Inflation Reduction Act Gives a Boost to the Biogas Sector

This week we're digging into how the Inflation Reduction Act could help power up the biogas sector.

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About the author:
Art Howson

Transcript

Welcome to Womble Perspectives, where we explore a wide range of topics, from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever changing legal landscape.

With a focus on innovation, collaboration and client service. We are committed to delivering exceptional value to our clients and to the communities we serve. And now our latest episode.

Welcome to the first episode in our November Saturday Series. 

In anticipation of our annual Energy Transition Survey Report coming out later this month, for the next few Saturdays, we’re focusing on the energy sector.

There’s no question that the energy industry is facing a variety of challenges – politics and modernization, for example. Another major obstacle: cost. 

While we’ll get to the other factors in future episodes, today we’re discussing the biogas sector and how the inflation reduction act could help alleviate the burden of cost.

The 369 billion dollar Inflation Reduction Act, enacted in August 2022, expanded and extended several tax credits and incentive programs for the development of clean energy projects. As mentioned, the biogas industry is one sector that stands to benefit tremendously from the legislation. The IRA expanded the investment tax credit under Section 48 of the Internal Revenue Code to include qualified biogas facilities that begin construction before 2025. Previously, this was available only for a more limited category of renewable energy technologies, most notably solar energy. 

Many projects using biogas in connection with generating electricity were previously eligible for an electricity production credit under Section 45 of the Code. This credit for renewable electricity generation not only remains in effect, but has been extended by the Act. Importantly, by adding “qualified biogas property” to eligible resources for the INVESTMENT TAX CREDIT, the Act allows for systems generating biogas for other purposes to benefit from federal tax credits, including the sale of renewable natural gas. That said, the Act specifies that a taxpayer may not claim both types of credit for qualified biogas property in respect of the same property, which prevents “double dipping” of the INVESTMENT TAX CREDIT and ELECTRICITY PRODUCTION CREDIT.  

The Act’s expansion of the investment tax credit opens the door for a much larger portion of the biogas industry to benefit from federal tax credits without being associated with the generation of electricity, and in many cases will permit project developers to pair the INVESTMENT TAX CREDIT with other existing incentives for biogas generation. Many renewable natural gas projects, for example, are not associated with generating electricity, but benefit from the ability to monetize environmental attributes by participating in the market for Renewable Identification Numbers (R I N’s) under the EPA’s Renewable Fuel Standard Program or credits under California’s Low Carbon Fuel Standard program. The expansion of the INVESTMENT TAX CREDIT to cover qualified biogas property will allow certain projects to engage with those programs while also claiming the INVESTMENT TAX CREDIT.

The definition of “qualified biogas property” under the INVESTMENT TAX CREDIT can be summarized as property that is part of a system used to convert biomass into a gas consisting of no less than 52 percent methane by volume and captures such gas for sale or productive use and not for disposal via combustion. Qualified biogas property includes equipment used in cleaning or conditioning the gas as part of such system. For INVESTMENT TAX CREDIT eligibility, qualified biogas property must begin construction by December 31, 2024.

The Act establishes the base amount of the INVESTMENT TAX CREDIT as six percent of the eligible costs of the energy property, with an increased rate of 30 percent of eligible costs for projects satisfying wage and apprenticeship requirements. 

The Act also provides for an additional 10 percent domestic content bonus credit amount and a 10 percent energy community bonus credit amount for eligible projects placed in service in 2023 and later. This creates a possible maximum INVESTMENT TAX CREDIT credit for qualified biogas property of 50 percent of eligible project costs.  

The Act also extends the Alternative Fuel Credit under IRC Section 6 4 2 6 through the end of 2024. This provides a tax credit of 50 cents per gallon of alternative fuel used by the taxpayer to produce an alternative transportation fuel mixture for sale or use in the taxpayer’s business, which includes the use of renewable natural gas as transportation fuel. Beginning in 2025, the Alternative Fuel Credit will transition to the newly created Clean Fuel Production Credit under Section 45 Z of the Code. Eligibility for the new Clean Fuel Production Credit will be determined based on the life-cycle emission levels of fuels used in transportation, and the credit will expire in 2027. 

Another component of the Inflation Reduction Act of interest to the biogas industry is an additional 1.965 billion dollars for the existing Rural Energy for America Program (REAP). REAP provides grants and loans to farmers and small rural businesses for energy efficiency improvements and renewable energy systems—including eligible biogas technologies. REAP incentives have traditionally been in high demand, with many applicants, and this funding is designed to better meet demand for the popular program.

The potential for biogas production in the U.S. is vast and could play a key role in reaching the Biden Administration’s goal of reaching carbon neutrality by 2050. The industry recycles unused food, wastewater and animal waste into renewable energy and soil products that reduce the need for greenhouse gas-generating fossil fuels. According to the American Biogas Council, if the U.S. built out its biogas infrastructure, it could generate enough renewable electricity to power 9.3 million homes. Such a build-out also would create an estimated 25,000 permanent new jobs, according to the Council.

That’s it for this week’s episode, thanks for listening.

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