be used onsite. The exemption speaks strictly in terms of the size of the facility and, for systems over 25 kW, the facility’s generating capacity in relation to the electricity needs of the underlying real property.
Continued Authorization of Solar Facility PILOT Agreements with Modified Guidelines
Massachusetts law will continue to authorize PILOT agreements for solar facilities, but the Act changes the locus of that statutory authority and modifies certain of the guidelines relating to solar facility PILOT agreements.
Until now, solar facility PILOT agreements had been authorized under MGL c. 59, s. 38H(b) (“Section 38H(b)”), a statute that authorizes PILOT agreements for any type of energy generation facility, including solar facilities. Prior to passage of the Act, Section 38H(b) had authorized municipalities to enter into PILOT agreements with a “generation company” or “wholesale generation company” and required that PILOT payments be “the equivalent of the property tax obligation based on full and fair cash valuation.”
Section 61 of the Act amends Section 38H(b) to provide that solar facilities are no longer among the “generation facilities” whose PILOT agreements are governed by this statute and provides that solar facilities may instead be the subject of a PILOT agreement under Clause Forty-fifth.
In turn, Section 63 of the Act amends Clause Forty-fifth to provide that a solar facility that is the subject of a PILOT agreement is entitled to a property tax exemption for 20 years (or longer if specified in the PILOT agreement). Under the revised statutory framework, there appears to be no requirement that the counterparty to a PILOT agreement be a generation company or wholesale generation company or any requirement that the agreed payments under the PILOT agreement be the equivalent of what property taxes would be in the absence of such an agreement.
The revised Clause Forty-fifth also provides that, where the system and the underlying land are in common ownership, a PILOT agreement must cover all personal property taxes on the system, all real property taxes attributable to the system, and all taxes associated with the land. Where the system and land are not in common ownership, the statute provides that the PILOT agreement may only cover personal property taxes attributable to the system. The prior statutory framework had language that could be interpreted in that manner but the new framework makes this explicit.
The Act also clarifies that a PILOT agreement can cover solar systems that are co-located with energy storage systems. In addition, there is language in the Act indicating that the legislature intended to clarify the authority for PILOT agreements in the case of standalone energy storage systems, although the language on this point is somewhat opaque and may require some interpretive guidance from the Division of Local Services of the Department of Revenue (“DOR”). It may be helpful to note that, even as amended by the Act, Section 38H(b) does not preclude a PILOT agreement for a standalone energy storage system owned as long as the system qualifies as a “generation facility” and is owned by a “generation company” or “wholesale generation company.”
Changes Applicable to Wind Energy Facilities
While this post is focused on solar facilities, the statutory changes described above relating to the property tax exemption and PILOT agreements also apply to wind energy facilities.
DOR Guidance Required
Section 105 of the Act requires that within 9 months after the effective date of the Act (i.e., by December 26, 2021), DOR, in consultation with the Department of Energy Resources (“DOER”), issue “guidance for municipalities and solar, wind and energy storage system owners that shall include, but not be limited to: (i) assessment of solar, wind and energy storage systems; (ii) standardization of agreement terms; and (iii) where feasible, standardization of tax policy when agreements for payments in lieu of taxes are not in place.” Given the tremendous variety and uncertainty that solar developers currently face in negotiating PILOT agreements and estimating how assessors will approach valuation of solar facilities across dozens of Massachusetts municipalities, there is a big opportunity for DOR and DOER to facilitate appropriate standardization throughout the Commonwealth. There is also a significant risk that guidance could emerge that would make solar development more difficult and imperil the Commonwealth’s ability to meet the greenhouse gas reduction goals set out in the Act. DOR and DOER should develop the required guidance via a transparent process with ample stakeholder input.
Effective Date of Changes
The Act provides that the changes to the Clause Forty-fifth property tax exemption will not take effect until 90 days from the date of the Act’s passage. As the Act was signed into law on March 26, 2021, the 90th day appears to fall on June 24, 2021. The Act also provides that solar facilities without an executed PILOT agreement that were deemed exempt from property tax prior to the effective date of the Act (i.e., March 26, 2021) and that are sized to no more than 150% of the annual load of the property on which they are located will remain exempt. At the same time, there are several provisions of the Act that have a bearing on how the change in law will be implemented, and it is not entirely clear how the amendment will apply to existing facilities that already qualified for the 20-year exemption under the prior version of the statute.
As applied to the changes in law relating to PILOT agreements, the Act’s transition provisions are not particularly clear. Solar developers should take care to obtain appropriate legal advice regarding the potential need to modify any PILOT agreement not fully executed before March 26, 2021.
FURTHER INFORMATION
For further information about these matters, please contact Courtney Feeley Karp at cfeeleykarp@klavenslawgroup.com or 617-502-6284, Jonathan Klavens at jklavens@klavenslawgroup.com or 617-502-6281, or Sarah Matthews at smatthews@klavenslawgroup.com or 617-502-6282.
DISCLAIMER
This document, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Klavens Law Group, P.C. or its attorneys. Please seek the services of a competent professional if you need legal or other professional assistance.
© 2021 Klavens Law Group, P.C. All rights reserved.