The Laws of Energy

While energy law and regulation is an established practice, new areas of growth are emerging in both traditional and renewable energy sectors. Legal counsel should pay attention to growth trajectories, particularly within the regulatory framework.

Revenue-Raising Proposals on Traditional Energy

President Obama’s Stimulus Bill (American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5) provides several revenue-raising proposals, including new or increased taxes targeted at the oil and gas sector, as well as energy-related spending proposals. While the administration justifies these proposals on the grounds of climate change, many of the proposals appear to be at cross purposes with the goal of U.S. energy independence. Congress passed a 2010 Budget Resolution on April 29, 2009 (Senate Concurrent Resolution 13). The administration issued its “Greenbook” of Budget tax proposals (entitled “General Explanations of the Administration’s Fiscal year 2010 Revenue Proposals”) on May 11, 2009. The Greenbook offers further details on the energy revenue-raising proposals, in addition to other tax proposals, and adds one new revenue-raising proposal in the energy area.

Cap-and-Trade

The Budget proposes a 100% full action "cap-and-trade" system, commencing in 2012. The goal of this system is to reduce greenhouse gas (GHG) emissions 14% over 2005 levels by 2020, and 83% by 2050. The "cap-and-trade" proposal has generated controvery. Business constituents, including oil and gas companies have lobbied Congress to enable auctioning, thereby saving costs by getting sellable permits for free. Environmental groups argue that such a system conflicts with the purpose of reducing greenhouse gases, in effect, allowing companies to continue polluting.

ARRA Funds Awarded

The U.S. Department of Energy (DOE) has announced allocations of more than $54 million in funding from the American Recovery and Reinvestment Act to support energy efficiency and renewable energy projects in Nevada, Rhode Island, Vermont, and Wisconsin. Under DOE's State Energy Program, states and territories have proposed statewide plans that prioritize energy savings, create or retain jobs, increase the use of renewable energy, and reduce greenhouse gas emissions.


New York State Developments

New York state enacted, in 2007, a number of recent laws to control carbon emissions. There is also a new Article 13 of N.Y. Energy Law, the State Green Building Construction Act, in 2008. This new Act is composed of four sections, including N.Y. Energy L. § 13-107, "Agency green building construction requirements." They also passed a law to establish a "Green Residential Building Grant Program," which directs NYSERDA to grant moneys subject to LEET. Finally, the legislature also enacted three closely-related laws to expand "Net metering" of alternative energy generating systems.

Sen. Parker stated that he has been "aiming for a long time" to work on energy and environmental issues. Among the issues he wants to address are "enrgy generation and transmission ... public transportation ... [and] Renewable energy...."

Assemblyman Cahill notes equally "abitious goals for renewable power and energy conservation," especially by funding the State Energy Plan, "mass transit", repowering "Old hydro facilities" and modernizing the states "electric grid." New York State Energy Research and Development Authority (NYSERDA) president Francis Murray, Jr. echoes "the most ambitious clean-energy program in the nation."

For more information on the legal issues surrounding state and national energy regulation, contact Sheheryar Sardar, Esq. at (631) 838-0178 or sardar@sardarlawfirm.com

Investor Visas

For many individuals, getting a visa comes down to one simple factor: circumstances. However, there is an opportunity for individuals to mold their circumstances through investor visas, called "E2 visas."

Investment Requirements

Foreign investors who invest a “substantial amount of capital” in a US business, and who will develop and direct the business may apply for the E2 investor visa, if their country of citizenship has the required treaty (Pakistan has this treaty) with the US. Foreign companies whose owners are nationals of a treaty country may potentially petition their employees for the E2 investor visa.

The investor must demonstrate that he or she has control of the enterprise by showing ownership of at least 50 percent of the business and possessing operational control through a managerial position or other means. The investor must have already invested in the US business or is actively in the process of investing in the business.

The investment must be substantial. The law does not specify a minimum dollar amount to qualify. Instead, “substantial investment” is defined as sufficient funds to ensure the investor’s financial commitment to the successful operation of the enterprise and large enough to support the likelihood that the investor will successfully direct and develop the business. The investment enterprise must be more than a marginal business solely for earning the investor’s living.

The business must a real and operating enterprise. If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.

Non-Immigrant Intent Requirement

The E2 investor visa has a nonimmigrant intent requirement. Nonimmigrant intent means the applicant must intend to depart the United States when the E2 status terminates. However, holders of E2 visas may renew their visas indefinitely as long as they continue to own and operate their E2 enterprise or work for a qualifying E2 business in the case of an employee.

Application Process

If the investor or employee is inside the US, he or she may apply directly to the US Citizenship and Immigration Services (USCIS, formerly INS) for a change of status, extension of stay, or change of employment without leaving the country.

The E2 category does not require a petition for employment, if the investor is outside of the US. This means the investor or employee may apply for the E2 visa on his or her own behalf directly to a US Embassy or Consulate abroad. The E2 visa may be issued for up to 5-year validity period and may be renewed indefinitely, as long as the applicant continues to satisfy the visa requirements. The actual length of the visa depends on the treaty between the US and the applicant's country and the consular officer's discretion.

You should understand that a change of status is not a visa. Once the person leaves the United States, he or she must apply for an E2 visa at a US consular office before returning to the United States. Only a consular office may issue a visa. The USCIS cannot issue a visa

Email us at sardar@sardarlawfirm.com for more information.