Q&A: The role of law and policy

1. What is the role that law and policy play in the development of the renewable energy industry? 
The law is playing an increasingly important role in the development of the renewable energy industry. Until quite recently, technology was probably the largest impediment to the adoption of renewable energy.
We didn’t have enough silica, efficiency was miserable, and the cost of putting a solar array on the roof of our houses was prohibitively expensive. But innovative scientists and motivated entrepreneurs have finally developed amazing products that allow us to efficiently extract clean energy from the sun, wind, oceans, and even turnstiles at subway stations! Now that we have the technology that we need to shift our economy away from oil, the only thing left to do is find a way to encourage the widespread adoption of those technologies. And that’s exactly where law and policy come into play. Smart laws and effective policies can act as catalysts for positive change and tools to encourage the further development and use of clean technologies.

2. Are economic market forces the most effective mechanism to grow the solar industry? 
While market forces are an important factor in the overall growth of the solar industry, strong laws and policies are equally necessary to ensure sustained growth. Laws can break the inertia that any new market faces by stimulating economic growth in a much faster and more focused manner than natural market forces alone. The feed-in tariff is probably the best example: by passing a law that guarantees a reasonable rate of return for generators of renewable power, the legislature effectively incentivizes the launch of a new market. Carbon trading is another strong example, especially from an international context. The Clean Development Mechanism (CDM) essentially created a new market for buying and selling carbon credits. As a result, the CDM spread awareness about climate change, provided economic incentives for the development of clean technologies, and encouraged conservation of natural resources worldwide.

3. Can you give some examples how the law has actively facilitated or impeded solar companies? 
Sure. There are a couple of current news stories that provide us with perfect examples of how the law can help and also hinder solar companies. First, how laws can help: New Jersey just signed a new law, called the “Solar Advancement Act” that sets a goal for the state’s solar power generation over the next 10 years. This forward thinking legislation is expected to boost the industry in that state, increase the adoption of solar technologies, encourage solar business (manufacturers and installers) to flock to the state, and create green jobs. Now, how laws can hinder: Germany just announced that it will likely slash its feed-in tariff. This tariff, by all accounts, is responsible for Germany becoming a world leader in solar energy adoption. Upon hearing the news of a potential reduction in the incentive, solar stocks plummeted and renewable energy companies are beginning to look elsewhere for places with more favorable laws, policies and feed-in tariffs (such as France).

4. Can lawyers help to resolve conflicts between environmental groups and renewable energy projects? 
Absolutely. Lawyers are by definition problem-solvers. By imagining the worst case scenario, we are able to help clients avoid conflict and resolve disputes. One of the most difficult challenges now facing the cleantech industry is between environmental groups and developers over where to construct renewable energy projects. The ideal solution would be to find a place where we can build a power station without impacting the environment. But the wind blows strong along scenic landscapes, the sun shines brightly in hot deserts, and the most productive geothermal activity is often found under national parks! But I think that because renewable energy project developers and environmentalists often have similar goals, they are more likely to reach an amicable resolution.

5. Can the law really help encourage communities to use alternative energy? 
While I think that the law can serve as a very effective tool to help encourage communities to use alternative sources of energy, ultimately the final decision must come from a communal desire for change. This choice will probably be based heavily on economic, environmental, and ideological considerations. And so yes, I think that the law can certainly encourage communities to use alternative energy by influencing various aspects of the decision making process. However, I don’t think that the law can do everything. For example, the law can set up attractive incentive programs and tax rebates that help make the economic case for switching to alternative energy, but it can not alone force an unwilling community to change. We know from history that laws that try to impose an ideology upon the masses will likely be very unpopular, extremely difficult to enforce, and bound to fail. That’s exactly what happened during the Prohibition era in the US. So, I think that many of the new alternative energy laws and policies that are currently being passed all over the world will have the best chance for success if they focus on enticing communities to use clean energy by offering attractive economic incentive programs, rather than trying to force change.

6. At what point in the project process should a law firm be engaged and how do they fit in with the team? 
A law firm that is familiar with the unique legal needs of cleantech companies can help save considerable time and money along every stage of a renewable energy project. From the establishment of a business entity to the signing of land leases and power purchase agreements, a law firm with a specialized cleantech practice can provide invaluable advice and assistance to renewable energy project managers and developers of clean technologies. A law firm can become a fully integrated member of the project team and serve as a trusted advisor during every stage of the development project. Strong and capable legal counsel can help maximize project output, keep development on schedule, take full advantage of government incentive programs, and help make the best return for investors.

7. What specific services do Cleantech Law Partners perform for their Renewable Energy Clients? 
Cleantech Law Partners is a boutique law firm that caters to the unique legal needs of renewable energy and cleantech companies. Our team of Clean Energy Counsel, experienced attorneys and expert advisors has extensive knowledge of the clean technology industry and has worked closely with renewable energy and cleantech companies across the US and throughout the world. We are committed to helping our clients navigate the rapidly changing landscape of the cleantech industry and guiding them through a variety of green projects, including: licensing wind farms, permitting solar energy systems, negotiating power purchase agreements, drafting land leases, reviewing green building plans, securing intellectual property rights, applying for government incentives, and managing financial transactions. We also assist cleantech startup companies, renewable energy project developers, installers of solar systems, geothermal exploration companies, environmental consulting firms, cleantech venture capital funds, producers of biofuels, owners of rooftop solar arrays, green building contractors, inventors of cleantech products, manufacturers of solar cells, government agencies, policy makers, and investors in a wide variety of legal and policy issues.

8. What is the most common legal battle that you are seeing currently in this industry? 
As I mentioned earlier, lawyers can help to steer clients away from “legal battles” before they occur. That said, I’ll give you a few examples of some legal challenges that the industry is beginning to see. First, with smaller scale projects, there are disputes breaking out between neighbors over who owns the rights to natural resources, like the sun or wind. For example, there was an interesting case recently from California where a homeowner sued his neighbor for having a tree that shaded his solar panels. Other legal challenges are arising over the zoning of larger scale renewable energy projects. In a number of cities, there are regulations that prevent solar arrays from being built near airports out of concern that reflections will interfere with aircraft flying overhead. Also, there seems to be a growing number of disputes and complaints surrounding delays in the permitting process for renewable energy projects. However, for as many conflicts and “legal battles” that exist today, there are twice as many initiatives that are currently underway to address and resolve each of these issues, solve the problems, shorten the delays, encourage compromise and build a sustainable and economically viable future.

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