Texas urged to stay with deregulated power market

By McClatchy Tribune News


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Texas' growing energy needs require new power plants of all types and continuation of a deregulated power market despite high electricity prices, according to recommendations from the governor's competitiveness council.

Texas will require 2 percent more energy every year, which means it will need dozens more natural gas, coal and nuclear plants and more wind power to maintain a safety margin, the council said. Texas also needs plants to replace older ones that will be mothballed.

The recommendations were among 37 designed to keep the state attractive to business and globally competitive. "America must be much more independent on the energy side," Gov. Rick Perry told several hundred business leaders. "And Texas is going to lead us all."

Higher natural gas prices this year combined with the state's dependence on natural gas plants for much of its electricity have soured many consumers on the deregulated market because of high monthly bills.

The council's report noted that among states with mostly natural gas power, Texas' electricity costs are actually lower than seven other states.

"Our retail market is the most successful retail market in the world," said Barry Smitherman, chairman of the state's Public Utility Commission. "We have 25 retail electric providers fighting against each other every day for your business," he said. "Natural gas prices have increased 400 percent while electricity costs have risen just 30 percent."

Part of consumer frustration over high rates has come from the shutdown of several electricity providers; the council's report recommends changing the certification process for new power retailers.

The council predicts that any federal attempt to set caps on carbon emissions will hurt Texas's energy-intensive economy disproportionately compared with other states. The report urged a partnership between state agencies to educate the public about the "high cost of carbon regulation" compared with its environmental benefits. Texas must continue to encourage wind power development and explore the economic viability of solar energy, perhaps by establishing innovation prizes. The state should also de-emphasize the preference given to building natural gas plants.

Other recommendations include:

- Streamlining state water permitting to encourage utilities to build more nuclear plants.

- Adding a sales tax exemption for solar generation systems.

- Encouraging the development of offshore wind generation because offshore winds blow during peak demand; the wind in West Texas generally blows early in the morning and at night.

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France hopes to keep Brussels sweet with new electricity pricing scheme

France Electricity Pricing Mechanism aligns with EU rules, leveraging nuclear energy and EDF profits, avoiding Contracts for Difference, redistributing windfalls to industry and households, targeting €70/MWh amid electricity market reform and Brussels oversight.

 

Key Points

A framework to keep power near €70/MWh by reclaiming EDF windfalls and redistributing them under EU market rules.

✅ Targets average price near €70/MWh from 2026

✅ Skims EDF profits above €78-80 and €110/MWh thresholds

✅ Aligns with EU rules; avoids nuclear CfDs and state aid clashes

 

France has unveiled a new electricity pricing mechanism, hoping to defuse months of tension over energy subsidies with Brussels and its neighbors.

The strain has included a Franco-German fight over EU electricity reform with Germany accusing France of wanting to subsidize its industry via artificially low energy prices, while Paris maintained it should have the right to make the most of its relatively cheap nuclear energy. That fight has now been settled.

On Tuesday, the French government presented a new mechanism — complex, and still-to-be-detailed — to bring the average price of electricity closer to €70 per megawatt hour (MWh) as of 2026, amid Europe's electricity market revamp efforts.

"The agreement has been defined to comply with European rules and avoid difficulties with the European Commission," said France's Economy and Finance Minister Bruno Le Maire, noting that France had ruled out other "simpler" options that would have caused tension with Brussels.

For example, France has not yet envisaged the use of state-backed investment schemes called Contracts for Difference (CfD), which were the main source of discord in talks with Germany on the electricity market reform and the EU push for more fixed-price contracts in generation. The compromise agreed by EU ministers last month gives the Commission the power to monitor CfDs in the nuclear sector.

"France wanted to limit as much as possible the European Commission's nuisance power," said Phuc-Vinh Nguyen, an energy expert at the Jacques Delors Institute think tank in Paris.

The announcement came weeks after French President Emmanuel Macron promised that France would "take back control" of its electricity prices to allow its industry to make the most of the country's relatively cheap nuclear energy.

Germany, by contrast, has moved to support energy-intensive industries with an industrial electricity subsidy, underscoring the policy divergence.

“The price of electricity has always been a major competitive advantage for the French nation, and it must remain so,” Le Maire said.

Under the new mechanism, part of a broader deal on electricity prices between the state and EDF, the government will seize EDF profits above certain thresholds and redistribute them directly to industry and households to bring prices closer to the desired level. Specifically, the government will redistribute 50 percent of EDF’s additional profits if prices rise above €78-€80 per MWh, and 90 percent of extra profits if prices rise above €110 per MWh.

The move also marks a new step in the government's power grab at EDF, after the company was fully nationalized earlier this year.

For years, France has been discussing an EDF reform with the Commission in order to address concerns by Brussels regarding disguised state aid to the company. In particular, the Commission wanted assurances that any state aid given to nuclear would be kept separate from those parts of the business subject to competition, such as renewable energy development.

An economy ministry official close to Le Maire argued that the new pricing mechanism would settle matters with Brussels on that front. A Commission spokesperson said Brussels was in contact with France on the file, but declined further comment.

The mechanism will replace the existing EU-mandated energy pricing mechanism, dubbed ARENH, which was set to expire at the end of 2025, and which has forced EDF to sell some of its electricity to competitors at a fixed low price since 2010, and comes amid contested electricity market reforms at EU level.

The new system could benefit EDF because it won't be bound to sell energy at a lower price, but instead will be allowed to auction off its energy to competitors. On the other hand, the redistribution system would deprive the company of some profits when electricity prices are higher. No wonder, then, that negotiations between the government and EDF have been "difficult," as Le Maire put it.

 

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Tucson Electric Power plans to end use of coal-generated electricity by 2032

Tucson Electric Power Coal Phaseout advances an Integrated Resource Plan to exit Springerville coal by 2032, lift renewables past 70 percent by 2035, add wind, solar, battery storage, and cut carbon emissions 80 percent.

 

Key Points

A 2032 coal exit and 2035 plan to lift renewables above 70 percent, add wind, solar, storage, and cut CO2 80 percent.

✅ Coal purchases end at Springerville units by 2032

✅ Renewables exceed 70 percent of load by 2035

✅ 80 percent CO2 cut from 2005 baseline via wind, solar, storage

 

In a dramatic policy shift, Tucson Electric Power says it will stop using coal to generate electricity by 2032 and will increase renewable energy's share of its energy load to more than 70% by 2035.

As part of that change, the utility will stop buying electricity from its two units at its coal-fired Springerville Generating Station by 2032. The plant, TEP's biggest power source, provides about 35% of its energy.

The utility already had planned to start up two New Mexico wind farms and a solar storage plant in the Tucson area by next year. The new plan calls for adding an additional 2,000 megawatts of renewable energy capacity by 2035.

The utility's switch from fossil fuels is spelled out in the plan, submitted to the Arizona Corporation Commission, amid shifts in federal power plant rules that could affect implementation. Called an Integrated Resource Plan, it would reduce TEP's carbon dioxide emissions 80% by 2035 compared with 2005 levels.

The plan drew generally positive reviews from a number of environmentalists and other representatives of an advisory committee that had worked with TEP for a year.

Two commissioners, Chairman Bob Burns and Tucsonan Lea Marquez Peterson, also generally praised the plan, although they held off on final judgment.

University of Arizona researchers said the plan would likely meet the utility's share of the worldwide goal of holding down global temperatures to less than 2 degrees Celsius, or about 3.6 degrees Fahrenheit, above pre-industrial levels, even as studies find that climate change threatens grid reliability in many regions.

But a representative of AARP and the Pima Council on Aging expressed concern because the plan would require 1% annual electric rate increases a year to put into effect.

Officials in the eastern Arizona town of Springerville aren't happy.

And Sierra Club official Sandy Bahr said the plan doesn't move fast enough to get TEP off coal. She listed 14 separate units of various Western coal-fired plants that are scheduled to shut down sooner than 2032, many in the 2020s.

But TEP says the plan best balances costs and environmental benefits compared with 24 others it reviewed.

"We know our customers want safe, reliable energy from resources that are both affordable and environmentally responsible. TEP's 2020 Integrated Resource Plan will help us maintain that delicate balance," TEP CEO David Hutchens wrote in the forward to the plan.

The plan isn't legally binding but is aimed at sending a signal to regulators and the public about TEP's future direction. TEP and other regulated Arizona utilities update such plans every three years.

TEP has been one of the West's more fossil-fuel-friendly utilities. It stuck with coal even as many other utilities were moving away from it, including Alliant Energy's carbon-neutral plan to cut emissions and costs, and as the Sierra Club called on utilities to move beyond what it termed a highly polluting energy source that emits large quantities of heat-trapping greenhouse gases linked by scientists to global warming.

Last year, TEP got 13% of its electricity from renewables such as wind farms and solar plants along with photovoltaic solar panels atop individual homes. Fossil fuels coal and natural gas supplied the rest, a University of Arizona study paid for by TEP found.

Economics, not just emissions, a big factor

TEP's previous resource plan, from 2017, called for boosting renewable use to 30% by 2030 and to cut coal to 38% of its electric load by then from 69% in 2017, reflecting broader 2017 utility trends across the industry.

A TEP official said last week the utility is heading in a different direction not only due to concerns about greenhouse gas emissions but because of changing economics.

"For the last several decades, coal was the most economical resource. It was the lowest-cost resource to supply energy for our customers, and it wasn't really close," said Jeff Yockey, TEP's resource planning director.

But over the past few years, first natural gas prices and more recently solar and wind energy prices have fallen dramatically, he said.

Their prices are projected to keep falling, along with the cost of battery-fueled storage of solar energy for use when the sun is down, he said.

"Coal just isn't the most economical resource" now, Yockey said.

Yet the utility still needs, for now, the extra energy capacity that coal provides, he said, even as other states outline ways to improve grid reliability through targeted investments.

"Being a utility with no nuclear or hydro(electric) energy, with coal, there is reliability, a fuel on the ground, 30 or 90 days supply," he said. "It's the only source not subject to disruption in the next hour. It's our only long-term, stable fuel supply. Over time, we will be able to overcome that."

UA researchers, community panel worked on plan

TEP paid the UA $100,000 to have three researchers prepare two reports, one comparing 24 different proposals and a second comparing TEP's fossil fuel/renewable split with those of other utilities.

Also, the utility appointed an advisory council representing environmental, business and government interests that met regularly to guide TEP in producing the plan. The utility chose a preferred energy "portfolio," Yockey said.

The goal "was very much about basically achieving significant emissions reductions as quickly as we can and as cost effectively as we can," he said. TEP wanted the biggest cumulative emission cut possible over 15 years.

"If it was just about cost, we wouldn't have selected the portfolio that we selected. It wasn't the lowest cost portfolio."

UA assistant research professors Ben McMahan and Will Holmgren said combined carbon dioxide emission reductions from TEP's new plan over 15 years would be expected to hit the Paris accord's 2-degree target.

"There is considerable uncertainty about what will happen between now and 2050, but the preferred portfolio's early start on reductions and lowest cumulative emissions is certainly a positive sign that well below 2C is achievable," the researchers said in an email.

Environmentalists pleased, but some want coal cut sooner

The Sierra Club, Western Resource Advocates, the Southwest Energy Efficiency Project and Pima County offered varying degrees of praise for the new TEP plan.

In a memo Friday, County Administrator Chuck Huckelberry congratulated TEP for "the comprehensive, inclusive and transparent process" used to develop the plan.

Because of UA's involvement, TEP's advisory council and the public "can feel confident that the utility is on track to make significant progress in curbing greenhouse gas emissions to combat climate change," Huckelberry wrote.

The TEP plan "is the most aggressive commitment to reducing emissions by a utility in Arizona," said Autumn Johnson of Western Resource Advocates in a news release.

"Adding clean energy generation and storage while accelerating the retirement of coal units will ensure a healthier and better future for Arizonans," said Johnson, an energy policy analyst in Phoenix.

The Sierra Club will have a technical expert review the plan and already wants more energy savings, said Bahr, director of the group's Grand Canyon chapter. But overall, this plan is a step in the right direction for TEP, she said.

By comparison, Arizona Public Service's new resource plan only calls for 45% renewable energy by 2030, Bahr noted, while California regulators consider more power plants to ensure reliability. APS committed to going coal-free by 2031.

A Sierra Club proposal that the UA reviewed called for TEP to quit coal by 2027.

But TEP analyzed that proposal and concluded it would require $300 million in investments and would reduce the utility's cumulative emissions by only 2.4 million tons, to 70.2 million tons by 2035, Yockey said.

The Sierra Club plan was the most expensive portfolio investigated, Yockey said.

"The difference is in the timing. We still have a fair amount of value in our coal plants which we need to depreciate, which we do over time," Yockey said. "Trying to replace the capacity that coal provides in the near term with storage and solar is very expensive, although those costs are declining."

Seniors on fixed incomes could be hurt, advocate says

Rene Pina, an advisory council member representing two senior citizen organizations, praised the plan's goals but was concerned about impacts of even 1% annual rate increases on elderly people on fixed incomes.

They can't always handle such an increase, he said.

One possible fix is that TEP could ease eligibility requirements for its low-income energy assistance program, aligning with equity-focused electricity regulation principles, to allow more seniors to benefit, said Pina, representing AARP and the Pima Council on Aging.

"The program is structured so it just barely disqualifies most of our seniors. Their social security pension is just barely over the low-income limit. It can easily be adjusted without any problems to the utility," Pina said.

Advisory council member Rob Lamb, an engineer with GHLN, an architecture-engineering firm, said he was very pleased with TEP's plan.

"One of the things a lot of people don't realize when they put together a plan like that, is they have to balance environment with 'Hey, what's the reliability of service? Are we going to be able to keep our rates for something that will work?'" Lamb said.

"This a very balanced and resilient portfolio."

 

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Manitoba looking to raise electricity rates 2.5 per cent each year for 3 years

Manitoba Hydro Rate Increase sets electricity rates up 2.5% annually for three years via Bill 35, bypassing PUB hearings, citing Crown utility debt and pandemic impacts, with legislature debate and a multi-year regulatory review ahead.

 

Key Points

A government plan to lift electricity rates 2.5% annually over three years via Bill 35, bypassing PUB hearings.

✅ 2.5% annual hikes for three years set in legislation

✅ Bypasses PUB rate hearings during pandemic recovery

✅ Targets Crown utility debt; multi-year review planned

 

The Manitoba government is planning to raise electricity rates, with Manitoba Hydro scaling back next year, by 2.5 per cent a year over the next three years.

Finance Minister Scott Fielding says the increases, to be presented in a bill before the legislature, are the lowest in a decade and will help keep rates among the lowest in Canada, even as SaskPower's 8% hike draws scrutiny in a neighbouring province.

Crown-owned Manitoba Hydro had asked for a 3.5 per cent increase this year, similar to BC Hydro's 3% rise, to help pay off billions of dollars in debt.

“The way we figured this out, we looked at the rate increases that were approved by PUB (Public Utilities Board) over the last ten years, (and) we went to 75 per cent of that,” Fielding said during a Thursday morning press conference.

“It’s a pandemic, we know that there’s a lot of people that are unemployed, that are struggling, we know that businesses need to recharge after the business (sic), so this will provide them an appropriate break.”

Electricity rates are normally set by the Public Utilities Board, a regulatory body that holds rate hearings and examines the Crown corporation’s finances.

The Progressive Conservative government has temporarily suspended the regulatory process and has set rates itself, while Ontario rate legislation to lower rates moved forward in its jurisdiction.

Manitoba Liberal leader Dougald Lamont was quick to condemn the move, noting parallels to Ontario price concerns before saying in a news release the PCs “are abusing their power and putting Hydro’s financial future at risk by fixing prices in the hope of buying some political popularity.”

“Hydro’s rates should be set by the PUB after public hearings, not figured out on the back of a napkin in the Premier’s office,” Lamont wrote.

Fielding noted the increase would appear as an amendment to Bill 35, which will appear in the legislature this fall, as BC Hydro plans multi-year increases proceed elsewhere.

“All members of the legislative assembly will vote and debate this rate increase on Bill 35,” Fielding said.

“This will give the PUB time to implement reforms, and allow the utilities to prepare a more rigorous, multi-year review application process.”

 

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Canada's Ambitious Electric Vehicle Goals

Canada 2035 Gasoline Car Ban accelerates EV adoption, zero-emission transport, and climate action, with charging infrastructure, rebates, and industry investment supporting net-zero goals while addressing affordability, range anxiety, and consumer acceptance nationwide.

 

Key Points

A federal policy to end new gas car sales by 2035, boosting EV adoption, emissions goals, and charging infrastructure.

✅ Ends new gas car and light-truck sales by 2035

✅ Expands charging infrastructure and grid readiness

✅ Incentives, rebates, and industry investment drive adoption

 

Canada has set its sights on a bold and transformative goal: to ban the sale of new gasoline-powered passenger cars and light-duty trucks by the year 2035. This ambitious target, announced by the federal government, underscores Canada's commitment to combating climate change and accelerating the adoption of electric vehicles (EVs) nationwide, supported by forthcoming EV sales regulations from Ottawa.

The Federal Initiative

Under the leadership of Prime Minister Justin Trudeau, Canada aims to significantly reduce greenhouse gas emissions from the transportation sector, which accounts for a substantial portion of the country's carbon footprint. The initiative aligns with Canada's broader climate objectives, including achieving net-zero emissions by 2050.

Driving Forces Behind the Decision

The decision to phase out internal combustion engine vehicles reflects growing recognition of the urgency to transition towards cleaner transportation alternatives, even as 2019 electricity from fossil fuels still powered a notable share of Canada's grid. Minister of Environment and Climate Change Jonathan Wilkinson emphasizes the environmental benefits of electric vehicles, citing their potential to lower emissions and improve air quality in urban centers across the country.

Challenges and Opportunities

While the move towards electric vehicles presents promising opportunities for reducing emissions, it also poses challenges. Key considerations include infrastructure development, affordability, and consumer acceptance of EV technology, amid EV shortages and wait times that can influence buying decisions. Addressing these hurdles will require coordinated efforts from government, industry stakeholders, and consumers alike.

Industry Response

The automotive industry plays a crucial role in realizing Canada's EV ambitions. Automakers are increasingly investing in electric vehicle production and innovation to meet evolving consumer demand and regulatory requirements, including cross-border Canada-U.S. collaboration on supply chains. The transition offers opportunities for job creation, technological advancement, and economic growth in the clean energy sector.

Provincial Perspectives

Provinces across Canada are pivotal in facilitating the transition to electric vehicles. Some provinces have already implemented incentives such as rebates for EV purchases, charging infrastructure investments, and policy frameworks to support emissions reduction targets, even as Quebec's EV dominance push faces scrutiny from experts. Collaborative efforts between federal and provincial governments are essential in ensuring a cohesive approach to achieving national EV goals.

Consumer Considerations

For consumers, the shift towards electric vehicles represents a paradigm shift in transportation choices. Factors such as range anxiety, charging infrastructure availability, and upfront costs, with one EV cost survey citing price as the main barrier, remain considerations for prospective buyers. Government incentives and subsidies aim to alleviate some of these concerns and promote widespread EV adoption.

Looking Ahead

As Canada navigates towards a future without gasoline-powered vehicles, stakeholders must work together to overcome challenges and capitalize on opportunities presented by the electric vehicle revolution, even as critics of the 2035 mandate question its feasibility. Continued investments in infrastructure, innovation, and consumer education will be critical in paving the way for a sustainable and prosperous automotive industry.

Conclusion

Canada's commitment to phasing out gasoline-powered vehicles by 2035 marks a pivotal moment in the country's climate action agenda. By embracing electric vehicles, Canada aims to lead by example in combatting climate change, fostering innovation, and building a greener future for generations to come. The success of this ambitious initiative hinges on collective efforts to transform the automotive landscape and accelerate towards a sustainable transportation future.

 

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Quebec shatters record for electricity consumption once again

Hydro Quebec Power Consumption Record surges amid extreme cold, peak demand, and grid stress, as Hydro-Quebec urges energy conservation, load management, and reduced heating during morning and evening peaks across Montreal and southern Quebec.

 

Key Points

Quebec's grid hit 40,300 MW during an extreme cold snap, setting a new record and prompting conservation appeals.

✅ Lower thermostats 1-2 C in unused rooms during peak hours

✅ Delay dishwashers, dryers, and hot water use to off-peak

✅ Peak windows: 6-9 a.m. and 4-8 p.m.; import power if needed

 

Hydro Quebec says it has once again set a new record for power consumption, echoing record-breaking demand in B.C. in 2021 as extreme cold grips much of the province.

An extreme cold warning has been in effect across southern Quebec since Friday morning, straining the system, just as Calgary's electricity use soared during a frigid February, as Quebecers juggle staying warm and working from home.

Hydro Québec recorded consumption levels reaching 40,300 megawatts as of 8 a.m. Friday, breaking a previous record of 39,000 MW (with B.C. electricity demand hit an all-time high during a similar cold snap) that was broken during another cold snap on Jan 11. 

The publicly owned utility is now asking Quebecers to reduce their electricity consumption as much as possible today and tomorrow, a move consistent with clean electricity goals under federal climate pledges, predicting earlier in the morning the province would again reach an all-time high.

Reducing heating by just one or two degrees, especially in rooms that aren't being used, is one step that people can take to limit their consumption. They can also avoid using large appliances like the dishwasher and clothing dryer as often, and shortening the use of hot water. 

"They're small actions, but across millions of clients, it makes a difference," said Cendrix Bouchard, a spokesperson with Hydro Québec, while speaking with Tout un matin.

"We understand that asking this may pose challenges for some who are home throughout the day because they are working remotely, but if people are able to contribute, we appreciate it."

The best time to try and limit electricity usage is in the morning and evening, when electricity usage tends to peak, Bouchard said.

The province can import electricity from other regions if Quebec's system reaches its limits, even as the utility pursues selling to the United States as part of its long-term strategy, he added.

Temperatures dropped to –24 C in Montreal at 7 a.m., with a wind chill of –29 C. 

It will get colder across the south of the province through the evening and wind chills are expected to make it feel as cold as – 40 until Saturday morning, Environment Canada warned.

Those spending time outdoors are at a higher risk of frostbite and hypothermia.

"Frostbite can develop within minutes on exposed skin, especially with wind chill," Environment Canada said.

Conserving energy
Hydro-Québec has signed up 160,000 clients to a flexible billing plan similar to BC Hydro's winter payment plan that allows them to pay less for energy — as long as they use it during non-peak periods.

Quebec's energy regulator, the Régie de l'énergie, also forces crypto-currency mining operations to shut down for some hours  on peak-demand days, a topic where BC Hydro's approach to crypto mining has also drawn attention, Bouchard said.

Hydro-Québec says the highest consumption periods are usually between 6 a.m.-9 a.m. and 4 p.m.-8 p.m.

 

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Court reinstates constitutional challenge to Ontario's hefty ‘global adjustment’ electricity charge

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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