7 Tips for Financing Solar Projects

Written by: Bethany A. Bartlett

As the warm weather approaches, we see the usual signs of spring which, in a good year, includes an increase in commercial development and corresponding financing transactions.  Most notably this year is the increase in financing requests for solar projects, including construction, permanent, bridge and mini-permanent loan options.  Below is a list of tips we have assembled to make your solar project more readily financeable.

1. Underlying Real Estate.  Most lenders will request a mortgage on the underlying real estate where the solar array is located.  If the fee in the land is also owned by the project owner then a first priority mortgage will be recorded against the land.  Many times, however, the project is located on property owned by a third party and ground leased to the borrower.  In this scenario, the lender will request the borrower grant a leasehold mortgage, which will require a notice of lease to be filed at the registry, if not already of record.  The lender will also look for certain mortgagee protections in the ground lease including: (i) the right, but not the obligation, to cure any borrower default after notice and any applicable cure periods; (ii) that the lease can be collaterally assigned and/or a mortgage granted without ground lessor’s consent; and, (iii) the obligation of any holder of a fee mortgage on ground lessor’s property to enter into a non-disturbance agreement with the tenant/borrower should the ground lessor ever be foreclosed upon.  When negotiating a ground lease for a solar project, these provisions should be negotiated up front and included in the form of lease to avoid the tenant/borrower having to obtain a written consent or amendment from the ground lessor when trying to obtain financing. 
2. Zoning.  A lender will want assurance that the project has received all of its required permits from the municipality and proof each is recorded in the chain of title, as so required.  Some developers/borrowers use a local permitting counsel for this process and will ask for a zoning opinion to be provided to the lender, affirmatively stating the project has received all such required permits.  In lieu of an opinion, a borrower could obtain a certificate from an engineer associated with the project that all permits have been obtained and the project is or will be built in accordance therewith.  A zoning endorsement from the title company may also satisfy this requirement, but the title company will need to rely on a third party zoning record search or some other evidence of zoning data.  If a project is fully constructed, some municipalities have issued a Certificate of Occupancy (despite no “occupancy” will actually take place) stating the project and the use are in compliance with local zoning bylaws and issued project permits.
3. Power Purchase Agreement.  Prior to entering into a financing arrangement, a lender will require that the project owner has entered into a fully executed power purchase agreement with a third party to purchase the power generated by the project.  A lender will confirm the executed agreement contains the following provisions:  (i) it may be collaterally assigned by right in order to obtain lender financing (if that is not the case, then a written consent of the power purchaser will be needed for closing); (ii) the term (typically 20 to 30 years) is longer than the full amortization period of the loan; and (iii) should the lender foreclose or otherwise take over the project with a new operator, the power purchase agreement will remain in place.
4. Engineering, Procurement and Construction Contracts (“EPC”).  A lender and its engineering consultant will review the EPC along with the credentials of the construction contractor and any known subcontractors.  If the financing is for a construction loan, the lender will confirm the timing and requirements for draws and forms of lien waivers set forth in the EPC are consistent with the loan disbursement schedule and the lender’s requirements.  Often the EPC will also include a production guarantee and warranties; therefore, the EPC should also contain language allowing a collateral assignment for financing without consent of the contractor.
5. Solar Renewable Energy Certificates (“SRECs”).  Once the solar array is constructed and has achieved its commercial operation date, the Statement of Qualification from the Massachusetts Department of Energy Resources evidencing the project is eligible to participate in the Solar Credit Clearinghouse Auction must be provided to lender.  Each interconnection agreement for the project is given a specific corresponding identification number and each time 1MWh of energy production is achieved, an SREC is created.  The SREC is “minted” and deposited quarterly into the project’s account.  An annual auction at the end of July is held to sell the SRECs.  Lenders will often structure repayment of their loans using quarterly interest payments and annual principal payments to match the cash flow of a solar project which is based on the SREC time table.
6. Section 1603 Grant Funds.  As part of the American Recovery and Reinvestment Act of 2009, federal grants were made available for a portion of the costs associated with installing solar projects.  This program is only available for projects that submitted an application before October 1, 2012 and for which at least 5% of project costs were spent before that date. While new projects are no longer eligible (they do remain eligible for Federal Investment Tax Credits) , a number of projects still under construction, that met the  listed requirements, are grandfathered  under the program. The grant funds are received once the project has achieved its commercial operation date.  Lenders may provide interim bridge financing during the construction of the project based on evidence of an awarded grant.  The bridge loan will then be repaid in full upon receipt of the grant proceeds, such receipt may be assigned directly to the lender at its request. 
7. Reserve Accounts.  Often a lender will require a debt service reserve account to be funded at closing, which is tied to a dollar amount consistent with a certain number of months of debt service payments, in case there is a period of low energy generation production or lag in the sale of SRECs, which may present an issue in meeting required payment provisions.

A lender will also look for either an extended warranty for the solar inverters (which convert the solar power into useable electricity on the grid) which extends through the term of its loan or will require an annual payment to a blocked reserve account held with the lender to ensure funds will be available at the end of the estimated useful life of the inverters to purchase replacements. 

Bethany A. Bartlett is a Partner in the firm's Real Estate Department. Read her bio and connect with her on LinkedIn.

Can Solar Farms and Backyard Gardens Co-Exist? Zoning Tensions Flare in Massachusetts

Written by: Paula G. Curry

Imagine you’ve just purchased your dream home in the ‘burbs.  Your patio has just been finished.  Your beautiful 2-acre lot, the minimum size required by the zoning bylaw, is taking shape – the grass is weed-free, the flowers are in bloom.  You whistle a happy tune as you fetch the mail from the box at the end of the drive, but your mood quickly shifts as you read the notice addressed to you as the potential abutter of a huge ground-mounted solar array.  Can they do that in a residential area?

Depending on where you live, the answer could be “yes.”  Massachusetts law provides that “no zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect public health, safety or welfare.”    No court has yet interpreted this language, but the Commonwealth’s Department of Energy and Environmental Affairs (“EEA”) takes the position that, in communities where no zoning bylaw regulating solar facilities exists, solar projects – even large scale ones -- are allowed as of right anywhere in town, subject only to the issuance of a building permit.  Needless to say, this law has created controversy, as a recent Boston Globe article points out,   where proponents seek to install what many view as industrial projects in residential areas.  http://holliston-hopkinton.patch.com/articles/letter-bullard-solar-zoning-would-harm-residents

Partly in an effort to control where solar projects are sited, and partly in an effort to meet the criteria for a “Green Community” under the Green Communities Act, municipalities such as Salisbury, Arlington, Dedham, Monson and Tyngsboro, among others, have adopted zoning bylaws relative to solar installations.  Most are modeled after the Model As-of-Right Zoning Bylaw published by the EEA, , which sets forth parameters for regulating setbacks, signage, decommissioning of the solar facility when no longer used, and location.  Under the model bylaw, location is identified by establishment of certain areas on a zoning map where facilities may be located.  Some towns (such as Salisbury) allow solar farms anywhere so long as they are located on 50 or more acres under single ownership in proximity to transmission lines.  To date, no court has decided whether any of these bylaws meets the standard of being “necessary to protect public health, safety, or welfare.”  

There is a least one case pending in the Land Court relative to the proposed siting of a solar facility in Hatfield, so perhaps some clarity will be forthcoming in the near future.  However, so long as the courts have yet to rule, and so long as the legislature declines to clarify the standards for protection of public health, safety, or welfare, it appears that cities and towns would be prudent to consider adding solar zoning provisions to their bylaws to avoid the “solar farm next door” scenario.  In the meantime, enjoy that new patio – hope it gets lots of sun!

Paula Curry is Of Counsel to the firm's Real Estate Department. Read her bio and connect with her on LinkedIn.

Boston Building Energy Reporting Ordinance Proposed

Written by: Jack Slater

Recently, Mayor Menino filed a proposed Ordinance with the Boston City Council to require owners of medium and large sized residential and commercial buildings in Boston to report energy and water use to the Boston Air Pollution Control Commission ("APPC"), a unit of the City’s Office of Environmental and Energy Services (“EES”).  Reporting would be required on an annual basis and will initially take effect for certain buildings in 2014.  The APCC is authorized to develop detailed regulations for the reporting and disclosure of the information to be required of building owners.  A copy of the proposed Ordinance is attached and the following is a link to a fact sheet provided by the City.

A summary of the proposed schedule for implementing the reporting requirements in the Ordinance is, as follows:

• Non-residential buildings of 50,000 s.f. or more, 2014;
• Residential buildings with 50 units or 50,000 s.f. or more, 2015;
• Non-residential buildings of 25,000 s.f. or more, 2016; and
• Residential buildings with 25 units or 25,000 s.f. or more, 2017.

Under the proposed Ordinance, energy and water use per square foot, Energy Star Ratings (Energy Star rates buildings from 1 to 100 using comparisons based on type of building, level of use and other characteristics) greenhouse gas emissions, and other identifying and contextual information for individual buildings will eventually be posted online.

In addition to reporting energy and water use, building owners may be required to conduct energy audits or other evaluations every five years to identify opportunities for energy efficiency investments.  Buildings deemed in the top tier of energy performance based on the Energy Star Ratings system or already taking significant efficiency actions will be exempted from this requirement.  Building owners would not be required to act on the audit.

Several other major cities, including San Francisco, Seattle and New York City, have adopted similar ordinances.  The City of Boston, in announcing the proposed Ordinance, stated that lessons learned from those cities informed the Ordinance proposed by the Mayor.

A Better City ("ABC") has been working with EES to attempt to resolve concerns expressed by the commercial real estate industry.  ABC reports that several changes have been made to the Ordinance as originally proposed through their efforts.

Some building owners and real estate organizations have nevertheless expressed concerns about the proposed Ordinance and questioned whether requiring such reporting will actually produce savings in energy use.  The Greater Boston Real Estate Board has commissioned a study to determine if the ordinances adopted in other cities actually resulted in significant energy savings.  Brian Swett, Chief of EES, in announcing the proposed Ordinance, asserted that measuring energy and water use has been shown to lead to greater energy efficiency, and a lowering of operating costs for building owners.

In filing the proposed Ordinance with the City Council, the Mayor stated that this proposal is intended to encourage energy efficiency and a reduction in greenhouse gas emissions and help the City to meet its climate action goals.

Jack Slater is a Partner in the firm's Real Estate Department. Read his bio and connect with him on LinkedIn.

Climate Change and Rising Sea Levels: Taking a Local Look at a Global Problem

Written by: Peter Friedenberg

The Boston Harbor Association recently released a sobering report entitled “Preparing for the Rising Tide” which assesses Boston’s vulnerability to the coastal flooding we are likely to experience as a result of ongoing climate change.  Some of the “matter of fact” statements in the report are chilling to read:

• Current climate change evidence indicates that sea levels may rise by up to 2’ in Boston by 2050 and by up to 6’ by 2100.
• “If Superstorm Sandy” had hit Boston at high tide (as it did in New York City), rather than at low tide, up to 6% of Boston would have been flooded that day.
• What is now a “100-year storm surge” is likely, because of increased climate change and rising sea levels, to be merely a “5-year storm surge” by 2050, and may be a daily high tide occurrence by 2100.

The report looks at the impact on the City of Boston of potential flooding at levels either 5’ above current high tide or 7.5’ above current high tide.  Although the first of these scenarios would already occur during a “100-year storm” which hits Boston during high tide, this could become a daily high tide event by the year 2100.  The second of these scenarios approximates the coastal storm surge which Boston would experience during a “100-year storm” which hits during high tide after sea levels have risen by approximately 2.5’  (as is projected to be the case around 2050). The report concludes:

• In broad terms, in the first of these scenarios (a flood level approx. 5’ above current high tide):
  • Almost 7% of the land area of the city would be flooded, with industrial, commercial, and tax-exempt developed properties the hardest hit (in some cases with more than 10% of the total land use class in the city flooded), while residential uses would be least affected.  This breakdown is not surprising given the current concentration of industrial and government-owned properties along the waterfront.
  • All of the coastal neighborhoods and all of the harbor islands (totaling almost 83 million sf) would be flooded.
  • Some of the more significant developed properties anticipated to be flooded under these conditions are the Charlestown Navy Yard, Bayside Expo Center, Gillette plant, South Bay shopping center, and Boston Fish Pier.
• Again in broad terms, in the second of these scenarios (a “100 year storm” hitting Boston during high tide after the sea level rises approx. 2.5’ above today’s level, causing a flood level approx. 7.5’ above current high tide):
  • 30% of the entire city would be flooded, with industrial (40%), commercial (40%), and tax-exempt (42%) developed properties the hardest hit, while residential properties would be least affected (<7%).
  • In this scenario, almost every neighborhood in the city (except Hyde Park, Jamaica Plain, Mattapan, Roslindale, and West Roxbury) would experience some flooding.  Looking at some neighborhood figures, more than 90% of the South End, more than 80% of East Boston, Back Bay and the Fenway, almost 60% or more of South Boston, Chinatown, Charlestown, and the North End, and almost half of downtown Boston would be flooded.
  • Some of the more significant developed properties anticipated to be flooded under these conditions (in addition to those listed above) are Logan Airport, the Boston Convention and Exhibition Center, Boston Marine Industrial Park, Harbor Point Apartments, and Harvard Stadium. 

The report does not address the impact of such flooding on subsurface structures, such as subway tunnels and utility conduits – which have proven to be some of the most enduring problems left by Sandy in New York City.  The report also notes that most storm drain outlets around the city are currently at or only slightly above current high tides, so that it will not take a major rise in sea level or storm surge to cause major backups in these drain lines into otherwise landlocked areas.

Among the most interesting sections of the report are case studies of anticipated flooding and possible preventive measures to be taken with respect to Long and Central Wharves (Marriott Hotel, New England Aquarium, Aquarium MBTA station, Harbor Towers Garage), and UMass Boston.  These make for fascinating, and ultimately slightly unsettling, reading.  Most property owners in these areas are concerned about the effect of climate change on their holdings, but reading these portions of the report dramatically demonstrates the gulf between how conditions at these locations will change over time and the steps currently being taken to address these changes (largely property-specific flood-proofing with stand-by pumps and sandbags).  Clearly, more systematic planning is required, and not just on a property-by-property basis. 

The report recounts initiatives undertaken by the City of Boston and the Commonwealth to identify, quantify, and try to address impacts of climate change and associated sea level rise, and contains a number of suggestions and recommendations for further action by both governmental and private parties.  With information of the quality contained in this report now publicly available in a concise format, there is no longer any reason to delay taking these steps. 

Peter Friedenberg is chair of the firm's Real Estate Department. Read his bio and connect with him LinkedIn and Google+

Massachusetts "LEEDs" the Way

In 2007, when I became a Leadership in Energy and Environmental Design (LEED) Accredited Professional, many wondered if the green building movement was going to end up as more than a passing trend.  It is clear now that green construction principles are here to stay and are increasingly becoming the norm.  As the cost premiums for building green have declined, the viability of sustainable construction methods has been validated and the market demand for green buildings has increased we are seeing more construction projects seeking LEED certification and Massachusetts leads the way on that front.

At the end of January 2013, the U.S. Green Building Council (USGBC) released its annual list of the top ten states (including the District of Columbia) for new LEED certifications for 2012.  Massachusetts moved up 3 positions from 2011 to a 4^th place ranking behind the District of Columbia, Virginia and Colorado.  According to the USGBC, in 2012, 106 projects in Massachusetts (totaling just under 13.4 million square feet of space) obtained LEED certification.  While many of the LEED certifications in Massachusetts last year, and historically, were obtained in connection with public building projects (not surprising, given the governmental requirements that certain projects obtain specified levels of certification), the number of private development projects seeking certification is on the rise (literally).  The year 2012 saw the first LEED Platinum skyscraper in Boston at Atlantic Wharf.  As costs to build green continue to drop and consumer demand for green buildings continues to increase we can expect the number of private development LEED projects to continue to rise. 

According to The Boston Business Journal (BBJ), as of mid-February 2013, there were 479 projects in Massachusetts pending LEED certification.  The BBJ also culled additional interesting figures from the USGBC detailing the variety of Massachusetts projects - some of which are noted below:

• 11: The number of LEED-certified properties owned by privately held companies
• 12: The number of LEED certified properties at non-profit companies
• 12: The number of LEED certified projects at Harvard University, including 3 Platinum and 2 Gold certified properties
• 13: The number of LEED certified properties in Boston
• 17: The number of LEED certified properties in Cambridge, the most of any municipality in the state
• 19: The number of construction projects which will  ultimately house local or state government offices that applied for LEED certification last year.
• 19: The number of private construction projects that applied for LEED certification
• 22: The number of LEED certified properties owned by publicly traded companies
• 29: The number of construction projects in Massachusetts that applied for LEED certification and are managed by educational institutions
• 1.17 million: The square footage of One International Place in Boston, the third-largest LEED-certified property in Massachusetts last year
• 1.18 million: The square footage of Atlantic Wharf in Boston, the second-largest LEED-certified property in Massachusetts in 2012
• 1.6 million: The square footage of the Clarendon and Berkeley Buildings in Boston, the largest LEED-certified property in Massachusetts
• 19.8 million: The total square footage of the projects that applied for LEED certification in Massachusetts in 2012
• 80.8 million: The square footage of pending LEED-certified development projects in Massachusetts (Source: Green state: Massachusetts' huge pipeline of LEED construction projects (BBJ DataCenter))

Clearly, LEED-certified buildings are here to stay!

Debbie Howitt Easton is Of Counsel to the firm's Real Estate Department. Read her bio and connect with her on LinkedIn and Google+

How Green is my Dollar Tree?

Written by: Paula G. Curry

While shopping for socks the other day, I heard this announcement.  “Did you know,” said the soothing female voice, “that this Kohl’s store is LEED Certified?”  Frankly, I had no idea, but obviously it was something that Kohl’s wanted me to know.  That got me thinking.  Which other retailers are embracing LEED?  Does LEED certification of a store make consumers feel better about shopping there?  What about other “green” practices and their effect on sales?

A quick web search told me that many of the places where I shop regularly are either LEED certified or are embracing green technology and practices.  Stop & Shop is purchasing renewable energy credits and installing solar panels on some of its stores, and was ranked among EPA’s Top 20 retail partners in its Green Power Partnership list for 2012. Home Depot reduced its energy use by 16% from 2004 to 2010, with the goal of reducing it by a total of 20% before the end of 2015.  Target’s 2011 Corporate Responsibility Report touts the chain’s commitment to reducing greenhouse gas emissions, improving recycling, and saving water. Target is also expanding into Canada, and will seek LEED certification for all of its stores there. Staples, Whole Foods, and Starbucks were names I frequently came across when browsing lists of retailers that are focusing on sustainability.  Who knew I’d been shopping green all this time. 

Other retailers are using green practices to attract customers and enhance sales.  Some, such as REI, Patagonia, and Timberland, sell products that feature recycled content or sustainable fabric and materials, while others, like Best Buy, get customers in the door by offering them a way to get rid of unwanted household electronics. (I have taken advantage of Best Buy’s recycling program, and have never left the store empty handed). Still others are “greening up” at least in part to improve their images and to stay off the radar of environmental groups. 

Personally, I don’t think much about a store’s carbon footprint, but apparently a significant number of consumers do.  In a recent survey, 54% of grocery shoppers said they base their buying decisions at least in part on sustainability considerations. There are also a growing number of companies and organizations, such as GoodGuide, the Sustainable Furnishings Council, and Green America, that are helping people make environmentally-friendly buying decisions.  

So . . . how green IS my Dollar Tree? According to Newsweek, the chain ranked 40^th among top retailers in 2012.   

Does shopping in a green building matter to you? Comment and share your thoughts with us!

LEED Certification – Worth the Cost?

Written by: Paula G. Curry

Dana Developer has just acquired a coveted brownfield site in Blackacre and is planning to construct a 300,000 square foot Class A office building with retail at street level.  There is no question that the facility will be built at least to minimum LEED-certifiable standards, as the Blackacre building code requires this for all new construction.  Because of the project’s location on a brownfield site, its proximity to public transportation, its innovative design features, and a state-of-the art bike rack, Dana believes the project should be able to achieve LEED Gold certification.  Should she go for it?  Aside from the feel-good aspects of achieving certification, are there quantifiable, positive impacts on project value that she could realize?

The answer is apparently still evolving.  A recent article by Reese Fox at Deloitte Financial Advisory Services LLP sets out some of the possible implications of LEED certification on real estate appraisal.  As this article points out, one mainstay approach to valuation is the analysis of “comps.”  According to the USGBC website, approximately 9 billion square feet of space are in some stage of LEED certification, which would seem to indicate that the pool of comparable projects is fairly large.  However, in real estate “location is everything” – and, while the number of certified projects is growing (1.6 million square feet daily, worldwide, according to USGBC), there may not be other similar LEED certified projects in Blackacre.  Other potential issues in valuing a LEED certified building include depreciation of particular features of green buildings, evaluating the premium potential tenants may be willing to pay to occupy space in such a project, and comparing construction costs (which are often higher for LEED certified buildings than for conventional construction).  Perhaps the most challenging aspect of valuing green buildings is putting a price tag on obtaining the actual LEED certification vs. simply building to a greener standard.  Some commentators have recently cautioned that using terms like “LEED Compliant” or “built to LEED standards” could be viewed as misleading and should perhaps be avoided. 

On the legal front, caselaw will certainly evolve in the future concerning the value of LEED certification.  In a recent tax appeal before the Oregon Tax Court, CLP Elements LLC v. Benton County Assessor, the tax assessor argued for a higher building valuation based in part on the fact that the property had made substantial progress toward achieving LEED Silver certification (and was, at the time, purported to be the only privately-fund LEED Silver project in Oregon – did someone mention comps?).  The property owner countered that the property was not certified on any level, and would, in fact, never be certified.  The court decided the case on other grounds.  However, we can expect to see the LEED certification argument raised in other cases and in other contexts.

How much value do you put on LEED certification? Let us know!

Financing a Solar Deal

No doubt about it, financing is a critical component of a solar project and is often the force that drives the deal. 

Government (both state and federal) incentives provide a bridge that makes the deal financially possible.  With a variety of financial incentives in the current market, financing a solar project requires the lawyer to juggle Solar Renewable Energy Credit (SREC) carve outs, state or federal grant incentives and tax benefits, in addition to a more customary commercial loan. While a commercial lender will have its own wish list before issuing a solar loan, governmental incentives present detailed applications, state-specific requirements, and unmovable deadlines.  When embarking on a solar project, proponents are wise to identify their requirements and critical dates in advance to allow each financial component to flow together. 

On the commercial lending side, lenders are more willing to invest in solar, and growing more sophisticated in their approach.  That said, borrowers should expect the usual approach to a loan transaction, but with added quirks.  For example, security is often provided in the form of a fixture filing against the solar equipment.  Where the project will be installed on property subject to an underlying lease, borrowers may be requested to grant a leasehold mortgage to the bank.  Personal guarantees from the principals will likely be required.

Enter the governmental incentive.  Naturally tied to budgets, governmental incentives will have fixed deadlines for applications and strict requirements that must be built into the overall deal. Most often the pay out will come only after the project is substantially underway, adding an element of risk that can leave a project proponent – and a commercial lender – uneasy.   

When embarking on a solar project, proponents must balance the needs of two masters, without sidetracking the deal.  Due diligence and a healthy understanding of government incentives are key to stay on track.  Although solar deals can present an unexpected angle to the typical deal, they are still just that – another kind of deal, and entirely feasible. 

Thoughts on DEP "Reg Reform"

Written by: Ronald W. Ruth

The Massachusetts Department of Environmental Protection released its Final Action Plan for Regulatory Reform at Mass DEP on March 5, 2012. DEP should be congratulated for its leadership in state government with regard to simplifying its regulations.

That said, DEP has “over sold” or “over advertised” its effort.  I was a member of the Regulatory Reform Working Group convened by DEP at the outset of its process.  The Commissioner established, and the process rigorously followed the standard that the Working Group was to focus solely on initiatives which DEP could accomplish by July 1, 2012.  In addition, the direction of the Working Group project solely was to identify DEP practices, policies, regulations, or procedures which could be altered in a way to reduce the DEP workload and yet continue to accomplish the environmental protection goal of the relevant law.  The effort was driven by recognizing that its budget has shrunk over the past several years and that it is time for DEP to “live within its means.”  Again, I congratulate DEP on taking this initiative and to see it through to its March 5 Final Action Plan.

On a separate - but somewhat parallel track - the Legislature has focused on the need for “regulatory reform” to reduce any unnecessary burdens on business, in particular small business.  In Sections 65 – 71 of Chapter 240 of the Acts of 2010 the Legislature amended Massachusetts General Laws Chapter 30A to require state agencies to identify and reduce (to the extent possible) burdens on business and small business arising from regulations.  As part of this mandated effort each agency is required under M.G.L. c. 30A, § 5A to review its regulations which have been in existence for at least 12 years to “minimize economic impact of the rule or regulation on small businesses.”  As part of that process each state agency is required to review the “continuing need for the rule or regulation”; “the nature of complaints or comments received”; “the extent to which the rule or regulation overlaps, duplicates or conflicts with other regulations”; “the length of time since the rule or regulation has been enacted”; and “the degree to which technology, economic conditions or other factors have changed in the subject areas affected by the rule or regulation.”  This is a far more expansive review of regulations than was undertaken by DEP to produce its Final Plan.  The Final Plan was focused only on internal impacts with an orientation to alter regulations if it would reduce the burden on DEP staff and resources.  The mandated inquiry under the amended Chapter 30A requires an external review of the impacts on the regulated community.  They are two different scopes with, frankly, not much in common.

I raise this point because, troublingly, the Massachusetts DEP Final Action Plan recites that the Plan “addresses the agency's obligations under” M.G.L. c. 30A § 5A (described above).  This statement is not accurate and disappointing. Perhaps in the excitement of completing the project DEP lost focus for a moment. Let's hope that they can be reminded to refocus and undertake the examination that the Legislature required by amending chapter 30A.

Photovoltaic Installation with Highland First Solar LLC

Written by: Ani E. Ajemian

Sherin and Lodgen’s Environmental Practice Group recently represented Highland First Solar LLC in connection to the purchase, installation, and financing of a photovoltaic installation on the roof of a large warehouse building in Readville, Massachusetts.

Sherin and Lodgen attorneys, Ani E. Ajemian and Ronald W. Ruth managed the drafting and negotiation of the applicable lease agreement, corporate structure, utility agreements, federal grant-related issues, and securing a loan in the amount of $2,500,000.00 to finance the project. Learn more about Sherin and Lodgen’s Environmental Practice Group, here.