Environmental and Energy Law Update
        A blog from the attorneys of Verrill

        MPUC Adopts Safe Harbor for Determination of “Discrete Electric Generating Facilities,” a Qualification for Net Energy Billing and Distributed Generation Programs

        September 23, 2020

        Yesterday, all three Maine Public Utilities Commission Commissioners agreed to adopt a new standard for the determination of what facilities qualify as “discrete electric generating facilities” under the MPUC’s Distributed Generation and Net Energy Billing rules. This has been an issue of significant concern among developers given the ambiguity associated with the definition. The Commission considered three requests for advisory rulings related to this topic, Borrego’s, TurningPoint’s, and Clean Energy Collective’s.

        In short, to provide greater clarity and certainty, Commissioner Davis proposed a new safe harbor standard that would apply to facilities with a combined size of 5MW or greater that are operated by the same entity, affiliates, partnerships, etc., or those that have a shared financial interest. The proposed safe harbor is an overlay to the existing multi-factor test that the MPUC applies to the analysis.

        Under the proposed safe harbor:

        • Facilities more than 5 miles apart, measured at the closest point, would be presumed to be discrete facilities
        • Facilities less than 1 mile apart, measured at the closest point, would not be discrete facilities
        • Facilities between 1 and 5 miles apart, measured at the closest point, must meet all of the following criteria to be considered discrete facilities:
          • No sharing of development resources, EPC etc., unless it is proved that there are no economies of scope or scale result from the sharing
          • The DEP has not determined that the facilities will be considered under the “common scheme of development” standard
          • No common interconnection point, or interconnection costs
          • No common permanent financing, except that early financing associated with site control and permitting is permissible
          • The balance of system elements/costs may not be shared
          • No common access point/right of way

        Commissioner Davis also proposed that as part of the Distributed Generation procurement, bidders would have to provide an affidavit related to these factors. Moreover, Commissioner Davis proposed that any transfer of ownership must prohibit common long-term investment or financing.

        Commissioner Davis then explained that Borrego’s projects A & B, and C & D would not meet either the existing multi-factor test, or the new test; TurningPoint’s projects G & H, would not meet either test, and TurningPoint’s projects E & F would not meet the multi-factor test, but would qualify for the new safe harbor. Commissioner Davis further elaborated that if the Commission adopted the new safe harbor it should not adopt the “parcel policy” suggested by others (Longroad, BlueWave, Clean Energy Collective).

        Chair Bartlett generally agreed with Commissioner Davis, except the he would not adopt the automatic exclusion of projects located less than one mile apart. He explained that two projects could be 0.98 miles apart, and otherwise meet all of the factors in the multi-factor test, so those should not be automatically excluded. Instead, the multi-factor test should be applied to reach a conclusion.

        Commissioner Williamson agreed with Chair Bartlett, and Commissioner Davis ultimately agreed as well.

        No doubt there will be winners and losers under this test, but it should provide greater certainty to developers. A written order has not yet been issued.

        Environmental and Energy Law Update

        The Environmental and Energy Law Update blog provides an analysis and discussion of the most critical and timely legal issues and announcements in the environmental, natural resource, and energy sectors.

        Subscribe

        Looking for more great content? Subscribe for regular legal updates and information delivered right to your inbox.

        Firm Highlights

        Alerts and Newsletters

        Maine’s New Employer Surveillance Law, 26 M.R.S. § 620-A

        Effective July 14, 2026 Maine employers that electronically monitor employees must comply with a new disclosure law effective July 14, 2026. Under...
        Press Releases

        Verrill Recognized by U.S. News as One of the Best Law Firms to Work for in 2026

        BOSTON, Mass., BANGOR and PORTLAND, Maine, GREENWICH and WESTPORT, Conn., – Verrill has been featured on U.S. News’ 2026 Best Companies to Work...
        Blog

        SECURE 2.0 Roth Catch-Up Rules and the 403(b) 15-Year Catch-Up: What Tax-Exempt Employers Need to Know

        Tax-exempt employers whose 403(b) plans offer catch-up contributions for participants age 50 and above should be well on their way to compliance with...
        Media Mentions

        Robert Keach Quoted in Law360 on SIMAD Summer Camp Bankruptcy Sale

        Verrill attorney Robert Keach was recently quoted in a Law360 article examining the Chapter 11 bankruptcy proceedings involving SIMAD Holdings and...
        Media Mentions

        Chris Tsouros Featured in Law360’s Coverage of Sports Real Estate Deals

        Verrill Partner Chris Tsouros was recently recognized in a Law360 article highlighting law firms involved in significant sports real estate projects...
        Blog

        What Maine’s New Employer Surveillance Law Means for Maine Employers

        Maine employers who monitor their workforce, whether through productivity software, GPS, call recording, or cameras, have a new compliance obligation...
        Blog

        Run Don’t Walk: The Implication of “While Supplies Last” Prize Promotions

        This month a big-chain grocery store has been offering daily mystery boxes during specific timed drops on a first-come, first-served basis, to users...
        Blog

        Maine’s Noncompete Statute is Reshaped for Health Care Workers: What You Need to Know

        Employers of individuals who are licensed under state law to perform, or provide, health care services in the State of Maine should be prepared for...
        Media Mentions

        Steven Davis Featured in the Environmental Business Journal

        Steven Davis, President of Verrill Strategic Consulting, was recently interviewed and featured in the Environmental Business Journal, Volume 39...
        Blog

        What is a Bonus for Purposes of ERISA?

        An ongoing dispute about a Department of Labor advisory opinion published last September raises a basic but unanswered question under the ERISA: What...
        Media Mentions

        Verrill Recognized by WMTW for Partnership Supporting Hunger Relief in Maine

        Verrill was recently featured in coverage by WMTW News 8 for its role in a collaborative effort to combat food insecurity across southern...
        Press Releases

        33 Verrill Attorneys, Across Four Offices, Recognized in the 2026 Chambers USA Guide

        BOSTON, Massachusetts, PORTLAND, Maine, WESTPORT, Connecticut, and WASHINGTON, D.C. – Verrill has been recognized as a Leading Firm in 14...