A renewable portfolio standard is a state policy that requires electricity providers to obtain a minimum percentage of their power from renewable energy resources.  Currently there are 24 states plus the District of Columbia that have RPS policies in place.  In Massachusetts, 15% of electricity is to come from renewable sources by 2010.   

A case was decided this summer there that had to do with permitting regimes.  A couple of existing biomass-to-electricity facilities were authorized to participate in the Commonwealth’s renewable energy portfolio standard program.  They qualified through a waiver process as “new” “renewable energy generating sources” even though they had been in existence for some time. When newer facilities were granted permission to participate without having gone through the waiver process, the existing facilities sued the permitting agency. 

Massachusetts’ RPS program is designed to promote the growth of renewable energy by requiring retail electricity suppliers to purchase an increasing percentage of their total power sales from new renewable energy generating sources. In 2008, that percentage was three percent. The supply of RECs has, to date, not kept pace with demand under the RPS program.  To qualify as a "renewable energy generating source," a facility must generate electricity using one of a number of specified technologies including (among others) "solar photovoltaic," "wind energy," "ocean thermal, wave or tidal energy," and "low-emission, advanced biomass power conversion technologies, such as gasification using such biomass fuels as wood, agricultural, or food wastes, energy crops, biogas, biodiesel, or organic--refuse derived fuel."

The existing facilities argued that they made substantial investments to construct and operate their facilities before being able to participate in the RPS program, and that the department's "actions threaten [their] business positions in the [renewable energy credit] market." More specifically, the existing facilities alleged that in order to participate in the RPs program, the department required them to obtain vintage waivers (that reduced the output of their facilities that could be counted toward renewable energy credits) while not requiring the newer applicant facilities, although similarly situated, to obtain such waivers.

The case was decided against the existing facilities on the basis of standing. The Court concluded that the “Legislature intended to induce the promotion and expansion of the renewable energy generating market, and did not seek to protect and thereby confer standing to sue on existing competitors, thereby creating a barrier to market entry. If existing competitors were allowed to challenge another company's application to enter the renewable energy market, it would hinder competition, delay much needed renewable energy projects, and create a disincentive for developers and their investors to construct new generation facilities.”