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Legislative Update Through Three Quarters of the 2024 Nebraska Legislative Session

on Tuesday, 19 March 2024 in Dirt Alert: David C. Levy, Editor

The Second Regular Session of the 108th Nebraska Legislature convened on January 3, 2024.  It will adjourn sine die on April 18, 2024.  As of the publishing of this article, 15 legislative days remain in the session.

Through the first 10 days of the session, we identified and analyzed 193 legislative bills of interest, including 91 carryover bills from last session.  Links to those articles are here (Days 1‑5) and here (Days 6-10).  On February 21, 2024, the halfway point of the session, we provided a comprehensive update on all bills of interest.  That article is here.

We provide a chart at the end of this article updating the current status of each bill in the legislative process.  Immediately below, we analyze and summarize important updates for legislative bills of interest since our last publication.   

State Permitting of Renewable Energy Projects

LB 399 (Brewer) has undergone significant amendments since its hearing last session.  Because the Legislature has not yet voted on any of those proposed changes to the bill, we summarize all four amendments below:

  • AM 2702 (Natural Resources Committee) proposes to subject privately developed renewable energy generation facilities to discretionary approval by the Nebraska Power Review Board (the “Board”). Such facilities must currently comply with development standards and file a pre-construction notice to the Board.  Within 10 days of receiving that notice, the Board must acknowledge the facility’s right to build.  Nebraska Revised Statutes section 70‑1014.02.

This amendment would repeal that process.  Developers would need to instead apply for and obtain discretionary approval from the Board before construction. 

This amendment would also regulate new classes of industries.  Currently, private electric suppliers that generate or store energy from any renewable source qualify for Board approval under section 70-1014.02.  AM 2702 would exclude certain facilities that store energy or that generate energy from ethanol, hydrogen or feedstock not specified in section 70-1001.01(4).

Finally, a proposed facility would need to enter into a power purchase agreement with a Nebraska utility.  If the facility has an expected generating capacity of more than 10 megawatts, it would need to hold an additional public hearing in the county where the facility sits.  Said hearings could avoid some Open Meetings Act requirements.  The developer would need to receive comments and substantiate the “need” for the facility.  After the hearing, the Board would elect whether to approve the application.

  • AM 2848 (Frederickson) would permit energy storage facilities to qualify for Board approval under section 70-1014.02.
  • AM 2804 (Dungan) would enable privately developed renewable energy generation facilities to pursue either local permitting or approval from the Board. Whichever option the facility chose would be exclusive.
  • AM 2912 (Brewer) proposes to limit the Board’s approval discretion under AM 2702. Instead of needing Board “approval,” this amendment would require privately developed renewable energy generation facilities to file certain pre‑construction “certifications” with the Board.

The amendment would still require such facilities to form a power purchase agreement with a Nebraska utility and hold an additional public hearing in the county where the facility sits.  Also, this amendment would continue to regulate new classes of industries, including energy storage facilities and facilities that generate energy from ethanol, hydrogen or another feedstock not specified in section 70‑1001.01(4).

The Natural Resources Committee held a hearing on LB 399 on February 22, 2023.  Since then, Senator Bostelman designated this his priority bill.  The Legislature placed this bill on General File on February 29, 2024. 

On March 4, 2024, Senator Cavanaugh filed MO 1231 (Cavanaugh, J.) to recommit LB 399 to the Natural Resources Committee.  These amendments and Senator Cavanaugh’s motion all remain pending.

Election of Public Power District Directors

Senator Cavanaugh filed FA 234 (Cavanaugh, J.) in an attempt to kill LB 541 (Lowe).  LB 541 proposed to require partisan, primary elections for every public power district board of director position.  AM 1062 (Government, Military and Veteran Affairs Committee) added that only public power district with more than $500 million dollars in gross annual revenue would move to the partisan ballot at the Primary Election.  Under existing law, the threshold gross annual revenue amount is $40 million dollars.  Nebraska Revised Statutes section 32-606(2).   FA 234, however, would strike LB 541’s enacting clause.

LB 541 is Senator Lowe’s priority bill.  It advanced to Select File on January 31, 2024.  Senator Cavanaugh’s FA 234 remains pending.

Construction and Retirement of Energy Generation Facilities

AM 2863 (Natural Resources Committee) adds certain wind energy requirements into LB 1370 (Bostelman).  As initially proposed, LB 1370 would permit a public power district, public power and irrigation district, electric membership association, electric cooperative, municipality having a generation and distribution system or registered group of municipalities to request the Board to decommission or close any “dispatchable electric generation facility” over 100 megawatts.  The Board must then notify the developer, schedule a confidential hearing on the matter and issue a recommendation whether to decommission or close the facility.  Such recommendations would be advisory. 

AM 2863 contains several other additional provisions.  First, AM 2863 adds the substance of LB 956 (Bostar), in that, beginning July 1, 2025, the developer of a wind energy conversion system (“WECS”) would need to apply to the Federal Aviation Administration (“FAA”) for approval to install and operate a light-mitigating technology system.  Subject to FAA approval, the bill would also require installation of such light systems:

  • On any new WECS after July 1, 2025;
  • 30 days after repowering a WECS that existed before July 1, 2025;
  • 30 days after executing or extending a power purchase agreement if, as of July 1, 2025, the then-existing agreement has a remaining term of five or fewer years ; and
  • On every WECS by July 1, 2035.

Second, AM 2863 incorporates the substance of LB 120 (Bostelman), as amended by AM 2489 (Bostelman).  All electric generation facilities with transmission lines over 700 volts within a ten-mile radius of any military installation would need to provide notice to the military installation.  Such notice must include, among other things, a certification that no materials or other components of the facilities came from a foreign government or adversary.[1]  The bill would exempt electric suppliers that comply with the critical infrastructure protection requirements of the North American Electric Reliability Corporation from this requirement. 

The Legislature placed LB 1370, as amended by AM 2863, on General File on March 7, 2024.

Foreign-Owned Real Estate National Security Act

AM 2594 (Agriculture Committee) proposes to amend LB 1301 (DeKay, at the request of Governor Pillen).  LB 1301 would establish the Foreign‑Owned Real Estate National Security Act (“Act”).  The Act would prohibit any nonresident alien, excluding foreign nationals, foreign corporations, and foreign governments, from owning, acquiring title, or leasing for more than five (5) years any real estate in the State of Nebraska.  This prohibition would include easements.  A violation of the Act could result in divestment of the property. 

The Act would allow such individuals or entities to own land if used for industrial or manufacturing purposes.  This exception does not apply to a “Restricted Entity”[2] that own such land in a “Restricted Area,”[3] unless that Restricted Entity has a national security agreement with the Committee on Foreign Investment in the United States.   

AM 2594 adds that Restricted Entities may own or lease land for oil, gas or other hydrocarbon substances for 10 years or for as long as the substances are produced in commercial quantities.  Under this amendment, such restricted entities also may not qualify as railroads, public utilities or common carriers.  AM 2594 also adds to the definition of “Alien” all domestic corporations with aliens as an executive officer, manager, of a majority alien board of directors or board of trustees.

The Legislature placed LB 1301, as amended by AM 2594, on General File on March 12, 2024. 

Labor Standards for Tax Increment Financing

AM 2513 (Urban Affairs Committee) amends LB 948 (McDonnell) so that the additional requirements imposed for Tax-Increment Financing (TIF) projects only applies to those projects within counties of more than 60,000 inhabitants.  LB 948 would impose certain additional hiring and labor requirements on all general and sub-contracts.  

One, all construction contracts for the project must compensate laborers and mechanics at the prevailing rate of the locality of the project.  Two, at least 15% of the redevelopment contract labor must be from qualified apprentices, that is, a 501(c)(5) tax-exempt organization employed by a Nebraska, registered apprenticeship program.  Three, each redeveloper, contractor, and subcontractor under the redevelopment contract that has more than four employees must employ at least one qualified apprentice.  This would not apply if the employer attempted to employ such a qualified apprentice and the request is denied or the program fails to respond within 15 days (previously 5 days). 

The Legislature placed LB 948, as amended by AM 2513, on General File on February 20, 2024. 

Legislative Bills of Interested Approved

LB 569 (Bostelman), as amended by AM 971 (Government, Military, and Veterans Affairs), received final approval on March 11, 2024.  LB 569 proposes to require any county board or planning commission member, or his or her immediately family members, that has a direct or indirect financial interest in the development of an electric generation facility or the land used therefore, to hold a public hearing announcing said relationship. 

The bill would also require such county board of planning commission member to announce how he or she intends to vote on the matter.  As originally introduced, a county board or planning commission member could not participate in the vote.

LB 569, as amended, passed on Final Reading on March 7, 2024.  The Governor signed it on March 11, 2024.  Because the bill contains an emergency clause, it took effect immediately.

Attorneys at Baird Holm LLP have experience in legislative, municipal and local governmental matters.  Please do not hesitate to reach out if you have any questions.  Please see below for a complete chart tracking the progress of all legislative bills of interest. 

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[1] Current “foreign adversaries” include China, Cuba, Iran, North Korea, Russia and the Maduro Regime of Venezuela.  15 C.F.R. Section 7.4(a). 

[2] The Act defines “Restricted Entity” is a person, foreign government, or entity that is either on the U.S. Office of Foreign Assets Control’s sanctions list or is a person or entity that the U.S. Secretary of Commerce determines to have engaged in conduct significantly adverse to United States’ national security.   

[3]  The Act defines “Restricted Area” is defined as an area within a 10‑mile radius of any United States military installation under the jurisdiction of the U.S. Air Force or U.S. Strategic Command. 

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