Maine residents push back against wind farms

Hydrogen Energy Transition accelerates green hydrogen, electrolyzers, renewables, and fuel cells, as the EU and US scale decarbonization, NextEra tests hydrogen-to-power, and DOE funds pilots to replace natural gas and cut CO2.

Key Points

A shift to deploy green hydrogen tech to decarbonize power, industry, and transport across EU and US energy systems.

✅ EU targets 40 GW electrolyzers plus 40 GW imports by 2030

✅ DOE funds pilots; NextEra trials hydrogen-to-power at Okeechobee

✅ Aims to replace natural gas, enable fuel cells, cut CO2

Last month, the European Union set out a comprehensive hydrogen strategy as part of its goal to achieve carbon neutrality for all its industries by 2050. The EU has an ambitious target to build out at least 40 gigawatts of electrolyzers within its borders by 2030 and also support the development of another 40 gigawatts of green hydrogen in nearby countries that can export to the region by the same date. The announcement came as little surprise, given that Europe is regarded as being far ahead of the United States in the shift to renewable energy, even as it looks to catch up on fuel cells with Asian leaders today.

But the hydrogen bug has finally arrived stateside: The U.S. Department of Energy has unveiled the H2@Scale initiative whereby a handful of companies including Cummins Inc. (NYSE: CMI), Caterpillar Inc.(NYSE: CAT), 3M Company (NYSE: MMM), Plug Power Inc.(NASDAQ: PLUG) and EV startup Nikola Corp.(NASDAQ: NKLA), even as the industry faces threats to the EV boom that investors are watching, will receive $64 million in government funding for hydrogen research projects.

Hot on the heels of the DoE initiative: American electric utility and renewable energy giant, NextEra Energy Inc.(NYSE: NEE), has unveiled an equally ambitious plan to start replacing its natural gas-powered plants with hydrogen.

During its latest earnings call, NextEra’s CFO Rebecca Kujawa said the company is “…particularly excited about the long-term potential of hydrogen” and discussed plans to start a pilot hydrogen project at one of its generating stations at Okeechobee Clean Energy Center owned by its subsidiary, Florida Power & Light (FPL). NextEra reported Q2 revenue of $4.2B (-15.5% Y/Y), which fell short of Wall Street’s consensus by $1.12B while GAAP EPS of $2.59 (+1.1% Y/Y) beat estimates by $0.09. The company attributed the big revenue slump to the effects of Covid-19.

Renewable energy and hydrogen stocks have lately become hot property as EV adoption hits an inflection point worldwide, with NEE up 16% in the year-to-date; PLUG +144%, Bloom Energy Corp. (NYSE: BE) +62.8% while Ballard Power Systems (NASDAQ: BLDP) has gained 98.2% over the timeframe.

NextEra’s usual modus operandi involves conducting small experiments with new technologies to establish their cost-effectiveness, a pragmatic approach informed by how electricity changed in 2021 across the grid, before going big if the trials are successful.

CFO Kujawa told analysts:
“Based on our ongoing analysis of the long-term potential of low-cost renewables, we remain confident as ever that wind, solar, and battery storage will be hugely disruptive to the country’s existing generation fleet, while reducing cost for customers and helping to achieve future CO2 emissions reductions. However, to achieve an emissions-free future, we believe that other technologies will be necessary, and we are particularly excited about the long-term potential of hydrogen.”

NextEra plans to test the electricity-to-hydrogen-to-electricity model at its natural gas-powered Okeechobee Clean Energy Center that came online in 2019. Okeechobee is already regarded as one of the cleanest thermal energy facilities anywhere on the globe. However, replacing natural gas with zero emissions hydrogen would be a significant step in helping the company achieve its goal to become 100% emissions-free by 2050.

Kujawa said the company plans to continue evaluating other potential hydrogen opportunities to accelerate the decarbonization of transportation fuel, amid the debate over the future of vehicles between electricity and hydrogen, and industrial feedstock and also support future demand for low-cost renewables.

Another critical milestone: NextEra finished the quarter with a renewables backlog of approximately 14,400 megawatts, its largest in its 20-year development history. To put that backlog into context, NextEra revealed that it is larger than the operating wind and solar portfolios of all but two companies in the world.

Hydrogen Bubble?
That said, not everybody is buying the hydrogen hype.

Barron’s Bill Apton says Wall Street has discovered hydrogen this year and that hydrogen stocks are a bubble, even as hybrid vehicles gain momentum in the U.S. market according to recent reports. Apton says the huge runup by Plug Power, Ballard Energy, and Bloom Energy has left them trading at more than 50x future cash flow, making it hard for them to grow into their steep valuations. He notes that smaller hydrogen companies are up against big players and deep-pocketed manufacturers, including government-backed rivals in China and the likes of Cummins.

According to Apton, it could take a decade or more before environmentally-friendly hydrogen can become competitive with natural gas on a cost-basis, while new ideas like flow battery cars also vie for attention, making hydrogen stocks better long-term picks than the cult stocks they have become.

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COP24 Climate Talks in Poland gather nearly 200 nations to finalize the Paris Agreement rulebook, advance the Talanoa Dialogue, strengthen emissions reporting and transparency, and align finance, technology transfer, and IPCC science for urgent mitigation.

Key Points

UNFCCC summit in Katowice to finalize Paris rules, enhance transparency, and drive stronger emissions cuts.

✅ Paris rulebook on reporting, transparency, markets, and timelines

✅ Talanoa Dialogue to assess gaps and raise ambition by 2020

✅ Finance and tech transfer for developing countries under UNFCCC

Delegates from nearly 200 countries have assembled this month in Katowice, Poland — the heart of coal country — to try to move the ball forward on battling climate change.

It’s now the 24th annual meeting, or “COP” — conference of the parties — under the landmark U.N. Framework Convention on Climate Change, which the United States signed under then-President George H.W. Bush in 1992. More significantly, it’s the third such meeting since nations adopted the Paris climate agreement in 2015, widely seen at the time as a landmark moment in which, at last, developed and developing countries would share a path toward cutting greenhouse gas emissions, as Obama's clean energy push sought to lock in momentum.

But the surge of optimism that came with Paris has faded lately. The United States, the second largest greenhouse gas emitter, said it would withdraw from the agreement, though it has not formally done so yet. Many other countries are off target when it comes to meeting their initial round of Paris promises — promises that are widely acknowledged to be too weak to begin with. And emissions have begun to rise after a brief hiatus that had lent some hope of progress.

The latest science, meanwhile, is pointing toward increasingly dire outcomes. The amount of global warming that the world already has seen — 1 degree Celsius, 1.8 degrees Fahrenheit — has upended the Arctic, is killing coral reefs and may have begun to destabilize a massive part of Antarctica. A new report from the U.N.'s Intergovernmental Panel on Climate Change (IPCC), requested by the countries that assembled in Paris to be timed for this year’s meeting, finds a variety of increasingly severe effects as soon as a rise of 1.5 degrees Celsius arrives — an outcome that can’t be avoided without emissions cuts so steep that they would require societal transformations without any known historical parallel, the panel found.

It’s in this context that countries are meeting in Poland, with expectations and stakes high.

So what’s on the agenda in Poland?

The answer starts with the Paris agreement, which was negotiated three years ago, has been signed by 197 countries and is a mere 27 pages long. It covers a lot, laying out a huge new regime not only for the world as a whole to cut its greenhouse gas emissions, but for each individual country to regularly make new emissions-cutting pledges, strengthen them over time, report emissions to the rest of the world and much more. It also addresses financial obligations that developed countries have to developing countries, including how to achieve clean and universal electricity at scale, and how technologies will be transferred to help that.

But those 27 pages leave open to interpretation many fine points for how it will all work. So in Poland, countries are performing a detailed annotation of the Paris agreement, drafting a “rule book” that will span hundreds of pages.

That may sound bureaucratic, but it’s key to addressing many of the flash points. For instance, it will be hard for countries to trust that their fellow nations are cutting emissions without clear standards for reporting and vetting. Not everybody is ready to accept a process like the one followed in the United States, which not only publishes its emissions totals but also has an independent review of the findings.

“A number of the developing countries are resisting that kind of model for themselves. They see it as an intrusion on their sovereignty,” said Alden Meyer, director of strategy and policy at the Union of Concerned Scientists and one of the many participants in Poland this week. “That’s going to be a pretty tough issue at the end of the day.”

It’s hardly the only one. Also unclear is what countries will do after the time frames on their current emissions-cutting promises are up, which for many is 2025 or 2030. Will all countries then start reporting newer and more ambitious promises every five years? Every 10 years?

That really matters when five years of greenhouse gas emissions — currently about 40 billion tons of carbon dioxide annually — are capable of directly affecting the planet’s temperature.

What can we expect each day?

The conference is in its second week, when higher-level players — basically, the equivalent of cabinet-level leaders in the United States — are in Katowice to advance the negotiations.

As this happens, several big events are on the agenda. On Tuesday and Wednesday is the “Talanoa Dialogue,” which will bring together world leaders in a series of group meetings to discuss these key questions: “Where are we? Where do we want to go? How do we get there?”

Friday is the last day of the conference, but pros know these events tend to run long. On Friday — or after — we will be waiting for an overall statement or decision from the meeting which may signal how much has been achieved.

What is the “Talanoa Dialogue”?

“Talanoa” is a word used in Fiji and in many other Pacific islands to refer to “the sharing of ideas, skills and experience through storytelling.” This is the process that organizers settled on to fulfill a plan formed in Paris in 2015.

That year, along with signing the Paris agreement, nations released a decision that in 2018 there should be a “facilitative dialogue" among the countries “to take stock” of where their efforts stood to reduce greenhouse gas emissions. This was important because going into that Paris meeting, it was already clear that countries' promises were not strong enough to hold global warming below a rise of 2 degrees Celsius (3.6 degrees Fahrenheit) above preindustrial temperatures.

This dialogue, in the Talanoa process, was meant to prompt reflection and maybe even soul searching about what more would have to be done. Throughout the year, “inputs” to the Talanoa dialogue — most prominently, the recent report by the United Nations' Intergovernmental Panel on Climate Change on the meaning and consequences of 1.5 degrees Celsius of warming —have been compiled and synthesized. Now, over two days in Poland, countries' ministers will assemble to share stories in small groups about what is working and what is not and to assess where the world as a whole is on achieving the required greenhouse gas emissions reductions.

What remains to be seen is whether this process will culminate in any kind of product or statement that calls clearly for immediate, strong ramping up of climate change promises across the world.

With the clock ticking, will countries do anything to increase their ambition at this meeting?

If negotiating the Paris rule book sounds disappointingly technical, well, you’re not the only one feeling that way. Pressure is mounting for countries to accomplish something more than that in Poland — to at minimum give a strong signal that they understand that the science is looking worse and worse, and the world’s progress on the global energy transition isn’t matching that outlook.

“The bigger issue is how we’re going to get to an outcome on greater ambition,” said Lou Leonard, senior vice president for climate and energy at the World Wildlife Fund, who is in Poland observing the talks. “And I think the first week was not kind on moving that part of the agenda forward.”

Most countries are not likely to make new emissions-cutting promises this week. But there are two ways that the meeting could give a strong statement that countries should — or will — come up with new promises at least by 2020. That’s when extremely dramatic emissions cuts would have to start, including progress toward net-zero electricity by mid-century, according to the recent report on 1.5 degrees Celsius of warming.

The first is the aforementioned “Talanoa dialogue” (see above). It’s possible that the outcome of the dialogue could be a statement acknowledging that the world isn’t nearly far enough along and calling for much stronger steps.

There will also be a decision text released for the meeting as a whole, which could potentially send a signal. Leonard said he hopes that would include details for the next steps that will put the world on a better course.

“We have to create milestones, and the politics around it that will pressure countries to do something that quite frankly they don’t want to do,” he said. “It’s not going to be easy. That’s why we need a process that will help make it happen. And make the most of the IPCC report that was designed to come out right now so it could do this for us. That’s why we have it, and it needs to serve that role.”

The United States says it will withdraw from the agreement, so what role is it playing in Poland?

Despite President Trump’s pledge to withdraw, the United States remains in the Paris agreement (for now) and has sent a delegation of 44 people to Poland, largely from the State Department but also from the Environmental Protection Agency, Energy Department and even the White House, while domestically a historic U.S. climate law has recently passed to accelerate clean energy. Many of these career government officials remain deeply engaged in hashing out details of the agreement.

Still, the country as a whole is being cast in an antagonistic role in the talks.

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Nuclear decarbonization leverages low-carbon electricity, process heat, and hydrogen from advanced reactors and SMRs to electrify industry, buildings, and transport, supporting net-zero strategies and grid flexibility alongside renewables with dispatchable baseload capacity.

Key Points

Nuclear decarbonization uses reactors to supply low-carbon power, heat, and hydrogen, cutting emissions across industry.

✅ Advanced reactors and SMRs enable high-temperature process heat

✅ Nuclear-powered electrolysis and HTSE produce low-carbon hydrogen

✅ District heating from reactors reduces pollution and coal use

By Dr Henri Paillere, Head of the Planning and Economics Studies Section of the IAEA

Decarbonising the power sector will not be sufficient to achieving net-zero emissions, with assessments indicating nuclear may be essential across sectors. We also need to decarbonise the non-power sectors - transport, buildings and industry - which represent 60% of emissions from the energy sector today. The way to do that is: electrification with low-carbon electricity as much as possible; using low-carbon heat sources; and using low-carbon fuels, including hydrogen, produced from clean electricity.
The International Energy Agency (IEA) says that: 'Almost half of the emissions reductions needed to reach net zero by 2050 will need to come from technologies that have not reached the market today.' So there is a need to innovate and push the research, development and deployment of technologies. That includes nuclear beyond electricity.

Today, most of the scenario projections see nuclear's role ONLY in the power sector, despite ongoing debates over whether nuclear power is in decline globally, but increased electrification will require more low-carbon electricity, so potentially more nuclear. Nuclear energy is also a source of low-carbon heat, and could also be used to produce low-carbon fuels such as hydrogen. This is a virtually untapped potential.

There is an opportunity for the nuclear energy sector - from advanced reactors, next-gen nuclear small modular reactors, and non-power applications - but it requires a level playing field, not only in terms of financing today's technologies, but also in terms of promoting innovation and supporting research up to market deployment. And of course technology readiness and economics will be key to their success.

On process heat and district heating, I would draw attention to the fact there have been decades of experience in nuclear district heating. Not well spread, but experience nonetheless, in Russia, Hungary and Switzerland. Last year, we had two new projects. One floating nuclear power plant in Russia (Akademik Lomonosov), which provides not only electricity but district heating to the region of Pevek where it is connected. And in China, the Haiyang nuclear power plant (AP1000 technology) has started delivering commercial district heating. In China, there is an additional motivation to reducing emissions, namely to cut air pollution because in northern China a lot of the heating in winter is provided by coal-fired boilers. By going nuclear with district heating they are therefore cutting down on this pollution and helping with reducing carbon emissions as well. And Poland is looking at high-temperature reactors to replace its fleet of coal-fired boilers and so that's a technology that could also be a game-changer on the industry side.

There have also been decades of research into the production of hydrogen using nuclear energy, but no real deployment. Now, from a climate point of view, there is a clear drive to find substitute fuels for the hydrocarbon fuels that we use today, and multiple new nuclear stations are seen by industry leaders as necessary to meet net-zero targets. In the near term, we will be able to produce hydrogen with electrolysis using low-carbon electricity, from renewables and nuclear. But the cheapest source of low-carbon power is from the long-term operation of existing nuclear power plants which, combined with their high capacity factors, can give the cheapest low-carbon hydrogen of all.

In the mid to long term, there is research on-going with processes that are more efficient than low-temperature electrolysis, which is high temperature steam electrolysis or thermal splitting of water. These may offer higher efficiencies and effectiveness but they also require advanced reactors that are still under development. Demonstration projects are being considered in several countries and we at the IAEA are developing a publication that looks into the business opportunities for nuclear production of hydrogen from existing reactors. In some countries, there is a need to boost the economics of the existing fleet, especially in the electricity systems where you have low or even negative market prices for electricity. So, we are looking at other products that have higher values to improve the competitiveness of existing nuclear power plants.

The future means not only looking at electricity, but also at industry and transport, and so integrated energy systems. Electricity will be the main workhorse of our global decarbonisation effort, but through heat and hydrogen. How you model this is the object of a lot of research work being done by different institutes and we at the IAEA are developing some modelling capabilities with the objective of optimising low-carbon emissions and overall costs.

This is just a picture of what the future might look like: a low-carbon power system with nuclear lightwater reactors (large reactors, small modular reactors and fast reactors) drawing on the green industrial revolution reactor waves in planning; solar, wind, anything that produces low-carbon electricity that can be used to electrify industry, transport, and the heating and cooling of buildings. But we know there is a need for high-temperature process steam that electricity cannot bring but which can be delivered directly by high-temperature reactors. And there are a number of ways of producing low-carbon hydrogen. The beauty of hydrogen is that it can be stored and it could possibly be injected into gas networks that could be run in the future on 100% hydrogen, and this could be converted back into electricity.

So, for decarbonising power, there are many options - nuclear, hydro, variable renewables, with renewables poised to surpass coal in global generation, and fossil with carbon capture and storage - and it's up to countries and industries to invest in the ones they prefer. We find that nuclear can actually reduce the overall cost of systems due to its dispatchability and the fact that variable renewables have a cost because of their intermittency. There is a need for appropriate market designs and the role of governments to encourage investments in nuclear.

Decarbonising other sectors will be as important as decarbonising electricity, from ways to produce low-carbon heat and low-carbon hydrogen. It's not so obvious who will be the clear winners, but I would say that since nuclear can produce all three low-carbon vectors - electricity, heat and hydrogen - it should have the advantage.
We at the IAEA will be organising a webinar next month with the IEA looking at long-term nuclear projections in a net-zero world, building on IAEA analysis on COVID-19 and low-carbon electricity insights. That will be our contribution from the point of view of nuclear to the IEA's special report on roadmaps to net zero that it will publish in May.

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California Rooftop Solar Rate Reforms propose shifting net metering to fixed access fees, peak-demand charges, and time-of-use pricing, aligning grid costs, distributed generation incentives, and retail rates for efficient, least-cost electricity and fair cost recovery.

Key Points

Policies replacing net metering with fixed fees, demand charges, and time-of-use rates to align costs and incentives.

✅ Large fixed access charge funds grid infrastructure

✅ Peak-demand pricing reflects capacity costs at system peak

✅ Time-varying rates align marginal costs and emissions

The California Public Service Commission has proposed revamping electricity rates for residential customers who produce electricity through their rooftop solar panels. In a recent New York Times op‐​ed, former Governor Arnold Schwarzenegger argued the changes pose an existential threat to residential rooftop solar. Interest groups favoring rooftop solar portray the current pricing system, often called net metering, in populist terms: “Net metering is the one opportunity for the little guy to get relief, and they want to put the kibosh on it.” And conventional news coverage suggests that because rooftop solar is an obvious good development and nefarious interests, incumbent utilities and their unionized employees, support the reform, well‐​meaning people should oppose it. A more thoughtful analysis would inquire about the characteristics and prices of a system that supplies electricity at least cost.

Currently, under net metering customers are billed for their net electricity use plus a minimum fixed charge each month. When their consumption exceeds their home production, they are billed for their net use from the electricity distribution system (the grid) at retail rates. When their production exceeds their consumption and the excess is supplied to the grid, residential consumers also are reimbursed at retail rates. During a billing period, if a consumer’s production equaled their consumption their electric bill would only be the monthly fixed charge.

Net metering would be fine if all the fixed costs of the electric distribution and transmission systems were included in the fixed monthly charge, but they are not. Between 66 and 77 percent of the expenses of California private utilities do not change when a customer increases or decreases consumption, but those expenses are recovered largely through charges per kWh of use rather than a large monthly fixed charge. Said differently, for every kWh that a PG&E solar household exported into the grid in 2019, it saved more than 26 cents, on average, while the utility’s costs only declined by about 8 cents or less including an estimate of the pollution costs of the system’s fossil fuel generators. The 18‐​cent difference pays for costs that don’t change with variation in a household’s consumptions, like much of the transmission and distribution system, energy efficiency programs, subsidies for low‐​income customers, and other fixed costs. Rooftop solar is so popular in California because its installation under a net metering system avoids the 18 cents, creating a solar cost shift onto non-solar customers. Rooftop solar is not the answer to all our environmental needs. It is simply a form of arbitrage around paying for the grid’s fixed costs.

What should electricity tariffs look like? This article in Regulation argues that efficient charges for electricity would consist of three components: a large fixed charge for the distribution and transmission lines, meter reading, vegetation trimming, etc.; a peak‐​demand charge related to your demand when the system’s peak demand occurs to pay for fixed capacity costs associated with peak use; and a charge for electricity use that reflects the time‐ and location‐​varying cost of additional electricity supply.

Actual utility tariffs do not reflect this ideal because of political concerns about the effects of large fixed monthly charges on low‐​income customers and the optics of explaining to customers that they must pay 50 or 60 dollars a month for access even if their use is zero. Instead, the current pricing system “taxes” electricity use to pay for fixed costs. And solar net metering is simply a way to avoid the tax. The proposed California rate reforms would explicitly impose a fixed monthly charge on rooftop solar systems that are also connected to the grid, a change that could bring major changes to your electric bill statewide, and would thus end the fixed‐​cost avoidance. Any distributional concerns that arise because of the effect of much larger fixed charges on lower‐​income customers could be managed through explicit tax deductions that are proportional to income.

The current rooftop solar subsidies in California also should end because they have perverse incentive effects on fossil fuel generators, even as the state exports its energy policies to neighbors. Solar output has increased so much in California that when it ends with every sunset, natural gas generated electricity has to increase very rapidly. But the natural gas generators whose output can be increased rapidly have more pollution and higher marginal costs than those natural gas plants (so called combined cycle plants) whose output is steadier. The rapid increase in California solar capacity has had the perverse effect of changing the composition of natural gas generators toward more costly and polluting units.

The reforms would not end the role of solar power. They would just shift production from high‐​cost rooftop to lower‐​cost centralized solar production, a transition cited in analyses of why electricity prices are soaring in California, whose average costs are comparable with electricity production in natural gas generators. And they would end the excessive subsidies to solar that have negatively altered the composition of natural gas generators.

Getting prices right does not generate citizen interest as much as the misguided notion that rooftop solar will save the world, and recent efforts to overturn income-based utility charges show how politicized the debate remains. But getting prices right would allow the decentralized choices of consumers and investors to achieve their goals at least cost.

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UK Marine Energy and Climate Resilience can counter sea level rise and storm surge with tidal power, subsea turbines, heat pumps, and flood barriers, delivering renewable electricity, stability, and coastal protection for the United Kingdom.

Key Points

Integrated use of tidal power, barriers, and heat pumps to curb sea level rise, manage storms, and green the UK grid.

✅ Tidal bridges and subsea turbines enhance baseload renewables

✅ Integrated barriers cut storm surge and river flood risk

✅ Heat pumps and marine heat networks decarbonize coastal cities

IN concentrating on electrically driven cars, the UK’s new ten-point energy plans, and recent UK net zero policies, ignores the elephant in the room.

It fails to address the forecast six-metre sea level rise from global warming rapidly melting the Greenland ice sheet.

Rising sea levels and storm surge, combined with increasingly heavy rainfall swelling our rivers, threaten not only hundreds of coastal communities but also much unprotected strategic infrastructure, including electricity systems that need greater resilience.

New nuclear power stations proposed in this United Kingdom plan would produce radioactive waste requiring thousands of years to safely decay.

This is hardly the solution for the Green Energy future, or the broader global energy transition, that our overlooked marine energy resource could provide.

Sea defences and barrier design, built and integrated with subsea turbines and heat pumps, can deliver marine-driven heat and power to offset the costs, not only of new Thames Barriers, but also future Severn, Forth and other barrages, while reducing reliance on high-GWP gases such as SF6 in switchgear across the grid.

At the Pentland Firth, existing marine turbine power could be enhanced by turbines deployed from new tidal bridges to provide much of UK’s electricity needs, as nations chart an electricity future that replaces fossil fuels, from its estimated 60 gigawatt capability.

Energy from Bluemull Sound could likewise be harvested and exported or used to enhance development around UK’s new space station at Unst.

The 2021 Climate Change Summit gives Glasgow the platform to secure Scotland’s place in a true green, marine energy future and help build an electric planet for the long term.

We must not waste this opportunity.

THERE is no vaccine for climate change.

It is, of course, wonderful news that such progress is being made in the development of Covid-19 vaccines but there is a risk that, no matter how serious the Covid crisis is, it is distracting attention, political will and resources from the climate crisis, a much longer term and more devastating catastrophe.

They are intertwined. As climate and ecological systems change, vectors and pathogens migrate and disease spreads.

What lessons can be learned from one to apply to the other?

Prevention is better than cure. We need to urgently address the climate crisis, charting a path to net zero electricity by the middle of the century, to help prevent future pandemics.

We are only as safe as the most vulnerable. Covid immunisation will protect the most vulnerable; to protect against the effects of climate change we need to look far more deeply. Global challenges require systemic change.

Neither Covid or climate change respect national borders and, for both, we need to value and trust science and the scientific experts and separate them from political posturing.

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

Key Points

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

✅ Funds gap between market price and contracted generator rates

✅ At issue: regulatory charge vs tax under constitutional law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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