How Can a Renewable Energy Plant Be Sold for a Capital Gain as Opposed to an Ordinary Gain?

On December 19, 2025, the Federal Energy Regulatory Commission (FERC or the Commission) issued its much-anticipated order on show cause proceeding concerning the co-location of generation and load within the PJM Interconnection, L.L.C. (PJM) market.^[1] In the order, the Commission finds that PJM’s tariff is unjust and unreasonable because it does not provide sufficient clarity on the rates, terms, and conditions of service applicable to generators serving Co-Located Load and does not include transmission services appropriate for customers that are willing and able to limit their use of the transmission system in certain conditions. 

We are pleased to share the program materials and a recording of Akin’s recently presented webinar, “Navigating the Evolving Landscape of Corporate PPAs.”

On November 7, 2025, the New York Department of Environmental Conservation (NYSDEC) and the New Jersey Department of Environmental Protection (NJDEP) reversed their prior positions and approved Clean Water Act (CWA) Section 401 Water Quality Certifications and other environmental permits for the Transcontinental Gas Pipeline Company’s (Transco) Northeast Supply Enhancement Project (NESE). NESE is a 25-mile natural gas pipeline expansion project certificated by the Federal Energy Regulatory Commission (FERC) that is intended to deliver 400,000 dekatherms per day of natural gas produced in Pennsylvania to local distribution company customers in New York City through new facilities in Middlesex County, New Jersey and an underwater segment traversing the Raritan and Lower New York Bays.

The market for the direct procurement of energy by commercial and industrial buyers has been active in the U.S. for a decade.  In years past, buyers often engaged in such purchases on a voluntary basis to achieve their goals to use renewable energy.  These days, C&I buyers are turning to direct procurement or self-supply to obtain a reliable source of energy.  Sufficient and accessible energy from a local utility may not be available or may be materially delayed or trigger significant capital costs.  This is a material change driven in part by increased demand for electricity, including demand from data centers, EV infrastructure and industrial development.