President Trump yesterday issued an executive order, “Ending Market Distorting Subsidies for Unreliable, Foreign Controlled Energy Sources” (the “Executive Order”), which could have a major impact on wind and solar energy project development, construction, and finance.
Background
President Trump signed into law on July 4 the One Big Beautiful Bill Act (the “Act”), which, among many other changes impacting renewable energy projects, modified the phaseouts for solar and wind projects otherwise eligible for the clean electricity production credit under Section 45Y of the Internal Revenue Code (the “PTC”) and the clean electricity investment credit under Section 48E of the Internal Revenue Code (the “ITC”).
For solar and wind projects, instead of beginning to phase out in 2032 or later based on the Inflation Reduction Act of 2022, the Act instead generally provides that solar and wind facilities are eligible for the PTC or ITC only if placed in service by the end of 2027. There is an exception to this deadline for projects on which construction begins before the one-year anniversary of enactment of the Act. Any such project would, under current beginning of construction guidance, generally still be eligible for the PTC or ITC, as applicable, if placed in service by the end of the fourth calendar year following the year in which construction began.
Executive Order
The Executive Order issued yesterday by President Trump instructs the Secretary of the Treasury within 45 days after passage of the Act to:
take all action as the Secretary of the Treasury deems necessary and appropriate to strictly enforce the termination of the clean electricity production and investment tax credits under sections 45Y and 48E of the Internal Revenue Code for wind and solar facilities. This includes issuing new and revised guidance as the Secretary of the Treasury deems appropriate and consistent with applicable law to ensure that policies concerning the “beginning of construction” are not circumvented, including by preventing the artificial acceleration or manipulation of eligibility and by restricting the use of broad safe harbors unless a substantial portion of a subject facility has been built.
The Executive Order also instructs the Secretary of the Interior to review its regulations, guidance, policies, and practices to determine whether any provide preferential treatment to wind and solar facilities in comparison to dispatchable energy sources, and to adjust such practices as needed to eliminate such preferences.
Leading to the passage of the Act, there was some negotiation between certain members of Congress and the Executive Branch about limiting the longstanding beginning-of-construction rules, which are contained in IRS Notices.
It remains to be seen whether and how Treasury will make adjustments to those rules in light of the Executive Order. The Foley team is continuing to monitor developments in respect of the Executive Order, the ITC, and PTC, and will provide updates as available.
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