Alcoa halts $1B refinery upgrade in Quebec

By Canadian Press


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World aluminum leader Alcoa Inc. has put a halt to a $1-billion modernization of its aluminum refinery at Baie-Comeau, Que., until it can negotiate a new agreement with the Quebec government.

The new Liberal government elected in April 2003 wants to renegotiate terms of a deal struck by the previous Parti Quebecois government that provided a 10-year tax break and an interest-free loan of $170 million for the project.

"Alcoa cannot continue to invest in a project without a firm agreement with the Quebec government," Jean-Pierre Gilardeau, president, primary metals for Alcoa Canada, said recently.

He said an agreement reached with the provincial government in 2002 was called into question by Premier Jean Charest's Liberal government last fall, invoking constraints on the availability of energy.

Gilardeau said it was not until last Dec. 4, a few days before the expiry of the original agreement, "that the government let the company know the agreement had to be reviewed on a new basis including job creation with aluminum manufacturing.

"In consequence, the government wants to open a new round of negotiations."

The modernization was to have created 5,850 direct and indirect jobs over eight years in Quebec's North Shore region but no new jobs for the expanded smelter although Alcoa committed to keeping a minimum of 1,476 on its payroll there.

"I think the government - and definitely us - we are all willing to finding a way to make this happen and have a win-win situation for everyone," Gilardeau said in an interview. He said the cost of energy is not an issue because Alcoa pays the same industrial rate as everyone else.

The project would increase the plant's capacity to 547,000 tonnes a year from 437,000 tonnes.

Michel Rochette, spokesman for Quebec's Economic and Regional Development Department, said the project is a priority and will be completed.

Rochette said the original agreement was negotiated without Hydro-Quebec input.

"We have to correct some errors of the previous government," said Rochette.

However Francois Legault, the Parti Quebecois economic critic, said the original announcement was made in the presence of Andre Caille, the president of Hydro-Quebec.

Denis Berube, president of the aluminum union, said that "if the plant is not modernized, it could not carry on for long."

Analyst Ian Howat, of National Bank Financial, does not see the halt as a major setback for Alcoa.

"In the scheme of the whole industry, capacity not being built isn't that a big a deal," said Howat.

"Maybe they (Alcoa) are saying, `If you can't give us the type of deal we want, we'll sit back and wait to see if the government becomes more negotiable.'"

Alcoa had undertaken to start the project before the end of 2003. Engineering work began in March 2003 and initial bids had been sought.

In May 2003, Alcoa began final negotiations with the Quebec government for electricity supplies and financing, but the deal became invalid after the government refused to extend it by two months, preferring to re-negotiate on a new basis, Gilardeau said.

The company, a subsidiary of the Pittsburgh-based world aluminum leader, and the Quebec government have given themselves until Feb. 29 to reach a new deal.

Pittsburgh-based Alcoa is also negotiating a new agreement with the Quebec government over Alcoa's planned expansion of its smelter at Deschambault near Quebec City, at a cost of $750 million.

Parent company Alcoa Inc. has 127,000 employees in 40 countries. It had revenues of $20.3 billion US in 2002.

Recently, Alcoa said it had scrapped plans to spend $1.3 billion US for a new smelter and power plants in Brazil because the country's new electricity regulation would drive up production costs. It said it would reconsider if Brazil polices turn in their favour.

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Investigation reveals power company 'gamed' $100M from Ontario's electricity system

Goreway Power Station Overbilling exposed by Ontario Energy Board shows IESO oversight failures, GCG gaming, and $100M in inappropriate payments at the Brampton natural gas plant, penalized with fines and repayments impacting Ontario ratepayers.

 

Key Points

Goreway exploited IESO GCG flaws, causing about $100M in improper payouts and fines.

✅ OEB probe flagged $89M in ineligible start-up O&M charges

✅ IESO fined Goreway $10M; majority of excess costs recovered

✅ Audit found $200M in overbilling across nine generators

 

Hydro customers shelled out about $100 million in "inappropriate" payments to a natural gas plant that exploited flaws in how Ontario manages its private electricity generators, according to the Ontario Energy Board.

The company operating the Goreway Power Station in Brampton "gamed" the system for at least three years, according to an investigation by the provincial energy regulator. 

The investigation also delivers stinging criticism of the provincial government's Independent Electricity System Operator (IESO), slamming it for a lack of oversight. The probe by the Ontario Energy Board's market surveillance panel was completed nearly a year ago, but was only made public in November because it was buried on its website without a news release. CBC News is the first media outlet to report on the investigation.  

The excess payments to Goreway Power Station included:

  • $89 million in ineligible expenses billed as the costs of firing up power production. 
  • $5.6 million paid in three months from a flaw in how IESO calculated top-ups for the company committing to generate power a day in advance.   
  • Of $11.2 million paid to compensate the company for IESO ordering it to start or stop generating power, the investigation concluded "a substantial portion ... was the result of gaming."  

Most privately-owned natural gas-fired plants in the province do not generate electricity constantly, but start and stop production in response to fluctuating market demand, even as the energy minister has requested an halt to natural gas generation across the grid.  IESO pays them a premium for the costs of firing up production, through what it calls "generation cost guarantee" programs. 

But the investigation found IESO did little checking into the details of Goreway Power Station's billings. 

Goreway Power Station, located near Highway 407 in Brampton, Ont., is an 875 megawatt natural gas power plant. (Goreway)

"Conservatively, at least $89 million of Goreway's submissions were clearly ineligible by any reasonable measure," concludes the report.

"Goreway routinely submitted what were obviously inappropriate expenses to be reimbursed by the IESO, and ultimately borne by Ontario ratepayers,"

The investigation panel found an "extraordinary pattern" to these billings by Goreway Power Station, suggesting the IESO should have caught on sooner. The company submitted more than $100 million in start-up operating and maintenance costs during the three-year period investigated — more than all other gas-fired generators in the province combined. The company's costs per start-up were more than double the next most expensive power generator. 

"Goreway repeatedly exploited defects in the GCG (generation cost guarantee) program, and in doing so received at least $89 million in gamed GCG payments." 

Company fined $10M

The investigation covered a three-year period from when Goreway Power Station began generating power in June 2009. Investigators said that delays in releasing documents slowed down their probe, and they only obtained all the records they needed in April 2016.

The investigating panel does not have the power to impose penalties on companies it found broke the rules. 

The IESO fined Goreway Power Station $10 million. The company has also repaid IESO "a substantial portion" of the excess payments it received during its first six years of operating, but the exact figure is blacked out in the investigation report that was made public. 

The control room from which the provincial government's Independent Electricity System Operator manages Ontario's power supply. The agency is also responsible for managing contracts with private power producers.(IESO)

"Goreway does not agree with many of the draft report's findings and conclusions, including any suggestion that Goreway engaged in gaming or that it deliberately misled the IESO," writes lawyer George Vegh on behalf of the company in a response to the investigation report, dated Aug. 1.

"Goreway has implemented initiatives designed to ensure that compliance is a chief operating principle."     

The power station, located near Highway 407 in Brampton, is a joint venture between Toyota Tsusho Corp. and JERA Co. Inc. During the period under scrutiny, the project was run by Toyota Tsusho and Chubu Electric Power Inc., both headquartered in Japan. 

Investigators fear 'same situation' exists today

The report blames the provincially-controlled IESO for creating a system with defects that allowed the over-billing. 

"Goreway was able to — and repeatedly did — exploit these defects," says the investigation report. It goes on to explain the flaws "have created opportunities for exploitation, to the serious financial disadvantage of Ontario's ratepayers," even as greening Ontario's grid could entail massive costs.

The investigation suggests IESO hasn't made adequate changes to ensure it won't happen again, at a time when an analysis of a dirtier grid is raising concerns.   

"Goreway stands as a clear example of how generators are able to exploit the generation costs guarantee regime," says the report.

"The Panel is concerned that the same situation remains in place today." 

PC energy critic Todd Smith raised CBC News' report on the Goreway Power Station in Tuesday's question period. (Ontario Legislature)

After CBC News broke the story Tuesday, the provincial government was forced to respond in question period, amid a broader push for new gas plants to boost electricity production. 

"Here we have yet another gas plant scandal in Peel region that's costing electricity customers over $100 million," said PC energy critic Todd Smith. He slammed "the incompetence of a government that once again failed to look out for electricity customers." 

Economic Development Minister Brad Duguid said: "There is no excuse for any company in this province to ever game the system."

Nine companies overbilled $200M: audit 

The IESO found out about the overbilling "some time ago," said Duguid.

"They fully investigated, they've recovered most of the cost, they delivered a $10 million fine — the biggest fine on record."

The program that Goreway exploited became the subject of an audit that the IESO launched in 2011. The agency uncovered $200 million in ineligible billings by nine power producers, wrote the IESO vice president for policy Terry Young in an email to CBC News.

The IESO has recovered up to 85 per cent of those ineligible costs, Young noted.

Reforms to the design of the the program have removed the potential for overpayments and made it more efficient, he said, even as Ontario weighs embracing clean power more broadly. Last year, its total annual costs dropped to $23 million, down from $61 million in 2014.

 

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Environmentalist calls for reduction in biomass use to generate electricity

Nova Scotia Biomass Energy faces scrutiny as hydropower from Muskrat Falls via the Maritime Link increases, raising concerns over carbon emissions, biodiversity, ratepayer costs, and efficiency versus district heating in the province's renewable mix.

 

Key Points

Electricity from wood chips and waste wood in Nova Scotia, increasingly questioned as hydropower from the Maritime Link grows.

✅ Hydropower deliveries reduce need for biomass on the grid

✅ Biomass is inefficient, costly, and impacts biodiversity

✅ District heating offers better use of forestry residuals

 

The Ecology Action Centre's senior wilderness coordinator is calling on the Nova Scotia government to reduce the use of biomass to generate electricity now that more hydroelectric power is flowing into the province.

In 2020, the government of the day signed a directive for Nova Scotia Power to increase its use of biomass to generate electricity, including burning more wood chips, waste wood and other residuals from the forest industry. At the time, power from Muskrat Falls hydroelectric project in Labrador was not flowing into the province at high enough levels to reach provincial targets for electricity generated by renewable resources.

In recent months, however, the Maritime Link from Muskrat Falls has delivered Nova Scotia's full share of electricity, and, in some cases, even more, as the province also pursues Bay of Fundy tides projects to diversify supply.

Ray Plourde with the Ecology Action Centre said that should be enough to end the 2020 directive.

Ray Plourde is senior wilderness coordinator for the Ecology Action Centre. (CBC)
Biomass is "bad on a whole lot of levels," said Plourde, including its affects on biodiversity and the release of carbon into the atmosphere, he said. The province's reliance on waste wood as a source of fuel for electricity should be curbed, said Plourde.

"It's highly inefficient," he said. "It's the most expensive electricity on the power grid for ratepayers."

A spokesperson for the provincial Natural Resources and Renewables Department said that although the Maritime Link has "at times" delivered adequate electricity to Nova Scotia, "it hasn't done so consistently," a context that has led some to propose an independent planning body for long-term decisions.

"These delays and high fossil fuel prices mean that biomass remains a small but important component of our renewable energy mix," Patricia Jreiga said in an email, even as the province plans to increase wind and solar projects in the years ahead.

But to Plourde, that explanation doesn't wash.

The Nova Scotia Utility and Review Board recently ruled that Nova Scotia Power could begin recouping costs of the Maritime Link project from ratepayers. As for the rising cost of fossil fuels, Ploude noted that the inefficiency of biomass means there's no deal to be had using it as a fuel source.

"Honestly, that sounds like a lot of obfuscation," he said of the government's position.

No update on district heating plans
At the time of the directive, government officials said the increased use of forestry byproducts at biomass plants in Point Tupper and Brooklyn, N.S., including the nearby Port Hawkesbury Paper mill, would provide a market for businesses struggling to replace the loss of Northern Pulp as a customer. Brooklyn Power has been offline since a windstorm damaged that plant in February, however. Repairs are expected to be complete by the end of the year or early 2023.

Ploude said a better use for waste wood products would be small-scale district heating projects, while others advocate using more electricity for heat in cold regions.

Although the former Liberal government announced six public buildings to serve as pilot sites for district heating in 2020, and a list of 100 other possible buildings that could be converted to wood heat, there have been no updates.

"Currently, we're working with several other departments to complete technical assessments for additional sites and looking at opportunities for district heating, but no decisions have been made yet," provincial spokesperson Steven Stewart said in an email.

 

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Marine Renewables Canada shifts focus towards offshore wind

Marine Renewables Canada Offshore Wind integrates marine renewables, tidal and wave energy, advancing clean electricity, low-carbon power, supply chain development, and regulatory alignment to scale offshore wind energy projects across Canada's coasts and global markets.

 

Key Points

An initiative to grow offshore wind using Canada's marine strengths, shared supply chains, and regulatory synergies.

✅ Leverages tidal and wave energy expertise for offshore wind

✅ Aligns supply chain, safety, and regulatory frameworks

✅ Supports low-carbon power and clean electricity goals

 

With a growing global effort to develop climate change solutions and increase renewable electricity production, including the UK offshore wind growth in recent years, along with Canada’s strengths in offshore and ocean sectors, Marine Renewables Canada has made a strategic decision to grow its focus by officially including offshore wind energy in its mandate.

Marine Renewables Canada plans to focus on similarities and synergies of the resources in order to advance the sector as a whole and ensure that clean electricity from waves, tides, rivers, and offshore wind plays a significant role in Canada’s low-carbon future.

“Many of our members working on tidal energy and wave energy projects also have expertise that can service offshore wind projects both domestically and internationally,” says Tim Brownlow, Chair of Marine Renewables Canada. “For us, offshore wind is a natural fit and our involvement will help ensure that Canadian companies and researchers are gaining knowledge and opportunities in the offshore wind sector as it grows.”

Canada has the longest coastlines in the world, giving it huge potential for offshore wind energy development. In addition to the resource, Canada has significant capabilities from offshore and marine industries that can contribute to offshore wind energy projects. The global offshore wind market is estimated to grow by over 650% by 2030 and presents new opportunities for Canadian business.

“The federal government’s recent inclusion of offshore renewables in legislation, including a plan for regulating offshore wind developed by the government, and support for emerging renewable energy technologies are important steps toward building this industry,” says Elisa Obermann, executive director of Marine Renewables Canada. “There are still challenges to address before we’ll see offshore wind energy development in Canada, but we see a great opportunity to get more involved now, increase our experience, and help inform future development.”

Like wave and tidal energy, offshore wind projects operate in harsh marine environments and development presents many of the same challenges and benefits as it does for other marine renewable energy resources. Marine Renewables Canada has recognized that there is significant overlap between offshore wind and wave and tidal energy when it comes to the supply chain, regulatory issues, and the operating environment. The association plans to focus on similarities and synergies of the resources in order to advance the sector as a whole, leveraging Canada’s opportunity in the global electricity market to ensure that clean electricity from waves, tides, rivers, and offshore wind plays a significant role in Canada’s low-carbon future.

 

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Berlin Geothermal Plant in El Salvador Set to Launch This Year

El Salvador Geothermal Expansion boosts renewable energy with a 7 MW Berlin binary ORC plant, upgrades at Ahuachapan, and pipeline projects, strengthening clean power capacity, grid reliability, and sustainable growth in Central America.

 

Key Points

A national push adding binary-cycle capacity at Berlin and Ahuachapan, boosting geothermal supply and advancing sites.

✅ 7 MW Berlin binary ORC plant entering service.

✅ Ahuachapan upgrade adds 2 MW, total geothermal 204 MW.

✅ Next: Chinameca, San Miguel, San Vicente, World Bank backed.

 

El Salvador is set to expand its renewable energy capacity with the inauguration of the 7-MW Berlin binary geothermal power plant, slated to go online later this year. This new addition marks a significant milestone in the country’s geothermal energy development, highlighting its commitment to sustainable energy solutions. The plant, which has already been installed and is currently undergoing testing, is expected to boost the nation’s geothermal capacity, contributing to its growing renewable energy portfolio.

The Role of Geothermal Energy in El Salvador’s Energy Mix

Geothermal energy plays a pivotal role in El Salvador's energy landscape. With the combined output from the Ahuachapan and Berlin geothermal plants, geothermal energy now accounts for about 21% of the country's net electricity supply. This makes geothermal the second-largest source of energy generation in El Salvador, underscoring its importance as a reliable and sustainable energy resource alongside emerging options like advanced nuclear microreactor technologies in the broader low-carbon mix.

In addition to the Berlin plant, El Salvador has made significant improvements to its Ahuachapan geothermal power plant. Recent upgrades have increased its generation capacity by 2 MW, further enhancing the country’s geothermal energy output. Together, the Ahuachapan and Berlin plants bring the total installed geothermal capacity to 204 MW, positioning El Salvador as a regional leader in geothermal energy development.

The Berlin Binary Geothermal Plant: A Technological Milestone

The Berlin binary geothermal power plant is especially noteworthy for several reasons. It is the first geothermal power plant to be constructed in El Salvador since 2007, marking a significant step in the country's ongoing efforts to expand its renewable energy infrastructure while reinforcing attention to risk management in light of Hawaii geothermal safety concerns reported elsewhere. The plant utilizes a binary cycle geothermal system, which is known for its efficiency in extracting energy from lower temperature geothermal resources, making it an ideal solution for regions like Berlin, where geothermal resources are abundant but at lower temperatures.

The plant was built by Turboden, an Italian company specializing in organic Rankine cycle (ORC) technology. The binary cycle system operates by transferring heat from the geothermal fluid to a secondary fluid, which then drives a turbine to generate electricity. This system allows for the efficient use of geothermal resources that might otherwise be too low in temperature for traditional geothermal plants, enabling pairing with thermal storage demonstration solutions to optimize output.

Future Geothermal Developments in El Salvador

El Salvador is not stopping with the Berlin geothermal plant. The country is actively working on other geothermal projects, including those in Chinameca, San Miguel, and San Vicente. These developments are expected to add 50 MW of additional capacity in their first phase, reflecting a broader shift as countries pursue hydrogen-ready power plants to reduce emissions, with a second phase, supported by the World Bank, planned to add another 100 MW.

The Chinameca, San Miguel, and San Vicente projects represent the next wave of geothermal development in El Salvador. When completed, these plants will significantly increase the country’s geothermal capacity, further diversifying its energy mix and reducing reliance on fossil fuels, and will require ongoing grid upgrades, a task complicated elsewhere by Germany grid expansion challenges highlighted in Europe.

International Support and Collaboration

El Salvador’s geothermal development efforts are supported by various international partners, including the World Bank, which has been instrumental in financing the expansion of geothermal projects, as utilities such as SaskPower geothermal plans in Canada explore comparable pathways. This collaboration highlights the global recognition of El Salvador’s potential in geothermal energy and its efforts to position itself as a hub for geothermal energy development in Central America.

Additionally, the country’s expertise in geothermal energy, especially in binary cycle technology, has attracted international attention. El Salvador’s progress in the geothermal sector could serve as a model for other countries in the region that are looking to harness their geothermal resources to reduce energy costs and promote sustainable energy development.

The upcoming launch of the Berlin binary geothermal power plant is a testament to El Salvador’s commitment to sustainable energy. As the country continues to expand its geothermal capacity, it is positioning itself as a leader in renewable energy in the region. The binary cycle technology employed at the Berlin plant not only enhances energy efficiency but also demonstrates El Salvador’s ability to adapt and innovate within the renewable energy sector.

With the continued development of projects in Chinameca, San Miguel, and San Vicente, and ongoing international collaboration, El Salvador’s geothermal energy sector is set to play a crucial role in the country’s energy future. As global demand for clean energy grows, exemplified by U.S. solar capacity additions this year, El Salvador’s investments in geothermal energy are helping to build a more sustainable, resilient, and energy-independent future.

 

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New fuel cell concept brings biological design to better electricity generation

Quinone-mediated fuel cell uses a bio-inspired organic shuttle to carry electrons and protons to a nearby cobalt catalyst, improving hydrogen conversion, cutting platinum dependence, and raising efficiency while lowering costs for clean electricity.

 

Key Points

An affordable, bio-inspired fuel cell using an organic quinone shuttle and cobalt catalyst to move electrons efficiently

✅ Organic quinone shuttles electrons to a separate cobalt catalyst

✅ Reduces platinum use, lowering cost of hydrogen power

✅ Bio-inspired design aims to boost efficiency and durability

 

Fuel cells have long been viewed as a promising power source. But most fuel cells are too expensive, inefficient, or both. In a new approach, inspired by biology, a team has designed a fuel cell using cheaper materials and an organic compound that shuttles electrons and protons.

Fuel cells have long been viewed as a promising power source. These devices, invented in the 1830s, generate electricity directly from chemicals, such as hydrogen and oxygen, and produce only water vapor as emissions. But most fuel cells are too expensive, inefficient, or both.

In a new approach, inspired by biology and published today (Oct. 3, 2018) in the journal Joule, a University of Wisconsin-Madison team has designed a fuel cell using cheaper materials and an organic compound that shuttles electrons and protons.

In a traditional fuel cell, the electrons and protons from hydrogen are transported from one electrode to another, where they combine with oxygen to produce water. This process converts chemical energy into electricity. To generate a meaningful amount of charge in a short enough amount of time, a catalyst is needed to accelerate the reactions.

Right now, the best catalyst on the market is platinum -- but it comes with a high price tag, and while advances like low-cost heat-to-electric materials show promise, they address different conversion pathways. This makes fuel cells expensive and is one reason why there are only a few thousand vehicles running on hydrogen fuel currently on U.S. roads.

Shannon Stahl, the UW-Madison professor of chemistry who led the study in collaboration with Thatcher Root, a professor of chemical and biological engineering, says less expensive metals can be used as catalysts in current fuel cells, but only if used in large quantities. "The problem is, when you attach too much of a catalyst to an electrode, the material becomes less effective," he says, "leading to a loss of energy efficiency."

The team's solution was to pack a lower-cost metal, cobalt, into a reactor nearby, where the larger quantity of material doesn't interfere with its performance. The team then devised a strategy to shuttle electrons and protons back and forth from this reactor to the fuel cell.

The right vehicle for this transport proved to be an organic compound, called a quinone, that can carry two electrons and protons at a time. In the team's design, a quinone picks up these particles at the fuel cell electrode, transports them to the nearby reactor filled with an inexpensive cobalt catalyst, and then returns to the fuel cell to pick up more "passengers."

Many quinones degrade into a tar-like substance after only a few round trips. Stahl's lab, however, designed an ultra-stable quinone derivative. By modifying its structure, the team drastically slowed down the deterioration of the quinone. In fact, the compounds they assembled last up to 5,000 hours -- a more than 100-fold increase in lifetime compared to previous quinone structures.

"While it isn't the final solution, our concept introduces a new approach to address the problems in this field," says Stahl. He notes that the energy output of his new design produces about 20 percent of what is possible in hydrogen fuel cells currently on the market. On the other hand, the system is about 100 times more effective than biofuel cells that use related organic shuttles.

The next step for Stahl and his team is to bump up the performance of the quinone mediators, allowing them to shuttle electrons more effectively and produce more power. This advance would allow their design to match the performance of conventional fuel cells, but with a lower price tag.

"The ultimate goal for this project is to give industry carbon-free options for creating electricity, including thermoelectric materials that harvest waste heat," says Colin Anson, a postdoctoral researcher in the Stahl lab and publication co-author. "The objective is to find out what industry needs and create a fuel cell that fills that hole."

This step in the development of a cheaper alternative could eventually be a boon for companies like Amazon and Home Depot that already use hydrogen fuel cells to drive forklifts in their warehouses.

"In spite of major obstacles, the hydrogen economy, with efforts such as storing electricity in pipelines in Europe, seems to be growing," adds Stahl, "one step at a time."

Financial support for this project was provided by the Center for Molecular Electrocatalysis, an Energy Frontier Research Center funded by the U.S. Department of Energy, Office of Science, Office of Basic Energy Sciences, and by the Wisconsin Alumni Research Foundation (WARF) through the WARF Accelerator Program.

 

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Ontario takes constitutional challenge of its global adjustment electricity fee to Supreme Court

Ontario Global Adjustment Supreme Court Appeal spotlights a constitutional challenge to Ontario's electricity charge, pitting National Steel Car against the IESO over regulatory charge vs tax, procurement policy, and renewable energy feed-in tariff contracts.

 

Key Points

An SCC leave bid on whether Ontario's global adjustment is a valid regulatory charge or an unconstitutional tax.

✅ Appeals Court revived case for full record review

✅ Dispute centers on regulatory charge vs tax classification

✅ FIT renewables contracts and procurement policies at issue

 

The Ontario government wants the Supreme Court of Canada to weigh in on a constitutional challenge being brought against a large provincial electricity charge, a case the province claims raises issues of national importance.

Ontario’s attorney general and its Independent Electricity System Operator applied for permission to appeal to the Supreme Court in January, according to the court’s website.

The province is trying to appeal a Court of Appeal decision reinstating the challenge from November that said a legal challenge by Hamilton, Ont.-based National Steel Car Ltd. should be sent back to a lower-court for a full hearing.

Court reinstates constitutional challenge to Ontario's hefty ‘global adjustment’ electricity charge
National Steel Car appealing decision in legal challenge of Ontario electricity fee it calls an unconstitutional tax
Doug Ford’s cancellation of green energy deals costs Ontario taxpayers $231 million
National Steel Car launched its legal challenge in 2017, with the maker of steel rail cars claiming the province’s global adjustment electricity charge was a tax intended to fund certain post-financial-crisis policy goals. Since it is allegedly a tax, and one not imposed by the provincial legislature, the company’s argument is the global adjustment is unconstitutional, and also in breach of a provincial law requiring a referendum for new taxes.

The global adjustment mostly bridges the gap between the province’s hourly electricity price and the price guaranteed under contracts and regulated rates with power generators. It also helps cover the cost of building new electricity infrastructure and providing conservation programs, but the fee now makes up most of the commodity portion of a household power bill in the province.

Ontario argued the global adjustment is a valid regulatory charge, and moved to have National Steel Car’s challenge thrown out. An Ontario Superior Court judge agreed, and dismissed the challenge in 2018, saying it was “plain, obvious and beyond doubt” it could not succeed. However, an appeals court judge disagreed, writing in a decision last November that the “merits should not have been determined on a pleadings motion and without the development of a full record.”

In filings made to the Supreme Court, both the IESO and Ontario’s Ministry of the Attorney General argued their proposed appeals raise “issues of national and public importance,” such as whether incorporating environmental and social policy goals in procurement could turn attempts by a public body to recover costs into an unconstitutional tax.

Most applications for leave to appeal to the Supreme Court are dismissed, but the Ontario government claims the court’s guidance is required in this case, as it could lead to questions being raised about other fees or charges, such as money raised from fishing licences.

“A failure to dispose of this claim at the pleadings stage may well result in such uncertainty that public authorities across Canada decline to incorporate the kind of environmental and social policy goals objected to in this case into the decisions they make about how to spend funds raised from regulatory charges,” the filing from the attorney general states. “Alternatively, it may induce governments not to engage in cost recovery in connection with publicly supplied goods and services, which can otherwise be sound public policy.”

The government has so far had to pay National Steel Car $250,000 in legal costs “to avoid responding to the credible claim that the Global Adjustment is an unconstitutional tax,” said David Trafford of Morse Shannon LLP, one of National Steel Car’s lawyers.

“The application for leave to appeal is the next step in this effort to avoid having to respond to the case on the merits,” Trafford added in an email.

The application for leave to appeal is the next step in this effort to avoid having to respond to the case on the merits

David Trafford of Morse Shannon, one of National Steel Car’s lawyers
 
National Steel Car has particularly taken issue with the part of the global adjustment that funded contracts for renewable energy under a “feed-in tariff” program, or FIT, which the company called “the main culprit behind the dramatic price increases for electricity.”

The FIT program has been ended, but contracts awarded under it remain in place and form part of the global adjustment. Ontario’s auditor general estimated in 2015 that electricity consumers would pay $9.2 billion more for renewable energy under the government’s guaranteed-price program, a figure that later featured in a dispute between the auditor and the electricity regulator that drew political attention.

National Steel Car said its global adjustment costs grew from $207,260 in 2008 to almost $3.4 million in 2016, reflecting how high electricity rates have pressured manufacturers, to almost $3.4 million in 2016. For 2018, there was approximately $11.2 billion in global adjustment collected, according to the IESO’s reporting.

A spokesperson for the IESO said it “is not in a position to comment” because the case is still before the courts.

Electricity prices have been an ongoing problem for both Ontario consumers and politicians, which the previous Liberal government tried to address in 2017 by, among other things, refinancing global-adjustment costs through the Fair Hydro Plan and other measures.

Since National Steel Car filed its lawsuits, though, the Liberals lost power in the province and were succeeded in 2018 by Premier Doug Ford and the Progressive Conservatives, who made changes to the previous government’s power policies, including legislation to lower electricity rates introduced early in their mandate.

The province has also pursued interprovincial power arrangements, including building on an electricity deal with Quebec as part of its broader energy strategy.

“The present government of Ontario does not agree with the former government’s electricity procurement program, which ceased awarding new contracts in 2016,” Ontario’s attorney general said in a filing. “However, Ontario submits that (the lower-court judge) was correct in holding that it does not give rise to a claim susceptible to being remedied by the courts.”

 

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