Spain seeks big fines over nuclear plant leak

Ukraine Power Grid Restoration accelerates across liberated Kharkiv, restoring electricity, heat, and water amid missile and drone strikes, demining operations, blackouts, and winterization efforts, showcasing resilience, emergency repairs, and critical infrastructure recovery.

Key Points

Ukraine's rapid push to repair war-damaged grids, restore heat and water, and stabilize key services before winter.

✅ Priority repairs restore electricity and water in liberated Kharkiv.

✅ Crews de-mine lines and work under shelling, drones, and missiles.

✅ Winterization adds generators, mobile stoves, and large firewood supplies.

On the freshly liberated battlefields of northeast Ukraine, a pile of smashed glass windows outside one Soviet-era block of apartments attests to the violence of six months of Russian occupation, and of Ukraine’s sweeping recent military advances.

Indoors, in cramped apartments, residents lived in the dark for weeks on end.

Now, with a hard winter looming, they marvel at the speed and urgency with which Ukrainian officials have restored another key ingredient to their survival: electric power, a critical effort to keep the lights on this winter across communities.

Among those things governments strive to provide are security, opportunity, and minimal comfort. With winter approaching, and Russia targeting Ukraine’s infrastructure, add to that list heat and light, even as Russia hammers power plants nationwide. It’s requiring a concerted effort.

“Thank God it works! Electricity is civilization – it is everything,” says Antonina Krasnokutska, a retired medical worker, looking affectionately at the lightbulb that came on the day before, and now burns again in her tiny spotless kitchen.

“Without electricity there is no TV, no news, no clothes washing, no charging the phone,” says Ms. Krasnokutska, her gray hair pulled back and a small crucifix around her neck.

“Before, it was like living in the Stone Age,” says her grown son, Serhii Krasnokutskyi, who is more than a head taller. “As soon as it got dark, everyone would go to sleep.”

He shows a picture on his phone from a few days earlier, of a tangle of phone and computer charging cables – including his – plugged in at a local shop with a generator.

“We are very grateful for the people who repaired this electricity, even with shelling continuing,” he says. “They have a very complicated job.”

Indeed, although a lack of power might have been a novel inconvenience during the warm summer season, it increasingly has become a matter of great urgency for Ukrainian citizens and officials.

Coping through Ukraine’s winter with dignity and any degree of security will require courage and perseverance, as the severity and suffering that the season can bring here are being weaponized by Russia, as it seeks to compensate for a string of battlefield losses.

In recent days, Russian attacks have specifically targeted Ukraine’s electrical and other civilian infrastructure – all with the apparent aim of making this winter as hard as possible for Ukrainians, even as Moscow employs other measures to spread the hardship across Europe, while Ukraine helps Spain amid blackouts through grid support.

Ukrainian President Volodymyr Zelenskyy said Monday that Russian barrages across the country with missiles and Iran-supplied kamikaze drones had destroyed 30% of Ukraine’s power stations in the previous eight days, including strikes on western Ukraine that caused outages. Thousands of towns have been left without electricity.

Kharkiv’s challenges
Emblematic of the national challenge is the one facing officials in the northeast Kharkiv region, where Ukraine recaptured more than 3,000 square miles in a September counteroffensive. Ukrainian forces are still making gains on that front, as well as in the south toward Kherson, where Wednesday Russia started evacuating civilians from the first major city it occupied, after launching its three-pronged invasion last February.

Across the Kharkiv region, Ukrainians are stockpiling as much wood, fuel, and food as possible while they still can, and adopting new energy solutions as they prepare, from sources as diverse as the floorboards of destroyed schools and the pine forests in Izium, which are pockmarked with abandoned Russian trenches adjacent to a mass burial site.

“Of course, we have this race against time,” says Serhii Mahdysyuk, the Kharkiv regional director in charge of housing, services, fuel, and energy. “Unfortunately, we probably stand in front of the biggest challenge in Ukraine.”

That is not only because of the scale of liberated territory, he says, but also because the Kharkiv region shares a long border with Russia, as well as with the Russian-controlled areas of the eastern Donbas.

“It’s a great mixture of all threats, and we are sure that shelling and bombings will continue, but we are ready for this,” says Mr. Mahdysyuk. “We know our weak spots that Russia can destroy, but we are prepared for what to do in these situations.”

Ukraine’s battlefield gains have meant a surging need to pick up the pieces after Russian occupation, even as electricity reserves are holding if no new strikes occur, to ensure habitable conditions as more and more surviving residents require services, and as others return to scenes of devastation.

Restoring electricity is the top priority, amid shifting international assistance such as the end of U.S. grid support, because that often restarts running water, too, says Mr. Mahdysyuk. But before that, the area beneath broken power lines must be de-mined.

Indeed, members of an electricity team reconnecting cables on the outskirts of Balakliia – one of the first towns to see power restored, at the end of September – say they lost two fellow workers in the previous two weeks. One died after stepping on an anti-personnel mine, another when his vehicle hit an anti-tank device.

Ukrainian electricity workers restore power lines damaged during six months of Russian military occupation in Balakliia, Ukraine, Sept. 29, 2022. Ukrainians in liberated territory say the restoration of the electrical grid, and with it often the water supply, is a return to civilization.
“For now, our biggest problem is mines,” says the team leader, who gave the name Andrii. “It’s fine within the cities, but in the fields it’s a disaster because it’s very difficult to see them. There is a lot of [them] around here – it will take years and years to get rid of.”

Yet officials only have a few weeks to execute plans to provide for hundreds of thousands of residents in this region, in their various states of need and distress. Some 50 field kitchens capable of feeding 200 to 300 people each have been ordered. Another 1,000 mobile stoves are on their way.

And authorities will provide nearly 200,000 cubic yards of firewood for those who have no access to it, and may have no other means of keeping warm – or where shelling continues to disrupt repairs, says Mr. Mahdysyuk.

“The level of opportunity and resources we have is not the same as the level of destruction,” he says. People in districts and buildings too destroyed to have services restored soon, such as in Saltivka in Kharkiv city, may be moved.

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BC Hydro Electricity Imports shape CleanBC claims as Powerex trades cross-border electricity, blending hydro with coal and gas supplies, affecting emissions, grid carbon intensity, and how electric vehicles and households assess "clean" power.

Key Points

Powerex buys power for BC Hydro, mixing hydro with coal and gas, shifting emissions and affecting CleanBC targets.

✅ Powerex trades optimize price, not carbon intensity

✅ Imports can include coal- and gas-fired generation

✅ Emissions affect EV and CleanBC decarbonization claims

British Columbians naturally assume they’re using clean power when they fire up holiday lights, juice up a cell phone or plug in a shiny new electric car. 

That’s the message conveyed in advertisements for the CleanBC initiative launched by the NDP government, amid indications that residents are split on going nuclear according to a survey, which has spent $3.17 million on a CleanBC “information campaign,” including almost $570,000 for focus group testing and telephone town halls, according to the B.C. finance ministry.

“We’ll reduce air pollution by shifting to clean B.C. energy,” say the CleanBC ads, which feature scenic photos of hydro reservoirs. “CleanBC: Our Nature. Our Power. Our Future.” 

Yet despite all the bumph, British Columbians have no way of knowing if the electricity they use comes from a coal-fired plant in Alberta or Wyoming, a nuclear plant in Washington, a gas-fired plant in California or a hydro dam in B.C. 

Here’s why. 

BC Hydro’s wholly-owned corporate subsidiary, Powerex Corp., exports B.C. power when prices are high and imports power from other jurisdictions when prices are low. 

In 2018, for instance, B.C. imported more electricity than it exported — not because B.C. has a power shortage (it has a growing surplus due to the recent spate of mill closures and the commissioning of two new generating stations in B.C.) but because Powerex reaps bigger profits when BC Hydro slows down generators to import cheaper power, especially at night.

“B.C. buys its power from outside B.C., which we would argue is not clean,” says Martin Mullany, interim executive director for Clean Energy BC. 

“A good chunk of the electricity we use is imported,” Mullany says. “In reality we are trading for brown power” — meaning power generated from conventional ‘dirty’ sources such as coal and gas. 

Wyoming, which generates almost 90 per cent of its power from coal, was among the 12 U.S. states that exported power to B.C. last year. (Notably, B.C. did not export any electricity to Wyoming in 2018.)

Utah, where coal-fired power plants produce 70 per cent of the state’s energy amid debate over the costs of scrapping coal-fired electricity, and Montana, which derives about 55 per cent of its power from coal, also exported power to B.C. last year. 

So did Nebraska, which gets 63 per cent of its power from coal, 15 per cent from nuclear plants, 14 per cent from wind and three per cent from natural gas.   

Coal is responsible for about 23 per cent of the power generated in Arizona, another exporter to B.C., while gas produces about 44 per cent of the electricity in that state.  

In 2017, the latest year for which statistics are available, electricity imports to B.C. totalled just over 1.2 million tonnes of carbon dioxide emissions, according to the B.C. environment ministry — roughly the equivalent of putting 255,000 new cars on the road, using the U.S. Environmental Protection Agency’s calculation of 4.71 tonnes of annual carbon emissions for a standard passenger vehicle. 

These figures far outstrip the estimated local and upstream emissions from the contested Woodfibre LNG plant in Squamish that is expected to release annual emissions equivalent to 170,000 new cars on the road.

Import emissions cast a new light on B.C.’s latest “milestone” announcement that 30,000 electric cars are now among 3.7 million registered vehicles in the province.

BC Electric Vehicles Announcement Horgan Heyman Mungall Weaver
In November of 2018 the province announced a new target to have all new light-duty cars and trucks sold to be zero-emission vehicles by the year 2040. Photo: Province of B.C. / Flickr

“Making sure more of the vehicles driven in the province are powered by BC Hydro’s clean electricity is one of the most important steps to reduce [carbon] pollution,” said the November 28 release from the energy ministry, noting that electrification has prompted a first call for power in 15 years from BC Hydro.

Mullany points out that Powerex’s priority is to make money for the province and not to reduce emissions.

“It’s not there for the cleanest outcome,” he said. “At some time we have to step up to say it’s either the money or the clean power, which is more important to us?”

Electricity bought and sold by little-known, unregulated Powerex
These transactions are money-makers for Powerex, an opaque entity that is exempt from B.C.’s freedom of information laws. 

Little detailed information is available to the public about the dealings of Powerex, which is overseen by a board of directors comprised of BC Hydro board members and BC Hydro CEO and president Chris O’Reilly. 

According to BC Hydro’s annual service plan, Powerex’s net income ranged from $59 million to $436 million from 2014 to 2018. 

“We will never know the true picture. It’s a black box.” 

Powerex’s CEO Tom Bechard — the highest paid public servant in the province — took home $939,000 in pay and benefits last year, earning $430,000 of his executive compensation through a bonus and holdback based on his individual and company performance.  

“The problem is that all of the trade goes on at Powerex and Powerex is an unregulated entity,” Mullany says. 

“We will never know the true picture. It’s a black box.” 

In 2018, Powerex exported 8.7 million megawatt hours of electricity to the U.S. for a total value of almost $570 million, according to data from the Canada Energy Regulator. That same year, Powerex imported 9.6 million megawatt hours of electricity from the U.S. for almost $360 million. 

Powerex sold B.C.’s publicly subsidized power for an average of $87 per megawatt hour in 2018, according to the Canada Energy Regulator. It imported electricity for an average of $58 per megawatt hour that year. 

In an emailed statement in response to questions from The Narwhal, BC Hydro said “there can be a need to import some power to meet our electricity needs” due to dam reservoir fluctuations during the year and from year to year.

‘Impossible’ to determine if electricity is from coal or wind power
Emissions associated with electricity imports are on average “significantly lower than the emissions of a natural gas generating plant because we mostly import electricity from hydro generation and, increasingly, power produced from wind and solar,” BC Hydro claimed in its statement. 

But U.S. energy economist Robert McCullough says there’s no way to distinguish gas and coal-fired U.S. power exports to B.C. from wind or hydro power, noting that “electrons lack labels.” 

Similarly, when B.C. imports power from Alberta, where generators are shifting to gas and 48.5 per cent of electricity production is coal-fired and 38 per cent comes from natural gas, there’s no way to tell if the electricity is from coal, wind or gas, McCullough says.

“It really is impossible to make that determination.” 

Wyoming Gilette coal pits NASA
The Gillette coal pits in Wyoming, one of the largest coal-producers in the U.S. Photo: NASA Earth Observatory

Neither the Canada Energy Regulator nor Statistics Canada could provide annual data on electricity imports and exports between B.C. and Alberta. 

But you can watch imports and exports in real time on this handy Alberta website, which also lists Alberta’s power sources. 

In 2018, California, Washington and Oregon supplied considerably more power to B.C. than other states, according to data from Canada Energy Regulator. 

Washington, where about one-quarter of generated power comes from fossil fuels, led the pack, with more than $339 million in electricity exports to B.C. 

California, which still gets more than half of its power from gas-fired plants even though it leads the U.S. in renewable energy with substantial investments in wind, solar and geothermal, was in second place, selling about $18.4 million worth of power to B.C. 

And Oregon, which produces about 43 per cent of its power from natural gas and six per cent from coal, exported about $6.2 million worth of electricity to B.C. last year. 

By comparison, Nebraska’s power exports to B.C. totalled about $1.6 million, Montana’s added up to $1.3 million,  Nevada’s were about $706,000 and Wyoming’s were about $346,000.

Clean electrons or dirty electrons?
Dan Woynillowicz, deputy director of Clean Energy Canada, which co-chaired the B.C. government’s Climate Solutions and Clean Growth Advisory Council, says B.C. typically exports power to other jurisdictions during peak demand. 

Gas-fired plants and hydro power can generate electricity quickly, while coal-fired power plants take longer to ramp up and wind power is variable, Woynillowicz notes. 

“When you need power fast and there aren’t many sources that can supply it you’re willing to pay more for it.”

Woynillowicz says “the odds are high” that B.C. power exports are displacing dirty power.

Elsewhere in Canada, analysts warn that Ontario's electricity could get dirtier as policies change, raising similar concerns.

“As a consumer you never know whether you’re getting a clean electron or a dirty electron. You’re just getting an electron.” 

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Earth Hour BC highlights BC Hydro data on electricity use, energy savings, and participation in the Lower Mainland and Vancouver Island amid climate change and hydroelectric power dynamics.

Key Points

BC observance tracking BC Hydro electricity use and conservation during Earth Hour, amid hydroelectric power dominance.

✅ BC Hydro reports rising electricity use during Earth Hour 2018

✅ Savings fell from 2% in 2008 to near zero province-wide

✅ Hydroelectric grid yields low GHG emissions in BC

For the first time since it began tracking electricity use in the province during Earth Hour, BC Hydro said customers used more power during the 60-minute period when lights are expected to dim, mirroring all-time high electricity demand seen recently.

The World Wildlife Fund launched Earth Hour in Sydney, Australia in 2007. Residents and businesses there turned off lights and non-essential power as a symbol to mark the importance of combating climate change.

The event was adopted in B.C. the next year and, as part of that, BC Hydro began tracking the megawatt hours saved.

#google#

In 2008, residents and businesses achieved a two per cent savings in electricity use. But since then, BC Hydro says the savings have plummeted.

The event was adopted in B.C. the next year and, as part of that, BC Hydro began tracking the megawatt hours saved.

In 2008, residents and businesses achieved a two per cent savings in electricity use. But since then, BC Hydro says the savings have plummeted, as record-breaking demand in 2021 and beyond changed consumption patterns.

Lights on

For Earth Hour this year, which took place 8:30-9:30 p.m. on March 24, BC Hydro says electricity use in the Lower Mainland increased by 0.5 per cent, even as it activated a winter payment plan to help customers manage bills. On Vancouver Island it increased 0.6 per cent.

In the province's southern Interior and northern Interior, power use remained the same during the event.

On Friday, the utility released a report called: "lights out". Why Earth Hour is dimming in BC. which explores the decline of energy savings related to Earth Hour in the province.

The WWF says the way in which hydro companies track electricity savings during Earth Hour is not an accurate measure of participation, and tracking of emerging loads like crypto mining electricity use remains opaque, and noted that more countries than ever are turning off lights for the event.

For 2018, the WWF shifted the focus of Earth Hour to the loss of wildlife across the globe.

BC Hydro says in its report that the symbolism of Earth Hour is still important to British Columbians, but almost all power generation in B.C. is hydroelectric, though recent drought conditions have required operational adjustments, and only accounts for one per cent of greenhouse gas emissions.

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We Energies rate increase driven by nuclear energy costs at Point Beach, Wisconsin PSC filings, and rising utility rates, affecting electricity prices for residential, commercial, and industrial customers while supporting WEC carbon reduction goals.

Key Points

A 2021 utility rate hike to recover Point Beach nuclear costs, modestly raising Wisconsin electricity bills.

✅ Residential bills rise about $0.73 per month

✅ Driven by $55.82/MWh Point Beach contract price

✅ PSC review and consumer advocates assessing alternatives

Wisconsin's largest utility company is again asking regulators to raise rates to pay for the rising cost of nuclear energy.

We Energies says it needs to collect an additional $26.5 million next year, an increase of about 3.4%.

For residential customers, that would translate to about 73 cents more per month, or an increase of about 0.7%, while some nearby states face steeper winter rate hikes according to regulators. Commercial and industrial customers would see an increase of 1% to 1.5%, according to documents filed with the Public Service Commission.

If approved, it would be the second rate increase in as many years for about 1.1 million We Energies customers, who saw a roughly 0.7% increase in 2020 after four years of no change, while Manitoba Hydro rate increase has been scaled back for next year, highlighting regional contrasts.

We Energies' sister utility, Wisconsin Public Service Corp., has requested a 0.13% increase, which would add about 8 cents to the average monthly residential bill, which went up 1.6% this year.

We Energies said a rate increase is needed to cover the cost of electricity purchased from the Point Beach nuclear power plant, which according to filings with the Securities Exchange Commission will be $55.82 per megawatt-hour next year.

So far this year, the average wholesale price of electricity in the Midwestern market was a little more than $25.50 per megawatt-hour, and recent capacity market payouts on the largest U.S. grid have fallen sharply, reflecting broader market conditions.

Owned and operated by NextEra Energy Resources, the 1,200-megawatt Point Beach Nuclear Plant is Wisconsin's last operational reactor. We Energies sold the plant for $924 million in 2007 and entered into a contract to purchase its output for the next two decades.

Brendan Conway, a spokesman for WEC Energy Group, said customers have benefited from the sale of the plant, which will supply more than a third of We Energies' demand and is a key component in WEC's strategy to cut 80% of its carbon emissions by 2050, amid broader electrification trends nationwide.

"Without the Point Beach plant, carbon emissions in Wisconsin would be significantly higher," Conway said.

As part of negotiations on its last rate case, WEC agreed to work with consumer advocates and the PSC to review alternatives to the contracted price increases, which were structured to begin rising steeply in 2018.

Tom Content, executive director of the Citizens Utility Board, said the contract will be an issue for We Energies customers into the next decade

"It's a significant source (of energy) for the entire state," Content said. "But nuclear is not cheap."

WEC filed the rate requests Monday, one week after the withdrawing similar applications. Conway said the largely unchanged filings had "undergone additional review by senior management."

WEC last week raised its second quarter profit forecast to 67 to 69 cents per share, up from the previous range of 58 to 62 cents per share.

The company credited better than expected sales in April and May along with operational cost savings and higher authorized profit margin for American Transmission Company, of which WEC is the majority owner.

Wisconsin's other investor-owned utilities have reported lower than expected fuel costs for 2020 and 2021, even as emergency fuel stock programs in New England are expected to cost millions this year.

Alliant Energy has proposed using about $31 million in fuel savings to help freeze rates in 2021, aligning with its carbon-neutral electricity plans as it rolls out long-term strategy, while Xcel Energy is proposing to lower its rates by 0.8% next year and refund its customers about $9.7 million in fuel costs for this year.

Madison Gas and Electric is negotiating a two-year rate structure with consumer groups who are optimistic that fuel savings can help prevent or offset rate increases, though some utilities are exploring higher minimum charges for low-usage customers to recover fixed costs.

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US Nuclear Generating Costs 2017 show USD33.50/MWh for nuclear energy, the lowest since 2008, as capital expenditures, fuel costs, and operating costs declined after license renewals and uprates, supporting a reliable, low-carbon grid.

Key Points

The 2017 US nuclear average was USD33.50/MWh, lowest since 2008, driven by reduced capital, fuel, and operating costs.

✅ Average cost USD33.50/MWh, lowest since 2008

✅ Capital, fuel, O&M costs fell sharply since 2012 peak

✅ License renewals, uprates, market reforms shape competitiveness

Average total generating costs for nuclear energy in 2017 in the USA were at their lowest since 2008, according to a study released by the Nuclear Energy Institute (NEI), amid a continuing nuclear decline debate in other regions.

The report, Nuclear Costs in Context, found that in 2017 the average total generating cost - which includes capital, fuel and operating costs - for nuclear energy was USD33.50 per megawatt-hour (MWh), even as interest in next-generation nuclear designs grows among stakeholders. This is 3.3% lower than in 2016 and more than 19% below 2012's peak. The reduction in costs since 2012 is due to a 40.8% reduction in capital expenditures, a 17.2% reduction in fuel costs and an 8.7% reduction in operating costs, the organisation said.

The year-on-year decline in capital costs over the past five years reflects the completion by most plants of efforts to prepare for operation beyond their initial 40-year licence. A few major items - a series of vessel head replacements; steam generator replacements and other upgrades as companies prepared for continued operation, and power uprates to increase output from existing plants - caused capital investment to increase to a peak in 2012. "As a result of these investments, 86 of the [USA's] 99 operating reactors in 2017 have received 20-year licence renewals and 92 of the operating reactors have been approved for uprates that have added over 7900 megawatts of electricity capacity. Capital spending on uprates and items necessary for operation beyond 40 years has moderated as most plants are completing these efforts," it says.

Since 2013, seven US nuclear reactors have shut down permanently, with the Three Mile Island debate highlighting wider policy questions, and another 12 have announced their permanent shutdown. The early closure for economic reasons of reliable nuclear plants with high capacity factors and relatively low generating costs will have long-term economic consequences, the report warns: replacement generating capacity, when needed, will produce more costly electricity, fewer jobs that will pay less, and, for net-zero emissions objectives, more pollution, it says.

NEI Vice President of Policy Development and Public Affairs John Kotek said the "hardworking men and women of the nuclear industry" had done an "amazing job" reducing costs through the institute's Delivering the Nuclear Promise campaign and other initiatives, in line with IAEA low-carbon lessons from the pandemic. "As we continue to face economic headwinds in markets which do not properly compensate nuclear plants, the industry has been doing its part to reduce costs to remain competitive," he said.

"Some things are in urgent need of change if we are to keep the nation's nuclear plants running and enjoy their contribution to a reliable, resilient and low-carbon grid. Namely, we need to put in place market reforms that fairly compensate nuclear similar to those already in place in New York, Illinois and other states," Kotek added.

Cost information in the study was collected by the Electric Utility Cost Group with prior years converted to 2017 dollars for accurate historical comparison.

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Ontario Global Adjustment Charge faces constitutional scrutiny as a regulatory charge vs tax; Court of Appeal revives case over electricity pricing, feed-in tariff contracts, IESO policy, and hydro rate impacts on consumers and industry.

Key Points

A provincial electricity fee funding generator contracts, now central to a court fight over tax versus regulatory charge.

✅ Funds gap between market price and contracted generator rates

✅ At issue: regulatory charge vs tax under constitutional law

✅ Linked to feed-in tariff, IESO policy, and hydro rate hikes

Ontario’s court of appeal has decided that a constitutional challenge of a steep provincial electricity charge should get its day in court, overturning a lower-court judgment that had dismissed the legal bid.

Hamilton, Ont.-based National Steel Car Ltd. launched the challenge in 2017, saying Ontario’s so-called global adjustment charge was unconstitutional because it is a tax — not a valid regulatory charge — that was not passed by the legislature.

The global adjustment funds the difference between the province’s hourly electricity price and the price guaranteed under contracts to power generators. It is “the component that covers the cost of building new electricity infrastructure in the province, maintaining existing resources, as well as providing conservation and demand management programs,” the province’s Independent Electricity System Operator says.

However, the global adjustment now makes up most of the commodity portion of a household electricity bill, and its costs have ballooned, as regulators elsewhere consider a proposed 14% rate hike in Nova Scotia.

Ontario’s auditor general said in 2015 that global adjustment fees had increased from $650 million in 2006 to more than $7 billion in 2014. She added that consumers would pay $133 billion in global adjustment fees from 2015 to 2032, after having already paid $37 billion from 2006 to 2014.

National Steel Car, which manufactures steel rail cars and faces high electricity rates that hurt Ontario factories, said its global adjustment costs went from $207,260 in 2008 to almost $3.4 million in 2016, according to an Ontario Court of Appeal decision released on Wednesday.

The company claimed the global adjustment was a tax because one of its components funds electricity procurement contracts under a “feed-in tariff” program, or FIT, which National Steel Car called “the main culprit behind the dramatic price increases for electricity,” the decision said.

Ontario’s auditor general said the FIT program “paid excessive prices to renewable energy generators.” The program has been ended, but contracts awarded under it remain in place.

National Steel Car claimed the FIT program “was actually designed to accomplish social goals unrelated to the generation of electricity,” such as helping rural and indigenous communities, and was therefore a tax trying to help with policy goals.

“The appellant submits that the Policy Goals can be achieved by Ontario in several ways, just not through the electricity pricing formula,” the decision said.

National Steel Car also argued the global adjustment violated a provincial law that requires the government to hold a referendum for new taxes.

“The appellant’s principal claim is that the Global Adjustment was a ‘colourable attempt to disguise a tax as a regulatory charge with the purpose of funding the costs of the Policy Goals,’” the decision said. “The appellant pressed this argument before the motion judge and before this court. The motion judge did not directly or adequately address it.”

The Ontario government applied to have the challenge thrown out for having “no reasonable cause of action,” and a Superior Court judge did so in 2018, saying the global adjustment is not a tax.

National Steel Car appealed the decision, and the decision published Wednesday allowed the appeal, set aside the lower-court judgment, and will send the case back to Superior Court, where it could get a full hearing.

“The appellant’s claim is sufficiently plausible on the evidentiary record it put forward that the applications should not have been dismissed on a pleadings motion before the development of a full record,” wrote Justice Peter D. Lauwers. “It is not plain, obvious and beyond doubt that the Global Adjustment, and particularly the challenged component, is properly characterized as a valid regulatory charge and not as an impermissible tax.”

Jerome Morse of Morse Shannon LLP, one of National Steel Car’s lawyers, said the Ontario government would now have 60 days to decide whether to seek permission to appeal to the Supreme Court of Canada.

“What the court has basically said is, ‘this is a plausible argument, here are the reasons why it’s plausible, there was no answer to this,’” Morse told the Financial Post.

Ontario and the IESO had supported the lower-court decision, but there has been a change in government since the challenge was first launched, with Progressive Conservative Premier Doug Ford replacing the Liberals and Kathleen Wynne in power. The Liberals had launched a plan aimed at addressing hydro costs before losing in a 2018 election, the main thrust of which had been to refinance global adjustment costs.

Wednesday’s decision states that “Ontario’s counsel advised the court that the current Ontario government ‘does not agree with the former government’s electricity procurement policy (since-repealed).’

“The government’s view is that: ‘The solution does not lie with the courts, but instead in the political arena with political actors,’” it adds.

A spokesperson for Ontario Energy Minister Greg Rickford said in an email that they are reviewing the decision but “as this matter is in the appeal period, it would be inappropriate to comment.” 

Ontario had also requested to stay the matter so a regulator, the Ontario Energy Board, could weigh in, while the Nova Scotia regulator approved a 14% hike in a separate case.

“However, Ontario only sought this relief from the motion judge in the alternative, and given the motion judge’s ultimate decision, she did not rule on the stay,” Thursday’s decision said. “It would be premature for this court to rule on the issue, although it seems incongruous for Ontario to argue that the Superior Court is the convenient forum in which to seek to dismiss the applications as meritless, but that it is not the convenient forum for assessing the merits of the applications.”

National Steel Car’s challenge bears a resemblance to the constitutional challenges launched by Ontario and other provinces over the federal government’s carbon tax, but Justice Lauwers wrote “that the federal legislative scheme under consideration in those cases is distinctly different from the legislation at issue in this appeal.”

“Nothing in those decisions impacts this appeal,” the judge added.
 

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