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A conversation with Tim Brightbill of Wiley Rein LLP
Today we’re talking with Tim Brightbill, a trade attorney at Wiley Rein LLP and lead counsel for a coalition of U.S. solar cell and module manufacturers – the American Alliance for Solar Manufacturing Trade Committee. Last week, his client won a massive victory – fresh tariffs on south Asian solar panel parts – on the premise that Chinese firms are dumping cheap products in the region to drive down prices and hurt American companies. It’s the latest in a long series of decadal trade actions against solar parts with Chinese origin.
We wanted to talk to Tim about how this move could affect developers, if an America-first strategy could help insulate solar from political opposition, and how this could play out in next year’s talks over the future of the IRA. The following conversation was lightly edited for clarity.
If you were talking to a developer, what would you tell them should be their takeaway?
I think the takeaway is that these determinations appear to go a long way toward addressing the unfair trade that’s been present in solar panels, solar cells, for more than a decade. And I think these duties do send a signal that will help build up domestic manufacturing. We’ve seen historic investment next to the Inflation Reduction Act in U.S. solar manufacturing facilities – in places like Georgia with QCells, in Ohio for First Solar – and we’re at a critically important point here.
Those investments were being undercut by this unfair trade by these Chinese-owned companies. We think now hopefully that will be addressed and that should lead to a bright future for solar deployment, the growth of solar power in the United States.
How does the pursuit of a fairer trade landscape globally in the broader sense impact support for solar energy in the U.S.? I hear often that a “made without China” approach can shore up support for renewables. Do you find that to be the case?
Definitely, I find that to be the case.
The U.S. industry invented solar technology and perfected it. And then unfortunately, it was virtually wiped out due to the unfair trade practices of China and these Chinese-owned companies. If we want to have solar and not be dependent on other countries for renewable energy needs, the best way to do that is to have a strong manufacturing base and a strong supply chain.
What do you think the direction of this is going to be under the next administration? Even more ratcheting up of trade measures?
Well the trade laws are a calculation, right? They’re based on rules, they’re not political. I don’t expect this administration to necessarily change individual trade cases. But I do think trade policy will change in a way that tries to address these Chinese-owned companies that undercut the rest of the world.
For example, the IRA provides right now potential benefits for any company that sets up shop here, even if they are owned by a foreign entity of concern. That seems like something this administration is going to address. If you’re going to receive IRA money, you should not be affiliated with a foreign entity of concern.
Given the potential for an impact on pricing, combined with the impacts on limiting the tax credits in that way – wouldn’t that make it harder to build projects in the U.S. short term?
I don’t think so. The solar panels themselves are not anywhere close to the majority of the cost of a project. There are so many other things that impact project cost, from permitting to the land. I don’t think this will impact the costs of deployment of solar. It will just give us a more secure supply chain that is either here in the United States or at least more regional in nature, which is going to be better for the industry.
With foreign entities of concern – are you referring to 45X? You’re anticipating that tax credit will change with respect to the IRA?
I expect the Trump administration will focus on that. There are already other related products under IRA where “foreign entity of concern” participation is not allowed for those tax credits. So it seems like a ready fix to ensure that is the same for solar technologies.
Is that bad news, or is that saving the credit?
I don’t think it’s bad news. I think it’s good news. It means more of the credit will be available to U.S. companies and our allies who might want to set up here as well.
If Chinese companies want to come here and set up in the United States, that’s great, but they shouldn’t also receive subsidies because those are the same companies that have harmed our industry with unfair trade for more than a decade.
Okay enough serious talk. Can I ask you a fun question: what was the last band you listened to?
It’s sort of dad rock-ish right now: Spoon. When I get my Spotify Wrapped, it’s going to be Spoon. That’s my favorite rock band right now.
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A look at the week’s biggest fights over wind and solar farms.
1. McIntosh County, Oklahoma – Say goodbye to the Canadian River wind project, we hardly knew thee.
2. Allen County, Ohio – A utility-scale project caught in the crossfires over solar on farmland and local-vs-state conflicts now appears deceased, too.
3. Albany County, Wyoming – We have a new “wind kills eagles” lawsuit to watch and it could derail a 252-megawatt project slated to be fully online next year.
4. Martin County, Kentucky – I’ve been getting complaints we’re too much of a downer in this newsletter and should praise success stories. So here’s one: a solar farm in Kentucky on a former coal site.
Here’s what else we’re watching…
In Delaware, U.S. Wind is appealing a local regulator’s decision to reject a substation for offshore wind.
In Illinois, the Panther Grove 2 utility-scale wind project just cleared its county planning commission. The project is a joint venture between Enbridge and Copenhagen Infrastructure Partners.
In North Dakota – the home state of Trump’s pick for Interior Secretary, Doug Burgum – Minnkota Power Cooperative and PRC Wind yesterday announced plans to develop a new 370-megawatt wind farm near the town of New Rockford.
In Texas, a subsidiary of Eni New Energy completed building a 200-megawatt battery storage facility just outside the southwestern city of Laredo.
In Nebraska, what would be one of the state’s largest utility-scale solar projects is facing an uphill climb with county regulators. Good luck, NextEra!
In New York and New Jersey, the cable landings for the Vineyard Mid-Atlantic offshore wind project are starting to receive federal review.
In Tennessee, a different NextEra solar project has a key county hearing scheduled for early February.
In Washington state, regulators have approved a 470-megawatt solar project in Benton County, which we’ve previously told you is home to its own massive fight over wind energy.
In California, residents are complaining to local media about a solar project potentially destroying native Joshua Trees.
In Massachusetts, the small city of Westfield is inching closer to restricting battery storage facilities in its limits.
A conversation with Cici Vu and Morgan Putnam of DNV Energy Systems
Today we’re speaking with Cici Vu and Morgan Putnam from DNV Energy Systems, who helped craft a must-read report out this week on community relations in transmission with Americans for Clean Energy Grid (ACEG). Their report compiles findings of a roundtable with environmentalists, Indigenous rights activists, developers, and individual land owners, and finds transmission can fare better than solar and wind in this current political climate – and that community benefit agreements can be helpful for getting projects across the finish line. But some issues divided the roundtable, including how to structure labor benefits to ensure lots of people get job opportunities from transmission.
The following is a lightly edited and abridged version of our conversation:
Jael: Can you walk me through what you and ACEG found as a part of your research?
Morgan: ACEG identify – like you have – that there is a realness to the community opposition that can arise with these projects. While there are clearly cases of money being spent to augment that, it doesn’t mean the opposition isn’t present. ACEG’s interest was to help make meaningful progress on this issue and figure out how we can do better to accelerate the rate at which we develop transmission. As the report calls out early on, development really proceeds at the pace of trust within a community.
Cici: There are a lot of reports out there on best practices. There are 1,500-page reports on desktop research and lots of interviews and so forth. But I think ACEG hit the nail on the head by bringing in the voices at the same table. With my expertise in mediation, we were able to do that. The recruiting of all the voices helped make the report more inclusive, and more comprehensive and more holistic in viewpoints and perspectives.
The other thing that was really important was bridging the technical aspects of these large infrastructure projects that are so complex that communities don’t understand [them.] Being able to bring the large complexities of these projects – transmission, in this case – and community needs and interest, and being able to translate and interpret and be able to talk to one another, is a core piece of this report.
The tool that gets us there is these community benefits agreements, project work agreements. And they only work well and are effective if they are co-developed with the voices, the developers, the landowners, the host communities alike.
Jael: Did you feel there was a need for a consensus on best practices for community engagement?
Cici: It’s a differentiator. It’s one of the reasons we’re doing this.
We all recognize the needs of load growth demand. But to most effectively advance some of these best practices and make them actionable, these trusted voices have to discuss and agree. Or not agree – because we have a non-consensus segment as well where there were issues that did not meet consensus. When that happened, we made a recommendation to continue the discussion toward consensus.
Jael: What issues were most difficult to find consensus on and why?
Cici: The big piece of tension was how would these projects treat workforce development [and] bring in a local workforce while balancing the needs of labor,because labor has the skills. For instance, one of the issues was that local workforces need to be up-skilled in a way that is much more structured and systematic because there are safety issues in climbing a pole and doing electrification and things like that.
Jael: At a high level, are we seeing a similar broad backlash to transmission like what we’re seeing in specific communities with solar and wind?
Morgan: No, we’re not. It could happen. But those types of things you’re referencing are not yet occurring in transmission. I think it is less likely but not impossible, because–
Jael: What about Grain Belt Express or what’s happened around Piedmont? Do those situations give you any pause?
Morgan: So Grain Belt I think a little bit but it’s in a different category in my mind. Grain Belt is a specific project and, well, just look at the MISO region where that project sits. MISO’s moving forward with a lot of transmission. That project is but one project and it is being developed by an independent transmission developer that has… I think they face additional hurdles at times by virtue of their independence.
Having said that, I think the earlier statement still applies to all transmission. It’s about trust. It’s something where I think if you have the trust and support of the communities, you’re going to be able to move the projects forward.
Cici: We’ve seen a lot of momentum in favor of longer term regional planning of transmission. We haven’t seen as much attention on the triggering words we see with solar, or wind, and the incoming administration for transmission. And we also have a lot of the load demand, which is data centers.
We’re all crossing our fingers with the incoming administration. It’s so unpredictable.
This week’s top news around renewable energy policy.
1. Youngkin sides with locals – Virginia Gov. Glenn Youngkin this week said at his State of the State address that he would oppose efforts to “end local control of solar project siting” – indicating he will fiercely challenge efforts by some state policymakers to resolve challenges posed by town and county restrictions on renewables by overriding them.
2. More like Hearing Watch – We’re starting to learn how Trump’s most significant nominees may run federal energy and climate agencies. Thank you, senatorial advise and consent process!
3. Using land for data – One of Biden’s final days this week was spent opening up federal lands for constructing data centers in order to give the U.S. a leg up in developing artificial intelligence.