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A conversation with Carl Fleming of McDermott Will & Emery

This week we’re talking to Carl Fleming, a renewables attorney with McDermott Will & Emery who was an advisor to Commerce Secretary Gina Raimondo under the Biden administration. We chatted the morning after the Trump administration attempted to freeze large swathes of federal spending. My goal? To understand whether this chaos and uncertainty was trickling down into the transition as we spoke. But Fleming had a sober perspective and an important piece of wisdom: stay calm and remain on course.
The following conversation has been lightly edited for clarity.
How are you seeing the private sector respond to all of this news?
My view is, you can read a lot into what people publish in the EOs and what’s written and what’s issued and you can sometimes read a good deal into what hasn’t been issued and what hasn’t been said. In the executive orders that got first issued in a flurry we saw a few that got pointed directly at onshore wind, some on offshore wind, but solar and standalone storage – as predicted – remained pretty much intact.
We were under the impression and we stood by it that we had the guidance in hand, bankable guidance, from the IRS prior to the change in administration and prior to any look-back window that people had been transacting on over the past year at kind of a record pace. Standalone storage has just had a breakout year. Solar continues to go, to continue to be put on the grid. And we also have manufacturing of solar panels, the domestic supply chain. This year we stood up is nowhere near what we need to fulfill our requirements to get everything we need to do domestically to fill our generation requirements [but] its a pretty great step in the right direction. And those credits have been pretty good to the economy and Republican states.
The way I’ve seen people react is, I’ve probably been busier than ever the past two weeks, not only fielding questions like that but also for tax credit transfers, all of the corporates we work with. We work in both the buy and the sell side of all these credit transfers. We’re working with a lot of solar module manufacturers to sell the credits under the IRA. We’re working with a lot of buyers to purchase those credits. And we’re working with the buyers and sellers under the generation of these projects.
All of the buyers have come out and continued with their 2025 strategy to buy more of these credits, if not more so. And all of the developers we represent continue to produce more of these credits. So I haven’t seen a hiccup or slowdown in actual transactions. If anything, I’ve seen stuff pick up in the solar space and in the manufacturing space. I continue to be very optimistic about those two fundamental parts of the energy transition, because if you need to go be an energy superpower, you wouldn’t want to turn off solar, turn off storage –
Is that argument that if you were trying to deal with “energy security,” you wouldn’t turn off solar and storage – is that enough to assuage uncertainty in the investor space?
I think it’s helpful. If you’re a private equity investor or you’re any sort of lender or a developer, you’re probably not going to base your whole model on the hopes that our energy security strategy syncs up with what most people think it should look like. But when you layer it on top of some of the fundamentals… I want to say that solar did not go away eight years ago. When Trump first came in, we saw more renewables deployed in his administration. At times, we saw more beneficial guidance, issuance of tax guidance under that administration, than we would hope for from some more favorable administrations.
The fact that the IRA has disproportionately benefited red states is just a fact that can’t be overlooked. I met with a group of about two dozen lawmakers a few weeks ago to talk about the IRA and there’s quite a few of those folks in the room that say, “Whatever we do, we can’t dismantle the IRA.”
But how has the chaos in the last week and a half impacted investment in renewable energy, though?
I think the renewable energy industry is used to a lack of predictability. It’s kind of a lawyer’s job, our team’s job, to help folks mitigate risk [and] to see what potential pitfalls there may be and to structure and draft around those.
You might see as things get more unpredictable, as folks go out to investors to raise capital, you might see a little bit of tightening around different portfolios or different types of companies based on their pipelines or how they’re put together. But I think one investor’s look on a project or pipeline may vary widely from another investor who’s got a different project or pipeline. There’s a lot of capital out there to be deployed. I think people are looking to invest.
I think you just need to partner the right developers with the right investors.
Are you seeing any slowdown in solar investment though?
I don’t see folks taking a hardline approach or stopping any time soon.
This is not an existential crisis while the ITC [investment tax credit] and PTC [production tax credit] exist. It’s not even, could you go back in time to unwind these credits. It’s moreso, going forward, what will the IRA look like? Will there be additional technologies added to the IRA? That’s possible to help stand up other technologies. Will the runway for the credit, instead of it being unlimited for at least 10 years, will [it] be pared back a bit? There’s potential, but it’s unlikely.
Okay last question and it’s a fun one: what was the last song you listened to?
I’m not going to lie, I’m an Eagles fan. And I’m from Philly and a huge Meek Mill fan. So “Uptown Vibes” by Meek Mill is in the car.
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Much of California’s biggest county is now off limits to energy storage.
Residents of a tiny unincorporated community outside of Los Angeles have trounced a giant battery project in court — and in the process seem to have blocked energy storage projects in more than half of L.A. County, the biggest county in California.
A band of frustrated homeowners and businesses have for years aggressively fought a Hecate battery storage project proposed in Acton, California, a rural unincorporated community of about 7,000 residents, miles east of the L.A. metro area. As I wrote in my first feature for The Fight over a year ago, this effort was largely motivated by concerns about Acton as a high wildfire risk area. Residents worried that in the event of a large fire, a major battery installation would make an already difficult emergency response situation more dangerous. Acton leaders expressly opposed the project in deliberations before L.A. County planning officials, arguing that BESS facilities in general were not allowed under the existing zoning code in unincorporated areas.
On the other side, county officials maintained that the code was silent on battery storage as such, but said that in their view, these projects were comparable to distribution infrastructure from a land use perspective, and therefore would be allowable under the code.
Last week, the residents of Acton won, getting the courts to toss out the county’s 2021 memorandum allowing battery storage facilities in unincorporated areas – which make up more than 65% of L.A. County.
Judge Curtis Kin wrote in his October 14 ruling that “such expansive use of the interpretation runs contrary to the Zoning Code itself,” and that the “exclusion” of permission for battery storage in the code means it isn’t allowed, plain and simple.
“Consequently, respondents and real parties’ reliance on the existence of other interpretive memos and guidance by the [Planning] Director is beside the point,” Kin stated. “There is no dispute the Director has the authority to issue memos and interpretations for Zoning code provisions subject to interpretation, but, as discussed above, such authority cannot be used in such a way as to violate the provisions of the Zoning Code.”
The court also declared the Hecate project approval void and ordered the company to seek permits under the California Environmental Quality Act if it still wants to build. This will halt the project’s development for the foreseeable future. Alene Taber, the attorney representing Acton residents, told me she has received no indication from Hecate’s legal team about whether they will appeal the ruling.
Hecate declined to comment on the outcome.
Taber’s perspective is unique as a self-described “rural rights” attorney who largely represents unincorporated communities with various legal disputes. She told me this ruling demonstrates a serious risk regulators face in moving too fast for a host community, especially given rising opposition to battery storage in California. Since the Moss Landing fire, opposition to storage projects has escalated rapidly across the state – despite profound tech differences between more modern designs proposed today and the antiquated system that burned up in that incident.
I asked Taber if she thought California enacting a new law last week to beef up battery fire safety oversight could stem the tide of concerns about battery storage. In response, she railed against a separate statute giving energy companies – including battery developers – the ability to work around town ordinances and moratoria targeting their industry.
“Even though the county didn’t consider the community input — which it should’ve — the county process at least still allowed for communities to appeal the project. And they’re also at least supposed to consider what the local zoning code said,” Taber told me. “Local communities are now sidelined all together. They’re saying they don’t care what the concerns are. Where’s the consideration for how these projects are now being sited in high fire zones?”
I was unable to reach Los Angeles County officials before press time for The Fight, but it’s worth noting that, amid the battle over Hecate’s approval, L.A. County planning officials began preparing to update their renewable energy ordinance to include battery storage development regulation – an indication they may need new methods to site and build more battery storage. There’s no timeline for when those changes will take place.
And more of the week’s top news about renewable energy conflicts.
1. Benton County, Washington – A state permitting board has overridden Governor Bob Ferguson to limit the size of what would’ve been Washington’s largest wind project over concerns about hawks.
2. Adams County, Colorado – This is a new one: Solar project opponents here are making calls to residents impersonating the developer to collect payments.
3. Lander County, Nevada – Trump’s move to kill the Esmeralda 7 solar mega-project has prompted incredible backlash in Congress, as almost all of Nevada’s congressional delegation claims that not a single renewables project in the U.S. has gotten a federal permit since July.
A conversation with David Gahl of SI2
This week I spoke with David Gahl, executive director of the Solar and Storage Industries Institute, or SI2, which is the Solar Energy Industries Association’s independent industry research arm. Usually I’d chat with Gahl about the many different studies and social science efforts they undertake to try and better understand siting conflicts in the U.S.. But SI2 reached out first this time, hoping to talk about how all of that work could be undermined by the Trump administration’s grant funding cuts tied to the government shutdown. (The Energy Department did not immediately get back to me with a request for comment for this story, citing the shutdown.)
The following conversation was edited lightly for clarity.
So what SI2 funding could be cut because of the federal shutdown, and what has it been put toward?
On October 1, the Energy Department put out a list of about $7.5 billion in grants they were terminating. Approximately a week later, another larger list of grants that were slated for termination found its way into the press. There’s an outstanding question about what this other list floating around means, and only DOE can verify the document’s accuracy, but we have two projects that were on that bigger list.
The first was $2.5 million supporting research into how power companies engage communities. We were coming up with a list of community engagement innovations — the idea was to actually test, through rigorous social science research at project sites, which of these innovations produces the best outcomes. We were going to have empirical data that said, If you approach communities in this way you’re more likely to get support, and if you approach communities this other way you wouldn’t.
The second was $3 million to bring diverse stakeholders together to talk about siting and permitting reform, best practices, guidance to make development smoother. The concept there was to bring traditionally warring parties to come up with a framework and tools to help the siting process. If you can get people together to come up with best practices, you can typically move things faster.
This was an “uncommon dialogue” – there was “uncommon dialogue” before on hydropower resources – and this was related to large-scale solar facilities and conservation. It’s not location-specific, more bringing the groups together to talk about a higher level set of issues, not specific projects. Keep in mind, this is relatively small potatoes.
What was the status of that work?
It started earlier in the year and it’s been rolling along. There’s been a lot of progress made so far. People have developed work plans and are working through the issues.
If the funding is canceled, there’s also opportunity for private money to potentially step in, but it puts both initiatives in a precarious place. But to the broader point, the administration has talked about how it wants energy “abundance” and more electrons on the grid to meet growing demand. And these projects funded by the department are addressing key problems to putting electrons onto the grid. Cancellation of these grants is just a complete reversal of what they’re talking about in other forums.
How so? Help me understand how this work actually trickles down to individual project decisions.
One of the challenges with siting any kind of large-scale energy project is getting community buy-in and ensuring the permitting process moves smoothly, that parties aren’t going to be litigating against each other. So if you can come up with ways to make sure the communities feel heard and are designed according to what communities want, you can probably avoid some litigation down the road.
Do you have any indication this government supports the work you’re describing?
What they’ve made clear is they want more electrons to come onto the grid to support data centers and the advancement of artificial intelligence. Canceling grants like these … I mean, we’re talking about potentially canceling projects that make it harder to meet the goal of putting more electricity onto the grid.