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Why an attorney for Dominion Voting Systems is now defending renewables companies.
My biggest takeaway of this year? Bad information is breaking the energy transition – and the fake news is only getting more powerful.
Across the country, we’re seeing solar, wind, and battery storage projects grind to a halt thanks to activism powered by fears of health and safety risks, many of which are unfounded, unproven, exaggerated, or conspiratorial in nature. There are some prominent examples, like worries about offshore wind and whales, but I’ve spent a large chunk of The Fight’s lifespan so far investigating a few crucial case studies, from wildfire fears confronting battery developers in California to cancer concerns curtailing a crucial transmission line in New Jersey. To tell you the honest truth, it is difficult to quantify just how troubling this issue is for the industry.
False information is something Mark Thomson, a D.C.-based attorney with the law firm Meier Watkins Phillips Pusch LLP, thinks about a lot these days. Thomson was one of the lawyers who won a record $787 million settlement for Dominion Voting Systems from Fox News Network after it broadcast incorrect claims about how the company’s ballot machines were used in the 2020 election. Today his attention is elsewhere – conspiracy-powered defamation against renewables developers and their projects. .
“This is a sizable and growing part of what we do here,” Thomson told me. “I think it’s because the developer sector writ large increasingly understands the severity and the pervasiveness of falsehoods in that space, and also just as importantly how quickly groups and communities can latch onto these falsehoods in ways that critically interrupt and even endanger some of these projects.”
Why are we talking about conspiracy theorists as an opposition powerhouse? Well, studies show that like working in agriculture or owning large tracts of land, scientific skepticism can be a big signal that someone will oppose a renewables project. A 2022 study published in the journal Nature Energy found “moderate-to-large” relationships between indices of conspiracy beliefs and the likelihood that someone would oppose a wind farm, and that the relationship between wind farm opposition and conspiracy beliefs was “many times greater than its relationship with age, gender, education, and political orientation.”
Conspiracies or misinformation can also be weaponized by hostile local, state, or federal regulators if they have other reasons to try and curtail development.
Take St. Clair County, Michigan, where a leading local public health official is leveraging theories about the impact of solar energy to try and limit development. St. Clair County is home to its own fun blend of renewables consternation. The most acerbic fight is in the town of Fort Gratiot, where Ranger Power subsidiary Portside Solar has proposed to construct a 100 MW solar facility. The project is in a rural, largely agricultural region and has faced incredible resentment. (If you want a primer on the conflict, watch this interview segment – in between featured ads for Ivermectin.)
Last Thursday evening, St. Clair County medical director Remington Nevin testified before the county’s board of commission that “very clear health threats” caused by solar energy required “extraordinary actions” under the state public health code. Nevin specifically addressed noise, claiming that the sound produced by hypothetical solar facilities could “presumably be an unreasonable threat to public health” if not kept below certain decibel thresholds.
“This should not be controversial,” Nevin told the audience, which erupted into rapturous applause after his testimony.
This testimony, prompted by public comments from disgruntled residents, came after Nevin issued a report detailing his desires for quick action under the public health code that circulated widely on anti-renewables Facebook groups.
Nevin is definitely a qualified medical professional. “Occupational medicine is the successor to the field of industrial medicine,” Nevin told me when I emailed him about his qualifications, “and is the medical speciality most applicable to the health effects of industrial activities such as these.” He noted that he has a doctoral public health degree in mental health and psychiatric epidemiology, and has done fellowship training in occupation and environmental medicine.
But he is not a specialist in the health effects of solar panels. He’s actually an expert in quinism, a brain and brainstem disease caused by a toxic exposure to anti-malaria drugs. This position made him relevant during the COVID-19 lockdowns, when he spoke out about the risks of taking hydroxychloroquine, an unproven COVID-19 treatment that Trump and other socially conservative figures began recommending at the height of the pandemic lockdowns. Nevin took a more contrarian view of the scientific debate around COVID-19 during those lockdowns, signing a declaration to open society up before a vaccine was widely available. He still feels passionately about this topic today, celebrating Trump’s pick to run the National Institutes of Health, Dr. Jay Bhattacharya, who coauthored that declaration.
When I asked Nevin about his lack of expertise in the health risks of technology like solar panels, he responded by saying he believes a court would consider him expert enough for his views to hold legal weight.
“In matters such as these, a court ultimately determines the validity of an expert's qualifications,” he said. “I am confident that my background is particularly germane and well-suited to this topic, and that my qualifications and recommendations will withstand judicial review should these matters become subject to litigation in due course.”
For what it is worth, it’s incredibly hard to find evidence that the noise emitted from solar farms creates a risk to public health. Industry says such data is infinitesimal.
There is also at least some apparent temptation of the courts at work in all this, too. Nevin, local leaders, and activists have in public comments about the health risks repeatedly referenced Act 233, a new state law that allows an independent agency to adjudicate conflicts between developers and towns with restrictions on renewable energy projects. As we previously scooped, municipalities and counties are challenging the legality of how that law is being implemented. It is entirely possible that part of Nevin’s crusade against the health impacts of solar on county residents is an attempt to stop the state from usurping the county’s local control.
As opponents of renewable energy look to use the court system in this way, it may be worthwhile for developers to do the same to combat misinformation. Courts can decide when a company is being defamed or unjustly maligned, and the legal system can be an avenue for resolving the vexing issue of conspiracies and misinformation about the health and safety of a renewables project.
Hence why as renewables deployment rises in the U.S., and opposition does too, attorneys like Thomson are going to see a lot more business from developers.
“The law provides some remedies in some circumstances,” Thomson told me. “It’s not a silver bullet. But for specific types of falsehoods, the law can provide an important source of accountability and just as importantly, invoking the law can help people realize that there is a price to be paid for just blatantly and often willfully misleading groups of citizens about this stuff.”
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A conversation with Scott Cockerham of Latham and Watkins.
This week’s conversation is with Scott Cockerham, a partner with the law firm Latham and Watkins whose expertise I sought to help me best understand the Treasury Department’s recent guidance on the federal solar and wind tax credits. We focused on something you’ve probably been thinking about a lot: how to qualify for the “start construction” part of the new tax regime, which is the primary hurdle for anyone still in the thicket of a fight with local opposition.
The following is our chat lightly edited for clarity. Enjoy.
So can you explain what we’re looking at here with the guidance and its approach to what it considers the beginning of construction?
One of the reasons for the guidance was a distinction in the final version of the bill that treated wind and solar differently for purposes of tax credit phase-outs. They landed on those types of assets being placed in service by the end of 2027, or construction having to begin within 12 months of enactment – by July 4th, 2026. But as part of the final package, the Trump administration promised the House Freedom Caucus members they would tighten up what it means to ‘start construction’ for solar and wind assets in particular.
In terms of changes, probably the biggest difference is that for projects over 1.5 megawatts of output, you can no longer use a “5% safe harbor” to qualify projects. The 5% safe harbor was a construct in prior start of construction guidance saying you could begin construction by incurring 5% of your project cost. That will no longer be available for larger projects. Residential projects and other smaller solar projects will still have that available to them. But that is probably the biggest change.
The other avenue to start construction is called the “physical work test,” which requires the commencement of physical work of a significant nature. The work can either be performed on-site or it can be performed off-site by a vendor. The new guidance largely parrotted those rules from prior guidance and in many cases transferred the concepts word-for-word. So on the physical work side, not much changed.
Significantly, there’s another aspect of these rules that say you have to continue work once you start. It’s like asking if you really ran a race if you didn’t keep going to the finish line. Helpfully, the new guidance retains an old rule saying that you’re assumed to have worked continuously if you place in service within four calendar years after the year work began. So if you begin in 2025 you have until the end of 2029 to place in service without having to prove continuous work. There had been rumors about that four-year window being shortened, so the fact that it was retained is very helpful to project pipelines.
The other major point I’d highlight is that the effective date of the new guidance is September 2. There’s still a limited window between now and then to continue to access the old rules. This also provides greater certainty for developers who attempted to start construction under the old rules after July 4, 2025. They can be confident that what they did still works assuming it was consistent with the prior guidance.
On the construction start – what kinds of projects would’ve maybe opted to use the 5% cost metric before?
Generally speaking it has mostly been distributed generation and residential solar projects. On the utility scale side it had recently tended to be projects buying domestic modules where there might have been an angle to access the domestic content tax credit bonus as well.
For larger projects, the 5% test can be quite expensive. If you’re a 200-megawatt project, 5% of your project is not nothing – that actually can be quite high. I would say probably the majority of utility scale projects in recent years had relied on the manufacturing of transformers as the primary strategy.
So now that option is not available to utility scale projects anymore?
The domestic content bonus is still available, but prior to September 2 you can procure modules for a large project and potentially both begin construction and qualify for the domestic content bonus at the same time. Beginning September 2 the module procurement wouldn’t help that same project begin construction.
Okay, so help me understand what kinds of work will developers need to do in order to pass the physical work test here?
A lot of it is market-driven by preferences from tax equity investors and tax credit buyers and their tax counsel. Over the last 8 years or so transformer manufacturing has become quite popular. I expect that to continue to be an avenue people will pursue. Another avenue we see quite often is on-site physical work, so for a wind project for example that can involve digging foundations for your wind turbines, covering them with concrete slabs, and doing work for something called string roads – roads that go between your turbines primarily for operations and maintenance. On the solar side, it would be similar kinds of on-site work: foundation work, road work, driving piles, putting things up at the site.
One of the things that is more difficult about the physical work test as opposed to the 5% test is that it is subjective. I always tell people that more work is always better. In the first instance it’s likely up to whatever your financing party thinks is enough and that’s going to be a project-specific determination, typically.
Okay, and how much will permitting be a factor in passing the physical work test?
It depends. It can certainly affect on-site work if you don’t have access to the site yet. That is obviously problematic.
But it wouldn’t prevent you from doing an off-site physical work strategy. That would involve procuring a non-inventory item like a transformer for the project. So there are still different things you can do depending on the facts.
What’s your ultimate takeaway on the Treasury guidance overall?
It certainly makes beginning construction on wind and solar more difficult, but I think the overall reaction that I and others in the market have mostly had is that the guidance came out much better than people feared. There were a lot of rumors going around about things that could have been really problematic, but for the most part, other than the 5% test option going away, the sense is that not a whole lot changed. This is a positive result on the development side.
And more of the week’s most important news around renewable energy conflicts.
1. Carroll County, Arkansas – The head of an influential national right-wing advocacy group is now targeting a wind project in Arkansas, seeking federal intervention to block something that looked like it would be built.
2. Suffolk County, New York – EPA Administrator Lee Zeldin this week endorsed efforts by activists on Long Island to oppose energy storage in their neighborhoods.
3. Multiple counties, Indiana – This has been a very bad week for renewables in the Sooner state.
4. Brunswick County, North Carolina – Duke Energy is pouring cold water on anyone still interested in developing offshore wind off the coast of North Carolina.
5. Bell County, Texas – We have a solar transmission stand-off brewing in Texas, of all places.
Is there going to be a flight out of Nevada?
Donald Trump’s renewables permitting freeze is prompting solar companies to find an escape hatch from Nevada.
As I previously reported, the Interior Department has all but halted new approvals for solar and wind projects on federal lands. It was entirely unclear how that would affect transmission out west, including in the solar-friendly Nevada desert where major lines were in progress to help power both communities and a growing number of data centers. Shortly after the pause, I took notice of the fact that regulators quietly delayed the timetable by at least two weeks for a key line – the northern portion of NV Energy’s Greenlink project – that had been expected to connect to a litany of solar facilities. Interior told me it still planned to complete the project in September, but it also confirmed that projects specifically necessary for connecting solar onto the grid would face “enhanced” reviews.
Well, we have the latest update in this saga. It turns out NV Energy has actually been beseeching the Federal Energy Regulatory Commission to let solar projects previously planned for Greenlink bail from the interconnection queue without penalty. And the solar industry is now backing them up.
In a July 28 filing submitted after Interior began politically reviewing all renewables projects, NV Energy requested FERC provide a short-term penalty waiver to companies who may elect to leave the interconnection queue because their projects are no longer viable. Typically, companies are subject to financial penalties for withdrawals from the queue, a policy intended to keep developers from hogging a place in line with a risky project they might never build. Now, at least in the eyes of this key power company, it seems Trump’s pause has made that the case for far too many projects.
“It is important that non-viable projects be terminated or withdrawn so that the queue and any required restudies be updated as quickly as possible,” stated the filing, which was first reported by Utility Dive earlier this week. NV Energy also believes there is concern customers may seek to have their deals for power expected from these projects terminated under “force majeure" clauses, and so “the purpose of this waiver request is thus to both clear the queue to the extent possible and avoid unneeded disputes.”
On Monday, the Solar Energy Industries Association endorsed the request in a filing to the commission made in partnership with regional renewable trade group Interwest Energy Alliance. The support statement referenced both the recent de facto repeal of IRA credits as well as the permitting freeze, stating it now “appears that federal agency review staff are unsure how to proceed on solar projects.” This even includes projects on private lands, a concern first raised by Nevada Gov. Joe Lombardo, a Republican, after the permitting freeze came into effect.
The groups all but stated they anticipate companies will pull the plug on solar projects in Nevada, proclaiming that by granting the waiver, “it will encourage projects facing uncertainty due to recent legislation and federal action to exit the process sooner and without penalty, creating more certainty for the remaining projects.”
How this reads to me: Energy developers are understandably trying to figure out how to skate away from this increasingly risky situation as cleanly as they can. It’s anybody’s guess if FERC is willing to show lenience toward these developers.