Electrovaya launches low-speed car

Germany's Joint Onshore Wind and Solar Tender invites 200 MW bids in an EEG auction, with PV and onshore wind competing on price per MWh, including grid integration costs and network fees under BNA rules.

Key Points

A BNA-run 200 MW EEG auction where PV and onshore wind compete on price per MWh, including grid integration costs.

✅ 200 MW cap; minimum project size 750 kW

✅ Max subsidy 87.50 per MWh; bids include network costs

✅ Solar capped at 10-20 MW; wind requires prior approval

Germany's Federal Network Agency (BNA) has launched its second joint onshore wind and solar photovoltaic (PV) tender, with a total capacity of 200 MW.

A maximum guaranteed subsidy payment has been set at 87.50 per MWh for both energy sources, which BNA says will have to compete against each other for the lowest price of electricity. According to auction rules, all projects must have a minimum of 750 kW.

The auction is due to be completed on 2 November.

The network regulator has capped solar projects at 10 MW, though this has been extended to 20 MW in some districts, amid calls to remove barriers to PV at the federal level. Onshore wind projects did not receive any such restrictions, though they require approval from Federal Immission Control three weeks prior to the bid date of 11 Octobe

Bids also require network and system integration costs to be included, and similar solicitations have been heavily subscribed, as an over-subscribed Duke Energy solar solicitation in the US market illustrates.

According to Germanys Renewable Energy Act (EEG), two joint onshore wind and solar auctions must take place each year between 2018 and 2021. After this, the government will review the scheme and decide whether to continue it beyond 2021.

The first tender, conducted in April, saw the entire 200 MW capacity given to solar PV projects, reflecting a broader solar power boost in Germany during the energy crisis. Of the 32 contracts awarded, value varied from 39.60 per MWh to 57.60 per MWh. Among the winning bids were five projects in agricultural and grassland sites in Bavaria, totalling 31 MW, and three in Baden-Wrttemberg at 17 MW.

According to the Agency, the joint tender scheme was initiated in an attempt to determine the financial support requirements for wind and solar in technology-specific auctions, however, solar powers sole win in the April auction meant it was met with criticism, even as clean energy accounts for 50% of Germany's electricity today.

The heads of the Federal Solar Industry Association (BSW-Solar) and German Wind Energy Association (BWE) saying the joint tender scheme is unsuitable for the build-out of the two technologies.

A BWE spokesman previously stressed the companys rejection of competition between wind and solar, saying: It is not clear how this could contribute to an economically meaningful balanced energy mix,

Technologies that are in various stages of development must not enter into direct competition with each other. Otherwise, innovation and development potential will be compromised.

Similarly, BSW-Solar president Carsten Krnig said: We are happy for the many solar winners, but consider the experiment a failure. The auction results prove the excellent price-performance ratio of new solar power plants, as solar-plus-storage is cheaper than conventional power in Germany, but not the suitability of joint tenders.

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Spain 2050 Renewable Energy Plan drives decarbonisation with wind and solar, energy efficiency, fossil fuel bans, and Paris Agreement targets, enabling net-zero power, emissions cuts, and just transition measures for workers and coal regions.

Key Points

A roadmap to 100 percent renewable power by 2050, deep emissions cuts, and a just transition aligned with Paris goals.

✅ Adds 3,000 MW of wind and solar each year through 2030

✅ Bans new fossil fuel drilling, hydrocarbon extraction, and fracking

✅ Targets 35% energy efficiency gains and 35% green power by 2030

Spain has launched an ambitious plan to switch its electricity system entirely to renewable sources, similar to California's 100% clean electricity mandate, by 2050 and completely decarbonise its economy soon after.

By mid-century, as EU electricity demand projections suggest increases, greenhouse gas emissions would be slashed by 90% from 1990 levels under Spain’s draft climate change and energy transition law.

To do this, the country’s social democratic government is committing to installing at least 3,000MW of wind and solar power capacity every year in the next 10 years ahead.

New licences for fossil fuel drills, hydrocarbon exploitation and fracking wells, will be banned, and a fifth of the state budget will be reserved for measures that can mitigate climate change. This money will ratchet upwards from 2025.

Christiana Figueres, a former executive secretary of the UN’s framework convention on climate change (UNFCCC), hailed the draft Spanish law as “an excellent example of the Paris agreement”. She added: “It sets a long-term goal, provides incentives on scaling up emissions technologies and cares about a good transition for the workforce.”

Under the plan, “just transition” contracts will be drawn up, similar to the £220m package announced in October, that will shut most Spanish coalmines in return for a suite of early retirement schemes, re-skilling in clean energy jobs, and environmental restoration. These deals will be partly financed by auction returns from the sale of emissions rights.

The government has already scrapped a controversial “sun tax” that halted Spain’s booming renewables sector earlier this decade, even as IEA analysis finds solar the cheapest electricity worldwide, and the new law will also mandate a 35% electricity share for green energy by 2030.

James Watson, chief executive of the SolarPower Europe trade association, said the law was “a wake-up call to the rest of the world” amid debate on the global energy transition today.

Energy efficiency will also be improved by 35% within 11 years, and government and public sector authorities will be able to lease only buildings that have almost zero energy consumption.

Laurence Tubiana, chief executive of the European Climate Foundation, and former French climate envoy who helped draft the Paris accord, described the agreement as groundbreaking and inspirational. “By planning on going carbon neutral, Spain shows that the battle against climate change is deadly serious, that they are ready to step up and plan to reap the rewards of decarbonisation,” she said.

However, the government’s hold on power is fragile. With just a quarter of parliamentary seats it will depend on the more leftwing Podemos and liberal Ciudadanos parties to pass the climate plan.

No dates were included in the legislation for phaseouts of coal or nuclear energy, and, echoing UK net zero policy shifts, a ban on new cars with petrol or diesel engines was delayed until 2040.

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Three Mile Island Nuclear Debate spotlights subsidies, carbon pricing, wholesale power markets, grid reliability, and zero-emissions goals as Pennsylvania weighs keeping Exelon's reactor open amid natural gas competition and flat electricity demand.

Key Points

Debate over subsidies, carbon pricing, and grid reliability shaping Three Mile Island's zero-emissions future.

✅ Zero emissions credits vs market integrity

✅ Carbon pricing to value clean baseload power

✅ Closure risks jobs, tax revenue, and reliability

Three Mile Island is at the center of a new conversation about the future of nuclear energy in the United States nearly 40 years after a partial meltdown at the Central Pennsylvania plant sparked a national debate about the safety of nuclear power.

The site is slated to close in just two years, a closure plan Exelon has signaled, unless Pennsylvania or a regional power transmission operator delivers some form of financial relief, says Exelon, the Chicago-based power company that operates the plant.

That has drawn the Keystone State into a growing debate: whether to let struggling nuclear plants shut down if they cannot compete in the regional wholesale markets where energy is bought and sold, or adopt measures to keep them in the business of generating power without greenhouse gas emissions.

""The old compromise — that in order to have a reliable, affordable electric system you had to deal with a significant amount of air pollution — is a compromise our new customers today don't want to hear about.""
-Joseph Dominguez, Exelon executive vice president
Nuclear power plants produce about two-thirds of the country's zero-emissions electricity, a role many view as essential to net-zero emissions goals for the grid.

The debate is playing out as some regions consider putting a price on planet-warming carbon emissions produced by some power generators, which would raise their costs and make nuclear plants like Three Mile Island more viable, and developments such as Europe's nuclear losses highlight broader energy security concerns.

States that allow nuclear facilities to close need to think carefully because once a reactor is powered down, there's no turning back, said Jake Smeltz, chief of staff for Pennsylvania State Sen. Ryan Aument, who chairs the state's Nuclear Energy Caucus.

"If we wave goodbye to a nuclear station, it's a permanent goodbye because we don't mothball them. We decommission them," he told CNBC.

Three Mile Island's closure would eliminate more than 800 megawatts of electricity output. That's roughly 10 percent of Pennsylvania's zero-emissions energy generation, by Exelon's calculation. Replacing that with fossil fuel-fired power would be like putting roughly 10 million cars on the road, it estimates.

A closure would also shed about 650 well-paying jobs, putting the just transition challenge in focus for local workers and communities, tied to about $60 million in wages per year. Dauphin County and Londonderry Township, a rural area on the Susquehanna River where the plant is based, stand to lose $1 million in annual tax revenue that funds schools and municipalities. The 1,000 to 1,500 workers who pack local hotels, stores and restaurants every two years for plant maintenance would stop visiting.

Pennsylvanians and lawmakers must now decide whether these considerations warrant throwing Exelon a lifeline. It's a tough sell in the nation's second-largest natural gas-producing state, which already generates more energy than it uses. And time is running out to reach a short-term solution.

"What's meaningful to us is something where we could see the results before we turn in the keys, and we turn in the keys the third quarter of '19," said Joseph Dominguez, Exelon's executive vice president for governmental and regulatory affairs and public policy.

The end of the nuclear age?

The problem for Three Mile Island is the same one facing many of the nation's 60 nuclear plants: They are too expensive to operate.

Financial pressure on these facilities is mounting as power demand remains stagnant due to improved energy efficiency, prices remain low for natural gas-fired generation and costs continue to fall for wind and solar power.

Three Mile Island is something of a special case: The 1979 incident left only one of its two reactors operational, but it still employs about as many people as a plant with two reactors, making it less efficient. In the last three regional auctions, when power generators lock in buyers for their future energy generation, no one bought power from Three Mile Island.

But even dual-reactor plants are facing existential threats. FirstEnergy Corp's Beaver Valley will sell or close its nuclear plant near the Pennsylvania-Ohio border next year as it exits the competitive power-generation business, and facilities like Ohio's Davis-Besse illustrate what's at stake for the region.

Five nuclear power plants have shuttered across the country since 2013. Another six have plans to shut down, and four of those would close well ahead of schedule. An analysis by energy research firm Bloomberg New Energy Finance found that more than half the nation's nuclear plants are facing some form of financial stress.

Today's regional energy markets, engineered to produce energy at the lowest cost to consumers, do not take into account that nuclear power generates so much zero-emission electricity. But Dominguez, the Exelon vice president, said that's out of step with a world increasingly concerned about climate change.

"What we see is increasingly our customers are interested in getting electricity from zero air pollution sources," Dominguez said. "The old compromise — that in order to have a reliable, affordable electric system you had to deal with a significant amount of air pollution — is a compromise our new customers today don't want to hear about."

Strange bedfellows

Faced with the prospect of nuclear plant closures, Chicago and New York have both allowed nuclear reactors to qualify for subsidies called zero emissions credits. Exelon lobbied for the credits, which will benefit some of its nuclear plants in those states.

Even though the plants produce nuclear waste, some environmental groups like the Natural Resources Defense Council supported these plans. That's because they were part of broader packages that promote wind and solar power, and the credits for nuclear are not open-ended. They essentially provide a bridge that keeps zero-emissions power from nuclear reactors on the grid as renewable energy becomes more viable.

Lawmakers in Pennsylvania, Ohio and Connecticut are currently exploring similar options. Jake Smeltz, chief of staff to state Sen. Aument, said legislation could surface in Pennsylvania as soon as this fall. The challenge is to get people to consider the attributes of the sources of their electricity beyond just cost, according to Smeltz.

"Are the plants worth essentially saving? That's a social choice. Do they provide us with something that has benefits beyond the electrons they make? That's the debate that's been happening in other states, and those states say yes," he said.

Subsidies face opposition from anti-nuclear energy groups like Three Mile Island Alert, as well as natural gas trade groups and power producers who compete against Exelon by operating coal and natural gas plants.

"Where we disagree is to have an out-of-market subsidy for one specific company, for a technology that is now proven and mature in our view, at the expense of consumers and the integrity of competitive markets," NRG Energy Mauricio Gutierrez told analysts during a conference call this month.

Smeltz notes that power producers like NRG would fill in the void left by nuclear plants as they continue to shut down.

"The question that I think folks need to answer is are these programs a bailout or is the opposition to the program a payout? Because at the end of the day someone is going to make money. The question is who and how much?" Smeltz said.

Changing the market

Another critic is PJM Interconnection, the regional transmission organization that operates the grid for 13 states, including Pennsylvania, and Washington, D.C.

The subsidies distort price formation and inject uncertainty into the markets, says Stu Bresler, senior vice president in charge of operations and markets at PJM.

The danger PJM sees is that each new subsidy creates a precedent for government intervention. The uncertainty makes it harder for investors to determine what sort of power generation is a sound investment in the region, Bresler explained. Those investors could simply decide to put their capital to work in other energy markets where the regulatory outlook is more stable, ultimately leading to underinvestment in places where government intervenes, he added.

Three Mile Island nuclear power plant, Londonderry Township, Pennsylvania
PJM believes longer-term, regional approaches are more appropriate. It has produced research that outlines how coal plants and nuclear energy, which provide the type of stable energy that is still necessary for reliable power supply, could play a larger role in setting prices. It is also preparing to release a report on how to put a price on carbon emissions in all or parts of the regional grid.

"If carbon emissions are the concern and that is the public policy issue with which policymakers are concerned, the simple be-all answer from a market perspective is putting a price on carbon," Bresler said.

Three Mile Island could be viable if natural gas prices rose from below $3 per million British thermal units to about $5 per mmBtu and if a "reasonable" price were applied to carbon, according to Exelon's Dominguez. He is encouraged by the fact that conversations around new pricing models and carbon pricing are gaining traction.

"The great part about this is everybody understands we have a major problem. We're losing some of the lowest-cost, cleanest and most reliable resources in America," Dominguez said.

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Goreway Power Station Overbilling exposed by Ontario Energy Board shows IESO oversight failures, GCG gaming, and $100M in inappropriate payments at the Brampton natural gas plant, penalized with fines and repayments impacting Ontario ratepayers.

Key Points

Goreway exploited IESO GCG flaws, causing about $100M in improper payouts and fines.

✅ OEB probe flagged $89M in ineligible start-up O&M charges

✅ IESO fined Goreway $10M; majority of excess costs recovered

✅ Audit found $200M in overbilling across nine generators

Hydro customers shelled out about $100 million in "inappropriate" payments to a natural gas plant that exploited flaws in how Ontario manages its private electricity generators, according to the Ontario Energy Board.

The company operating the Goreway Power Station in Brampton "gamed" the system for at least three years, according to an investigation by the provincial energy regulator. 

The investigation also delivers stinging criticism of the provincial government's Independent Electricity System Operator (IESO), slamming it for a lack of oversight. The probe by the Ontario Energy Board's market surveillance panel was completed nearly a year ago, but was only made public in November because it was buried on its website without a news release. CBC News is the first media outlet to report on the investigation.  

The excess payments to Goreway Power Station included:

• $89 million in ineligible expenses billed as the costs of firing up power production. 
• $5.6 million paid in three months from a flaw in how IESO calculated top-ups for the company committing to generate power a day in advance.   
• Of $11.2 million paid to compensate the company for IESO ordering it to start or stop generating power, the investigation concluded "a substantial portion ... was the result of gaming."  

Most privately-owned natural gas-fired plants in the province do not generate electricity constantly, but start and stop production in response to fluctuating market demand, even as the energy minister has requested an halt to natural gas generation across the grid.  IESO pays them a premium for the costs of firing up production, through what it calls "generation cost guarantee" programs. 

But the investigation found IESO did little checking into the details of Goreway Power Station's billings. 

Goreway Power Station, located near Highway 407 in Brampton, Ont., is an 875 megawatt natural gas power plant. (Goreway)

"Conservatively, at least $89 million of Goreway's submissions were clearly ineligible by any reasonable measure," concludes the report.

"Goreway routinely submitted what were obviously inappropriate expenses to be reimbursed by the IESO, and ultimately borne by Ontario ratepayers,"

The investigation panel found an "extraordinary pattern" to these billings by Goreway Power Station, suggesting the IESO should have caught on sooner. The company submitted more than $100 million in start-up operating and maintenance costs during the three-year period investigated — more than all other gas-fired generators in the province combined. The company's costs per start-up were more than double the next most expensive power generator. 

"Goreway repeatedly exploited defects in the GCG (generation cost guarantee) program, and in doing so received at least $89 million in gamed GCG payments." 

Company fined $10M

The investigation covered a three-year period from when Goreway Power Station began generating power in June 2009. Investigators said that delays in releasing documents slowed down their probe, and they only obtained all the records they needed in April 2016.

The investigating panel does not have the power to impose penalties on companies it found broke the rules. 

The IESO fined Goreway Power Station $10 million. The company has also repaid IESO "a substantial portion" of the excess payments it received during its first six years of operating, but the exact figure is blacked out in the investigation report that was made public. 

The control room from which the provincial government's Independent Electricity System Operator manages Ontario's power supply. The agency is also responsible for managing contracts with private power producers.(IESO)

"Goreway does not agree with many of the draft report's findings and conclusions, including any suggestion that Goreway engaged in gaming or that it deliberately misled the IESO," writes lawyer George Vegh on behalf of the company in a response to the investigation report, dated Aug. 1.

"Goreway has implemented initiatives designed to ensure that compliance is a chief operating principle."     

The power station, located near Highway 407 in Brampton, is a joint venture between Toyota Tsusho Corp. and JERA Co. Inc. During the period under scrutiny, the project was run by Toyota Tsusho and Chubu Electric Power Inc., both headquartered in Japan. 

Investigators fear 'same situation' exists today

The report blames the provincially-controlled IESO for creating a system with defects that allowed the over-billing. 

"Goreway was able to — and repeatedly did — exploit these defects," says the investigation report. It goes on to explain the flaws "have created opportunities for exploitation, to the serious financial disadvantage of Ontario's ratepayers," even as greening Ontario's grid could entail massive costs.

The investigation suggests IESO hasn't made adequate changes to ensure it won't happen again, at a time when an analysis of a dirtier grid is raising concerns.   

"Goreway stands as a clear example of how generators are able to exploit the generation costs guarantee regime," says the report.

"The Panel is concerned that the same situation remains in place today." 

PC energy critic Todd Smith raised CBC News' report on the Goreway Power Station in Tuesday's question period. (Ontario Legislature)

After CBC News broke the story Tuesday, the provincial government was forced to respond in question period, amid a broader push for new gas plants to boost electricity production. 

"Here we have yet another gas plant scandal in Peel region that's costing electricity customers over $100 million," said PC energy critic Todd Smith. He slammed "the incompetence of a government that once again failed to look out for electricity customers." 

Economic Development Minister Brad Duguid said: "There is no excuse for any company in this province to ever game the system."

Nine companies overbilled $200M: audit 

The IESO found out about the overbilling "some time ago," said Duguid.

"They fully investigated, they've recovered most of the cost, they delivered a $10 million fine — the biggest fine on record."

The program that Goreway exploited became the subject of an audit that the IESO launched in 2011. The agency uncovered $200 million in ineligible billings by nine power producers, wrote the IESO vice president for policy Terry Young in an email to CBC News.

The IESO has recovered up to 85 per cent of those ineligible costs, Young noted.

Reforms to the design of the the program have removed the potential for overpayments and made it more efficient, he said, even as Ontario weighs embracing clean power more broadly. Last year, its total annual costs dropped to $23 million, down from $61 million in 2014.

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Calgary Winter Energy Usage Surge highlights soaring electricity demand, added megawatt-hours, and grid reliability challenges driven by extreme cold, heating loads, and climate change, with summer air conditioning also shifting seasonal peaks.

Key Points

A spike in Calgary's power use from extreme cold, adding 22k MWh and testing reliability as heating demand rises.

✅ +22,000 MWh vs Feb 2018 amid fourth-coldest February

✅ Heating loads spike; summer A/C now drives peak demand

✅ Grid reliability monitored; more solar and green resources ahead

February was so cold in Calgary that the city used enough extra energy to power 3,400 homes for a whole year, echoing record-breaking demand in B.C. in 2021 during severe cold.

Enmax Power Corporation, the primary electricity utility in the city, says the city 's energy consumption was up 22,000 megawatt hours last month compared with Februray 2018.

"We've seen through this cold period our system has held up very well. It's been very reliable," Enmax vice-president Andre van Dijk told the Calgary Eyeopener on Friday. "You know, in the absence of a windstorm combined with cold temperatures and that sort of thing, the system has actually held up pretty well."

The past month was the fourth coldest in Calgary's history, and similar conditions have pushed all-time high demand in B.C. in recent years across the West. The average temperature for last month was –18.1 C. The long-term average for February is –5.4 C.

Watching use, predicting issues

The electricity company monitors demand and load on a daily basis, always trying to predict issues before they happen, van Dijk said, and utilities have introduced winter payment plans to help customers manage bills during prolonged cold.

One of the issues they're watching is climate change, and how extreme temperatures and weather affect both the grid's reliability, as seen when Quebec shattered consumption records during cold snaps, and the public's energy use.

The colder it gets, the higher you turn up the heat. The hotter it is, the more you use air conditioning.

He also noted that using fuels then contributes to climate change, creating a cycle.

​"We are seeing variations in temperature and we've seen large weather events across the continent, across the world, in fact, that impact electrical systems, whether that's flooding, as we've experienced here, or high winds, tornadoes," van Dijk said.

"Climate change and changing weather patterns have definitely had had an impact on us as an electrical industry."

In 2012, he said, Calgary switched from using the most power during winter to using the most during summer, in large part due to air conditioning, he said.

"Temperature is a strong influencer of energy consumption and of our demand," van Dijk said.

Christmas tree lights have also become primarily LED, van Dijk said, which cuts down on a big energy draw in the winter.

He said he expects more solar and other green resources will be added into the electrical system in the future to mitigate how much the increasingly levels of energy use impact climate change, and to help moderate electricity costs in Alberta over time.

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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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