Insights

On Friday, February 21, Rep. Brett Guthrie (R-KY) and Rep. John Joyce (R-PA), the Chairman and Vice Chairman of the U.S. House Committee on Energy and Commerce, issued a Request for Information (RFI) inviting stakeholders to provide comment as the Committee explores the development of a federal data privacy and security framework. After efforts to consider a bipartisan and bicameral bill failed last year under former Chair Cathy McMorris Rodgers (R-WA), Chairman Guthrie is starting the effort anew, forming a working group with the goal of developing comprehensive legislation “that can get across the finish line.”

On February 18, President Trump issued an Executive Order titled “Ensuring Accountability for All Agencies” that directs independent agencies (as well as Cabinet Departments and their sub-agencies) to route all “proposed and final significant regulatory” and budgetary actions through the White House and the Office of Management and Budget. If implemented to its full extent, this action will significantly strengthen the authority of the White House by weakening the political autonomy of these independent agencies. As an assertion of the President’s inherent powers under Article II of the U.S. Constitution, it also stands to weaken congressional influence over these independent agencies, both through the appropriations and confirmation processes.

On January 20, 2025, President Trump issued an Executive Order directing the withdrawal of all areas on the Outer Continental Shelf —an expansive area of submerged land under federal control— from eligibility for offshore wind leasing. This Executive Order was one of several energy-related executive orders reportedly intended to increase oil and gas production and curtail the deployment of clean energy resources signed by Trump shortly following his inauguration. The Order is premised on stated concerns for meeting “the country’s growing demand for reliable energy,” maintaining a “robust fishing industry for future generations” and providing “low cost energy to [U.S.] citizens.”

Since its passage in 2022, the Inflation Reduction Act’s renewable energy tax credits have been in the crosshairs of Congressional Republicans. With many of the Tax Cuts and Jobs Act provisions expiring at the end of 2025, and a full plate of Trump and Congressional Republican Campaign promises for tax cuts in play, the Republicans have pointed to repeal of the IRA as a source of funding to pay for other tax breaks.

To keep our clients informed about the proposed policies and announced platforms of the presidential candidates and the potential composition of the new Congress, Crowell is launching its Election 2024 series. The series will provide insight and analysis on what the election of Vice President Harris or former President Trump could mean for business, as well as explore what’s at stake in key state and congressional races. 

The Department of Defense (“DoD) recently took important actions to expand and deepen its relationships with companies bringing critical energy production and storage technologies to the DoD marketplace. As one of the largest consumers of energy in the world, DoD has the scale and resources to catalyze new industries, and mission assurance increasingly requires a diverse generation mix and incorporation of advanced technologies.

As the Department of Energy’s (“DOE”) Loan Programs Office (“LPO”) continues to finance clean energy manufacturing and deployment in the United States, the recent announcement by the DOE’s Office of Inspector General’s (“DOE OIG”) that it intends to scrutinize LPO’s due diligence process increases the risk to program applicants. According to a recent notice issued on SAM.gov, the DOE OIG intends to issue a sole source contract for legal support “assessing the policies and procedures” for the due diligence of loan applications, and evaluate specific LPO loans and guarantees to assess their compliance with, consistency in application of, and the effectiveness of LPO policies and procedures, as well as related Governmentwide regulations, policies, procedures, and directives, to identify specific points of weakness in due diligence practices, and to recommend improvements to mitigate risks.

In one of the first rulings applying Loper Bright Enterprises v. Raimondo, the Supreme Court on Tuesday vacated and remanded the D.C. Circuit’s decision in Solar Energy Industries Association v. FERC for further consideration.

The Federal Energy Regulatory Commission (“FERC” or “Commission”) issued Order No. 1920 on May 13, 2024 to increase the pace of transmission grid expansion and strengthen regional transmission planning.[1] The landmark order, as well as the concurrence and dissent of the Commissioners voting on the order, is summarized below. At bottom, it represents a fundamental reshaping of the transmission planning landscape, requiring long-term transmission planning, closer coordination between generation interconnection and regional transmission planning, and revisions to the local transmission planning process to close loopholes created by Order No. 1000 in 2011.

In the Crowell & Moring case Parsons Government Services, Inc. v. Department of Energy, CBCA 7822, the Civilian Board of Contract Appeals (Board) denied the government’s motion to dismiss concerning Parsons’ claim for additional incentive fee in connection with its performance operating a salt waste processing facility at DOE’s Savannah River Site.  The underlying contract relates to a first-of-its-kind facility to treat and reduce liquid radioactivity in nuclear waste.  In its decision, the Board rejected the government’s motion to dismiss, holding that Parsons had pled sufficient facts to support its claims regarding superior knowledge, impracticability of performance, and breach of the duty of good faith and fair dealing.

The Treasury and IRS published their final rules on transferability for clean energy tax credits on April 30, 2024. The final rules include very few changes from the proposed regulations and rejected many of the suggestions offered by commenters during the public hearing.

The DOE in 2023 significantly increased its enforcement activity against manufactures and importers alleged to have violated EPCA’s energy and water conservation standards and related certification requirements, based on available public information. As we previously flagged, the substantial rise in enforcement activity comes as the Biden Administration increasingly focuses on EPCA as a means of achieving environmental policy objectives, including reducing carbon emissions. The Department has continued its enforcement efforts in 2024 and early data from this year sheds light on the Department’s enforcement priorities.

Tax partner Carina Federico is joined by Tyler O’Connor, an energy and government affairs partner, to discuss how the upcoming presidential election will affect the IRA.

On June 14, 2023, the Treasury Department and the Internal Revenue Service (IRS) released proposed regulations regarding the clean energy tax credits eligible for direct pay and transferability under the Inflation Reduction Act (IRA). The IRS also released FAQs for both direct pay and transferability, which provides further guidance to interested taxpayers.

The Treasury and IRS’s proposed guidance on the domestic content requirements under IRC Sections 45, 45Y, 48, and 48E generally track the Federal Transit Administration Buy America requirements, which represent a long-standing regime applicable to mass transportation infrastructure projects, with some important distinctions for the clean energy industry to consider when planning new projects.

On March 31st, the Treasury Department (“Treasury”) and the Internal Revenue Service (“IRS”) released proposed regulations (“Proposed Regulations”) under the Clean Vehicle Credit of Internal Revenue Code Section 30D, which provides a credit for the purchase and placing in service of certain new clean vehicles (“Section 30D Credit”). The Section 30D Credit was originally enacted in 2008 and has been amended several times. Most recently, the Inflation Reduction Act of 2022 (“IRA”) made numerous amendments to the Section 30D Credit to promote the purchase and use of new clean vehicles made with battery components manufactured in North America and critical minerals sourced from the United States or countries with which the United States has a free trade agreement. The Section 30D Credit is treated as a personal or business credit depending on the use of the vehicle.  Businesses looking to transition their fleets should also consider the availability of the Credit for Qualified Commercial Clean Vehicles under Internal Revenue Code Section 45W. 

On March 23rd, the Treasury Department and the IRS published a notice of proposed rulemaking for the Section 48D Advanced Manufacturing Investment Credit (“Section 48D credit”) established by the CHIPS Act of 2022. Over the last few years, the market for semiconductors has been volatile, causing supply chain shortages. The Section 48D credit aims to incentivize investments in facilities that manufacture semiconductors or semiconductor manufacturing equipment in the United States, with the goal of creating American jobs and strengthening the U.S. economy and national security.

On March 9, 2023, President Biden released his fiscal year (FY) 2024 budget request outlining the administration’s priorities, including a nearly 10 percent increase in discretionary spending over the current enacted funding levels. The President’s budget requests a total of $6.9 trillion federal spending for FY 2024. Of this amount, $4.2 trillion would be in mandatory spending and $1.9 trillion would be in discretionary spending. Defense spending would receive an approximately 3 percent increase from FY 2023 for a total of $885 billion in discretionary spending, while non-defense spending would receive a nearly 4 percent increase from FY 2023 levels for a total of $1.02 trillion in FY 2024. The President’s budget request proposes a 7 percent increase over current non-defense spending level and tax increases among other proposed revenue raisers designed to lower the national deficit by $3 trillion over the next 10 years. 

The Department of Transportation’s Federal Highway Administration has issued final standards for the installation, operation, and maintenance of electric vehicle (EV) charging stations paid for with federal funds pursuant to the Infrastructure Investment and Jobs Act (IIJA) and other federal authorities. The standards, which go into effect on March 30, 2023, regulate the types of chargers that may be installed, as well as payment processing, labor, cybersecurity, and data privacy practices for EV charging infrastructure on federal highways.

If past is prologue, then energy companies may again find themselves targets of congressional investigations. The new Republican majority in the House of Representatives has outlined plans to investigate the Biden Administration’s climate change policies and the clean energy and transportation companies that receive government money under the Infrastructure Investment and Jobs Act (“IIJA”) and the Inflation Reduction Act (“IRA”). This is a replay of when the GOP took control of the House in 2010 and congressional committees investigated implementation of the American Recovery and Reinvestment Act of 2009, focusing in part on exposing what they believed to be spending abuses by the Department of Energy’s (“DOE”) Loan Programs Office. Most famously, congressional Republicans targeted Solyndra, a California-based solar panel manufacturer that eventually went bankrupt after receiving the first loan guarantee issued by DOE under Title 17 of the Energy Policy Act of 2005.