Solar CEOs gather for conference and exposition

CPUC Decision on San Diego Community Power directs SDG&E to use updated forecasts, stabilizing electricity rates for CCA customers and supporting clean energy in San Diego with accurate rate forecasting and reduced volatility.

Key Points

A CPUC ruling directing SDG&E to use updated forecasts to ensure accurate, stable CCA rates and limit volatility.

✅ Uses 2021 sales forecasts for rate setting

✅ Aims to prevent undercollection and bill spikes

✅ Levels changes across customer classes

The California Public Utilities Commission on Thursday sided with the soon-to-launch San Diego community energy program in a dispute it had with San Diego Gas & Electric.

San Diego Community Power — which will begin to purchase power for customers in San Diego, Chula Vista, La Mesa, Encinitas and Imperial Beach later this year — had complained to the commission that data SDG&E intended to use to calculate rates, including community choice exit fees that could make the new energy program less attractive to prospective customers.

SDG&E argued it was using numbers it was authorized to employ as part of a general rate case amid a potential rate structure revamp that is still being considered by the commission.

But in a 4-0 vote, the commission, or CPUC, sided with San Diego Community Power and directed SDG&E to use an updated forecast for energy sales.

"This was not an easy decision," said CPUC president Marybel Batjer at the meeting, held remotely due to COVID-19 restrictions. "In my mind, this outcome best accounts for the shifting realities ... in the San Diego area while minimizing the impact on ratepayers during these difficult financial times."

In filings to the commission, SDG&E predicted a rate decrease of 12.35 percent in the coming year. While that appears to be good news for customers, Californians still face soaring electricity prices statewide, Commissioner Martha Guzman Aceves said the data set SDG&E wanted to use would lead to an undercollection of $150 million to $260 million.

That would result in rates that would be "artificially low," Guzman Aceves said, and rates "would inevitably go up quite a bit after the undercollection was addressed."

San Diego Community Power, or SDCP, said the temporary reduction would make its rates less attractive than SDG&E's, especially amid SDG&E's minimum charge proposal affecting low-usage customers, just as it is about to begin serving customers. SDCP's board members wrote an open letter last month to the commission, accusing the utility of "willful manipulation of data."

Working with an administrative law judge at the CPUC, Guzman Aceves authored a proposal requiring SDG&E to use numbers based on 2021 forecasts, as regulators simultaneously weigh whether the state needs more power plants to ensure reliability. The utility argued that could result in an increase of "roughly 40 percent" for medium and large commercial and industrial customers this year.

To help reduce potential volatility, Guzman Aceves, SDCP and other community energy supporters called for using a formula that would average out changes in rates across customer classes amid debates over income-based utility charges statewide. That's what the commissioners OK'd Thursday.

"It is essential that customer commodity rates be as accurate as we can possibly get them to avoid undercollections," said Commissioner Genevieve Shiroma.

San Diego Community Power is one of 23 community choice aggregation, or CCA, energy programs that have launched in California in the past decade.

CCAs compete with traditional power companies amid California's evolving power competition landscape, in one important role — purchasing power for a given community. They were created to boost the use of cleaner energy sources, such as wind and solar, at rates equal to or lower than investor-owned utilities.

However, CCAs do not replace utilities because the incumbent power companies still perform all of the tasks outside of power purchasing, such as transmission and distribution of energy and customer billing.

When a CCA is formed, California rules stipulate the utility customers in that area are automatically enrolled in the CCA. If customers prefer to stay with their previous power company, they can opt out of joining the CCA.

The shift of customers from SDG&E to San Diego Community Power is expected to be large. The total number of accounts for SDCP is expected to be 770,000, which would make it the second-largest CCA in the state. That's why SDCP considered Thursday's CPUC decision to be so important.

"At a time when customers are choosing between sticking with San Diego Gas & Electric and migrating to a CCA, we want them to have accurate bill information," said Commissioner Clifford Rechtschaffen.

"SDCP is very happy with today's CPUC decision, and that the commissioners shared our goal of limiting rate volatility for businesses and families in the region," said SDCP interim CEO Bill Carnahan. "This is definitely a win for accurate rate forecasting, and our mutual customers, and we look forward to working with SDG&E on next steps."

In an email, SDG&E spokeswoman Helen Gao said, "We are committed to continuing to work collaboratively with local Community Choice Aggregation programs to support their successful launch in 2021 and ensure that our mutual customers receive excellent customer service."

San Diego Community Power's case before the CPUC was joined by the California Community Choice Association, a trade group advocating for CCAs, and the Clean Energy Alliance — the North County-based CCA representing Del Mar, Solana Beach and Carlsbad that is scheduled to launch this summer.

SDCP will begin its rollout this year, folding in about 71,000 municipal, commercial and industrial accounts. The bulk of its roughly 700,000 residential accounts is expected to come in January 2022.

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European Energy Crisis shocks markets as Russia slashes gas via Nord Stream, spiking prices and triggering rationing, LNG imports, storage shortfalls, and emergency measures to secure energy security before a harsh winter.

Key Points

Europe-wide gas shock from reduced Russian flows drives price spikes, rationing risk, LNG reliance, and emergency action.

✅ Nord Stream cuts deepen supply insecurity and storage gaps

✅ LNG imports rise but terminal capacity and shipping are tight

✅ Policy tools: rationing, subsidies, demand response, coal restarts

As Russian gas cutoffs upend European energy security, the continent is struggling to cope with what experts say is one of its worst-ever energy crises—and it could still get much worse. 

For months, European leaders have been haunted by the prospect of losing Russia’s natural gas supply, which accounts for some 40 percent of European imports and has been a crucial energy lifeline for the continent. That nightmare is now becoming a painful reality as Moscow slashes its flows in retaliation for Europe’s support for Ukraine, dramatically increasing energy prices and forcing many countries to resort to emergency plans, including emergency measures to limit electricity prices in some cases, and as backup energy suppliers such as Norway and North Africa are failing to step up.

“This is the most extreme energy crisis that has ever occurred in Europe,” said Alex Munton, an expert on global gas markets at Rapidan Energy Group, a consultancy. “Europe [is] looking at the very real prospect of not having sufficient gas when it’s most needed, which is during the coldest part of the year.”

“Prices have shot through the roof,” added Munton, who noted that European natural gas prices—nearly $50 per MMBTu—have eclipsed U.S. price rises by nearly tenfold, and that rolling back electricity prices is tougher than it appears in the current market. “That is an extraordinarily high price to be paying for natural gas, and really there is no immediate way out from here.” 

Many officials and energy experts worry that the crisis will only deepen after Nord Stream 1, the largest gas pipeline from Russia to Europe, is taken down for scheduled maintenance this week. Although the pipeline is supposed to be under repair for only 10 days, the Kremlin’s history of energy blackmail and weaponization has stoked fears that Moscow won’t turn it back on—leaving heavily reliant European countries in the lurch. (Russia’s second pipeline to Germany, Nord Stream 2, was killed in February as Russian President Vladimir Putin prepared to invade Ukraine, leaving Nord Stream 1 as the biggest direct gas link between Russia and Europe’s biggest economy.)

“Everything is possible. Everything can happen,” German economy minister Robert Habeck told Deutschlandfunk on Saturday. “It could be that the gas flows again, maybe more than before. It can also be the case that nothing comes.”

That would spell trouble for the upcoming winter, when demand for energy surges and having sufficient natural gas is necessary for heating. European countries typically rely on the summer months to refill their gas storage facilities. And at a time of war, when the continent’s future gas supply is uncertain, having that energy cushion is especially crucial.

If Russia’s prolonged disruptions continue, experts warn of a difficult winter: one of potential rationing, industrial shutdowns, and even massive economic dislocation. British officials, who just a few months ago warned of soaring power bills for consumers, are now warning of even worse, despite a brief fall to pre-Ukraine war levels in gas prices earlier in the year.

Europe could face a “winter of discontent,” said Helima Croft, a managing director at RBC Capital Markets. “Rationing, industrial shut-ins—all of that is looming.”

Unrest has already been brewing, with strikes erupting across the continent as households struggle under the pressures of spiraling costs of living and inflationary pressures. Some of this discontent has also had knock-on effects in the energy market. In Norway, the European Union’s biggest supplier of natural gas after Russia, mass strikes in the oil and gas industries last week forced companies to shutter production, sending further shockwaves throughout Europe.

European countries are at risk of descending into “very, very strong conflict and strife because there is no energy,” Frans Timmermans, the vice president of the European Commission, told the Guardian. “Putin is using all the means he has to create strife in our societies, so we have to brace ourselves for a very difficult period.”

The pain of the crisis, however, is perhaps being felt most clearly in Germany, which has been forced to turn to a number of energy-saving measures, including rationing heated water and closing swimming pools. To cope with the crunch, Berlin has already entered the second phase of its three-stage emergency gas plan; last week, it also moved to bail out its energy giants amid German utility troubles that have been financially slammed by Russian cutoffs. 

But it’s not just Germany. “This is happening all across Europe,” said Olga Khakova, an expert on European energy security at the Atlantic Council, who noted that France has also announced plans to nationalize the EDF power company as it buckles under mounting economic losses, and the EU outlines gas price cap strategies to temper volatility. “The challenging part is how much can these governments provide in support to their energy consumers, to these companies? And what is that breaking point?”

The situation has also complicated many countries’ climate goals, even as some call it a wake-up call to ditch fossil fuels for Europe. In late June, Germany, Italy, Austria, and the Netherlands announced they would restart old coal power plants as they grapple with shrinking supplies. 

The potential outcomes that European nations are grappling with reveal how this crisis is occurring on a scale that has only been seen in times of war, Munton said. In the worst-case scenario, “we’re talking about rationing gas supplies, and this is not something that Europe has had to contend with in any other time than the wartime,” he said. “That’s essentially where things have got to now. This is an energy war.”

They also underscore the long and painful battle that Europe will continue to face in weaning itself off Russian gas. Despite the continent’s eagerness to leave Moscow’s supply behind, experts say Europe will likely remain trapped in this spiraling crisis until it can develop the infrastructure for greater energy independence—and that could take years. U.S. gas, shipped by tanker, is one option, but that requires new terminals to receive the gas and U.S. energy impacts remain a factor for policymakers. New pipelines take even longer to build—and there isn’t a surfeit of eligible suppliers.

Until then, European leaders will continue to scramble to secure enough supplies—and can only hope for mild weather. The “worst-case scenario is people having to choose between eating and heating come winter,” Croft said. 

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California energy rebate freeze disrupts heat pump incentives, HVAC upgrades, and climate funding, as federal uncertainty stalls Inflation Reduction Act support, delaying home electrification, energy efficiency gains, and greenhouse gas emissions reductions statewide.

Key Points

A statewide pause on $290M incentives for heat pumps and HVAC upgrades due to federal climate funding uncertainty.

✅ $290M program paused amid federal funding freeze

✅ Heat pump, HVAC, electrification upgrades delayed

✅ Previously approved rebates honored; new apps halted

California’s push for a more energy-efficient future has hit a significant roadblock as the state pauses a $290 million rebate program aimed at helping homeowners replace inefficient heating and cooling systems with more energy-efficient alternatives. The California Energy Commission announced the suspension of the program, citing uncertainty stemming from President Donald Trump’s decision to freeze funding for various climate-related initiatives.

The Halted Program

The energy rebate program, which utilizes federal funding to encourage the use of energy-efficient appliances such as heat pumps, was a crucial part of California’s efforts to reduce energy consumption and greenhouse gas emissions. By providing financial incentives for homeowners to upgrade to more efficient heating and cooling systems, the program aimed to make green energy solutions more accessible and affordable to residents. The rebate program had been popular, with many homeowners eager to participate in the initiative to lower their energy costs and improve the sustainability of their homes.

However, due to the uncertainty surrounding federal funding, the California Energy Commission announced on Monday that it would no longer be accepting new applications for the program. The agency did clarify that it would continue to honor rebates for applications that had already been approved. The pause will remain in effect until the Trump administration provides more clarity regarding the program's future funding.

The Trump Administration’s Role

This move highlights a broader issue regarding access to federal funding for state-level energy programs. The Trump administration’s decision to freeze funding for climate-related initiatives has left many states in limbo, as previously approved federal money has not been distributed as expected. Despite federal court rulings directing the Trump administration to restore these funds, states like California are still struggling to navigate the uncertainty of climate-related financial support from the federal government.

California’s decision to pause the rebate program comes after similar actions by other states. Arizona paused a similar program just a week prior, and Rhode Island had already paused new applications earlier this year. These states are all recipients of funding from a larger $4.3 billion initiative under the Inflation Reduction Act, which is designed to help homeowners purchase energy-efficient appliances like heat pumps, water heaters, and electric cooktops.

Impact of the Freeze

The pause of California's rebate program has serious implications for both consumers and the state’s energy goals. For residents, the halt means delays in the ability to upgrade to more energy-efficient home systems, which could lead to higher energy costs in the short term, a concern amid soaring electricity prices across the state.

The $290 million program was a significant step in encouraging homeowners to invest in energy efficiency, and its suspension leaves a gap in the availability of resources for those who were hoping to make energy-saving upgrades. Many of these upgrades are not just beneficial to homeowners, but they also contribute to the state’s overall energy efficiency goals, helping to reduce reliance on non-renewable energy sources, even as California's dependence on fossil fuels persists, and decrease greenhouse gas emissions.

Federal and State Tensions

The freeze in funding is just one of many points of tension between the Trump administration and states like California, which have pursued aggressive environmental policies aimed at reducing emissions and combating climate change. California has often found itself at odds with the federal government on environmental issues, especially under the leadership of President Trump. The state’s ambitious environmental policies have sometimes clashed with the federal government's approach, including efforts to wind down its fossil fuel industry in line with climate goals.

In this case, the freeze on climate-related funding appears to be part of a broader strategy by the Trump administration to limit federal spending on environmental programs, and as regulators weigh whether the state may need more power plants, planning remains complex. While the freeze impacts states that are working to transition to clean energy, critics argue that such moves undermine efforts to tackle climate change and could slow down progress toward a greener future.

The Path Forward

For California, the next steps will depend heavily on the actions of the federal government. While the state can continue to push for climate funding in the courts, the lack of clarity around the release of federal funds creates uncertainty for state programs that rely on these resources. As California continues to navigate this funding freeze, it will need to explore alternative solutions to keep its energy efficiency programs on track, such as efforts to revamp electricity rates to clean the grid, even in the face of federal challenges.

In the meantime, California residents and homeowners who were hoping to take advantage of the rebate program may have to wait until further clarification from the federal government is provided, even as officials warn of a looming electricity shortage in coming years. Whether the program can be restored or expanded in the future remains to be seen, but for now, the pause serves as a reminder of the ongoing struggles that states face when dealing with shifting federal priorities.

As the issue unfolds, other states facing similar challenges may take cues from California’s actions, and with California exporting energy policies to Western states, broader conversations about how federal and state governments can collaborate to ensure that energy efficiency initiatives and climate goals are not sidelined due to political or budgetary differences.

California’s decision to pause its $290 million energy rebate program is a significant development in the ongoing struggle between state and federal governments over climate-related funding. The uncertainty created by the Trump administration’s freeze on energy efficiency programs has led to disruptions in state-level efforts to promote sustainability and reduce emissions. As the situation continues to evolve, both California and other states will need to consider how to move forward without relying on federal funding that may or may not be available in the future.

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Courtyard by Marriott Lancaster Solar Array delivers 100% renewable electricity via photovoltaic panels at Greenfield Corporate Center, Pennsylvania, a High Hotels and Marriott sustainability initiative reducing grid demand and selling excess power for efficient operations.

Key Points

A $1.5M PV installation powering the 133-room hotel with 100% renewable electricity in Greenfield Center, Lancaster.

✅ 2,700 PV panels generate 1,239,000 kWh annually

✅ First Marriott in the US with 100% solar electricity

✅ $504,900 CFA grant; excess power sold to the utility

High Hotels Ltd., a hotel developer and operator, recently announced it is installing a $1.5 million solar array that will generate 100% of the electrical power required to operate one of its existing hotels in Greenfield Corporate Center. The completed installation will make the 133-room Courtyard by Marriott-Lancaster the first Marriott-branded hotel in the United States with 100% of its electricity needs generated from solar power. It is also believed to be the first solar array in the country installed for the sole purpose of generating 100% of the electricity needs of a hotel, mirroring how other firms are commissioning their first solar power plant to meet sustainability goals.

“This is an exciting approach to addressing our energy needs that aligns very well with High’s commitment to environmental stewardship,”

“We’ve been advancing many environmentally responsible practices across our hotel portfolio, including converting the interior and exterior lighting at the Lancaster Courtyard to LED, which will lower electricity demand by 15%,” said Russ Urban, president of High Hotels. “Installing solar is another important step in this progression, and we will look to apply lessons from this as we expand our portfolio of premium select-service hotels.”

The Lancaster-based hotel developer, owner and operator is working in partnership with Marriott International Inc. to realize this vision, in step with major brands announcing new clean energy projects across their portfolios.

The installation of more than 2,700 ballasted photovoltaic panels will fill an area more than two football fields in size. After evaluating several on-site and near-site alternatives, High Hotels decided to install the solar array on the roof of a nearby building in Greenfield Corporate Center. Using the existing roof saves more than three acres of open land and has additional aesthetic benefits, aligning with recommendations for solar farms under consideration by local planners. The solar array will produce 1,239,000 kWh of power for the hotel, which consumes 1,177,000 kWh. Any excess power will be sold to the utility, though affordable solar batteries are making on-site storage increasingly feasible.

High Hotels received a grant of $504,900 from the Commonwealth Financing Authority (CFA) through the Solar Energy Program to complete the project. An independent agency of the Department of Community and Economic Development (DCED), the CFA is responsible for evaluating projects and awarding funds for a variety of economic development programs, including the Solar Energy Program and statewide initiatives like solar-power subscriptions that broaden access. The project will receive a solar renewable energy credit which will be conveyed to the CFA to provide the agency with more funds to offer grants in the future.

“This is a cutting-edge project that is exactly the kind we are looking for to promote the generation and use of solar energy,” said DCED Secretary Dennis Davin. “I am very pleased that the first Marriott in the US to receive 100% of its electric needs through renewable solar energy is located right here in Central Pennsylvania.” Secretary Davin also serves as chairman of the CFA’s board.

Panels for the solar array will be Q Cells manufactured by Hanwha Cells Co., Ltd., headquartered in Seoul, South Korea. Ephrata, Pa.-based Meadow Valley Electric Inc. will install the array in the second and third quarters of 2018 with commissioning targeted for September 2018.

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European Green Deal Electrification accelerates decarbonization via renewables, electric vehicles, heat pumps, and clean industry, backed by sustainable finance, EIB green lending, just transition funds, and energy taxation reform to phase out fossil fuels.

Key Points

An EU plan to replace fossil fuels with renewable electricity in transport, buildings, and industry, supported by green finance.

✅ Doubles electricity's share to cut CO2 and phase out fossil fuels.

✅ Drives EVs, heat pumps, and electrified industry via renewables.

✅ Funded by EIB lending, EU budget, and just transition support.

The European Union is preparing an ambitious plan to completely decarbonize by 2050. Increasing the share of electricity in Europe’s energy system – electricity that will increasingly come from renewable sources - will be at the center of this strategy, aligning with the broader global energy transition under way, the new head of the European Commission’s energy department said yesterday.

This will mean more electric cars, electric heating and electric industry. The idea is that fossil fuels should no longer be a primary energy source, heating homes, warming food or powering cars. In the medium term they should only be used to generate electricity, a shift mirrored by New Zealand's electricity shift efforts, which then powers these things, resulting in less CO2 emissions.

“First assessments show we need to double the share of electricity in energy consumption by 2050,” Ditte Juul-Jørgensen said at an event in Brussels this week, a goal echoed by recent calls to double investment in power systems from world leaders. “We’ve already seen an increase in the last decade, but we need to go further”.

Juul-Jørgensen, who started in her job as director-general of the commission’s energy department in August, has come to the role at a pivotal time for energy. The 2050 decarbonization proposal from the Commission, the EU’s executive branch, is expected to be approved next month by EU national leaders. A veto from Poland that has blocked adoption until now is likely to be overcome if Poland and other Eastern European countries are offered financial assistance from a “just transition fund”, according to EU sources.

Ursula von der Leyen, the incoming President of the Commission, has promised to unveil a “European Green Deal” in her first 100 days in office designed to get the EU to its 2050 goal. Juul-Jørgensen will be working with the incoming EU Energy Commissioner, Kadri Simson, on designing this complex strategy. The overall aim will be to phase out fossil fuels, and increase the use of electricity from green sources, amid trends like oil majors pivoting to electric across Europe today.

“This will be about how do we best make use of electricity to feed into other sectors,” Juul-Jørgensen said. “We need to think about transforming it into other sources, and how to best transport it.”

“But the biggest challenge from what I see today is that of investment and finance - the changes we have to make are very significant.”

Financing problems

The Commission is going to try to tackle the challenges of financing the energy transition with two tools: dedicated climate funding in the EU budget, and dedicated climate lending from the European Investment Bank.

“The EIB will play an increasing role in future. We hope to see agreement [with the EIB board] on that in the coming months so there’s a clear operator in the EIB to support the green transition. We’re looking at something around €400 billion a year.”

The Commission’s proposed dedicated climate spending in the next seven-year budget must still be approved by the 28 EU national governments. Juul-Jørgensen said there is unanimous agreement on the amount: 25% of the budget. But there is disagreement about how to determine what is green spending.

“A lot of work has been ongoing to ensure that when it comes to counting it reflects the reality of the investments,” she said. “We’re working on the taxonomy on sustainable finance - internally identifying sectors contributing to overall climate objectives.”

Electricity pact

Juul-Jørgensen was speaking at an event organized by the the Electrification Alliance, a pact between nine industry organizations to lobby for electricity to be put at the heart of the European green deal. They signed a declaration at the event calling for a variety of measures to be included in the green deal, reflecting debates over a fully renewable grid by 2030 in other jurisdictions, including a change to the EU’s energy taxation regime which incentivizes a switch from fossil fuel to electricity consumption.

“Electrification is the most important solution to turn the vision of a fossil-free Europe into reality,” said Laurence Tubiana, CEO of the European Climate Foundation, one of the signatories, and co-architect of the Paris Agreement.

“We are determined to deliver, but we must be mindful of the different starting points and secure sufficient financing to ensure a fair transition”, said Magnus Hall, President of electricity industry association Eurelectric, another signatory.

The energy taxation issue has been particularly tricky for the EU, since any change in taxation rules requires the unanimous consent of all 28 EU countries. But experts say that current taxation structures are subsidizing fossil fuels and punishing electricity, as recent UK net zero policy changes illustrate, and unless this is changed the European Green Deal can have little effect.

“Yes this issue will be addressed in the incoming commission once it takes up its function,” Juul-Jørgensen said in response to an audience question. “We all know the challenge - the unanimity requirement in the Council - and so I hope that member states will agree to the direction of work and the need to address energy taxation systems to make sure they’re consistent with the targets we’ve set ourselves.”

But some are concerned that the transformation envisioned by the green deal will have negative impacts on some of the most vulnerable members of society, including those who work in the fossil fuel sector.

This week the Centre on Regulation in Europe sent an open letter to Frans Timmermans, the Commission Vice President in charge of climate, warning that they need to be mindful of distributional effects. These worries have been heightened by the yellow vest protests in France, which were sparked by French President Emmanuel Macron’s attempt to increase fuel taxes for non-electric cars.

“The effectiveness of climate action and sustainability policies will be challenged by increasing social and political pressures,” wrote Máximo Miccinilli, the center’s director for energy. “If not properly addressed, those will enhance further populist movements that undermine trust in governance and in the public institutions.”

Miccinilli suggests that more research be done into identifying, quantifying and addressing distributional effects before new policies are put in place to phase out fossil fuels. He proposes launching a new European Observatory for Distributional Effects of the Energy Transition to deal with this.

EU national leaders are expected to vote on the 2050 decarbonization target, building on member-state plans such as Spain's 100% renewable electricity goal by mid-century, at a summit in Brussels on December 12, and Von der Leyen will likely unveil her European Green Deal in March.

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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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