**Results may vary depending on your particular facts and legal circumstances**
On behalf of a landowner of vacant land, formerly used as a chicken farm, located in Cumberland County, New Jersey, Alan P. Fox, Esq. negotiated an option to lease and land lease agreement with a developer regarding a utility scale electric battery storage facility. The material terms of this agreement included, among others, definition of “permitted uses”, a rental fee with an escalation clause, the decommissioning of the facility upon early termination or expiration of the term, posting of security to cover the cost of decommissioning, various types of insurance coverages and conditions related to an assignment of the agreement by the developer.
Please contact Alan P. Fox Esq. should you require legal assistance with a lease or purchase agreement related to electric battery storage facility located in New Jersey.
Atlantic Shores Offshore Wind, based in Brooklyn, is the first offshore wind developer to obtain a federal permit for construction off the New Jerseys coastline. Atlantic Shores was planning its Project 1 and Project 2 offshore wind farm developments off the New Jersey coast.
The U.S. Environmental Protection Agency’s Environmental Appeals Board revoked Atlantic Shores’ air permit, which had been granted in 2024. The company reports that construction cannot proceed without the necessary permits.
The company has submitted a request to the New Jersey Board of Public Utilities to terminate its Offshore Renewable Energy Certificate Order (OREC), effectively canceling both projects.
If you have questions related to the status in New Jersey’s offshore wind industry, please contact Alan P. Fox, Esq.
New Jersey recently received a $15.9 million federal grant to help with electric vehicle infrastructure projects pursuant to the Bipartisan Infrastructure Law’s $2.5 billion Charging and Fueling Infrastructure Discretionary grant program.
This grant includes $10 million to help build out the nation’s EV charging network and $5.9 million to repair or replace the state’s 247 existing stations.
To learn more about the Bipartisan Infrastructure Law, please contact Alan P. Fox, Esq.
Ørsted Americas, a Danish wind developer and industry leader, recently announced that it is halting development of two major offshore wind projects, proposed to be developed off of the shores of New Jersey (known as Ocean Wind 1 and Ocean Wind 2). A company statement blamed unfavorable changes in the economic conditions, including rising interest rates and supply chain issues. Industry commentators report other unfavorable conditions, including a strain on supplies like monopiles and other components, as well as long wait times for the ships needed to construct the wind turbines in the ocean.
Ørsted Americas CEO David Hardy issued a statement stating: “Macroeconomic factors have changed dramatically over a short period of time, with high inflation, rising interest rates, and supply chain bottlenecks impacting our long-term capital investments.”
Ørsted’s decision will have an unwelcomed impact on New Jersey’s development of alternative energy to reduce carbon emission under the state’s Energy Master Plan. New Jersey Gov. Phil Murphy, a propone of offshore wind, was upset with Ørsted’s decision to abandon its commitments to New Jersey. Gov. Murphy said in a statement: “I have directed my Administration to review all legal rights and remedies and to take all necessary steps to ensure that Ørsted fully and immediately honors its obligations.”
Nationally, notwithstanding the Biden Administration’s support for offshore wind, the number of active turbines in U.S. waters remains in single digits, and the energy output is significantly behind solar and onshore wind. CNN reports there will be about 140 gigawatts of solar (including both utility scale and rooftop) installed in the US by the end of this year, while offshore wind will only generate 42 megawatts. Two commercial-scale offshore wind projects – Vineyard Wind off the coast of Massachusetts and South Fork Wind off the coast of New York – are currently under construction.
Earlier this week, the Biden administration announced it approved plans for Dominion Energy to build the largest offshore wind farm to-date in the United States off the coast of Virginia. The Dominion project, known as Coastal Virginia Offshore Wind, is planned to be a 2.6-gigawatt wind farm that could eventually generate enough electricity to power over 900,000 homes. Ocean Wind 1 would be the next largest project the administration had approved – expected to generate 1.1 gigawatts, enough to power over 380,000 homes.
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.
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:
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.
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.
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:
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.
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.
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:
The Proposal adds private fleet charging depots located in or primarily operating in Overburdened Municipalities to those eligible for Make-Ready Incentives;
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.
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.
Alan P. Fox, Esq., Chair of Capehart Scatchard’s Alternative Energy Dept. and Co-Chair of the Real Estate and Land Use Dept., was a speaker for a national continuing legal education webinar held on December 13, 2022 and hosted by NBI.
Mr. Fox’s topic was Solar and Wind Land Use and Zoning Issues, which is a growing part of his land use law practice. He discussed the various factors that contribute to New Jersey’s and the nation’s growth and development of the solar industry, including federal and state tax incentive programs. He covered navigating critical issues necessary for obtaining permits and approvals for solar projects before local zoning and planning boards as well as state agencies. Mr. Fox reviewed various governmental incentive programs and recent changes to local zoning laws and state laws that encourage the development of solar and wind projects.
Mr. Fox is also scheduled to be a speaker for a NBI national webinar entitled Land use and Zoning Issues 2023, which is scheduled to take place on February 1, 2023. Mr. Fox will be speaking on Top Local Government Land Use Issues in 2023 and Airbnb, VRBO, and Other Short-Term Rentals: Land Use Challenges.
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.
On September 21, 2022, Governor Phil Murphy signed Executive Order No. 307, increasing New Jersey’s offshore wind goal by nearly 50 percent to 11,000 megawatts (MW) by 2040. The Executive Order increases the state’s current goal of 7,500 MW and also directs the New Jersey Board of Public Utilities to study the feasibility of increasing the target further.
In February 2021, Governor Murphy announced the creation of The New Jersey Council on the Green Economy. This Council was tasked with delivering a report defining the pathways for green job creations, development of workforce capacity and for innovation.
Governor Murphy also announced the release of the Green Jobs for a Sustainable Future report dated September 2022, created by the New Jersey Council on the Green Economy in partnership with the Governor’s Office of Climate Action and the Green Economy. The report outlines recommendations for growing an inclusive green workforce as New Jersey pursues its clean energy future.
This report finds that currently New Jersey’s green economy primarily consists of environmental infrastructure and energy efficiency jobs. Currently, total environmental infrastructure sector accounts for 35,700 jobs (ranked #14 nationally), which grew by about 5% from 2016 to 2019. The energy efficiency sector employs 32,900 jobs (rank #23 nationally), which grew by about 20% from 2016 to 2019. New Jersey ranks #15 nationally in renewable energy and fuel jobs, which accounts for about 15,000 jobs. This report forecasts adding 314,888 (net) new jobs over the next 10 years due to the green polices and New Jersey’s investments in clean energy. This report forecasts a net increase of 95,313 jobs in the Offshore Wind sector and 86,746 net increase in jobs for the Solar sector for the period between 2019 and 2031. New Jersey has the opportunity to make future green jobs growth a driving force for its economy.
Over the next twelve months, the New Jersey Office of Climate Action and the Green Economy will coordinate and direct a four-part initiative designed to launch, establish and respond to this Council’s recommendations. I will be monitoring this development.
The Offshore Wind Workforce and Skills Development Grant Challenge is a competitive grant program that will award grants to launch or expand workforce development and skills training programs focused on strengthening and diversifying the New Jersey offshore wind workforce. A total of $3.725 million will be available through this program. Individual awards can range from $100,000 to a maximum of $1,000,000. Priority for grants will be given to applicants that propose initiatives supporting training and job access for residents of Overburdened Communities. Grants are available for programs that will aid in launching or expanding innovative workforce training and skills programs focused on strengthening and diversifying New Jersey’s offshore wind workforce.
The Grant Challenge will be open to entities that can design and execute workforce and skills training programs. Such entities may include, but are not limited to, community-based organizations, workforce training organizations, labor unions, workforce placement intermediaries, technical high schools, community colleges, universities, non-profits, regional workforce development boards, and private companies.
Please contact Capehart Scatchard Renewable Energy Department Chair Alan P. Fox, Esq. if you are seeking assistance with an application for the Grant Challenge.
The New Jersey Board of Public Utilities (NJBPU) recently launched its Energy Manager Training Program for state employees. Every state agency is now required to have an Energy Manager to manage its energy use and costs.
The Energy Manager is responsible for developing an energy plan for its agency. The goal is to reduce the effects of climate change by increasing efficiency and reducing demand. This program is part of the Murphy Administration commitment through the Clean Energy Act, the Energy Master Plan and other major clean energy initiatives to make New Jersey a national clean energy leader.
Please contact Capehart Scatchard Renewable Energy Department Chair, Alan P. Fox, Esq. with any questions.
