India's cogeneration potential is massive

Bruce C Project advances Ontario clean energy with NRCan funding for nuclear reactors, impact assessment, licensing, and Indigenous engagement, delivering reliable baseload power and low-carbon electricity through pre-development studies at Bruce Power.

Key Points

A proposed nuclear build at Bruce Power, backed by NRCan funding for studies, licensing, and impact assessment to expand clean power.

✅ Up to $50M NRCan support for pre-development

✅ Focus: feasibility, impact assessment, licensing

✅ Early Indigenous and community engagement

Canada's clean energy landscape received a significant boost recently with the announcement of federal funding for the Bruce Power's Bruce C Project. Natural Resources Canada (NRCan) pledged up to $50 million to support pre-development work for this potential new nuclear build on the Bruce Power site. This collaboration between federal and provincial governments signifies a shared commitment to a cleaner energy future for Ontario and Canada.

The Bruce C Project, if it comes to fruition, has the potential to be a significant addition to Ontario's clean energy grid. The project envisions constructing new nuclear reactors at the existing Bruce Power facility, located on the shores of Lake Huron. Nuclear energy is a reliable source of clean electricity generation, as evidenced by Bruce Power's operating record during the pandemic, producing minimal greenhouse gas emissions during operation.

The funding announced by NRCan will be used to conduct crucial pre-development studies. These studies will assess the feasibility of the project from various angles, including technical considerations, environmental impact assessments, and Indigenous and community engagement, informed by lessons from a major refurbishment that required a Bruce reactor to be taken offline, to ensure thorough planning. Obtaining a license to prepare the site and completing an impact assessment are also key objectives for this pre-development phase.

This financial support from the federal government aligns with both national and provincial clean energy goals. The "Powering Canada Forward" plan, spearheaded by NRCan, emphasizes building a clean, reliable, and affordable electricity system across the country. Ontario's "Powering Ontario's Growth" plan echoes these objectives, focusing on investment options, such as the province's first SMR project, to electrify the province's economy and meet its growing clean energy demand.

"Ontario has one of the cleanest electricity grids in the world and the nuclear industry is leading the way," stated Mike Rencheck, President and CEO of Bruce Power. He views this project as a prime example of collaboration between federal and provincial entities, along with the private sector, where recent manufacturing contracts underscore industry capacity.

Nuclear energy, however, remains a topic of debate. While proponents highlight its role in reducing greenhouse gas emissions and providing reliable baseload power, opponents raise concerns about nuclear waste disposal and potential safety risks. The pre-development studies funded by NRCan will need to thoroughly address these concerns as part of the project's evaluation.

Transparency and open communication with local communities and Indigenous groups will also be crucial for the project's success. Early engagement activities facilitated by the funding will allow for open dialogue and address any potential concerns these stakeholders might have.

The Bruce C Project is still in its early stages. The pre-development work funded by NRCan will provide valuable data to determine the project's viability. If the project moves forward, it has the potential to significantly contribute to Ontario's clean energy future, while also creating jobs and economic benefits for local communities and suppliers.

However, the project faces challenges. Public perception of nuclear energy and the lengthy regulatory process are hurdles that will need to be addressed, as debates around the Pickering B refurbishment have highlighted in Ontario. Additionally, ensuring cost-effectiveness and demonstrating the project's long-term economic viability will be critical for securing broader support.

The next few years will be crucial for the Bruce C Project. The pre-development work funded by NRCan will be instrumental in determining its feasibility. If successful, this project could be a game-changer for Ontario's clean energy future, building on the province's Pickering life extensions to strengthen system adequacy, offering a reliable, low-carbon source of electricity for the province and beyond.

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Great Northern Transmission Line delivers 250 MW of carbon-free hydropower from Manitoba Hydro, strengthening Midwest grid reliability, enabling wind storage balancing, and advancing Minnesota Power's EnergyForward strategy for cleaner, renewable energy across the region.

Key Points

A 500 kV cross-border line delivering 250 MW of carbon-free hydropower, strengthening reliability and enabling renewables.

✅ 500 kV, 224-mile line from Manitoba to Minnesota

✅ Delivers 250 MW hydropower via ALLETE-Minnesota Power

✅ Enables wind storage and grid balancing with Manitoba Hydro

Minnesota Power, a utility division of ALLETE Inc. (NYSE:ALE), has energized its Great Northern Transmission Line, bringing online an innovative delivery and storage system for renewable energy that spans two states and one Canadian province, similar to the Maritime Link project in Atlantic Canada.

The 500 kV line is now delivering 250 megawatts of carbon-free hydropower from Manitoba, Canada, to Minnesota Power customers.

Minnesota Power completed the Great Northern Transmission Line (GNTL) in February 2020, ahead of schedule and under budget. The 224-mile line runs from the Canadian border in Roseau County to a substation near Grand Rapids, Minnesota. It consists of 800 tower structures which were fabricated in the United States and used 10,000 tons of North American steel. About 2,200 miles of wire were required to install the line's conductors. The GNTL also is contributing significant property tax revenue to local communities along the route.

"This is such an incredible achievement for Minnesota Power, ALLETE, and our region, and is the culmination of a decade-long vision brought to life by our talented and dedicated employees," said ALLETE President and CEO Bethany Owen. "The GNTL will help Minnesota Power to provide our customers with 50 percent renewable energy less than a year from now. As part of our EnergyForward strategy, it also strengthens the grid across the Midwest and in Canada, enhancing reliability for all of our customers."

With the GNTL energized and connected to Manitoba Hydro's recently completed Manitoba-Minnesota Transmission Project at the border, the companies now have a unique "wind storage" mechanism that quickly balances energy supply and demand in Minnesota and Manitoba, and enables a larger role for renewables in the North American energy grid.

The GNTL and its delivery of carbon-free hydropower are important components of Minnesota Power's EnergyForward strategy to transition away from coal and add renewable power sources while maintaining reliable and affordable service for customers, echoing interties like the Maritime Link that facilitate regional power flows. It also is part of a broader ALLETE strategy to advance and invest in critical regional transmission and distribution infrastructure, such as the TransWest Express transmission project, to ensure grid integrity and enable cleaner energy to reduce carbon emissions.

"The seed for this renewable energy initiative was planted in 2008 when Minnesota Power proposed purchasing 250 megawatts of hydropower from Manitoba Hydro. Beyond the transmission line, it also included a creative asset swap to move wind power from North Dakota to Minnesota, innovative power purchase agreements, and a remarkable advocacy process to find an acceptable route for the GNTL," said ALLETE Executive Chairman Al Hodnik. "It marries wind and water in a unique connection that will help transform the energy landscape of North America and reduce carbon emissions related to the existential threat of climate change."

Minnesota Power and Manitoba Hydro, a provincial Crown Corporation, coordinated on the project from the beginning, navigating National Energy Board reviews along the way. It is based on the companies' shared values of integrity, environmental stewardship and community engagement.

"The completion of Minnesota Power's Great Northern Transmission Line and our Manitoba-Minnesota Transmission Project is a testament to the creativity, perseverance, cooperation and skills of hundreds of people over so many years on both sides of the border," said Jay Grewal, president and CEO of Manitoba Hydro. "Perhaps even more importantly, it is a testament to the wonderful, longstanding relationship between our two companies and two countries. It shows just how much we can accomplish when we all work together toward a common goal."

Minnesota Power engaged federal, state and local agencies; the sovereign Red Lake Nation and other tribes, reflecting First Nations involvement in major transmission planning; and landowners along the proposed routes beginning in 2012. Through 75 voluntary meetings and other outreach forums, a preferred route was selected with strong support from stakeholders that was approved by the Minnesota Public Utilities Commission in April 2016.

A four-year state and federal regulatory process culminated in late 2016 when the federal Department of Energy approved a Presidential Permit for the GNTL, similar to the New England Clean Power Link process, needed because of the international border crossing. Construction of the line began in early 2017.

"A robust stakeholder process is essential to the success of any project, but especially when building a project of this scope," Owen said. "We appreciated the early engagement and support from stakeholders, local communities and tribes, agencies and regulators through the many approval milestones to the completion of the GNTL."

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UAE Barakah Nuclear Plant connects Unit 1 to the grid, supplying clean electricity, nuclear baseload power, and lower carbon emissions, with IAEA oversight, FANR regulation, and South Korea collaboration, supporting energy security and economic diversification.

Key Points

The UAE Barakah Nuclear Plant is a four-reactor project delivering clean baseload power and reducing CO2.

✅ Unit 1 online; four reactors to supply 25% of UAE electricity

✅ Cuts 21 million tons CO2 annually; clean baseload for grid

✅ FANR-licensed; IAEA and WANO oversight ensure safety

Unit 1 of the UAE’s Barakah plant — the Arab world’s first nuclear energy plant in the region — has connected to the national power grid, in a historic moment enabling it to provide cleaner electricity to millions of residents and help reduce the oil-rich country’s reliance on fossil fuels. 

“This is a major milestone, we’ve been planning for this for the last 12 years now,” Mohamed Al Hammadi, CEO of Emirates Nuclear Energy Corporation (ENEC), told CNBC’s Dan Murphy in an exclusive interview ahead of the news.

Unit 1, which has reached 100% power as it steps closer to commercial operations, is the first of what will eventually be four reactors, which when fully operational are expected to provide 25% of the UAE’s electricity and reduce its carbon emissions by 21 million tons a year, according to ENEC. That’s roughly equivalent to the carbon emissions of 3.2 million cars annually.

The Gulf country of nearly 10 million is the newest member of a group of now 31 countries running nuclear power operations. It’s also the first new country to launch a nuclear power plant in three decades, the last being China’s nuclear energy program in 1990.

“The UAE has been growing from an electricity demand standpoint,”  Al Hammadi said. “That’s why we are trying to meet the demand (and) at the same time have it with less carbon emissions.”

The UAE’s electricity mix will continue to include gas and renewable energy, with “the baseload from nuclear,” including emerging next-gen nuclear designs, the CEO added, which he described as a “safe, clean and reliable source of electricity” for the country.

The project is also providing “highly compensated jobs” for the Emiratis and will introduce new industries for the country’s economy, Al Hammadi said. The company noted that it has awarded roughly 2,000 contracts worth more than $4.8 billion for local companies.

International collaboration
The UAE’s nuclear watchdog FANR, the Federal Authority for Nuclear Regulation, granted the operating license for Unit 1 in February, after an extensive inspection process to ensure the plant’s compliance with regulatory requirements. The license is expected to last 60 years. The program also involved collaboration with external bodies including the U.N.’s International Atomic Energy Agency (IAEA) and the government of South Korea, and its pre-start-up review was completed in January by the World Association of Nuclear Operators (WANO). The WANO and the IAEA have conducted over 40 inspection and review missions at Barakah.   

But the project has its critics, particularly some experts from the independent Nuclear Consulting Group non-profit, who have expressed concern about Barakah’s safety features and potential environmental risks.  

In response, ENEC said the “adherence to the highest standards of safety, quality and security is deeply embedded within the fabric of the UAE Peaceful Nuclear Energy Program.”

“The Barakah Plant meets all national and international regulatory requirements and standards for nuclear safety,” a  company statement said. It added that the reactor design had been certified by the Korea Institute of Nuclear Safety, FANR and the US-based Nuclear Regulatory Commission, “demonstrating the robustness of this design for safety and operating reliability.”

Worries of regional proliferation 
The achievement for the UAE is particularly significant given tensions in the wider region over nuclear proliferation. 

Some observers have warned of a regional arms race, though the UAE already partakes in what nuclear energy experts call the “gold standard” of civilian nuclear partnerships: The U.S.-UAE 123 Agreement for Peaceful Civilian Nuclear Energy Cooperation. It allows the UAE to receive nuclear materials, equipment and know-how from the U.S. while precluding it from developing dual-use technology by barring uranium enrichment and fuel reprocessing, the processes required for building a bomb.

By contrast, nearby Iran has suspended its compliance to the multilateral 2015 deal that regulated its nuclear power development and many fear its approach toward bomb-making capability. Meanwhile, Saudi Arabia has voiced its desire to develop a nuclear energy program without adhering to a 123 agreement.

And most recently, in the wake of a historic deal that has seen the UAE become the first Gulf country to normalize relations with Israel, Iran responded by warning the agreement would bring a “dangerous future” for the Emirati government. 

But ENEC and UAE officials emphasize the program’s commitment to safety, transparency and international cooperation, and its necessity for meeting growing electricity demand by cleaner means. 

“The nuclear industry is growing, with milestones around the world being reached, and the UAE is no exception. We are pursuing our electricity demand to meet that in a safe, secure and stable manner, and also doing it in an environmentally friendly way,” Al Hammadi said.

“Having four reactors that will provide 25% of electricity for the nation and will avoid us emitting 21 million tons of CO2 on an annual basis, as part of a broader green industrial revolution approach, is a very serious step to take — and the UAE is not talking about it, it is doing it, and we are reaping the benefits of it as we speak right now.”

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Alberta Energy-Only Electricity Market faces capacity market debate, AESO price cap review, and coal-to-gas shifts by TransAlta and Capital Power, balancing reliability with volatility as investment signals evolve across Alberta's grid.

Key Points

An energy market paying generators only for electricity sold, with AESO oversight and a price cap guiding new capacity.

✅ AESO reviewing $999 per MW-h wholesale price cap.

✅ UCP retained energy-only; capacity market plan cancelled.

✅ TransAlta and Capital Power shift to coal-to-gas.

The Kenney government’s decision to cancel the redesign of Alberta’s electricity system to a capacity market won’t side-track two of the province’s largest power generators from converting coal-fired facilities to burn natural gas as part of Alberta’s shift from coal to cleaner energy overall.

But other changes could be coming to the province’s existing energy-only electricity market — including the alteration of the $999 per megawatt-hour (MW-h) wholesale price cap in Alberta.

The heads of TransAlta Corp. and Capital Power Corp. are proceeding with strategies to convert existing coal-fired power generating facilities to use natural gas in the coming years.

Calgary-based TransAlta first announced in 2017 that it would make the switch, as the NDP government was in the midst of overhauling the electricity sector and wind generation began to outpace coal in the province.

At the time, the Notley government planned to phase out coal-fired power by 2030, even as Alberta moved to retire coal by 2023 in practice, and shift Alberta into an electricity capacity market in 2021.

Such a move, made on the recommendation of the Alberta Electric System Operator (AESO), was intended to reduce price volatility and ensure system reliability.

Under the energy-only market, generators receive payments for electricity produced and sold into the grid. In a capacity market, generators are also paid for having power available on demand, regardless of how often they sell energy into the provincial grid.

The UCP government decided last month to ditch plans for a capacity market after consulting with the sector, saying it would be better for consumers.

On a conference call, TransAlta CEO Dawn Farrell said the company will convert coal-fired generating plants to burn gas, although it may alter the mix between simple conversions and switching to so-called “hybrid” plants.

(A hybrid conversion is a larger and more-expensive switch, as it includes installing a new gas turbine and heat-recovery steam generator, but it creates a highly efficient combined cycle unit.)

“Our view is fundamentally that carbon will be priced over the next 20 years no matter what,” she said Friday.

“We cannot get off coal fast enough in this company, and gas right now in Alberta is extremely inexpensive…

“So our coal-to-gas strategy is completely predicated on our belief that it’s not smart to be in carbon-intensive fuels for the future.”

Elsewhere in Canada, the Stop the Shock campaign has advocated for reviving coal power, underscoring ongoing policy debates.

The company said it’s planning the coal-to-gas conversion and re-powering of some or all of the units at its Keephills and Sundance facilities to gas-fired generation sometime between 2020 and 2023.

Similarly, Capital Power CEO Brian Vaasjo said the Edmonton-based company is moving ahead with a project that will allow it to burn both coal and natural gas at its Genesee generating station, even as Ontario’s energy minister sought to explore a halt to natural gas generation elsewhere.

In June, the company announced it would spend an estimated $50 million between 2019 and 2021 to allow it to use gas at the facility.

“What we’re doing is going to be dual fuel, so we will be able to operate 100 per cent natural gas or 100 per cent coal and everything in between,” Vaasjo said in an interview.

“You can expect to see we will be burning coal in the winter when natural gas prices are high, and we will be burning natural gas in summer when gas prices are real low.”

The transition comes as the government’s decision to stick with the energy-only market has been welcomed by players in the industry, and as Alberta's electricity future increasingly leans on wind resources.

A study by electricity consultancy EDC Associates found the capacity market would result in consumers paying an extra $1.4 billion in direct costs in 2021-22, as it required more generation to come online earlier than expected.

These additional costs would have accumulated to $10 billion by 2030, said EDC chief executive Duane-Reid Carlson.

For Capital Power, the decision to stick with the current system makes the province more investable in the future. Vaasjo said there was great uncertainty about the transition to a capacity market, and the possibility of rules shifting further.

Officials with Enmax Corp. said the city-owned utility would not have invested in future generation under the proposed capacity market.

“There is no short-term need (today) for new generation, so we’re just looking at the market and saying, ‘OK, as it evolves, we will see what happens,’” said Enmax vice-president Tim Boston.

Sticking with the energy-only market doesn’t mean Alberta will keep the existing rules.

In a July 25 letter, Alberta Energy Minister Sonya Savage directed AESO chair Will Bridge to examine if changes to the existing market are needed and report back by July 2020.

AESO, which manages the power grid, has been asked to investigate whether the current price cap of $999 per megawatt-hour (MW-h) should be changed.

The price ceiling hasn’t been altered since the energy-only market was implemented by the Klein government about two decades ago.

While allowing prices to go higher would increase volatility, reflecting lessons from Europe’s power crisis about scarcity pricing, during periods of rising demand and limited supply, it would send a signal to generators when investment in new generation is required, said Kent Fellows, a research associate at the University of Calgary’s School of Public Policy.

“Keeping the price (cap) too low could end up costing us more in the long run,” he said.

In a 2016 report, AESO said the province examined raising the price cap to $5,000 per MW-h, but “determined that it was unlikely to be successful in attracting investment due to increased price volatility.”

However, the amount of future generation that will be required in Alberta has been scaled back by the province.

In the United States, the Electricity Reliability Council of Texas (ERCOT) allows wholesale power prices in the state to climb to a cap of $9,000 per megawatt hours as demand rises — as it did Tuesday in the midst of a heat wave, according to Bloomberg.

Jim Wachowich, legal counsel for the Consumers’ Coalition of Alberta, said while few players are exposed to spot electricity prices, he has yet to be convinced raising the cap would be good for Albertans.

“Someone has to show me the evidence, and I suspect that’s what the minister has asked the AESO to do,” he said.

Generators say they believe some tinkering is needed to the energy-only market to ensure new generation is built when it’s required.

“The No. 1 change that the government has to … think about is in pricing,” added Farrell.

“If you don’t have enough of a price signal in an energy-only market to attract new capital, you won’t get new capital — and you’ll run up against the wall.”

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Harbour Air Electric Seaplanes pioneer sustainable aviation with battery-electric propulsion, zero-emission operations, and retrofitted de Havilland Beavers using magniX motors for regional commuter routes, cutting fuel burn, maintenance, and carbon footprints across British Columbia.

Key Points

Retrofitted floatplanes using magniX battery-electric motors to provide zero-emission, short-haul regional flights.

✅ Battery-electric magniX motors retrofit de Havilland DHC-2 Beavers

✅ Zero-emission, low-noise operations on short regional routes

✅ Lower maintenance and operating costs vs combustion engines

Aviation is one of the fastest rising sources of carbon emissions from transport, but can a small Canadian airline show the industry a way of flying that is better for the planet?

As air journeys go, it was just a short hop into the early morning sky before the de Havilland seaplane splashed back down on the Fraser River in Richmond, British Columbia. Four minutes earlier it had taken off from the same patch of water. But despite its brief duration, the flight may have marked the start of an aviation revolution.

Those keen of hearing at the riverside on that cold December morning might have been able to pick up something different amid the rumble of the propellers and whoosh of water as the six-passenger de Havilland DHC-2 Beaver took off and landed. What was missing was the throaty growl of the aircraft’s nine-cylinder radial engine.

In its place was an all-electric propulsion engine built by the technology firm magniX that had been installed in the aircraft over the course of several months. The four-minute test flight (the plane was restricted to flying in clear skies, so with fog and rain closing in the team opted for a short trip) was the first time an all-electric commercial passenger aircraft had taken to the skies.

The retrofitted de Havilland DHC-2 Beaver took off from the Fraser River in the early morning light for a four minute test flight (Credit: Diane Selkirk)

“It was the first shot of the electric aviation revolution,” says Roei Ganzarski, chief executive of magniX, which worked with Canadian airline Harbour Air Seaplanes to convert one of the aircraft in their fleet of seaplanes so it could run on battery power rather than fossil fuels.

For Greg McDougall, founder of Harbour Air and pilot during the test flight, it marked the culmination of years of trying to put the environment at the forefront of its operations, backed by research investment across the program.

Harbour Air, which has a fleet of some 40 commuter floatplanes serving the coastal regions around Vancouver, Victoria and Seattle, was the first airline in North America to become carbon-neutral through offsets in 2007. A one-acre green roof on their new Victoria airline terminal followed. Then in 2017, 50 solar panels and four beehives housing 10,000 honeybees were added, but for McDougall, a Tesla owner with an interest in disruptive technology, the big goal was to electrify the fleet, with 2023 electric passenger flights as an early target for service.

McDougall searched for alternative motor options for a couple of years and had put the plan on the backburner when Ganzarski first approached him in February 2019. “He said, ‘We’ve got a motor we want to get certified and we want to fly it before the end of the year,’” McDougall recalls.

The two companies found their environmental values and teams were a good match and quickly formed a partnership. Eleven months later, the modest Canadian airline got what McDougall refers to as their “e-plane” off the ground, pulling ahead of other electric flight projects, including those by big-name companies Airbus, Boeing and Rolls-Royce, and startups such as Eviation that later stumbled.

The test flight was followed years of work by Greg McDougall to make his airline more environmentally friendly (Credit: Diane Selkirk)

The project came together in record time considering how risk-adverse the aviation industry is, says McDougall. “Someone had to take the lead,” he says. “The reason I live in British Columbia is because of the outdoors: protecting it is in our DNA. When it came to getting the benefits from electric flight it made sense for us to step in and pioneer the next step.”

As the threat posed by the climate crisis deepens, there has been renewed interest in developing electric passenger aircraft as a way of reducing emissions
Electric flight has been around since the 1970s, but it’s remained limited to light-weight experimental planes flying short distances and solar-powered aircraft with enormous wingspans yet incapable of carrying passengers. But as the threat posed by the climate crisis deepens, there has been renewed interest in developing electric passenger aircraft as a way of reducing emissions and airline operating costs, aligning with broader Canada-U.S. collaboration on electrification across transport.

Currently there are about 170 electric aircraft projects underway internationally –up by 50% since April 2018, according to the consulting firm Roland Berger. Many of the projects are futuristic designs aimed at developing urban air taxis, private planes or aircraft for package delivery. But major firms such as Airbus have also announced plans to electrify their own aircraft. It plans to send its E-Fan X hybrid prototype of a commercial passenger jet on its maiden flight by 2021. But only one of the aircraft’s four jet engines will be replaced with a 2MW electric motor powered by an onboard battery.

This makes Harbour Air something of an outlier. As a coastal commuter airline, it operates smaller floatplanes that tend to make short trips up and down the coastline of British Columbia and Washington State, which means its aircraft can regularly recharge their batteries after a point-to-point electric flight along these routes. The company sees itself in a position to retrofit its entire fleet of floatplanes and make air travel in the region as green as possible.

This could bring some advantages. The efficiency of a typical combustion engine for a plane like this is fairly low – a large proportion of the energy from the fuel is lost as waste heat as it turns the propeller that drives the aircraft forward. Electrical motors have fewer moving parts, meaning there’s less maintenance and less maintenance cost, and comparable benefits are emerging for electric ships operating on the B.C. coast as well.

Electrical motors have fewer moving parts, meaning there’s less maintenance and less maintenance cost
Erika Holtz, Harbour Air’s engineering and quality manager, sees the move to electric as the next major aviation advancement, but warns that one stumbling block has been the perception of safety. “Mechanical systems are much better known and trusted,” she says. In contrast people see electrical systems as a bit unknown – think of your home computer. “Turning it off and on again isn’t an option in aviation,” she adds.

But it’s the possibility of spurring lasting change in aviation that’s made working on the Harbour Air/magniX project so exciting for Holtz. Aviation technology has stagnated over the past decades, she says. “Although there have been incremental improvements in certain technologies, there hasn't been a major development change in aviation in 50 years.”

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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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