Checklist · Energy

Developing a Renewable Energy Project: A Practical Checklist

16 U.S.C. § 824

Type: Checklist
Jurisdiction: National
Date: 2024-04-11
Topic: Energy

Utility-scale wind, solar, and battery storage projects fail for a small number of repeatable reasons: the developer signed leases before checking the mineral estate, entered the interconnection queue late, assumed a network upgrade number that a restudy tripled, or built a financial model on a tax credit rule that Congress changed. This checklist walks a project from raw land through notice to proceed, commercial operation, and decommissioning in fifteen gated phases, each with real check items and an explanation of the traps that kill deals. It covers site control and title diligence, the FERC interconnection process and cost allocation, land use entitlements and environmental review, offtake and counterparty credit, the tax credit and transfer structure, EPC and equipment supply contracting, financing conditions precedent, insurance, and long-term operations. Siting, permitting, and decommissioning requirements are state and local and vary enormously; federal tax credit rules, adders, and safe harbors have changed repeatedly and remain in flux. Treat every figure and deadline here as a prompt to verify current law, not as the law itself.

Developing a Renewable Energy Project: A Practical Checklist

Energy > Project Development | Published 11 April 2024 - Updated 17 October 2025 | UpLaw - uplaw.us

A renewable energy project is not an engineering exercise with legal paperwork attached. It is a stack of contracts, permits, and tax positions that either lines up or does not. When a project dies, it is almost never because the sun stopped shining.

Keywords: renewable energy project development, interconnection queue, network upgrades, power purchase agreement, tax equity, credit transferability, beginning of construction, domestic content, EPC contract, liquidated damages, site control, decommissioning bond, Endangered Species Act, notice to proceed

How to use this checklist

The phases below run roughly in sequence, but a competent development team works several in parallel — you cannot wait for a signed PPA to file your interconnection request, and you cannot wait for the interconnection study to start title work. What you can do is refuse to spend the next dollar until the current gate is cleared. That discipline is the entire discipline.

Two warnings before you start, and they are the two that matter most:

Siting, permitting, and decommissioning are state and local law. There is no national renewable siting code. A wind project in one county needs a conditional use permit and a 1,500-foot setback; the identical project across the state line goes to a state siting board that preempts local zoning entirely. Read your jurisdiction's actual ordinance and statute. Nothing in this checklist substitutes for that.

Federal tax credit law has changed, repeatedly, and is still changing. The Inflation Reduction Act of 2022 built the technology-neutral credits at Internal Revenue Code §§ 45Y and 48E, added transferability at § 6418 and elective payment at § 6417, and layered on prevailing-wage, apprenticeship, domestic-content, and energy-community rules. Legislation in 2025 then substantially curtailed the wind and solar credits — accelerating deadlines, adding placed-in-service cutoffs, and imposing restrictions tied to prohibited foreign entities — and Treasury and the IRS have issued follow-on guidance that narrowed the beginning-of-construction safe harbors for larger facilities. Do not rely on any credit figure, percentage, deadline, or safe harbor stated in this or any other secondary source. Confirm the current statute and the current IRS guidance with tax counsel before it goes in your model. For the underlying federal income tax framework, see Business Taxation: A Comprehensive Guide to Entity Choice and Federal Income Tax; for the regulatory architecture this checklist sits inside, see Energy Law: A Comprehensive Guide to Regulation, Markets, and Project Development and, for the full map of UpLaw's energy materials, The Energy and Utilities Toolkit.

Our running example. Meridian Arc Renewables is developing Cottonwood Flats Solar, a 180 MWac photovoltaic project with a 60 MW / 240 MWh battery in Pearl County. Its principal landowner is the Vance family. Its target offtaker is Halcyon Data, a hyperscale data center operator. Cottonwood Flats will teach us, expensively, what a network upgrade is.

Phase 1 — Site control: options, leases, and title diligence

[ ] Identify the site envelope, including buildable acreage after setbacks, wetlands, and easements — not gross acreage.
[ ] Sign option agreements (not leases) during development, with a defined option term, extension rights, and per-acre option payments; convert to lease at notice to proceed.
[ ] Confirm the lease/easement grants everything you need: solar or wind rights, access, laydown, construction easements, collection-line and gen-tie corridors, met-tower and monitoring rights, and the right to record a memorandum.
[ ] Obtain a title commitment and read every exception — do not rely on the landowner's description of the property.
[ ] Run the mineral estate to ground. Is it severed? Who owns it? Are there existing oil, gas, or coal leases, and are they held by production?
[ ] Obtain surface use agreements, non-disturbance agreements, or accommodation waivers from mineral owners and lessees.
[ ] Obtain subordination and non-disturbance agreements (SNDAs) from every mortgagee of the landowner's fee.
[ ] Confirm the lease term exceeds the debt tenor plus the PPA term plus decommissioning, with extension options.
[ ] Secure assignment and financing consents: lender step-in, collateral assignment, notice-and-cure to lenders.
[ ] Check for conservation easements, agricultural preservation restrictions, CRP contracts, and drainage-district rights.
[ ] Order title insurance for the leasehold (ALTA leasehold policy with the endorsements your lender will demand).

Why it matters, and the traps. Site control is the only asset a development-stage company actually owns, and it is the one most often defective. Three traps recur.

The severed mineral estate. Oil-and-gas and mineral property law is state law, and it varies materially — there is no national rule of surface-mineral priority, and the answer in Texas is not the answer in Colorado, North Dakota, or Pennsylvania. That said, in most oil-and-gas states the mineral estate is the dominant estate: the mineral owner has an implied right to use as much of the surface as is reasonably necessary to develop the minerals, and the surface owner — your lessor — cannot simply grant that away. Texas courts moderate this with the accommodation doctrine, recognized in Getty Oil Co. v. Jones (Tex. 1971), which requires the mineral owner to accommodate an existing surface use where reasonable alternatives exist; other states apply their own variants, and several have none. A field of racked modules is exactly the kind of surface use a driller will argue is not entitled to protection. You cure this with a recorded surface use or non-disturbance agreement from the mineral owner, negotiated before you have spent money. See Oil and Gas Leasing: A Practical Checklist for the other side of that negotiation.

The landowner's mortgage. If the Vance family's farm carries a bank mortgage recorded before Meridian Arc's lease, a foreclosure can extinguish the lease and the project with it. The SNDA is not paperwork; it is the difference between a financeable and an unfinanceable site.

Option, not lease. Paying full lease rent through a four-year development cycle burns capital on a project that may never reach notice to proceed. Options let you walk. The general drafting principles are covered in Commercial Leases: A Comprehensive Guide to Negotiating and Drafting and the conveyancing mechanics in The Real Estate Transactions Toolkit.

Phase 2 — The interconnection queue: get in early, and price the upgrades

[ ] Identify the transmission provider (ISO/RTO or a vertically integrated utility) and the applicable tariff.
[ ] Confirm whether you are a large generator (generally above 20 MW, under FERC's Large Generator Interconnection Procedures) or a small generator (Order No. 2006's SGIP/SGIA).
[ ] Meet the tariff's entry requirements: site control demonstration, commercial readiness deposit, study deposit — these have tightened sharply.
[ ] Choose your service level: Energy Resource Interconnection Service (ERIS) versus Network Resource Interconnection Service (NRIS) — and understand what each buys you and what your offtaker's capacity accreditation requires.
[ ] File the interconnection request and track the cluster study cycle: scoping, system impact study, facilities study, and any restudy.
[ ] Model withdrawal penalties and the cascading effect of higher-queued projects dropping out.
[ ] Price the network upgrades with a real contingency, not the first study number.
[ ] Understand who funds upgrades, whether you get crediting/reimbursement, and the tax gross-up question on contributions in aid of construction (IRS Notice 2016-36 provides a safe harbor under which qualifying network upgrade payments are not taxable income to the transmission owner — confirm its current application).
[ ] Negotiate and execute the Large Generator Interconnection Agreement (LGIA) — and read the milestone and default provisions as if they were a loan covenant, because they function as one.
[ ] Separately secure transmission service if you are delivering to a load outside the interconnection point.
[ ] Obtain FERC market-based rate authorization under Federal Power Act § 205 (16 U.S.C. § 824d), self-certify Exempt Wholesale Generator status where applicable, and address PURPA qualifying facility status if the project is small enough to want it (16 U.S.C. §§ 2601–2645).

Why it matters, and the traps. The queue is where projects go to die. FERC's Order No. 2003 (2003) created the pro forma LGIP and LGIA; Order No. 845 (2018) reformed parts of it; and Order No. 2023 (2023, with rehearing order in 2024) replaced serial "first-come, first-served" processing with first-ready, first-served cluster studies, hard study deadlines with penalties on transmission providers, heightened site control and commercial readiness deposits, and stiffer withdrawal penalties. The point of the reform was to stop speculative projects from clogging the queue. The effect on a real developer is that you must be further along — more site control, more money at risk — earlier.

Here is the trap, and it is the one that killed our example.

Worked example — Cottonwood Flats meets a restudy. Meridian Arc enters the cluster with a system impact study assigning it roughly $9 million in network upgrades, comfortably inside a model that clears a 9% unlevered return. Two projects ahead of it in the cluster then withdraw. Because the upgrades those projects were funding are no longer being built, and because Cottonwood Flats' output still needs somewhere to go, the restudy reassigns the cost of a transformer replacement and a rebuild of a 20-mile 138 kV line to the remaining cluster members. Cottonwood Flats' allocation comes back at $47 million. The project's levelized cost of energy rises by roughly $9/MWh; Halcyon Data's indicative PPA price does not move; the return falls to 5.1%. Meridian Arc now has three choices: eat the cost and lose money, negotiate a higher PPA price and probably lose the offtaker, or withdraw and forfeit its deposits and four years of development spend.

The lesson is not "check the study." It is: run the restudy sensitivity before you commit, model your allocation under scenarios in which 30–60% of the cluster withdraws, and never sign a fixed-price PPA whose economics only work at the first study's upgrade number. Where you can, negotiate PPA price adjusters or termination rights tied to a network upgrade cost threshold. FERC's own procedures and their judicial review are the subject of Administrative Law: A Comprehensive Guide to Agency Action and Judicial Review.

Phase 3 — Resource assessment and energy yield

[ ] Commission an independent energy yield assessment from a firm your lenders will accept.
[ ] Understand the exceedance probabilities: P50 (central estimate), P90, P99 — lenders size debt off P90/P99, not P50.
[ ] For wind, install met towers or lidar with a defensible measurement campaign and long-term correlation to a reference dataset.
[ ] For solar, confirm the irradiance dataset, soiling losses, degradation rate, DC:AC ratio, and tracker assumptions.
[ ] For storage, model round-trip efficiency, augmentation, degradation, and the cycling regime the offtake actually requires.
[ ] Model curtailment, congestion, and negative pricing exposure at your node — not at the hub.

Why it matters, and the traps. The gap between P50 and P99 is where the equity return lives and where the debt service coverage ratio is set. Two errors are chronic: modeling revenue at the trading hub while the project settles at a congested busbar node (this is basis risk, and it can be worth $5–15/MWh in the wrong market), and ignoring negative pricing in high-penetration zones where a plant is paid to stop generating. A PPA that settles at the hub while the plant settles at the node has handed the developer a merchant basis position it never priced.

Phase 4 — Land use and permitting: zoning, setbacks, conditional use, decommissioning security

[ ] Determine the permitting authority: county/township zoning, a state siting board with preemptive jurisdiction, or both.
[ ] Pull the actual ordinance. Check use classification, setbacks (property line, occupied structure, road, participating vs. non-participating parcels), height, lot coverage, and glare/shadow-flicker/noise limits.
[ ] Apply for the conditional use permit / special use permit / site plan approval and calendar every notice, hearing, and appeal deadline.
[ ] Address moratoria and mid-stream ordinance amendments — and preserve any vested rights argument under state law.
[ ] Negotiate road use / haul route agreements, drain-tile repair commitments, and construction traffic plans.
[ ] Negotiate the PILOT / tax abatement / community benefit agreement with the taxing jurisdictions.
[ ] Post the required decommissioning financial assurance — surety bond, letter of credit, or escrow — and read how the amount is recalculated over time and whether salvage value may be netted.
[ ] Obtain building, electrical, stormwater (NPDES construction general permit), and floodplain permits.
[ ] For wind (and tall structures generally), file FAA Form 7460-1 obstruction notice under 14 C.F.R. Part 77.
[ ] If any project component sits on federal land, secure a BLM right-of-way grant under the Federal Land Policy and Management Act, 43 U.S.C. § 1761.

Why it matters, and the traps. This is where the state and local warning bites hardest. Some states (New York's Office of Renewable Energy Siting is the well-known example) centralize major renewable siting at the state level and displace local zoning; others leave everything to a five-member county board that can adopt a 2,000-foot setback at a Tuesday meeting and render your entire site unbuildable. The mechanics of running an entitlement campaign — the application, the hearing record, the findings, the appeal — are covered in Securing Land Use Entitlements for a Development Project: A Practical Checklist, and the doctrine behind it in Land Use and Zoning Law: A Comprehensive Guide and The Land Use and Development Toolkit.

Two specific traps. Setbacks measured from non-participating parcels can shrink buildable acreage by 40% while the gross acreage in your model stays the same — always compute buildable acreage after the ordinance, not before. And decommissioning security is not a formality: counties increasingly require the bond amount to be set at gross removal cost without salvage credit, escalated annually, and posted before construction. That is real cash or real LC capacity, and it belongs in the model on day one.

Phase 5 — Environmental review: NEPA, species, wetlands, cultural resources

[ ] Determine whether there is a federal nexus — federal land, a federal permit (including a Clean Water Act § 404 permit), federal funding, or a federal approval. No nexus, no NEPA.
[ ] If NEPA applies, scope the level of review (categorical exclusion, environmental assessment, environmental impact statement) with the lead agency and confirm the agency's current NEPA procedures — the government-wide CEQ regulations were rescinded in 2025 and agencies now apply their own.
[ ] Complete critical issues analysis: threatened and endangered species, migratory birds, bats, eagles, wetlands, cultural and tribal resources, prime farmland, viewshed.
[ ] Conduct the survey seasons — they are seasonal, and missing a survey window costs a full year.
[ ] Endangered Species Act (16 U.S.C. § 1531 et seq.): if there is a federal nexus, § 7 consultation with the Fish and Wildlife Service or NMFS; if not, evaluate § 9 take exposure and whether an incidental take permit with a Habitat Conservation Plan under § 10(a)(1)(B) is needed.
[ ] Migratory Bird Treaty Act (16 U.S.C. §§ 703–712): the legal status of incidental take has reversed with successive administrations — confirm the current position rather than relying on any prior memorandum.
[ ] Bald and Golden Eagle Protection Act (16 U.S.C. §§ 668–668d): assess eagle use and, for wind, evaluate an eagle incidental take permit; FWS has revised the permit regulations, so verify the current framework.
[ ] Clean Water Act § 404 (33 U.S.C. § 1344): delineate wetlands and waters, and apply Sackett v. EPA, 598 U.S. 651 (2023), which limited "waters of the United States" to relatively permanent bodies with a continuous surface connection to traditional navigable waters.
[ ] National Historic Preservation Act § 106 (54 U.S.C. § 306108): consult the SHPO and, where the undertaking may affect properties of religious and cultural significance to a Tribe, the relevant THPO and the Tribe itself, where a federal undertaking exists.
[ ] Treat tribal consultation as government-to-government engagement with a separate sovereign — not as a subcategory of state or local process — and identify early whether any project component touches trust or restricted land, a reservation, or ceded-territory treaty rights.
[ ] Order a Phase I Environmental Site Assessment on any parcel with industrial or agricultural chemical history.

Why it matters, and the traps. Environmental review is a schedule risk far more than a merits risk — most renewable projects clear it, but they clear it eighteen months later than the model assumed. Two doctrinal points matter now. The Fiscal Responsibility Act of 2023 amended NEPA to impose page limits and deadlines on agency review. And in Seven County Infrastructure Coalition v. Eagle County (U.S. 2025), the Supreme Court held that courts owe substantial deference to an agency's NEPA scoping judgments and that an agency generally need not analyze the effects of separate upstream or downstream projects it does not regulate — a decision that narrows NEPA's litigation surface, though it does not eliminate it.

Note the trap in the absence of NEPA: a purely private, non-federal project has no NEPA obligation but still faces ESA § 9 take liability, state environmental review statutes (California's CEQA, New York's SEQRA, and their cousins), and neighbor litigation. Do not confuse "no NEPA" with "no environmental risk." The federal environmental statutes are treated in depth in Environmental Law: A Comprehensive Guide to CERCLA, RCRA, the Clean Air Act, and the Clean Water Act and The Environmental Law Toolkit; the diligence protocol is in Phase I Environmental Site Assessment and All Appropriate Inquiries: A Practical Checklist.

Phase 6 — Offtake: PPA, hedge, or merchant — and the counterparty's credit

[ ] Choose the structure: physical PPA, virtual PPA (a financial contract for differences), a bank-provided fixed-volume hedge or proxy revenue swap, a capacity contract, or a merchant strategy.
[ ] Nail the settlement point. Busbar or hub? Who bears basis and congestion?
[ ] Define the product: energy only, or energy plus RECs? Who owns the environmental attributes and the capacity value?
[ ] Set the guaranteed commercial operation date, the delay damages, and the outside termination date.
[ ] Define availability/output guarantees, deemed generation on buyer-caused curtailment, and the curtailment cost allocation.
[ ] Diligence the offtaker's credit: rating, parent guarantee, letter of credit, collateral thresholds, adequate assurances.
[ ] Draft change-in-law, force majeure, and regulatory-out provisions with care — including who bears a tariff or tax-law change.
[ ] Confirm the term is long enough for the debt (a 15-year PPA against a 15-year loan leaves no tail; lenders will haircut).
[ ] Choose the dispute-resolution forum deliberately.
[ ] Confirm derivative/accounting treatment of a VPPA with counsel and auditors.

Why it matters, and the traps. The offtake is the project's revenue. Lenders lend against the contract, not the plant — which means the offtaker's balance sheet is effectively your balance sheet. An investment-grade utility PPA and an unrated corporate PPA are different financial products even at the same price. When Halcyon Data offers Meridian Arc $47/MWh but will not post a parent guarantee, the correct response is not to celebrate the price; it is to price the credit.

The most expensive drafting error in the whole document is the delay damages / guaranteed COD interaction with the EPC schedule. If the PPA imposes delay LDs from day one and the EPC contract gives the contractor a 90-day grace period and a lower LD rate, the developer eats the gap. Back-to-back your LDs. For clause-level drafting, see The Commercial Contracts Toolkit: Drafting, Reviewing, and Enforcing Business Agreements and Drafting an Arbitration Clause: A Practical Checklist; for what a court will actually award if the deal breaks, Contract Damages: How Courts Make the Injured Party Whole.

Phase 7 — The tax structure: credits, transferability, and beginning of construction

[ ] Determine which credit regime applies to your facility and placed-in-service date — the legacy §§ 45/48 credits or the technology-neutral §§ 45Y/48E credits — and whether the credit is still available to your technology at all under current law.
[ ] Choose production credit versus investment credit with a modeled comparison (high-capacity-factor wind often favors production; solar-plus-storage often favors investment, but this turns on the current statute).
[ ] Choose the monetization route: traditional tax equity (partnership flip, sale-leaseback, inverted lease), a § 6418 transfer of the credit for cash, § 6417 elective payment if you are an eligible tax-exempt or governmental entity, or a hybrid "T-flip."
[ ] Document beginning of construction with contemporaneous evidence — the historic tests are the Physical Work Test and the Five Percent Safe Harbor, with a continuity requirement (IRS Notice 2013-29 and its successors; Notice 2018-59 for the ITC) — but confirm the current rules, which were narrowed for larger wind and solar facilities by 2025 guidance.
[ ] Confirm eligibility under any prohibited foreign entity / material assistance restrictions now attached to the credits, and build the supply-chain representations you will need into your equipment contracts.
[ ] Model depreciation: five-year MACRS for qualifying wind and solar property, plus bonus depreciation as then in effect.
[ ] For an investment credit, calendar the five-year recapture period (IRC § 50(a)) and control every event that could trigger it.
[ ] Paper the tax indemnities, credit recapture indemnity, and (for a § 6418 transfer) the transferee's recapture and excessive-credit-transfer exposure, plus tax credit insurance.
[ ] Get a tax opinion at the level your investors require.

Why it matters, and the traps. Repeat the warning, because it is the single largest accuracy risk in this document: the tax rules have moved and are still moving. The IRA's architecture — technology-neutral credits, transferability, adders — was reshaped by 2025 legislation that curtailed the wind and solar credits and added foreign-entity restrictions, and by Treasury guidance that tightened beginning-of-construction proof. A financial model built on last year's rules is not conservative; it is wrong.

Two structural traps survive every rule change. First, beginning of construction is an evidentiary problem, not a legal one. The physical work must be of a "significant nature," and the safe-harbor spend must be genuinely incurred — meaning, for an accrual taxpayer, that economic performance has occurred. Diligence teams three years later will ask for the purchase orders, the delivery records, the photographs, and the board minutes. Build the file as you go. Second, recapture discipline: an investment credit vests 20% per year over five years, and a foreclosure, a partner's exit, or a change in the project's use can claw it back. Every financing document must be screened for recapture triggers.

Phase 8 — Domestic content, prevailing wage, apprenticeship, and the bonus adders

[ ] Confirm whether prevailing wage and apprenticeship compliance is required to access the full credit rate, and whether your project qualifies for any small-project or beginning-of-construction exception.
[ ] Flow prevailing-wage and apprenticeship obligations down to the EPC contractor and every subcontractor, with audit rights, certified payroll delivery, and indemnities.
[ ] Build the correction and penalty mechanism into the EPC contract — the statutory cure provisions require back pay plus penalties, and someone must be contractually responsible.
[ ] If claiming the domestic content bonus, obtain manufacturer certifications and the cost breakdowns needed to run the required calculation, and confirm the current safe harbor tables.
[ ] Assess the energy community bonus (brownfield sites; statistical areas with fossil-fuel employment or unemployment thresholds; retired coal plant/mine census tracts) against current IRS mapping guidance.
[ ] For applicable smaller facilities, evaluate the low-income community bonus allocation program.
[ ] Keep the compliance file audit-ready: certified payrolls, apprenticeship hour and ratio records, good-faith request documentation.

Why it matters, and the traps. The adders are worth real money, and they are earned through paperwork produced by other people. The developer claims the credit; the electrician's subcontractor generates the certified payroll. If that flow-down is missing from the EPC contract, the developer is claiming a credit it cannot substantiate. Insert the obligations into the EPC before signature — retrofitting them costs a change order every time. And note the apprenticeship rules require both labor-hour percentages and journeyworker ratios, with a good-faith-effort exception that must be documented at the time, not reconstructed later.

Phase 9 — EPC contract: scope, schedule, delay LDs, and performance guarantees

[ ] Choose the delivery model: full-wrap EPC (single point of responsibility, higher price) versus multi-contract/BOP-plus-owner-supplied-equipment (cheaper, but the developer owns the interface risk).
[ ] Define scope by reference to a complete Employer's Requirements exhibit — the fights are always about what was excluded.
[ ] Set the Guaranteed Mechanical Completion and Guaranteed Substantial Completion dates and back them out from the PPA's guaranteed COD with float.
[ ] Set delay liquidated damages at a rate that covers PPA delay damages plus debt service, with a cap.
[ ] Set performance liquidated damages tied to a capacity test / performance ratio test, with a buy-down formula and a minimum acceptance threshold below which the owner may reject.
[ ] Cap aggregate liability (commonly a stated percentage of contract price) and carve out fraud, willful misconduct, IP indemnity, and third-party claims from the cap.
[ ] Require security: performance and payment bonds, a parent guarantee, and/or a letter of credit; plus retainage released at substantial and final completion.
[ ] Define change orders, force majeure (and whether tariffs, trade actions, or supply-chain disruption qualify), and the owner's suspension and termination-for-convenience rights.
[ ] Require lien waivers with every payment application and manage state mechanic's lien exposure.
[ ] Execute a lender consent / direct agreement giving the financing parties step-in rights.
[ ] Flow down PWA, domestic content, and forced-labor representations from Phases 8 and 10.

Why it matters, and the traps. The EPC is the project's largest single contract and the one most often signed under schedule pressure. The classic failure: the PPA's guaranteed COD sits three months after the EPC's guaranteed substantial completion, but the EPC grants force majeure relief for events (a module tariff, a transformer lead-time blowout) for which the PPA grants the developer nothing. The developer has bought an unhedged schedule risk. Reconcile the two documents clause by clause before signing either. Where liquidated damages are attacked as penalties, courts generally enforce them if the amount was a reasonable forecast of harm at contracting and actual damages were difficult to estimate; a rate untethered to any harm analysis is vulnerable.

Phase 10 — Equipment supply, warranties, and supply-chain diligence

[ ] Sign module/turbine and BESS supply agreements early enough to hold the delivery slot, with price escalation limited and change-in-law/tariff risk allocated.
[ ] Diligence the warranty: product warranty term, performance/degradation warranty, serial-defect clause, and the creditworthiness of the warrantor (a 25-year warranty from a manufacturer with a five-year balance sheet is a marketing document).
[ ] Obtain a bankability review of the supplier and, where available, warranty insurance.
[ ] Confirm compliance with the Uyghur Forced Labor Prevention Act (Pub. L. 117-78), which creates a rebuttable presumption that goods made wholly or in part in Xinjiang, or by listed entities, are barred from import under 19 U.S.C. § 1307 — for solar, this means full polysilicon traceability documentation to the quartz.
[ ] Contractually require the supplier to deliver the traceability package, and allocate the cost and schedule risk of a CBP detention to the supplier.
[ ] Assess antidumping/countervailing duty, safeguard, and Section 232/301 tariff exposure — these change frequently; confirm current rates and scope.
[ ] For batteries: confirm UL 9540 / UL 9540A test data, NFPA 855 siting and fire-protection compliance, and the local fire marshal's requirements.
[ ] Plan augmentation and capacity-maintenance obligations across the storage asset's life.

Why it matters, and the traps. The UFLPA is not a compliance footnote — it is a schedule and financing risk. Containers of modules have sat detained at U.S. ports for months while importers assembled traceability files, blowing through guaranteed CODs and beginning-of-construction windows. The remedy is contractual: make the supplier deliver a complete traceability package as a condition to shipment, and make late delivery caused by a detention a supplier-risk event with LDs. Tariff and trade-remedy exposure is treated at length in International Trade Law: A Comprehensive Guide to Customs, Tariffs, and Trade Remedies and The International Trade and Sanctions Toolkit.

Phase 11 — Financing: term sheet, conditions precedent, and the independent engineer

[ ] Assemble the capital stack: construction loan, tax equity bridge, term/back-leverage debt, sponsor equity, tax equity or credit transfer proceeds.
[ ] Negotiate the term sheet: tenor, DSCR sizing (off P90/P99), amortization, cash sweep, distribution tests, and the tail beyond the PPA.
[ ] Survive the independent engineer's review of the yield assessment, the EPC, the equipment, and the O&M plan — and the insurance consultant's and market consultant's reviews.
[ ] Complete the conditions precedent list early; it will run to 60–100 items and every one of them is someone else's signature.
[ ] Deliver consents and direct agreements from the offtaker, EPC contractor, equipment supplier, O&M provider, and landowner.
[ ] Perfect the security package: mortgage/deed of trust on the leasehold, Article 9 filings on the equipment and accounts, pledge of the project company's membership interests, assignment of contracts and permits.
[ ] Deliver the leasehold title policy with lender endorsements, ALTA survey, and the legal opinions.
[ ] Confirm the tax equity or § 6418 transfer documents, the funding conditions, and the flip mechanics.

Why it matters, and the traps. Conditions precedent are where development shortcuts surface. The missing mineral non-disturbance agreement from Phase 1, the unsigned SNDA, the permit condition nobody read — all of it appears here, four days before a funding date, priced as leverage. The diligence discipline is the same one used in corporate transactions and is worth borrowing wholesale: see Conducting Merger and Acquisition Due Diligence: A Practical Checklist.

Phase 12 — Insurance and risk transfer

[ ] Bind builder's risk / construction all-risk covering the full replacement value plus soft costs and delay in start-up (DSU) coverage.
[ ] Bind operational property coverage — and read the natural catastrophe sublimits carefully (hail, wildfire, wind, flood). Hail deductibles on tracker-mounted solar have become a defining commercial issue.
[ ] Bind general liability, umbrella/excess, auto, workers' compensation, pollution legal liability, and (post-COD) business interruption.
[ ] Confirm lender and tax equity requirements: additional insured, lender's loss payable, waiver of subrogation, 30-day cancellation notice, and coverage of the correct named insureds.
[ ] Confirm the EPC contractor's and every subcontractor's coverage and additional-insured status.
[ ] Evaluate tax credit insurance to backstop qualification, recapture, and (on a transfer) excessive-credit-transfer risk.

Why it matters, and the traps. Renewable insurance has hardened dramatically; sublimits, exclusions, and stacked deductibles do the real work. Read the policy, not the certificate — a certificate of insurance confers nothing. Coverage disputes turn on the policy language, the burden-shifting between insuring agreement and exclusion, and the duty to defend; those mechanics are set out in Insurance Coverage Law: A Comprehensive Guide for Policyholders.

Phase 13 — Notice to proceed and construction

[ ] Confirm all Phase 1–12 gates are actually closed — NTP is the point of no return.
[ ] Issue full Notice to Proceed under the EPC and start the schedule clock; confirm the LD trigger dates are calendared.
[ ] Convert options to leases; record memoranda of lease and the mortgage.
[ ] Stand up the owner's engineer and monthly progress reporting; enforce lien waivers with each draw.
[ ] Track every LGIA milestone; a missed milestone can trigger queue withdrawal and forfeit deposits.
[ ] Maintain the beginning-of-construction and prevailing-wage evidence files contemporaneously.
[ ] Manage change orders against the contingency, and require written notice as a condition of any claim.

Why it matters, and the traps. After NTP, the developer's leverage collapses. Everything you failed to negotiate is now a change order at the contractor's price. And the LGIA milestone schedule keeps running whether or not your transformer arrives — a construction delay can become an interconnection default, which is a far worse problem than a construction delay.

Phase 14 — Commercial operation, testing, and O&M

[ ] Run the capacity test and performance ratio test under the EPC; document acceptance, punch list, and any performance LD buy-down.
[ ] Achieve substantial completion, then commercial operation under the PPA — note these are different definitions in different documents and must be reconciled.
[ ] Complete interconnection commissioning, obtain authorization to operate, and register as a market participant with the ISO/RTO; complete NERC registration if applicable.
[ ] Convert construction debt to term debt; fund the tax equity or close the credit transfer.
[ ] Execute the O&M agreement and (for wind/storage) the long-term service agreement, with availability guarantees, response times, spare parts, and bonus/malus.
[ ] Fund the major maintenance reserve and the debt service reserve.
[ ] Assign asset-management responsibility for REC registration and retirement, PPA settlement, and tax compliance reporting.
[ ] Calendar the ITC recapture period and every reporting covenant.

Why it matters, and the traps. "Commercial operation" under the PPA and "substantial completion" under the EPC are frequently defined differently — different testing thresholds, different punch-list tolerance. If COD under the PPA requires a test the EPC does not obligate the contractor to pass, the developer is the one paying delay damages. Reconcile the definitions across all three documents (PPA, EPC, LGIA) in a single table before any of them is signed.

Phase 15 — Decommissioning and end of life

[ ] Track the decommissioning obligations in the lease, the permit, and any state statute — they are usually three different obligations with three different standards.
[ ] Maintain and periodically re-size the financial assurance; many ordinances require recalculation every three to five years.
[ ] Plan for repowering versus removal, and confirm whether the lease and permit allow repowering without a new entitlement.
[ ] Plan module, blade, and battery recycling and disposal, including whether any component is a hazardous waste under RCRA or state law.
[ ] Confirm the restoration standard (topsoil, drain tile, subsoil compaction) and the landowner's release.

Why it matters, and the traps. Decommissioning obligations are drafted at the beginning of a project's life by people who will not be there at the end. The trap is the inconsistent triple obligation: a lease that requires removal to a depth of three feet, a conditional use permit that requires removal of all foundations, and a state statute that sets a bond formula ignoring salvage value. The developer who negotiates only the lease has negotiated one third of the obligation.

Common mistakes to avoid

Signing leases before checking the mineral estate. In severed-estate states the mineral owner's rights can be superior to your lessor's, and no lease amendment can cure it. Get the surface use agreement first.
Entering the interconnection queue late. The queue position is often the single most valuable asset in the project. Everything else can be bought; a 2029 in-service date cannot.
Modeling the first network upgrade number. Cluster restudies reallocate the withdrawn projects' upgrades onto the survivors. Run the withdrawal sensitivity.
Confusing hub price with node price. Basis and congestion risk are real money and belong in the model.
Failing to back-to-back the PPA and EPC. Guaranteed COD, delay LDs, force majeure definitions, and change-in-law allocation must line up across both.
Relying on stale tax-credit rules. The credit regime has changed repeatedly since 2022 and changed again in 2025. Verify with tax counsel, every time.
Treating beginning of construction as a legal conclusion instead of an evidence file. Build the documentation contemporaneously.
Omitting prevailing-wage and apprenticeship flow-downs from the EPC. You cannot substantiate a credit with records you have no right to obtain.
Accepting a 25-year warranty from a supplier with a fragile balance sheet. Price the warrantor, not the warranty.
Ignoring the UFLPA traceability package until the containers are at the port. By then it is a schedule event, not a compliance question.
Reading the certificate of insurance instead of the policy. Especially the hail and wildfire sublimits.
Negotiating only the lease's decommissioning clause while the permit and the statute impose different, stricter obligations.

The consolidated project checklist

[ ] Options signed; buildable acreage computed after setbacks and wetlands
[ ] Title commitment reviewed; mineral estate resolved; SNDAs obtained from lessor's mortgagees
[ ] Leasehold term exceeds debt + PPA + decommissioning; assignment and lender consents in place
[ ] Interconnection request filed; cluster study tracked; restudy sensitivity modeled
[ ] Network upgrade cost priced with contingency; LGIA negotiated and milestones calendared
[ ] FERC market-based rate authority; EWG or QF status resolved
[ ] Independent energy yield assessment (P50/P90/P99); basis and curtailment modeled at the node
[ ] Zoning/CUP or state siting approval obtained; road use and PILOT agreements signed
[ ] Decommissioning financial assurance sized and posted
[ ] Federal nexus determined; NEPA level set; ESA, MBTA/BGEPA, CWA § 404, NHPA § 106 addressed
[ ] Phase I ESA completed on parcels with chemical history
[ ] PPA or hedge executed; settlement point, RECs, guaranteed COD, delay damages, credit support all defined
[ ] Tax structure selected (tax equity / § 6418 transfer / § 6417); current law confirmed with tax counsel
[ ] Beginning-of-construction evidence file opened and maintained
[ ] PWA, domestic content, and energy community positions documented and flowed down
[ ] EPC executed with delay LDs, performance LDs, caps, security, and lender direct agreement
[ ] Equipment supply agreements with bankable warranties and UFLPA traceability obligations
[ ] Financing closed; conditions precedent satisfied; security perfected; title policy issued
[ ] Insurance bound, including builder's risk, DSU, and catastrophe sublimits reviewed
[ ] Notice to proceed issued; construction reporting and lien waivers running
[ ] Capacity and performance tests passed; COD achieved; term conversion completed
[ ] O&M agreement, reserves funded, recapture period and covenants calendared
[ ] Decommissioning obligations reconciled across lease, permit, and statute

Primary authority

Federal power and interconnection

Federal Power Act, 16 U.S.C. § 824 et seq. (FERC jurisdiction over wholesale sales and transmission in interstate commerce); § 205, 16 U.S.C. § 824d (rate filings, market-based rate authorization)
FERC Order No. 2003 (2003) (pro forma Large Generator Interconnection Procedures and Agreement); Order No. 2006 (2005) (small generator interconnection); Order No. 845 (2018) (LGIP reforms); Order No. 2023 (2023) and Order No. 2023-A (2024) (first-ready, first-served cluster study process; study deadlines and penalties; heightened site control and commercial readiness requirements; withdrawal penalties)
Public Utility Regulatory Policies Act, 16 U.S.C. §§ 2601–2645 (qualifying facilities; mandatory purchase obligation as modified by FERC Order No. 872 (2020))
IRS Notice 2016-36 (safe harbor for network upgrade payments and contributions in aid of construction)

Federal tax — VERIFY CURRENT LAW BEFORE RELYING ON ANY OF THIS

Internal Revenue Code §§ 45 and 48 (legacy production and investment credits); §§ 45Y and 48E (technology-neutral clean electricity credits); § 6418 (transfer of credits); § 6417 (elective payment); § 50(a) (investment credit recapture); § 168 (depreciation)
IRS Notice 2013-29 and successors (beginning of construction: Physical Work Test; Five Percent Safe Harbor; continuity requirement); Notice 2018-59 (beginning of construction for the ITC); Rev. Proc. 2007-65 (partnership flip safe harbor for wind)
Accuracy warning: legislation enacted in 2025 substantially curtailed the § 45Y/§ 48E credits for wind and solar and added prohibited-foreign-entity restrictions, and Treasury/IRS guidance narrowed the beginning-of-construction safe harbors for larger facilities. Credit rates, adder percentages, placed-in-service deadlines, and safe harbors stated in any secondary source — including this one — must be confirmed against the current statute and guidance.

Environmental

National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., as amended by the Fiscal Responsibility Act of 2023; Seven County Infrastructure Coalition v. Eagle County (U.S. 2025) (substantial deference to agency NEPA scoping; no obligation to analyze separate upstream/downstream projects). Note: CEQ's government-wide NEPA regulations were rescinded in 2025; apply the lead agency's own procedures.
Endangered Species Act, 16 U.S.C. § 1531 et seq. (§ 7 consultation; § 9 take; § 10(a)(1)(B) incidental take permit and habitat conservation plan)
Migratory Bird Treaty Act, 16 U.S.C. §§ 703–712 (incidental-take position has reversed across administrations — verify current status); Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668–668d
Clean Water Act § 404, 33 U.S.C. § 1344; Sackett v. EPA, 598 U.S. 651 (2023)
National Historic Preservation Act § 106, 54 U.S.C. § 306108
Federal Land Policy and Management Act, 43 U.S.C. § 1761 (rights-of-way on federal land); Outer Continental Shelf Lands Act, 43 U.S.C. § 1337(p) (offshore wind leasing)
14 C.F.R. Part 77 (FAA obstruction evaluation)

Trade and supply chain

Uyghur Forced Labor Prevention Act, Pub. L. No. 117-78 (rebuttable presumption of forced labor; import prohibition under Tariff Act § 307, 19 U.S.C. § 1307)
Antidumping/countervailing duty, safeguard (Section 201), and Section 232/301 measures — rates and scope change frequently; verify current status

State and local — no national rule exists

Zoning and conditional use, setbacks, noise and shadow flicker, decommissioning financial assurance, oil-and-gas and mineral property law, and mineral/surface accommodation are creatures of state statute and local ordinance and vary enormously. Some states centralize renewable siting (e.g., New York's Office of Renewable Energy Siting); most do not. Read your jurisdiction's ordinance and statute. On the mineral/surface conflict, compare Texas's accommodation doctrine (Getty Oil Co. v. Jones (Tex. 1971)) with states that give the mineral estate broader dominance.
Retail utility regulation and ratemaking are state law, administered by state public utility commissions. Retail rate design, net metering, avoided-cost rates for qualifying facilities, integrated resource planning, and certificates of public convenience and necessity differ state by state. FERC's jurisdiction reaches wholesale sales and transmission in interstate commerce; it does not supply a national retail rule.

Tribal — a separate sovereign, not a subset of state law

Federally recognized Tribes are separate sovereigns with their own governments, codes, courts, and regulatory bodies. A project on or affecting trust or restricted land, reservation land, or treaty-protected resources may require tribal leasing or right-of-way approval, tribal environmental and cultural review, and federal approvals (including Bureau of Indian Affairs involvement) — and state and local siting authority is frequently absent or sharply limited. Do not analyze tribal land or tribal consultation through a state-law lens; engage tribal counsel and the Tribe directly, and verify the jurisdictional posture for your specific parcel.

Secondary sources

Powell on Real Property (easements, leasehold estates, severed mineral estates)
Corbin on Contracts and Williston on Contracts (liquidated damages, conditions, force majeure)
Restatement (Second) of Contracts §§ 224–229 (conditions), § 356 (liquidated damages)

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This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Laws vary by state and change over time; renewable energy tax credit rules, interconnection procedures, and siting requirements are changing rapidly — verify current requirements and consult qualified counsel before acting.