• The only issue that matters
  • The House Oversight report contends that the DOE flaunted two rules:

    A "one technology per sponsor" rule (by having more than one similar solar project receive loans):

    "A Project Sponsor or Applicant may only submit one Pre- Application or Application for one project using a particular technology. A Project Sponsor or Applicant, in other words, may not submit a Pre- Application or Application for multiple projects using the same technology."

    And the rule on innovative technology:

    Innovative technology is one that is not yet commercial, and commercial technology is defined in the final rule as, "a technology in general use in the commercial marketplace in the United States at the time the Term Sheet is issued by DOE. A technology is in general use if it has been installed in and is being used in three or more commercial projects in the United States in the same general application as in the proposed project, and has been in operation in each such commercial project for a period of at least five years."

    Agua Caliente featured two innovative technologies: Fault-ride through technology inverters and dynamic voltage regulation, while Antelope Valley used these two technologies and single-axis trackers (which allow the panels to track the movement of the sun during the day).

    The House report harps on emails from a DOE engineer who says that the trackers cannot be deemed innovative, and since the other two innovative technologies were already in use on Agua Caliente, there was no basis for approving a loan guarantee for Antelope Valley. Issa's report positions these emails as a "whistle blower's" attempts being thwarted.

    In fact, the trackers would not have to be deemed innovative as a stand-alone technology for the project to receive loan approval based all three technologies together creating an innovative project.

    The fault-ride through technology and dynamic voltage regulation could have been the basis for the Agua Caliente approval, while adding the trackers as part of a project featuring these two technologies could have been the basis for the approval of Antelope Valley. The one technology per sponsor rule could define the "technology" as the overall design of the solar project, and not any one feature of it, which would make the allegation that the projects were breaking the one technology per sponsor rule a dead end. This was the definition of innovation which the same engineer who Issa's report positions as a silenced whistle blower ultimately used as the basis for determining the Antelope Valley project's eligibility.

    This definition of innovation at the level of the project is what the House Oversight committee would have to prove is a violation, and yet, it's not at all clear after all the words and allegations that Issa came up with anything that proves a violation.
  • House Oversight Authority
  • Finally, there is the issue of just what the House Oversight committee could do anyway, and one thing it can't do is tie up the loan guarantee.

    Oversight authority is just what it claims to be: Oversight but no legislative authority. Issa's committee can judge whether a loan guarantee was approved on a right or wrong basis, but in the end would have to refer the case to the Department of Justice or Inspector General. While the House Oversight committee probably won't drop this issue any time soon, it can't do anything in the interim to stop the DOE loan guarantee.

    Darrell Issa can make the lives of a lot of people at First Solar and the Department of Energy miserable for a while longer, but when it comes down to it, the House Committee on Oversight is going to have a difficult time proving its lack of "innovation" case.

    Or as one DOE loan expert who worked on several projects that received approvals put it, "I think at this point the Issa committee staff also understand, but are playing dumb in order to make political hay."

    -- Written by Eric Rosenbaum from New York.

    >To contact the writer of this article, click here: Eric Rosenbaum.

    >To follow the writer on Twitter, go to Eric Rosenbaum.

    Follow TheStreet on Twitter and become a fan on Facebook.

    If you liked this article you might like

    3 'Orphan Stocks' to Consider Adopting

    Alaska Air, Corcept Therapeutics, First Solar: 'Mad Money' Lightning Round

    Markets Focus on Business: Cramer's 'Mad Money' Recap (Monday 8/28/17 )

    First Solar Warms Up

    First Solar Awarded 241MW Supply Contract for Edify Energy