Fired watchdog appeals to court

By Toronto Star


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CanadaÂ’s former nuclear watchdog is seeking a judicial review into her firing by the Conservative government resulting from the shutdown of a nuclear research reactor.

Linda Keen, a long-time bureaucrat, had angered Prime Minister Stephen Harper with her handling of the Chalk River reactor shutdown that left the Conservative government scrambling and embarrassed as it coped with the shortage of medical isotopes.

The motion, submitted to the Federal Court, is the latest development in the bitter dispute between Keen and the Conservatives. She was fired as president of the Canadian Nuclear Safety Commission (CNSC) when she wouldnÂ’t okay the start-up of the aging Chalk River reactor.

“By this application for judicial review, Ms. Keen is asking the Federal Court to declare that she was unlawfully removed as president and that the November 2005 Order in Council, which reappointed her as president, remains in full force and effect,” said Ottawa lawyer Allan O’Brien.

Keen, who remains on the CNSC board, recently told ParliamentÂ’s natural resources committee that it is not the job of a nuclear regulator to ensure the production of isotopes but rather that the public is protected from nuclear accidents.

The reactor was voluntarily taken out of service by Atomic Energy Canada Ltd. because of ongoing safety concerns.

The Harper government brought in emergency legislation to override KeenÂ’s safety warnings and restart the reactor in mid-December. The CNSC is an independent quasi-judicial body meant to work at armÂ’s length from the government.

It was a month later that Natural Resources Minister Gary Lunn told Keen that the government had lost confidence in her, but when he appeared before the committee he could not cite one reason for the decision to dump Keen, who was to serve as president until 2010.

The Chalk River reactor, run by Atomic Energy of Canada Ltd., was shut down on Nov. 18 for routine maintenance, but an inspection by the regulatory staff found that mandatory safety upgrades – connecting vital cooling pumps to an emergency power supply that would work even if the area was hit with an earthquake – had not been done.

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Is Ontario's Power Cost-Effective?

Ontario Nuclear Power Costs highlight LCOE, capex, refurbishment outlays, and waste management, compared with renewables, grid reliability, and emissions targets, informing Australia and Peter Dutton on feasibility, timelines, and electricity prices.

 

Key Points

They include high capex and LCOE from refurbishments and waste, offset by reliable, low-emission baseload.

✅ Refurbishment and maintenance drive lifecycle and LCOE variability.

✅ High capex and long timelines affect consumer electricity prices.

✅ Low emissions, but waste and safety compliance add costs.

 

Australian opposition leader Peter Dutton recently lauded Canada’s use of nuclear power as a model for Australia’s energy future. His praise comes as part of a broader push to incorporate nuclear energy into Australia’s energy strategy, which he argues could help address the country's energy needs and climate goals. However, the question arises: Is Ontario’s experience with nuclear power as cost-effective as Dutton suggests?

Dutton’s endorsement of Canada’s nuclear power strategy highlights a belief that nuclear energy could provide a stable, low-emission alternative to fossil fuels. He has pointed to Ontario’s substantial reliance on nuclear power, and the province’s exploration of new large-scale nuclear projects, as an example of how such an energy mix might benefit Australia. The province’s energy grid, which integrates a significant amount of nuclear power, is often cited as evidence that nuclear energy can be a viable component of a diversified energy portfolio.

The appeal of nuclear power lies in its ability to generate large amounts of electricity with minimal greenhouse gas emissions. This characteristic aligns with Australia’s climate goals, which emphasize reducing carbon emissions to combat climate change. Dutton’s advocacy for nuclear energy is based on the premise that it can offer a reliable and low-emission option compared to the fluctuating availability of renewable sources like wind and solar.

However, while Dutton’s enthusiasm for the Canadian model reflects its perceived successes, including recent concerns about Ontario’s grid getting dirtier amid supply changes, a closer look at Ontario’s nuclear energy costs raises questions about the financial feasibility of adopting a similar strategy in Australia. Despite the benefits of low emissions, the economic aspects of nuclear power remain complex and multifaceted.

In Ontario, the cost of nuclear power has been a topic of considerable debate. While the province benefits from a stable supply of electricity due to its nuclear plants, studies warn of a growing electricity supply gap in coming years. Ontario’s experience reveals that nuclear power involves significant capital expenditures, including the costs of building reactors, maintaining infrastructure, and ensuring safety standards. These expenses can be substantial and often translate into higher electricity prices for consumers.

The cost of maintaining existing nuclear reactors in Ontario has been a particular concern. Many of these reactors are aging and require costly upgrades and maintenance to continue operating safely and efficiently. These expenses can add to the overall cost of nuclear power, impacting the affordability of electricity for consumers.

Moreover, the development of new nuclear projects, as seen with Bruce C project exploration in Ontario, involves lengthy and expensive construction processes. Building new reactors can take over a decade and requires significant investment. The high initial costs associated with these projects can be a barrier to their economic viability, especially when compared to the rapidly decreasing costs of renewable energy technologies.

In contrast, the cost of renewable energy has been falling steadily, even as debates over nuclear power’s trajectory in Europe continue, making it a more attractive option for many jurisdictions. Solar and wind power, while variable and dependent on weather conditions, have seen dramatic reductions in installation and operational costs. These lower costs can make renewables more competitive compared to nuclear energy, particularly when considering the long-term financial implications.

Dutton’s praise for Ontario’s nuclear power model also overlooks some of the environmental and logistical challenges associated with nuclear energy. While nuclear power generates low emissions during operation, it produces radioactive waste that requires long-term storage solutions. The management of nuclear waste poses significant environmental and safety concerns, as well as additional costs for safe storage and disposal.

Additionally, the potential risks associated with nuclear power, including the possibility of accidents, contribute to the complexity of its adoption. The safety and environmental regulations surrounding nuclear energy are stringent and require continuous oversight, adding to the overall cost of maintaining nuclear facilities.

As Australia contemplates integrating nuclear power into its energy mix, it is crucial to weigh these financial and environmental considerations. While the Canadian model provides valuable insights, the unique context of Australia’s energy landscape, including its existing infrastructure, energy needs, and the costs of scrapping coal-fired electricity in comparable jurisdictions, must be taken into account.

In summary, while Peter Dutton’s endorsement of Canada’s nuclear power model reflects a belief in its potential benefits for Australia’s energy strategy, the cost-effectiveness of Ontario’s nuclear power experience is more nuanced than it may appear. The high capital and maintenance costs associated with nuclear energy, combined with the challenges of managing radioactive waste and ensuring safety, present significant considerations. As Australia evaluates its energy future, a comprehensive analysis of both the benefits and drawbacks of nuclear power will be essential to making informed decisions about its role in the country’s energy strategy.

 

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BC Hydro: 2021 was a record-breaking year for electricity demand

BC Hydro 2021 Peak Load Records highlight record-breaking electricity demand, peak load spikes, heat dome impacts, extreme cold, and shifting work-from-home patterns managed by a flexible hydroelectric system and climate-driven load trends.

 

Key Points

Record-breaking electricity demand peaks from extreme heat and cold that reshaped daily load patterns across BC in 2021.

✅ Heat dome and deep freeze drove sustained peak electricity demand

✅ Peak load built gradually, reflecting work-from-home behavior

✅ Flexible hydroelectric system adapts quickly to demand spikes

 

From June’s heat dome to December’s extreme cold, 2021 was a record-setting year, according to BC Hydro, and similar spikes were noted as Calgary's electricity use surged in frigid weather.

On Friday, the energy company released a new report on electricity demand, and how extreme temperatures over extended periods of time, along with growing scrutiny of crypto mining electricity use, led to record peak loads.

“We use peak loads to describe the electricity demand in the province during the highest load hour of each day,” Kyle Donaldson, BC Hydro spokesperson, said in a media release.

“With the heat dome in the summer and the sustained cold temperatures in December, we saw more record-breaking hours on more days last year than any other single year.”

According to BC Hydro, during summer, the Crown corporation recorded 19 of its top 25 all-time summer daily peak records — including breaking its all-time summer peak hourly demand record.

In December, which saw extremely cold temperatures and heavy snowfall, BC Hydro said its system experienced the highest and longest sustained load levels ever, as it activated its winter payment plan to assist customers.

Overall, BC Hydro says it has experienced 11 of its top 25 all-time daily peak records this winter, adding that Dec. 27 broke its all-time high peak hourly demand record.

“BC Hydro’s hydroelectric system is directly impacted by variations in weather, including drought conditions that require adaptation, and in 2021 more electricity demand records were broken than any other year prior, largely because of the back-to-back extreme temperatures lasting for days and weeks on end,” reads the report.

The energy company expects this trend to continue, noting that it has broken the peak record five times in the past five years, and other jurisdictions such as Quebec consumption record have also shattered consumption records.

It also noted that peak demand patterns have also changed since the first year of the COVID-19 pandemic, with trends seen during Earth Hour usage offering context.

“When the previous peak hourly load record was broken in January 2020, load displayed sharper increases and decreases throughout the day, suggesting more typical weather and behaviour,” said the report.

“In contrast, the 2021 peak load built up more gradually throughout the day, suggesting more British Columbians were likely working from home, or home for the holidays – waking up later and home earlier in the evening – as well as colder weather than average.”

BC Hydro also said “current climate models suggest a warming trend continuing in years to come which could increase demand year-round,” but noted that its flexible hydroelectric system can meet changes in demand quickly.

 

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Blackout-Prone California Is Exporting Its Energy Policies To Western States, Electricity Will Become More Costly And Unreliable

California Blackouts expose grid reliability risks as PG&E deenergizes lines during high winds. Mandated solar and wind displace dispatchable natural gas, straining ISO load balancing, transmission maintenance, and battery storage planning amid escalating wildfire liability.

 

Key Points

California grid shutoffs stem from wildfire risk, renewables, and deferred transmission maintenance under mandates.

✅ PG&E deenergizes lines to reduce wildfire ignition during high winds.

✅ Mandated solar and wind displace dispatchable gas, raising balancing costs.

✅ Storage, reliability pricing, and grid upgrades are needed to stabilize supply.

 

California is again facing widespread blackouts this season. Politicians are scrambling to assign blame to Pacific Gas & Electric (PG&E) a heavily regulated utility that can only do what the politically appointed regulators say it can do. In recent years this has meant building a bunch of solar and wind projects, while decommissioning reliable sources of power and scrimping on power line maintenance and upgrades.

The blackouts are connected with the legal liability from old and improperly maintained power lines being blamed for sparking fires—in hopes that deenergizing the grid during high winds reduces the likelihood of fires. 

How did the land of Silicon Valley and Hollywood come to have developing world electricity?

California’s Democratic majority, from Gov. Gavin Newsom to the solidly progressive legislature, to the regulators they appoint, have demanded huge increases in renewable energy. Renewable electricity targets have been pushed up, and policymakers are weighing a revamp of electricity rates to clean the grid, with the state expected to reach a goal of 33% of its power from renewable sources, mostly solar and wind, by next year, and 60% of its electricity from renewables by 2030.

In 2018, 31% of the electricity Californians purchased at the retail level came from approved renewables. But when rooftop solar is added to the mix, about 34% of California’s electricity came from renewables in 2018. Solar photovoltaic (PV) systems installed “behind-the-meter” (BTM) displace utility-supplied generation, but still affect the grid at large, as electricity must be generated at the moment it is consumed. PV installations in California grew 20% from 2017 to 2018, benefiting from the state’s Self-Generation Incentive Program that offers hefty rebates through 2025, as well as a 30% federal tax credit.

Increasingly large amounts of periodic, renewable power comes at a price—the more there is, the more difficult it is to keep the power grid stable and energized. Since electricity must be consumed the instant it is generated, and because wind and solar produce what they will whenever they do, the rest of the grid’s power producers—mostly natural gas plants—have to make up any differences between supply and immediate demand. This load balancing is vital, because without it, the grid will crash and widespread blackouts will ensue.

California often produces a surplus of mandated solar and wind power, generated for 5 to 8 cents per kilowatt hour. This power displaces dispatchable power from natural gas, coal and nuclear plants, resulting in reliable power plants spending less time online and driving up electricity prices as the plants operate for fewer hours of the day. Subsidized and mandated solar power, along with a law passed in California in 2006 (SB 1638) that bans the renewal of coal-fired power contracts, has placed enormous economic pressure on the Western region’s coal power plants—among them, the nation’s largest, Navajo Generating Station. As these plants go off line, the Western power grid will become increasingly unstable. Eventually, the states that share their electric power in the Western Interconnect may have to act to either subsidize dispatchable power or place a value on reliability—something that was taken for granted in the growth of the America’s electrical system and its regulatory scheme.

California law regarding electricity explicitly states that “a violation of the Public Utilities Act is a crime” and that it is “…the intent of the Legislature to provide for the evolution of the ISO (California’s Independent System Operator—the entity that manages California’s grid) into a regional organization to promote the development of regional electricity transmission markets in the western states.” In other words, California expects to dictate how the Western grid operates.

One last note as to what drives much of California’s energy policy: politics. California State Senator Kevin de León (the author served with him in the State Assembly) drafted SB 350, the Clean Energy and Pollution Reduction Act. It became law in 2015. Sen. de León followed up with SB 100 in 2018, signed into law weeks before the 2018 election. SB 100 increased California’s renewable portfolio standard to 60% by 2030 and further requires all the state’s electricity to come from carbon-free sources by 2045, a capstone of the state’s climate policies that factor into the blackout debate.  

Sen. de León used his environmental credentials to burnish his run for the U.S. Senate against Sen. Dianne Feinstein, eventually capturing the endorsements of the California Democratic Party and billionaire environmentalist Tom Steyer, now running for president. Feinstein and de León advanced to the general in California’s jungle primary, where Feinstein won reelection 54.2% to 45.8%.

De León may have lost his race for the U.S. Senate, but his legacy will live on in increasingly unaffordable electricity and blackouts, not only in California, but in the rest of the Western United States—unless federal or state regulators begin to place a value on reliability. This could be done by requiring utility scale renewable power providers to guarantee dispatchable power, as policymakers try to avert a looming shortage of firm capacity, either through purchase agreements with thermal power plants or through the installation of giant and costly battery farms or other energy storage means.

 

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Enel kicks off 90MW Spanish wind build

Enel Green Power España Aragon wind farms advance Spain's renewable energy transition, with 90MW under construction in Teruel, Endesa investment of €88 million, 25-50MW turbines, and 2017 auction-backed capacity enhancing grid integration and clean power.

 

Key Points

They are three Teruel wind projects totaling 90MW, part of Endesa's 2017-awarded plan expanding Spain's clean energy.

✅ 90MW across Sierra Costera I, Allueva, and Sierra Pelarda

✅ €88m invested; 14+7+4 turbines; Endesa-led build in Teruel

✅ Part of 2017 tender: 540MW wind, 339MW solar, nationwide

 

Enel Green Power Espana, part of Enel's wind projects worldwide, has started constructing three wind farms in Aragon, north-east Spain, which are due online by the end of the year.

The projects, all situated in the Teruel province, are worth a total investment of €88 million.

The biggest of the facilities, Sierra Costera I, will have a 50MW and will feature 14 turbines.

The wind farm is spread across the municipalities of Mezquita de Jarque, Fuentes Calientes, Canada Vellida and Rillo.

The Allueva wind facility will feature seven turbines and will exceed 25MW.

Sierra Pelarda, in Fonfria, will have four turbines and a capacity of 15MW, as advances in offshore wind turbine technology continue to push scale elsewhere.

The projects bring the total number of wind farms that Enel Green Power Espana has started building in the Teruel province to six, equal to an overall capacity of 218MW.

Endesa chief executive Jose Bogas said: “These plants mark the acceleration on a new wave of growth in the renewable energy space that Endesa is committed to pursue in the next years, driving the energy transition in Spain.”

The six wind farms under construction in Teruel are part of the 540MW that Enel Green Power Espana was awarded in the Spanish government's renewable energy tender held in May 2017.

In Aragon, the company will invest around €434 million euros, reflecting broader European wind power investment trends in recent years, to build 13 wind farms with a total installed capacity of more than 380MW.

The remaining 160MW of wind capacity will be located in Andalusia, Castile-Leon, Castile La Mancha and Galicia, even as some Spanish turbine factories closed during pandemic restrictions.

Enel Green Power Espana was also awarded 339MW of solar capacity in the Spanish government's auction held in July 2017, while other Spanish developers advance CSP projects abroad in markets like Chile.

Once all wind and solar under the 2017 tender are complete they will boost the company’s capacity by around 52%.

 

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Europe’s Big Oil Companies Are Turning Electric

European Oil Majors Energy Transition highlights BP, Shell, and Total rapidly scaling renewables, wind and solar assets, hydrogen, electricity, and EV charging while cutting upstream capex, aligning with net-zero goals and utility-style energy services.

 

Key Points

It is the shift by BP, Shell, Total and peers toward renewables, electricity, hydrogen, and EV charging to meet net-zero goals.

✅ Offshore wind, solar, and hydrogen projects scale across Europe

✅ Capex shifts, fossil output declines, net-zero targets by 2050

✅ EV charging, utilities, and power trading become core services

 

Under pressure from governments and investors, including rising investor pressure at utilities that reverberates across the sector, industry leaders like BP and Shell are accelerating their production of cleaner energy.

This may turn out to be the year that oil giants, especially in Europe, started looking more like electric companies.

Late last month, Royal Dutch Shell won a deal to build a vast wind farm off the coast of the Netherlands. Earlier in the year, France’s Total, which owns a battery maker, agreed to make several large investments in solar power in Spain and a wind farm off Scotland. Total also bought an electric and natural gas utility in Spain and is joining Shell and BP in expanding its electric vehicle charging business.

At the same time, the companies are ditching plans to drill more wells as they chop back capital budgets. Shell recently said it would delay new fields in the Gulf of Mexico and in the North Sea, while BP has promised not to hunt for oil in any new countries.

Prodded by governments and investors to address climate change concerns about their products, Europe’s oil companies are accelerating their production of cleaner energy — usually electricity, sometimes hydrogen — and promoting natural gas, which they argue can be a cleaner transition fuel from coal and oil to renewables, as carbon emissions drop in power generation.

For some executives, the sudden plunge in demand for oil caused by the pandemic — and the accompanying collapse in earnings — is another warning that unless they change the composition of their businesses, they risk being dinosaurs headed for extinction.

This evolving vision is more striking because it is shared by many longtime veterans of the oil business.

“During the last six years, we had extreme volatility in the oil commodities,” said Claudio Descalzi, 65, the chief executive of Eni, who has been with that Italian company for nearly 40 years. He said he wanted to build a business increasingly based on green energy rather than oil.

“We want to stay away from the volatility and the uncertainty,” he added.

Bernard Looney, a 29-year BP veteran who became chief executive in February, recently told journalists, “What the world wants from energy is changing, and so we need to change, quite frankly, what we offer the world.”

The bet is that electricity will be the prime means of delivering cleaner energy in the future and, therefore, will grow rapidly as clean-energy investment incentives scale globally.

American giants like Exxon Mobil and Chevron have been slower than their European counterparts to commit to climate-related goals that are as far reaching, analysts say, partly because they face less government and investor pressure (although Wall Street investors are increasingly vocal of late).

“We are seeing a much bigger differentiation in corporate strategy” separating American and European oil companies “than at any point in my career,” said Jason Gammel, a veteran oil analyst at Jefferies, an investment bank.

Companies like Shell and BP are trying to position themselves for an era when they will rely much less on extracting natural resources from the earth than on providing energy as a service tailored to the needs of customers — more akin to electric utilities than to oil drillers.

They hope to take advantage of the thousands of engineers on their payrolls to manage the construction of new types of energy plants; their vast networks of retail stations to provide services like charging electric vehicles; and their trading desks, which typically buy and hedge a wide variety of energy futures, to arrange low-carbon energy supplies for cities or large companies.

All of Europe’s large oil companies have now set targets to reduce the carbon emissions that contribute to climate change. Most have set a ”net zero” ambition by 2050, a goal also embraced by governments like the European Union and Britain.

The companies plan to get there by selling more and more renewable energy and by investing in carbon-free electricity across their portfolios, and, in some cases, by offsetting emissions with so-called nature-based solutions like planting forests to soak up carbon.

Electricity is the key to most of these strategies. Hydrogen, a clean-burning gas that can store energy and generate electric power for vehicles, also plays an increasingly large role.

The coming changes are clearest at BP. Mr. Looney said this month that he planned to increase investment in low-emission businesses like renewable energy by tenfold in the next decade to $5 billion a year, while cutting back oil and gas production by 40 percent. By 2030, BP aims to generate renewable electricity comparable to a few dozen large offshore wind farms.

Mr. Looney, though, has said oil and gas production need to be retained to generate cash to finance the company’s future.

Environmentalists and analysts described Mr. Looney’s statement that BP’s oil and gas production would decline in the future as a breakthrough that would put pressure on other companies to follow.

BP’s move “clearly differentiates them from peers,” said Andrew Grant, an analyst at Carbon Tracker, a London nonprofit. He noted that most other oil companies had so far been unwilling to confront “the prospect of producing less fossil fuels.”

While there is skepticism in both the environmental and the investment communities about whether century-old companies like BP and Shell can learn new tricks, they do bring scale and know-how to the task.

“To make a switch from a global economy that depends on fossil fuels for 80 percent of its energy to something else is a very, very big job,” said Daniel Yergin, the energy historian who has a forthcoming book, “The New Map,” on the global energy transition now occurring in energy. But he noted, “These companies are really good at big, complex engineering management that will be required for a transition of that scale.”

Financial analysts say the dreadnoughts are already changing course.

“They are doing it because management believes it is the right thing to do and also because shareholders are severely pressuring them,” said Michele Della Vigna, head of natural resources research at Goldman Sachs.

Already, he said, investments by the large oil companies in low-carbon energy have risen to as much as 15 percent of capital spending, on average, for 2020 and 2021 and around 50 percent if natural gas is included.

Oswald Clint, an analyst at Bernstein, forecast that the large oil companies would expand their renewable-energy businesses like wind, solar and hydrogen by around 25 percent or more each year over the next decade.

Shares in oil companies, once stock market stalwarts, have been marked down by investors in part because of the risk that climate change concerns will erode demand for their products. European electric companies are perceived as having done more than the oil industry to embrace the new energy era.

“It is very tricky for an investor to have confidence that they can pull this off,” Mr. Clint said, referring to the oil industry’s aspirations to change.

But, he said, he expects funds to flow back into oil stocks as the new businesses gather momentum.

At times, supplying electricity has been less profitable than drilling for oil and gas. Executives, though, figure that wind farms and solar parks are likely to produce more predictable revenue, partly because customers want to buy products labeled green.

Mr. Descalzi of Eni said converted refineries in Venice and Sicily that the company uses to make lower-carbon fuel from plant matter have produced better financial results in this difficult year than its traditional businesses.

Oil companies insist that they must continue with some oil and gas investments, not least because those earnings can finance future energy sources. “Not to make any mistake,” Patrick Pouyanné, chief executive of Total, said to analysts recently: Low-cost oil projects will be a part of the future.

During the pandemic, BP, Total and Shell have all scrutinized their portfolios, partly to determine if climate change pressures and lingering effects from the pandemic mean that petroleum reserves on their books — developed for perhaps billions of dollars, when oil was at the center of their business — might never be produced or earn less than previously expected. These exercises have led to tens of billions of dollars of write-offs for the second quarter, and there are likely to be more as companies recalibrate their plans.

“We haven’t seen the last of these,” said Luke Parker, vice president for corporate analysis at Wood Mackenzie, a market research firm. “There will be more to come as the realities of the energy transition bite.”

 

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National Steel Car appealing decision in legal challenge of Ontario electricity fee it calls an unconstitutional tax

Ontario Global Adjustment Appeal spotlights Ontario's electricity fee, regulatory charge vs tax debate, FIT contracts, green energy policy, and constitutional challenge as National Steel Car contests soaring power costs before the Ontario Superior Court.

 

Key Points

Court challenge over Ontario's global adjustment fee, disputing its status as a regulatory charge instead of a tax.

✅ Challenges classification of global adjustment as tax vs regulatory charge.

✅ Focuses on FIT contracts, renewable energy payments, power cost impacts.

✅ Appeals Ontario ruling; implications for ratepayers and policy.

 

A manufacturer of steel rail cars is pursuing an appeal after its lawsuit challenging the constitutionality of a major Ontario electricity fee was struck down earlier this year.

Lawyers for Hamilton, Ont.-based National Steel Car Ltd. filed a notice of appeal in July after Ontario Superior Court Justice Wendy Matheson ruled in June that an electricity fee known as the global adjustment charge was a regulatory charge, and not an unconstitutional tax used to finance policy goals, as National Steel Car alleges.

The company, the decision noted, began its legal crusade last year after seeing its electricity bills had “increased dramatically” since the Ontario government passed green energy legislation nearly a decade ago, and amid concerns that high electricity rates are hurting Ontario manufacturers.

Under that legislation, the judge wrote, “private suppliers of renewable energy were paid to ’feed in’ energy into Ontario’s electricity grid.” The contracts for these so-called “feed-in tariff” contracts, or FIT contracts, were the “primary focus” of the lawsuit.

“The applicant seeks a declaration that part of the amount it has paid for electricity is an unconstitutional tax rather than a valid regulatory charge,” the judge added. “More specifically, it challenges part of the Global Adjustment, which is a component of electricity pricing and incorporates obligations under FIT contracts.”

Chiefly representing the difference between Ontario’s market price for power and the guaranteed price owed to generators, global adjustment now makes up the bulk of the commodity cost of electricity in the province. The fee has risen over the past decade, amid calls to reject steep Nova Scotia rate hikes as well — costing electricity customers $37 billion in global adjustment from 2006 to 2014, according to the province’s auditor general — because of investments in the electricity grid and green-energy contracts, among other reasons.

National Steel Car argued the global adjustment is a tax, and an unconstitutional one at that because it violated a section of the Constitution Act requiring taxes to be authorized by the legislature. The company also said the imposition of the global adjustment broke an Ontario law requiring a referendum to be held for new taxes.

The province, Justice Matheson wrote, had argued “that it is plain and obvious that these applications will fail.” In a decision released in June, the judge granted motions to strike out National Steel Car’s applications.

“The Global Adjustment,” she added, “is not a tax because its purpose, in pith and substance, is not to tax, and it is a regulatory charge and therefore, again, not a tax.”

Now, National Steel Car is arguing that the judge erred in several ways, including in fact, “by finding that the FIT contracts must be paid, when they can be cancelled.”

There has been a change in government at Queen’s Park since National Steel Car first filed its lawsuit last year, and that change has put green energy contracts under fire. The Progressive Conservative government of new Premier Doug Ford has already made a number of decisions on the electricity file, such as moving to cancel and wind down more than 750 renewable energy contracts, as well as repealing the province’s Green Energy Act.

The Tories also struck a commission of inquiry into the province’s finances that warned the global adjustment “may be struck down as unconstitutional,” a warning delivered amid cases where Nova Scotia's regulator approved a 14% rate hike in a high-profile decision.

“There is a risk that a court may find the global adjustment is not a valid regulatory charge if shifting costs over a longer period of time inadvertently results in future ratepayers cross-subsidizing today’s ratepayers,” the commission’s report said.

A spokesperson for Ontario’s Ministry of Energy, Northern Development and Mines said in an email that it would be “inappropriate to comment about the specifics of any case before the courts or currently under arbitration.”

National Steel Car is also prepared to fight its case all the way up to the Supreme Court of Canada, according to its lawyer.

“What is clear from our proceeding with the appeal is National Steel Car has every intention of seeing that lawsuit through to its conclusion if this government isn’t interested or prepared to reasonably settle it,” Jerome Morse said.

 

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