September 14, 2018 – Professor Richard Wallsgrove ’08 spoke at Vermont Law Review and The New Economy Law Center at Vermont Law School’s 2018 Symposium on “Corporations and Climate Change: How Businesses are Changing the Environmental Landscape.”   He joined professors and practitioners from around the country to discuss the role of corporations and corporate governance in driving climate disruption and how the law can help hold the private sector accountable. Professor Wallsgrove presented “Sunshine and Blue Sky (Laws): Are Securities Laws Being Used to Stifle Solar Innovation?” on a panel titled, “Businesses as Drivers of Climate Disruption,” moderated by VLS Professor Mark Latham. His fellow panelists included Dr. Lisa Benjamin, Visiting Professor at Penn State Law, Benjamin A. Krass, and Brian Dunkiel.

Professor Wallsgrove outlined the evolution of the solar industry in Hawai‘i, and illustrated the potential role of community solar (sometimes call shared solar) in the state’s generation mix. He also described how community solar is evolving in other jurisdictions. In particular, Professor Wallsgrove described the impact, and potential future impact, of uncertainty about the role of securities regulations in shaping community solar projects. He described a tension between the federal and majority Howey test, in comparison with the Risk Capital test utilized in Hawai‘i and sixteen other states. Professor Wallsgrove argued that much of the industry chatter surrounding the securities laws has neglected important facets of the case law for both tests. He also explained how a more detailed analysis of community solar under the Risk Capital test can help to illustrate why it is unlikely for community solar, in the regulated electricity realm, to fall within the definition of a security.

In closing, Professor Wallsgrove noted that the architects of the securities laws hoped to protect “orphans and widows.” Are last century’s orphans and widows analogous to this century’s climate refugees? And if so, is it time to re-think how we regulate the solar industry?

MS 10-1-18