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Solar PV Project Financing: Regulatory and Legislative Challenges DE-AC36-08-GO28308 for Third-Party PPA System Owners 5B

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Solar PV Project Financing: Regulatory and Legislative Challenges DE-AC36-08-GO28308 for Third-Party PPA System Owners 5B Technical Report Solar PV Project Financing: NREL/TP-6A2-46723 Regulatory and Legislative Revised February 2010 Challenges for Third-Party PPA System Owners Katharine Kollins Duke University Bethany Speer and Karlynn Cory National Renewable Energy Laboratory Technical Report Solar PV Project Financing: NREL/TP-6A2-46723 Regulatory and Legislative Revised February 2010 Challenges for Third-Party PPA System Owners Katharine Kollins Duke University Bethany Speer and Karlynn Cory National Renewable Energy Laboratory Prepared under Task No. PVB9.4210 National Renewable Energy Laboratory 1617 Cole Boulevard, Golden, Colorado 80401-3393 303-275-3000 • www.nrel.gov NREL is a national laboratory of the U.S. Department of Energy Office of Energy Efficiency and Renewable Energy Operated by the Alliance for Sustainable Energy, LLC Contract No. DE-AC36-08-GO28308 NOTICE This report was prepared as an account of work sponsored by an agency of the United States government. Neither the United States government nor any agency thereof, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States government or any agency thereof. The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States government or any agency thereof. Available electronically at http://www.osti.gov/bridge Available for a processing fee to U.S. Department of Energy and its contractors, in paper, from: U.S. Department of Energy Office of Scientific and Technical Information P.O. Box 62 Oak Ridge, TN 37831-0062 phone: 865.576.8401 fax: 865.576.5728 email: mailto:[email protected] Available for sale to the public, in paper, from: U.S. Department of Commerce National Technical Information Service 5285 Port Royal Road Springfield, VA 22161 phone: 800.553.6847 fax: 703.605.6900 email: [email protected] online ordering: http://www.ntis.gov/ordering.htm Printed on paper containing at least 50% wastepaper, including 20% postconsumer waste Acknowledgements The U.S. Department of Energy’s (DOE) Solar Energy Technologies Program funded this work. The authors wish to thank participating DOE staff—Tom Kimbis and Charles Hemmeline—for providing useful insights and overall direction to this project. The authors are also grateful for the guidance and helpful input of the project managers, Robert Margolis and Selya Price of the National Renewable Energy Laboratory (NREL). We would also like to thank the individuals, who reviewed drafts of this report, including James Newcomb, Paul Denholm, and Jason Coughlin of NREL; Sarah Truitt, Sentech Inc.; Rick Gillman, SunEdison; and Lincoln Pratson, Duke University. Also, a special thank you goes to Jason Keyes and Kevin Fox of Keyes and Fox, LLP for providing ongoing support and expertise for this project. The authors are also grateful to the interviewees for reviewing our descriptions of their programs and activities in the market and for providing additional clarifications. Thank you to Rusty Haynes, North Carolina Solar Center/Database of State Incentives for Renewables and Efficiency (DSIRE); Kathe Doran, CPS Energy; Renee Guild, formerly the Public Utilities Commission of Nevada; Michael Niver, SolarCity; Tammy Cordova, Public Utilities Commission of Nevada; Paul Danielsen, Mark Kapner, Austin Energy; Richard Mignogna, Colorado Public Utilities Commission; Cindy Miller, Florida Public Service Commission; and Ray Williamson, Arizona Corporation Commission. Finally, the authors also offer their gratitude to Mike Meshek and Jim Leyshon of the NREL communications department for providing editorial support and graphics respectively. A Note on the Revisions This report, as originally published, contained editorial errors that have been corrected in this revision. No changes, except those noted here, changed the authors’ intent. • Page 8, last paragraph: Like the CPUC-recommended decision, SB 51 confirmed that third- party owned systems of any size are not subject to regulation by the CPUC providing they do not generate more than 120% of the customer’s average annual consumption. • Page 25, last paragraph: Under the most common of these, the solar lease, the customer does not pay for the equipment but receives the electricity generated from that equipment. • Page 34, paragraph 5: However, if the utility contributes financial incentives or rebates to a project, the utility or their regulator might require the RECs to be transferred to the utility. iii List of Acronyms and Abbreviations C&I commercial and industrial CPUC Colorado Public Utilities Commission CREB clean renewable energy bond CSI California Solar Initiative dba doing business as DG distributed generation DOE U.S. Department of Energy DSIRE Database of State Incentives for Renewables and Efficiency EIA Energy Information Administration ESS electrical service supplier FERC Federal Energy Regulatory Commission IOU investor owned utility IREC Interstate Renewable Energy Council IRS Internal Revenue Service ITC investment tax credit kWh kilowatt-hour LLC limited liability company LSE load serving entity MACRS Modified Accelerated Cost Recovery System MW megawatt MWh megawatt-hour NREL National Renewable Energy Laboratory OPUC Oregon Public Utilities Commission PPA power purchase agreement PUCN Public Utilities Commission of Nevada PURPA Public Utility Regulatory Policy Act PV photovoltaic QF qualifying facility REC renewable energy certificate RES renewable electricity standard RPS renewable portfolio standard SREC solar renewable energy certificate SSA solar services agreement WAPA Western Area Power Association iv Executive Summary Many end users of electricity would like to use on-site photovoltaic (PV) generation to hedge against volatile electric utility bills and reduce climate change impacts. However, PV systems have high initial costs, and they must be properly operated and maintained to deliver expected benefits. Providing a potential solution to these cost challenges is a model in which a third-party owner uses a power purchase agreement (PPA) to finance an on-site PV system. This model—the third-party PPA model—allows a developer to build and own a PV system on the customer’s property and sell the power back to the customer. In addition, the third- party PPA model enables the customer to support solar power while avoiding most or all initial costs as well as responsibilities for operations and maintenance, both of which typically transfer to the developer. These advantages appeal to owners of residential and commercial buildings who would like to obtain solar PV systems. However, third-party electricity sales face regulatory and legislative challenges in some states and jurisdictions. Several of these challenges pertain to whether third-party owners are deemed to act as monopoly utilities, competitive service suppliers (competitive suppliers), or both depending on the degree of retail electricity market deregulation. If third-party owners are deemed to act similarly, according to state definitions or state public utility commission (PUC) definitions, the third-party owners may also need to be regulated by the state PUC. Third-party owners of solar PV systems face an additional challenge if they are not allowed to net meter,1 as this is a significant financial incentive to owning these systems. Legislative and Regulatory Challenges with Third-Party PPA Model Five legislative and regulatory issues that challenge the third-party PPA model—and the solutions that several states have applied to them—are summarized below and in Table ES-1. • Challenge 1—Definition of Electric Utility as Seller of Electricity: Because third-party owners sell electricity to site hosts or end users, their systems may require PUC regulation when the state defines a public electric utility (or electrical corporation in California) as a retail seller of electricity. Also, some municipal utilities prohibit others from selling power to their customers and require their customers to buy power exclusively from them. State Solutions: Colorado, New Mexico, and California determined that third-party owned systems are not utilities or electrical corporations and non-traditional power generators are not utilities, and are therefore exempt from PUC regulation. 1 With net metering, an electric meter tracks net power usage—the difference in the amount of electricity provided by the utility and the amount generated by the PV system. v • Challenge 2—Power Generation Equipment Included in Definition of Electric Utility: When the definition of electric utilities includes power generation equipment (such as solar PV equipment), third-party owned systems may face regulatory challenges. State Solutions: Nevada and Oregon excluded third-party owned renewable energy systems (specifically solar and wind power in Oregon) from the definition of a public utility in PUC regulations. • Challenge 3—Definition of Provider of Electric Services: Third-party owned systems in regulated or partially restructured (“hybrid”) states may encounter challenges when legislation or regulation defines utilities or competitive
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