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NJ Adopts Final Regulations to Implement New Jersey’s Landmark Environmental Justice (EJ) Law

On April 17, 2023 (the first day of Earth Week), Governor Phil Murphy announced the final adoption of regulations to implement New Jersey’s landmark Environmental Justice (EJ) Law. The EJ Law and implementing rules are the first in the nation aimed at reducing pollution in historically overburdened communities and communities of color. Under the EJ Rules, when proposing to locate certain pollution-generating facilities in an overburdened community, an applicant must prepare an environmental justice impact statement and engage directly with members of their proposed host community by hosting a public hearing, collect all public comments and respond to them in writing, among other requirements.

Please contact me at afox@capehart.com if you are interested in more information or need legal assistance.

New Jersey BPU Releases Updated Version of a Proposal to Expand New Jersey Electric Vehicles Infrastructure System

Photo by CHUTTERSNAP on Unsplash

The NJBPU recently released an updated version of a proposal to expand the New Jersey Electric Vehicles Infrastructure system. This updated Proposal expands upon its June 2021 Proposal which sought to address larger light-duty fleet charging, as well as the charging of medium and heavy-duty (MHD) vehicles. The NJBPU recognizes that the State needs to create a comprehensive EV charging system with public access on travel corridors and at workplaces. The reasons and objectives underlying the NJBPU Proposal include:

    1. Transportation sector accounts for 40% of the CO2 emission in NJ today, which is the largest single section of CO2 emissions. MHD vehicles make up 33% of those emissions. Therefore, BPU has stated electrification of the transportation sector is essential to meet NJ’s clean energy goals by 2050.
    2. Vehicle electrification reduces the cost of meeting NJ’s climate change goal of reducing CO2 emissions by 80% below 2006 levels by 2050. The BPU projects that failing to electrify vehicle fleets increases the cost of decarbonization from 2035 to 2050 by average of $1.6 billion per year.
    3. One of the state’s strategies is for the State to “[i]dentify regulatory, funding and financing mechanisms to convert the MHD vehicles to electric, renewable biodiesel and hydrogen fuel sources.”

The following relevant definitions, among others, are included in the Proposal:

    • “Demand Charges” are an existing feature of many rates whereby large users of electric systems pay for their contribution to the fixed costs of operating the electric system. In most cases, the Demand Charges are set at a customer’s peak annual usage.
    • “EDC” refers to an electric distribution company that the BPU regulates.
    • “EVSE” or “Electric Vehicle Service Equipment” means the equipment designed and used for the purpose of transferring energy from the electric supply system to a plug- EV, which may be deliver either alternating current (“AC”) or direct current (“DC”) electricity. “EVSE” is synonymous with a “Charging Station Infrastructure.”
    • “Make Ready” means the pre-wiring of electrical infrastructure at a parking space or spaces, to facilitate easy and cost-effective further installations of EVSE, including a Level Two EVSE and DC Fast Chargers. “Make Ready” may include expenses related to service panels, junction boxes, conduit, wiring etc., to make a particular location able to accommodate EVSE on a plug and play basis. “Make Ready” is synonymous with “Charge Ready”.
    • “Overburdened Municipality” is a municipality that has over 50% of its population living in an Overburden Community Census Block as defined by the NJDEP pursuant to the NJ’s Environmental Justice Law, N.J.S.A. 13:1D-157; and the municipality has either (1) 35% of its population living under 200% of the poverty level according the U.S. 2019 Census data; or (ii) the municipality is categorized as “distressed” according to the NJ Department of Community Affairs. (Please contact me if you wish to obtain a list of eligible Overburdened Municipalities.)

The Proposal seeks to address the following components of an MHD Charging Program:

    1. Roles and Responsibilities of Utilities and Non-Utilities: EDCs would be responsible for the wiring and backbone infrastructure necessary to enable a robust number of MHD Make-Ready locations throughout the State, serving publicly-accessible MHD charging depots, publicly accessible and/or public-serving fleets and Private Fleet Charging Depots located in or primarily operating in Overburdened Municipalities.
    2. Electric Vehicle Service Equipment (“EVSE”) Infrastructure Companies, site owners, and industries using private capital would be primarily responsible for installing, owning and/or operating, and marketing MHD EVSE to customers.
    3. An EDC-Industry working group would be created to address concerns regarding appropriate time varying rates, demand charges, and other technical assistance to address complicated interconnection, local generation and storage, potential wholesale market participation, and other technical issues as related to the MHD EV Eco System.

The Proposal seeks to attract private capital into the EV infrastructure sector by Proposal including the following additions to the June 2021 Proposal:

    1. The Proposal adds private fleet charging depots located in or primarily operating in Overburdened Municipalities to those eligible for Make-Ready Incentives;
    2. The Proposal adds technical and planning support for private entities that establish public fast charging sites that exceed 500kW in order to plan ahead for the roll-out of National Electric Vehicle Infrastructure (“NEVI”) funds and larger charging banks.
    3. Private Fleet Charging Depots eligible for Make-Ready funding would be required to meet stringent standards to ensure that they either are located in, or primarily operate in, at least one Overburdened Municipality.

I intend to monitor several technical panels and stakeholder meetings scheduled by the NJBPU Staff shortly after publication of the June 2021 Proposal. I will update this article as more relevant information is released by the NJBPU Staff.

If you require guidance to participate in the New Jersey Electric Vehicles Infrastructure programs, please contact me at afox@capehart.com.

Environmental Issue: New Jersey Senate Environment and Energy Committee Is Requiring Sellers to Notify Buyers/Renters of Property Flooding Risk

On October 6, 2022, the New Jersey Senate Environment and Energy Committee advanced legislation sponsored by Senator Bob Smith and Senator Richard Codey that would require home sellers and landlords to notify prospective buyers and renters if a property is at risk of being affected by flooding. The bill (S-3110) would require the Department of Community Affairs (“DCA”) to create a form used by sellers and landlords to notify prospective buyers or renters of flooding risks to the property before they become obligated under any contract. The form would indicate if any of the property is located in a Federal Emergency Management Agency designated floodplain, a Special Flood Hazard Area or a Risk Flood Hazard Area and if the property has ever experienced any flood damage in the past. This bill appears to be a response to the devastating damage caused by Hurricane Ian, and since New Jersey is vulnerable to sea level rise, flooding events and saltwater intrusion.

All notification pursuant to this Bill would be required to be provided to a purchaser or tenant in writing before the purchaser or tenant becomes obligated under any contract for the purchase or lease of the property. The Bill requires the DCA to create a form containing questions and space for the landlord to answer concerning certain flooding risks to the property. For example, one question requires the seller or landlord to disclose “[h]as the property experienced any flood damage, water seepage, or pooled water due to a natural flood event, such as heavy rainfall, coastal storm surge, tidal inundation or river overflow”. If the answer is yes, the seller or landlord must disclose how many times such damage occurred. Seasonal renting of less than 120 days will be exempt from this required notification.

The Bill provides that if a landlord violates this notification requirement and a tenant suffers “substantial loss or damage to the tenant’s personal property” as a result of flooding, the tenant will have the right to terminate the lease and may pursue legal remedies against the landlord to recover damages due the landlord’s failure to “disclose critical information.” The term “substantial loss of or damage to personal property” is defined to mean “if the total cost of repairs to or replacement of the personal property is 50 percent or more of the personal property’s market value on the date the flooding occurred.” It is worth noting the Bill does not expressly provide a remedy against a realtor if the realtor (acting as the agent for landlord or seller) fails to comply with the proposed required notification.

Termination of the lease is defined to become effective after the tenant delivers written notice of termination no later than 30 days after the date the loss or damage occurs, and is effective when the tenant surrenders possession of the dwelling. The Landlord is required to refund the tenant all rents and other amounts paid in advance under the lease after the effective date of termination, but no later than 30 days after the effective date of termination.

The Bill was released from the committee by a vote of 5-0.

For more information about this new legislation, please contact Alan P. Fox, Esq.

The Proposed New Inflation Reduction Act Could Become the Biggest Climate Investment in US History

In addition to investments in clean energy, the bill called the Inflation Reduction Act of 2022 (H.R. 5376) includes tax and health care provisions designed to reduce the federal budget deficit and limit inflation. However, much of the media’s attention has been on the climate provisions. The current compromised bill reduces investments from the original $2 billion “Build Back Better” Act proposed by the Biden administration.

The proposed bill is designed to accelerate the buildout of renewable energy and electric vehicles as well as boost the deployment of nuclear energy and increase domestic clean energy related to manufacturing and advanced energy technologies (such as storage, carbon capture, and green hydrogen).

Below is a summary of just a few of the tax incentives in the proposed legislation as currently drafted:

    • The proposed legislation both extends the existing Internal Revenue Code §45 PTC (production tax credit) and existing Internal Revenue Code §48 ITC (investment tax credit) for projects that commence construction by December 31, 2024, then transitions both §45 and §48 into new replacement tax code sections (one to be designated as “The Clean Electricity Production Credit” under new Internal Revenue Code §45Y and the other to be designated as “The Clean Electricity Investment Credit” under new Internal Revenue Code §48D).
    • Tax-exempt payers will have the option to elect direct pay for the clean electricity PTC and ITC as they would under the proposed amendments to §45 and §48.
    • The proposed bill would increase the ITC to 30% for solar, fuel cells, and small wind facilities in service after 2021.
    • The new proposed bill also creates a new “stand-alone” storage ITC for certain biogas, linear generators, thermal storage, microgrid, and dynamic glass technology.
    • Taxpayers electing the § 48D ITC will receive a credit worth up to 30% of the investment in the year the facility is placed in service. The tax credit value is increased by an additional 10% if the facilities also meet domestic-content requirements.
    • The credit value is further increased by 10% for projects in energy communities, including certain brownfield sites under CERCLA ( or example, where a coal mine has closed, or where a coal-fired electric generating unit has been retired.)

On August 11, 2022, with a tiebreaking vote from Vice President Harris, the 50-50 Senate passed the Inflation Reduction Act and sent the bill to the House of Representatives for a vote. The House is expected to approve this bill and send it to the White House for President Biden’s signature later this week. Solar industry advocacy group SEIA has already suggested that the tax credits under this Act could spur upwards of 30 GW of new solar panel manufacturing capacity in the United States and over 500,000 jobs.

For more information about the Inflation Reduction Act, please contact Alan P. Fox, Esq.

deleteThe Proposed New Inflation Reduction Act Could Become the Biggest Climate Investment in US History

In addition to investments in clean energy, the bill called the Inflation Reduction Act of 2022 (H.R. 5376) includes tax and health care provisions designed to reduce the federal budget deficit and limit inflation. However, much of the media’s attention has been on the climate provisions. The current compromised bill reduces investments from the original $2 billion “Build Back Better” Act proposed by the Biden administration.

The proposed bill is designed to accelerate the buildout of renewable energy and electric vehicles as well as boost the deployment of nuclear energy and increase domestic clean energy related to manufacturing and advanced energy technologies (such as storage, carbon capture, and green hydrogen).

Below is a summary of just a few of the tax incentives in the proposed legislation as currently drafted:

    • The proposed legislation both extends the existing Internal Revenue Code §45 PTC (production tax credit) and existing Internal Revenue Code §48 ITC (investment tax credit) for projects that commence construction by December 31, 2024, then transitions both §45 and §48 into new replacement tax code sections (one to be designated as “The Clean Electricity Production Credit” under new Internal Revenue Code §45Y and the other to be designated as “The Clean Electricity Investment Credit” under new Internal Revenue Code §48D).
    • Tax-exempt payers will have the option to elect direct pay for the clean electricity PTC and ITC as they would under the proposed amendments to §45 and §48.
    • The proposed bill would increase the ITC to 30% for solar, fuel cells, and small wind facilities in service after 2021.
    • The new proposed bill also creates a new “stand-alone” storage ITC for certain biogas, linear generators, thermal storage, microgrid, and dynamic glass technology.
    • Taxpayers electing the § 48D ITC will receive a credit worth up to 30% of the investment in the year the facility is placed in service. The tax credit value is increased by an additional 10% if the facilities also meet domestic-content requirements.
    • The credit value is further increased by 10% for projects in energy communities, including certain brownfield sites under CERCLA ( or example, where a coal mine has closed, or where a coal-fired electric generating unit has been retired.)

For more information about the Inflation Reduction Act, please contact Alan P. Fox, Esq.

New Jersey Recently Surpassed 4 Gigawatts of Solar-Generated Electricity

The New Jersey Board of Public Utilities (NJBPU) recently announced that New Jersey recently surpassed 4 gigawatts of solar-generated electricity produced by more than 157,000 solar installations statewide. This is enough “clean energy” to provide electricity to over 500,000 New Jersey households annually.  The NJBPU estimates that solar capacity in New Jersey could double in the next four years.  Clean energy generated by solar and wind power are key components to reach New Jersey’s goal to reduce carbon emissions in the state by 50% by 2030 and by 100% by 2050.

The NJBPU continues to move forward with a variety of solar programs, which include:

      • Community Solar Energy Program: After a two-year pilot program, NJBPU estimates during the third quarter of 2022, the NJBPU will issue the permanent program straw proposal. In the first year of the pilot program, the NJBPU approved 45 applications, with the capacity to generate about 78 MW in solar energy.  In the second year of the pilot program, the NJBPU approved 105 projects, with the capacity to generate about 165 MW in solar energy. These projects combined have the cumulative capacity to serve approximately 24,000 low to moderate income subscribers;

     

      • Competitive Solar Incentive (CSI) Program: The NJBPU continues to advance the development of its Competitive Solar Incentive (CSI) Program for grid supply and large net-metered solar. NJBPU has issued a straw proposal and has held three public comment sessions. NJBPU anticipates launching this program later in 2022;

     

      • Dual-Use Solar Pilot Program:  The NJBPU will be working to develop and implement a Dual-Use solar pilot program. NJBPU anticipates issuing a straw proposal later in the year;

     

      • Grid Modernization:  The NJBPU continues to move forward with its Grid Modernization proceeding to solicit ideas for potential improvements to enable faster interconnection and higher levels of distributed energy resource (DER) integration. In June 2022, a draft report was presented at a public meeting with recommendations for interconnection reform.

     

  • For more information about New Jersey’s solar programs, please contact Alan P. Fox, Esq.

Solar Update Regarding Extension Requests of Transition Incentive Program Deadlines

On June 8, 2022, the New Jersey Board of Public Utilities issued an Order conditionally granting a petition which requested an extension to the project’s solar Transition Incentive (“TI”) Program registration deadline. As part of this Order, the Board has defined a set of criteria to identify similarly situated projects which may be eligible for a comparable extension.

If you have a TI project that is approaching a registration deadline, please contact Alan P. Fox, Esq., Chair of the firm’s Alternative Energy Group, to explore whether your project is eligible for a comparable extension.

Biden Administration Invokes Defense Production Act to Boost Domestic Manufacturing in Clean Energy Sectors

On June 6, 2022, the White House released a statement authorizing the use of the Defense Production Act (DPA) to build up domestic production of solar panels, electric transformers, heat pumps, insulation and hydrogen-related equipment.

The U.S. Department of Energy (DOE) could support those sectors through commitments to buy clean energy products from U.S. manufacturers; direct investments in facilities; and aid for clean energy installations in homes, military sites and businesses. Pending legislation (the Energy Security and Independence Act) would provide $100 billion in DPA funding for the clean energy sector.

The White House reports the expansion to domestic solar manufacturing capacity will grow the current capacity of 7.5 gigawatts by an additional 15 gigawatts, enabling 3.3 million homes to switch to clean solar energy. President Biden also urges Congress to pass tax cuts and additional investments that advance U.S. clean energy manufacturing and deployment.

Specifically, the White House is authorizing the DOE to rapidly expand U.S. manufacturing of the following five clean energy technologies:

    1. Solar panel parts including photovoltaic modules and module components;
    2. Building insulation;
    3. Heat pumps;
    4. Equipment for making and using clean energy-generated fuels, including electrolyzers, fuel cells, and related platinum group metals; and
    5. Power grid infrastructures such as transformers.

Update on NJ Solar Incentive Program

In August 2021, the New Jersey Board of Public Utilities (“NJBPU”) launched the Administratively Determined Incentive (“ADI”) Program megawatt (“MW”). The program provides incentives to eligible solar facilities that are net metered residential, net metered non-residential 5 megawatts and eligible community solar on an interim basis. New registrations for each MW block are accepted on a first-come, first-served basis until either (1) the MW block is fully subscribed or (2) the capacity allocation expires at the end of the Energy Year, whichever occurs first.

The NJBPU recently set ADI Program block allocations for Energy Year 2023 (“EY2023”), which runs from June 1, 2022 through May 31, 2023. These MW block allocations are now in effect.

The EY2023 MW block allocations are as follows:

      • Net metered residential projects: 150 MW
      • Net metered non-residential projects (5MW and below): 150 MW +  any unused EY2022 capacity
      • Community solar: 150 MW
      • Interim subsection (t): 75 MW, or approximately 3 months from the Competitive Solar Incentive (“CSI”) Program’s first solicitation, whichever occurs first.

The ADI Program will therefore carry forward without interruption. The Board has made no change to the ADI Program incentive values at this time.

Solar Energy Projects – Ensuring a Timely and Smooth Transaction and Obtaining Necessary Development Approvals

The goal of every developer for a photovoltaic solar energy project is to ensure a timely and smooth transaction and obtaining necessary development approvals.

Identifying wetlands and wetland buffers, local tree ordinances, access easements and storm water management issues are just a few of the hurdles that a land use attorney must address.

    • Does your purchase or lease agreement contain an adequate due diligence provision affording you full protection and the right to access?
    • Do you have a strategy if your due diligence investigation discloses environmental issues?
    • Have you identified the land use issues related to easements, wetlands, storm water management, buffering, security, interconnection and other issues necessary for site plan approval?
    • What are best practices for due diligence investigation for underground tanks, wetlands, soil suitability and tree removal?
    • What are practical solutions and considerations when faced with lack of access?

Armed with the knowledge and experience to cure land use issues related to developing a solar energy system, assistance is needed in spotting these issues and providing practical and effective solutions to the permitting process to ensure your transaction proceeds on time and with few surprises.

Alan P. Fox, Esq., Chair of the firm’s Alternative Energy Group, has over 30 years of experience in land use practice in New Jersey.  He is ready to review these and other challenging matters in connection with a purchase agreement, lease agreement or option agreement, as well as land use approvals and permits related for your ground mounted, canopy and combined roof top photovoltaic solar energy project.

Please contact Alan if you are considering developing a photovoltaic solar energy project in New Jersey to ensure a timely transaction and obtaining the necessary development approvals.

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