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The Next Great Texas Energy Resource: Renewable Energy in the 2020S

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The Next Great Texas Energy Resource: Renewable Energy in the 2020S texaslawyer.com ❘ January 23, 2020 w The Next Great Texas Energy Resource: Renewable Energy in the 2020s BY MATT KAPINOS AND HAYDEN HARMS The discovery of oil at Spin- dletop started Texas on the path to becoming a dominant force in the global energy industry. Traditionally, at least in Texas, “energy” meant oil and gas, but the 2020’s will see renewable energy, technology once cham- pioned only by those believ- Courtesy photo ing in unicorns and fairy dust, gain importance for Texas com- Matt Kapinos is a partner at Akin Gump and Hayden Harms is an associate at the firm, both located in Houston. They routinely advise energy and infrastruc- panies. Moves by traditional ture clients on a broad range of transactional matters. energy companies to diver- compromise (for example, the met its 2025 RPS target by 2009. sify their capital spend, the process that led to the establish- increasing importance of envi- Going forward, the U.S. Energy ronmental, social and gover- ment of Competitive Renew- Information Administration nance (“ESG”) considerations, able Energy Zones), Texas, with (“USEIA”) anticipates the U.S. and the continued decrease in its abundant flat, sunny, and will install approximately 800 costs to develop and purchase windy land, became a leader gigawatts of additional genera- renewable energy have and will in the development of renew- tion by 2050, with about 50% continue to facilitate greater able energy. Texas established of this generation coming from involvement with renewable a renewable portfolio standard wind and solar (see Annual energy for Texas companies. (“RPS”), via Public Utilities Energy Outlook 2019 with Pro- Maximizing Natural Commission action in 1999, set- jections to 2050, USEIA, Jan. Resources ting targets of installing 5,000 4, 2019); Texas will mimic this Whether an early believer in MW and 10,000 MW of new trend by doubling its share of renewable energy or an early renewable generation by 2015 the United States’ photovoltaic adopter by virtue of political and 2025, respectively. Texas solar generation by 2050 (from w 4% in 2018 to 8% in 2050) and diminishes the larger potential projects that started construc- installing over 21,400 MW of of renewable generation. Quite tion before the end of 2020 and new wind and solar generation simply, renewable generation will step-down every year until in the next three years alone is a profitable enterprise, and 2022 when it will settle and (see Capacity Changes by Fuel Texas energy companies are remain at 10%. The tax credits Type Charts, December 2019, adapting to and embracing this achieved their goal by jump- ERCOT, http://www.ercot. latest opportunity. starting the renewable indus- com/gridinfo/resource). All of Opportunities for New try, dramatically increasing the this begs the question of “who Entrants amount of electricity provided will develop all of these new Three ways companies are from renewable sources, and renewable power projects?” demonstrating greater involve- driving down the costs to build Initial Players in ment with renewable gen- renewable generation to make Renewable Energy eration are (i) investing in it competitive with fossil-fuel The companies that led Texas renewable projects, (ii) owning generation. to surpassing its RPS goals 14 a generation facility, and (iii) New Generation years early were largely renew- purchasing renewable power. Opportunities able energy-specific companies Investing in Renewable Renewable generation also or financial investors that were Projects provides a solution to any not significant players in the Companies with sufficient company attempting to satisfy traditional energy industry (see federal income tax liability can increased electricity demands. 2019 Top 10 Renewable Energy take advantage of the federal For companies looking to Companies in Texas by Capac- government’s tax credit pro- replace distributed or behind ity (MW), Energy Acuity, Octo- grams by investing in part- the meter generation (i.e., elec- ber 8, 2019). This will change in nerships that own qualifying tricity not available for sale to the 2020s; the end of the 2010s renewable assets (commonly the public), solar generation foreshadowed this as we saw referred to as a “Tax Equity” is an attractive option. Solar major multinational energy investment). The recently projects are straightforward companies make public com- extended production tax to develop and use reliable mitments to reduce their car- credit for wind projects allows and proven technology; they bon emissions, invest in carbon owners of wind projects that are a logical solution for an reducing technologies (such as started construction before the upstream company needing to those related to bio-diesel pro- end of 2020 to receive a tax power oil and gas equipment duction or electric vehicles), credit annually for the amount — especially if the company and purchase renewable power. of wind energy produced. The already controls the necessary A cynical viewpoint attributes investment tax credit (“ITC”) land rights. Additionally, as the rise of ESG measurement allows taxpayers to receive a long as the sun continues to or the increase in climate- credit against their federal tax shine and the wind continues change activism as the major liability equal to a percent- to blow, there are no fuel costs factors causing these moves age of their investment in the associated with renewable but, while those factors are solar facility; the solar ITC is generation and this provides considerations, this conclusion currently valued at 26% for long-term cost certainty for a w renewable project’s operation buyers with a number of Cor- make the wind blow. Battery and maintenance costs. The porate PPA options, including storage looms on the horizon growing Texas economy will structures that allow for hedges as a potential game changer in continue to be an attractive against transmission conges- our use of renewable energy, but option for new utility-scale tion risks. Companies are also the technology, while rapidly solar and wind projects, how- purchasing renewable energy improving will not eliminate ever, as we saw during the certificates (“RECs”) which the need for fossil-fuel gen- summer of 2019 when power are created when a renewable eration. The history of renew- prices turned negative (requir- energy facility qualifies its gen- able generation in Texas over ing producers to pay buyers to eration under one or more cer- the past 20 years demonstrates take their energy), congestion tification regimes as part of a that Texas’ natural wind and and transmission line consider- larger carbon off-set program solar resources, combined with ations will continue to impact or as an investment or trad- a practical approach to regula- projects of this size. ing opportunity. Corporate tion and an industry constantly Corporate PPAs: Power and PPAs and the sale of RECs play focused on innovation (and RECs an important roles in renew- profitability) positioned Texas to The last few years have also able energy development by be a leader in the development, seen a significant rise in the allowing companies to deploy implementation, and use of number of corporate power additional capital towards renewable energy. As we enter purchase agreements (“Corpo- renewable generation and also the 2020s, the opportunities set rate PPAs”) that allow a con- provide developers and own- forth in this article are but a few sumer to bypass the utility and ers of renewable projects addi- ways for Texas companies to purchase renewable energy tional revenue streams, thereby continue this trend and increase directly from the generator. further increasing their ability their involvement in the renew- Corporate PPA’s can be pure to develop, own, and operate able energy industry. purchases of electricity that pro- renewable generation assets. vide long-term cost certainty Conclusion Matt Kapinos is a partner at or complex trading structures Renewable generation is not Akin Gump and Hayden Harms that allow one or both parties perfect; as creative as Texans is an associate at the firm, both to hedge the transaction. The are when it comes to maximiz- located in Houston. They rou- ERCOT market allows for both ing the benefit of our energy tinely advise energy and infra- physical and financially settled resources, we have yet to figure structure clients on a broad range hedges, providing interested out how to turn on the sun or of transactional matters. Reprinted with permission from the January 23, 2020 edition of the TEXAS LAWYER © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or [email protected]. # TXL-01272020-433287.
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