Energy giants warn against nuclear tax

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Germany's largest energy companies have lashed out at the government about controversial plans to introduce a nuclear tax that will cost billions of euros each year.

Both E.ON AG and RWE AG have warned the government that the potential fuel-rod tax, which will cost energy companies 2.3 billion euros US $2.95 billion a year until 2014, will result in reduced investment in renewable energy and smart grid projects.

Nuclear plants account for more than a quarter of Germany's electricity generation, but all of the country's plants are scheduled for closure by 2021 unless an agreement to extend their lifespans can be made.

Speaking at the release of the company's half-year financial results, E.ON CEO Johannes Teyssen expressed concern at the government's lack of a clear energy policy and its plans to introduce the nuclear tax.

"There has long been a lack of clarity about the direction of Germany's energy-policy," he said. "This needs to change. As the federal government stated, Germany needs a non-ideological, technology-neutral, and market-based energy strategy that includes an environmentally and economically sensible decision on the future of nuclear energy in this country. Only then will Germany make a real start towards its energy future.

"Ten months later what we are seeing is that there still no clarity about the clear direction of German energy policy and thus no clarity about the future of nuclear power in Germany either." Teyssen argued that nuclear energy is vital to Germany's economic and success and energy security and would continue to hold this position "if our highly secure and reliable nuclear power plants were allowed to operate as long as is usually the case in many other countries. In this regard, we are prepared to share the benefit of a lifetime extension. But, any benefit sharing must be balanced. I explicitly warn of charges of such a magnitude that the operation of nuclear power plants could become uneconomic. Germany's proposed nuclear tax would be such a negative and unacceptable charge."

Last October, it looked likely that Germany's government was going to extend the life of older nuclear plants to avoid a looming energy crisis.

E.ON's warnings have been echoed by RWE CEO Juergen Grossmann, who said: "In a generally uncertain environment in the energy industry, RWE is confronted not only with the German government's plans to introduce a nuclear fuel tax, but also with continuing uncertainty about the announced energy concept. For this reason, the Group now has to review its medium-term goals up to and including 2013. Such a tax would substantially diminish our earnings power — and thus our financial scope for investment in renewables, low-carbon power stations and smart grids."

Grossmann called on the government to clarify its nuclear position.

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The gloves are off - Alberta suspends electricity purchase talks with B.C.

Alberta-BC Pipeline Dispute centers on Trans Mountain expansion, diluted bitumen shipments, federal approval, spill response capacity, and electricity trade, as Alberta suspends power talks and Ottawa insists the Kinder Morgan project proceeds in national interest.

 

Key Points

Dispute over Trans Mountain expansion, bitumen limits, and jurisdiction between Alberta, B.C., and Canada.

✅ Alberta suspends BC electricity talks as leverage

✅ Ottawa affirms federal approval and spill response

✅ BC plans advisory panel on diluted bitumen risks

 

Alberta Premier Rachel Notley says her government is suspending talks with British Columbia on the purchase of electricity from the western province.

It’s the first step in Alberta’s fight against the B.C. government’s proposal to obstruct the Kinder Morgan oil pipeline expansion project by banning increased shipments of diluted bitumen to the province’s coast.

Up to $500 million annually for B.C.’s coffers from electricity exports hangs in the balance, Notley said.

“We’re prepared to do what it takes to get this pipeline built — whatever it takes,” she told a news conference Thursday after speaking with Prime Minister Justin Trudeau on the phone.

Notley said she told Trudeau, who’s in Edmonton for a town-hall meeting, that the federal government needs to act decisively to end the dispute.

Speaking on Edmonton talk radio station CHED earlier in the day, Trudeau said the pipeline expansion is in the national interest and will go ahead, even as the federal government undertakes a study on electrification across sectors.

“That pipeline is going to get built,” Trudeau said. “We will stand by our decision. We will ensure that the Kinder Morgan pipeline gets built.”

B.C.’s environment minister has said his minority government plans to ban increased shipments until it can determine that shippers are prepared and able to properly clean up a spill, and, separately, has implemented an electricity rate freeze affecting consumers. He said he will establish an independent scientific advisory panel to study the issue.

The move infuriated Notley, who has accused B.C. of trying to change the rules after the federal government gave the project the green light. B.C. has the right to regulate how any spills would be cleaned up, but can’t dictate what flows through pipelines, she said.

Trudeau said Canada needs to get Alberta’s oil safely to markets other than the U.S. energy market today. He said the federal government did the research and has spent billions on spill response.

“The Kinder Morgan pipeline is not a danger to the B.C. coast,” he said.

Notley said she thanked Trudeau for his assurance that the project will go ahead, but the federal government has to do more to ensure the pipeline’s expansion.

“This is not an Alberta-B.C. issue. This is a Canada-B.C. issue,” she said. “This kind of uncertainty is bad for investment and bad for working people

“Enough is enough. We need to get these things built.”

B.C. Premier John Horgan said his government consulted Alberta and Ottawa about his province’s intentions, noting that Columbia River Treaty talks also shape regional electricity policy.

“I don’t see what the problem is,” Horgan said Thursday at a school opening north of Kelowna, B.C. “It’s within our jurisdiction to put in place regulations to protect the public interest.

“That’s what we are doing.”

He downplayed any possibility of court action or sanctions by Alberta.

“There’s nothing to take to court,” Horgan said. “We are consulting with the people of B.C. It’s way too premature to talk about those sorts of issues.

“Sabre-rattling doesn’t get you very far.”

Speaking in Ottawa, Natural Resources Minister Jim Carr wouldn’t say what Canada might do if British Columbia implements its regulation.

“That’s speculative,” said Carr.

He noted at this point, B.C. has just pledged to consult. He said the federal government heard from thousands of people before the pipeline was approved.

“That’s what they have announced — an intention to consult. We have already consulted.”

B.C.’s proposal creates more uncertainty for Kinder Morgan’s already-delayed Trans Mountain expansion project that would nearly triple the capacity of its pipeline system to 890,000 barrels a day.

 

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'That can keep you up at night': Lessons for Canada from Europe's power crisis

Canada Net-Zero Grid Lessons highlight Europe's energy transition risks: Germany's power prices, wind and solar variability, nuclear phaseout, grid reliability, storage, market design, policy reforms, and distributed energy resources for resilient decarbonization.

 

Key Points

Lessons stress an all-of-the-above mix, robust market design, storage, and nuclear to ensure reliability, affordability.

✅ Diversify: nuclear, hydro, wind, solar, storage for reliability.

✅ Reform markets and grid planning for integration and flexibility.

✅ Build fast: streamline permitting, invest in transmission and DERs.

 

Europe is currently suffering the consequences of an uncoordinated rush to carbon-free electricity that experts warn could hit Canada as well unless urgent action is taken.

Power prices in Germany, for example, hit a record 91 euros ($135 CAD) per megawatt-hour earlier this month. That is more than triple what electricity costs in Ontario, where greening the grid could require massive investment, even during periods of peak demand.

Experts blame the price spikes in large part on a chaotic transition to a specific set of renewable electricity sources - wind and solar - at the expense of other carbon-free supplies such as nuclear power. Germany, Europe’s largest economy, plans to close its last remaining nuclear power plant next year despite warnings that renewables are not being added to the German grid quickly enough to replace that lost supply.

As Canada prepares to transition its own electricity grid to 100 per cent net-zero supplies by 2035, with provinces like Ontario planning new wind and solar procurement, experts say the European power crisis offers lessons this country must heed in order to avoid a similar fate.

'A CAUTIONARY TALE'
“Some countries have rushed their transition without thinking about what people need and when they need it,” said Chris Bentley, managing director of Ryerson University’s Legal Innovation Zone who also served as Ontario’s Minister of Energy from 2011 to 2013, in an interview. “Germany has experienced a little bit of this issue recently when the wind wasn’t blowing.”

Wind power usually provides between 20 and 30 per cent of Germany’s electricity needs, but the below-average breeze across much of continental Europe in recent months has pushed that figure down.

“There is a cautionary tale from the experience in Europe,” said Francis Bradley, chief executive officer of the Canadian Electricity Association, in an interview. “There was also a cautionary tale from what took place this past winter in Texas,” he added, referring to widespread power failures in Texas spawned by a lack of backup power supplies during an unusually cold winter that led to many deaths.

The first lesson Canada must learn from those cautionary tales, Bradley said, “is the need to pursue an all-of-the-above approach.”

“It is absolutely essential that every opportunity and every potential technology for low-carbon or no-carbon electricity needs to be pursued and needs to be pursued to the fullest,” he said.

The more important lesson for Canada, according to Binnu Jeyakumar, is about the need for a more holistic, nuanced approach to our own net-zero transition.

“It is very easy to have runaway narratives that just pinpoint the blame on one or two issues, but the lesson here isn’t really about the reliability of renewables as there are failures that occur across all sources of electricity supply,” said Jeyakumar, director of clean energy for the Pembina Institute, in an interview. 

“The takeaway for us is that we need to get better at learning how to integrate an increasingly diverse electricity grid,” she said. “It is not necessarily the technologies themselves, it is about how we do grid planning, how are our markets structured and are we adapting them to the trends that are evolving in the electricity and energy sectors.”
 

'ABSOLUTELY ENORMOUS' CHALLENGE IS 'ALMOST MIND-BENDING'
Canada already gets the vast majority of its electricity from emission-free sources. Hydro provides roughly 60 per cent of our power, nuclear contributes another 15 per cent and renewables such as wind and solar contribute roughly seven per cent more, according to federal government data.

Tempting as it might be to view the remaining 18 per cent of Canadian electricity that is supplied by oil, natural gas and coal as a small enough proportion that it should be relatively easy to replace, with some analyses warning that scrapping coal abruptly can be costly for consumers, the reality is much more difficult.

“It is the law of diminishing returns or the 80-20 rule where the first 80 per cent is easy but the last 20 per cent is hard,” Bradley explained. “We already have an electricity sector that is 80 per cent GHG-free, so getting rid of that last 20 per cent is the really difficult part because the low-hanging fruit has already been picked.”

Key to successfully decarbonizing Canada’s power grid will be the recognition that electricity demand is constantly growing, a point reinforced by a recent power challenges report that underscores the scale. That means Canada needs to build out enough emission-free power sources to replace existing fossil fuel-based supplies while also ensuring adequate supplies for future demand.


“It is one thing to say that by 2035 we are going to have a decarbonized electricity system, but the challenge really is the amount of additional electricity that we are going to need between now and 2035,” said John Gorman, chief executive officer of the Canadian Nuclear Association, which has argued that nuclear is key to climate goals in Canada, and former CEO of the Canadian Solar Industries Association, in an interview. “It is absolutely enormous, I mean, it is almost mind-bending.”

Canada will need to triple the amount of electricity produced nationwide by 2050, according to a report from SNC-Lavalin published earlier this year, and provinces such as Ontario face a shortfall over the next few years, Gorman said. Gorman said that will require adding between five and seven gigawatts of new installed capacity to Canada’s electricity grid every year from 2021 through 2050 or more than twice the amount of new power supply Canada brings online annually right now.

For perspective, consider Ontario’s Bruce Power nuclear facility. It took 27 years to bring that plant to its current 6.4 gigawatt (GW) capacity, but meeting Canada’s decarbonization goals will require adding roughly the equivalent capacity of Bruce Power every year for the next three decades.

“The task of creating enough electricity in the coming years is truly enormous and governments have not really wrapped their heads around that yet,” Gorman said. “For those of us in the energy sector, it is the type of thing that can keep you up at night.”

GOVERNMENT POLICY 'HELD HOSTAGE' BY 'DINOSAURS'
The Pembina Institute’s Jeyakumar agreed “the last mile is often the most difficult” and will require “a concerted effort both at the federal level and the provincial level.”

Governments will “need to be able to support innovation and solutions such as non-wires alternatives,” she said. “Instead of building a massive new transmission line or beefing up an old one, you could put a storage facility at the end of an existing line. Distributed energy resources provide those kinds of non-wires alternatives and they are already cost-effective and competitive with oil and gas.”

For Glen Murray, who served as Ontario’s minister of infrastructure and transportation from early 2013 to mid-2014 before assuming the environment and climate change portfolio until his resignation in mid-2017, that is a key lesson governments have yet to learn.

“We are moving away from a centralized distribution model to distributed systems where individual buildings and homes and communities will supply their own electricity needs,” said Murray, who currently works for an urban planning software company in Winnipeg, in an interview. “Yet both the federal and provincial governments are assuming that we are going to continue to have large, centralized generation of power, but that is simply not going to be the case.”

“Government policy is not focused on driving that because they are held hostage by their own hydro utilities and the big gas companies,” Murray said. “They are controlling the agenda even though they are the dinosaurs.”

Referencing the SNC-Lavalin report, Gorman noted as many as 45 small, modular nuclear reactors as well as 20 conventional nuclear power plants will be required in the coming decades, with jurisdictions like Ontario exploring new large-scale nuclear as part of that mix: “And that is in the context of also maximizing all the other emission-free electricity sources we have available as well from wind to solar to hydro and marine renewables,” Gorman said, echoing the “all-of-the-above” mindset of the Canadian Electricity Association.

There are, however, “fundamental rules of the market and the regulatory system that make it an uneven playing field for these new technologies to compete,” said Jeyakumar, agreeing with Murray’s concerns. “These are all solvable problems but we need to work on them now.”
 

'2035 IS TOMORROW'
According to Bentley, the former Ontario energy minister-turned academic, “the government's role is to match the aspiration with the means to achieve that aspiration.”

“We have spent far more time as governments talking about the goals and the high-level promises [of a net-zero electricity grid by 2035] without spending as much time as we need to in order to recognize what a massive transformation this will mean,” Bentley said. “It is easy to talk about the end-goal, but how do you get there?”

The Canadian Electricity Assocation’s Bradley agreed “there are still a lot of outstanding questions about how we are going to turn those aspirations into actual policies. The 2035 goal is going to be very difficult to achieve in the absence of seeing exactly what the policies are that are going to move us in that direction.”

“It can take a decade to go through the processes of consultations and planning and then building and getting online,” Bradley said. “Particularly when you’re talking about big electricity projects, 2035 is tomorrow.”

Jeyakumar said “we cannot afford to wait any longer” for policies to be put in place as the decisions governments make today “will then lock us in for the next 30 or 40 years into specific technologies.”

“We need to consider it like saving for retirement,” said Gorman of the Canadian Nuclear Association. “Every year that you don’t contribute to your retirement savings just pushes your retirement one more year into the future.”

 

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Florida says no to $400M in federal solar energy incentives

Florida Solar for All Opt-Out highlights Gov. DeSantis rejecting EPA grant funds under the Inflation Reduction Act, limiting low-income households' access to solar panels, clean energy programs, and promised electricity savings across disadvantaged communities.

 

Key Points

Florida Solar for All Opt-Out is the state declining EPA grants, restricting low-income access to solar energy savings.

✅ EPA grant under IRA aimed at low-income solar

✅ Estimated 20% electricity bill savings missed

✅ Florida lacks PPAs and renewable standards

 

Florida has passed up on up to $400 million in federal money that would have helped low-income households install solar panels.

A $7 billion grant “competition” to promote clean energy in disadvantaged communities by providing low-income households with access to affordable solar energy was introduced by President Joe Biden earlier this year, and despite his climate law's mixed results in practice, none of that money will reach Florida households.

The Environmental Protection Agency announced the competition in June as part of Biden’s Inflation Reduction Act. However, Florida Gov. Ron DeSantis has decided to pass on the $400 million up for grabs by choosing to opt out of the opportunity.

Inflation Reduction Act:What is the Inflation Reduction Act? Everything to know about one of Biden's big laws

The program would have helped Florida households reduce their electricity costs by a minimum of 20% during a key time when Floridians are leaving in droves due to a rising cost of living associated with soaring insurance costs, inflation, and proposed FPL rate hikes statewide.

Florida was one of six other states that chose not to apply for the money.

President Joe Biden announced a $7 billion “competition” to promote clean energy in disadvantaged communities.

The opportunity, named “Solar for All,” was announced by the EPA in June and promised to provide up to $7 billion in grants to states, territories, tribal governments, municipalities, and nonprofits to expand the number of low-income and disadvantaged communities primed for residential solar investment — enabling millions of low-income households to access affordable, resilient and clean solar energy.

The grant is intended to help lower energy costs for families, create jobs and help reduce greenhouse effects that accelerate global climate change by providing financial support and incentives to communities that were previously locked out of investments.


How much money would Floridians save under the ‘Solar for All’ solar panel grant?

The program aims to reduce household electricity costs by at least 20%. Florida households paid an average of $154.51 per month for electricity in 2022, just over 14% of the national average of $135.25, and debates over hurricane rate surcharges continue to shape customer bills, according to the U.S. Energy Information Administration. A 20% savings would drop those bills down to around $123 per month.

On the campaign trail, DeSantis has pledged to unravel Biden’s green energy agenda if elected president, amid escalating solar policy battles nationwide, slamming the Inflation Reduction Act and what he called “a concerted effort to ramp up the fear when it comes to things like global warming and climate change.”

His energy agenda includes ending Biden’s subsidies for electric cars while pushing policies that he says would ramp up domestic oil production.

“The subsidies are going to drive inflation higher,” DeSantis said at an event in September. “It’s not going to help with interest rates, and it is certainly not going to help with our unsustainable debt levels.”

DeSantis heading to third debate:As he enters third debate, Ron DeSantis has a big Nikki Haley problem

DeSantis’ plan to curb clean energy usage in Florida seems to be at odds with the state as a whole, and the region's evolving strategy for the South underscores why it has been ranked among the top three states to go solar since 2019, according to the Solar Energy Industries Association (SEIA).

SEIA also shows, however, that Florida lags behind many other states when it comes to solar policies, as utilities tilt the solar market in ways that influence policy outcomes statewide. Florida, for instance, has no renewable energy standards, which are used to increase the use of renewable energy sources for electricity by requiring or encouraging suppliers to provide customers with a stated minimum share of electricity from eligible renewable resources, according to the EIA.

Power purchase agreements, which can help lower the cost of going solar through third-party financing, are also not allowed in Florida, with court rulings on monopolies reinforcing the existing market structure. And there have been other policies implemented that drove other potential solar investments to other states.

 

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Thermal power plants’ PLF up on rising demand, lower hydro generation

India Coal Power PLF rose as capacity utilisation improved on rising peak demand and hydropower shortfall; thermal plants lifted plant load factor, IPPs lagged, and generation beat program targets amid weak rainfall and slower snowmelt.

 

Key Points

Coal plant load factor in India rose in May on higher demand and weak hydropower, with generation beating targets.

✅ PLF rose to 65.3% as demand climbed

✅ Hydel generation fell 14% YoY on poor rainfall

✅ IPP PLF at 57.8%, below 60% debt comfort

 

Capacity utilisation levels of coal-based power plants improved in May because of a surge in electricity demand and lower generation from hydroelectric sources. The plant load factor (PLF) of thermal power plants went up to 65.3% in the month, 1.7 percentage points higher than the year-ago period.

While PLFs of central and state government-owned plants were 75.5% and 64.5%, respectively, the same for independent power producers (IPPs) stood at 57.8%, even as coal and electricity shortages eased across the market. Though PLFs of IPPs were higher than May 2017 levels, it failed to cross the 60% mark, which eases debt servicing capabilities of power generation assets.

Thermal power plants generated 96,580 million units (MU) in May, 4% more than the programme set for the month and 5.2% higher than last year, partly supported by higher imported coal volumes in the market. On the other hand, hydel plants produced 10,638 MU, 10% lower than the target, reflecting a 14% decline from last year.

#google#

Peak demand of power on the last day of the month was 1,62,132 MW, 4.3% higher than the demand registered in the same day a year ago, underscoring India's position as the third-largest electricity producer globally.

According to sources, hydropower plants have been generating lesser than expected electricity due to inadequate rainfall and snow melting at a slower pace than previous years, even as the US reported a power generation jump year on year. Data for power generation from renewable sources have not been made available yet.

 

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Shell says electricity to meet 60 percent of China's energy use by 2060

China 2060 Carbon-Neutral Energy Transition projects tripled electricity, rapid electrification, wind and solar dominance, scalable hydrogen, CCUS, and higher carbon pricing to meet net-zero goals while decarbonizing heavy industry and transport.

 

Key Points

Shell's outlook for China to reach net zero by 2060 via electrification, renewables, hydrogen, CCUS, and carbon pricing.

✅ Power supply to 60% of energy; generation triples by 2060.

✅ Wind and solar reach 80% of electricity; coal declines sharply.

✅ Hydrogen scales to 17 EJ; CCUS and carbon pricing expand.

 

China may triple electricity generation to supply 60 percent of the country's total energy under Beijing's carbon-neutral goal by 2060, up from the current 23 per cent, according to Royal Dutch Shell.

Shell is one of the largest global investors in China's energy sector, with business covering gas production, petrochemicals and a retail fuel network. A leading supplier of liquefied natural gas, it has recently expanded into low-carbon business such as hydrogen power and electric vehicle charging.

In a rare assessment of the country's energy sector by an international oil major, Shell said China needed to take quick action this decade to stay on track to reach the carbon-neutrality goal.

China has mapped out plans to reach peak emissions by 2030, and aims to reduce coal power production over the coming years, but has not yet revealed any detailed carbon roadmap for 2060.

This includes investing in a reliable and renewable power system, including compressed air generation, and demonstrating technologies that transform heavy industry using hydrogen, biofuel and carbon capture and utilization.

"With early and systematic action, China can deliver better environmental and social outcomes for its citizens while being a force for good in the global fight against climate change," Mallika Ishwaran, chief economist of Shell International, told a webinar hosted by the company's China business.

Shell expects China's electricity generation to rise three-fold to more than 60 exajoules (EJ) in 2060 from 20 EJ in 2020, even amid power supply challenges reported recently.

Solar and wind power are expected to surpass coal as the largest sources of electricity by 2034 in China, reflecting projections that renewables will eclipse coal globally by mid-decade, versus the current 10 percent, rising to 80 percent by 2060, Shell said.

Hydrogen is expected to scale up to 17 EJ, or equivalent to 580 million tonnes of coal by 2060, up from almost negligible currently, adding over 85 percent of the hydrogen will be produced through electrolysis, supported by PEM hydrogen R&D across the sector, powered by renewable and nuclear electricity, Shell said.

Hydrogen will meet 16 percent of total energy use in 2060 with heavy industry and long-distance transport as top hydrogen users, the firm added.

The firm also expects China's carbon price to rise to 1,300 yuan (CDN$256.36) per tonne in 2060 from 300 yuan in 2030.

Nuclear, on a steady development track, and biomass will have niche but important roles for power generation in the years to come, Shell said.

Electricity generated from biomass, combined with carbon, capture, utilization and storage (CCUS), provide a source of negative emissions for the rest of the energy system from 2053, it added.

 

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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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