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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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Washington County solar farm incentives aim to steer projects to industrial sites with tax breaks, underground grid connections, decommissioning bonds, and wildlife corridors, balancing zoning, historic preservation, and Maryland renewable energy mandates.

Key Points

Policies steer solar to industrial sites with tax breaks, buried lines, and bonds, aligning with zoning and state goals.

✅ Tax breaks to favor rooftops and parking canopies

✅ Bury new grid lines to shift projects to industrial parks

✅ Require decommissioning bonds and wildlife corridors

Incentives for establishing solar farms at industrial spaces instead of on prime farmland are among the ideas the Washington County Planning Commission is recommending for the county to update its policies regarding solar farms.

Potential incentives would include tax breaks on solar equipment and requiring developers to put power-grid connections and line extensions underground, a move tied to grid upgrade cost debates in other regions, Planning Commission members said during a Monday meeting.

The tax break could make it more attractive for a developer to put a solar farm on a roof or over a parking lot, similar to California's building-solar requirement policies that favor rooftop generation, which could cost more than putting it on farmland, said Commission member Dave Kline, who works for FirstEnergy.

Requiring a company to bury new transmission lines could steer them to industrial or business parks where, theoretically, transmission lines are more readily available, Kline said Wednesday in a phone interview.

Chairman Clint Wiley suggested talking to industrial property owners to create a list of industrial sites that make sense for a solar site, which could generate extra income for the property owner.

Commission members also talked about requiring a wildlife corridor. Anne Arundel County requires such a corridor if a solar site is over 15 acres, according to Jill Baker, deputy director of planning and zoning. The solar site is broken into sections so animals such as deer can get through, she said.

However, that means the solar farm would take up more agricultural land, Commission member Jeremiah Weddle said. Weddle, a farmer, has repeatedly voiced concerns about solar farms using prime farmland.

County zoning law already states solar farms are prohibited in Rural Legacy Areas, Priority Preservation Areas, and within Antietam Overlay zones that preserve the Antietam National Battlefield viewshed. They also cannot be built on land with permanent preservation easements, Baker said.

However, a big reason county officials are looking to strengthen county policies for solar generating systems, or solar farms, is a recent court decision that ruled the Maryland Public Service Commission can preempt county zoning law when it comes to large solar farms.

County zoning law defines a solar energy generating system as a solar facility, with multiple solar arrays, tied into the power grid and whose primary purpose is to generate power to distribute and/or sell into the public utility grid rather than consuming that power on site.

The Maryland Court of Appeals ruled in July that the Public Service Commission can preempt local zoning regarding solar farms larger than 2 megawatts. But the ruling also stated local government is a "significant participant in the process" and the state commission must give "due consideration" to local zoning laws.

County officials are looking at recommendations for solar farms, whether they are over 2 megawatts or not.

Solar farms are a popular issue statewide, especially with Maryland solar subscriptions expanding, and were discussed at a recent Maryland Association of Counties meeting for planners, Planning and Zoning Director Stephen Goodrich said.

The thinking is the best way for counties to express their opinions about a solar project is to participate in the state commission's local public hearings, where issues like how solar owners are paid often arise, Goodrich said. Another popular idea is for the county to continue to follow its process, which requires a public hearing for a special exception to establish a solar farm. That will help the county form an opinion, on individual cases, to offer the state commission, he said.

Recommendations discussed by the Planning Commission include:

A break on personal property taxes, which is on equipment, including affordable battery storage that can firm output, to steer developers away from areas where the county doesn't want solar farms. The Board of County Commissioners have been split on tax-break agreements for solar farms, with a majority recently granting a few.

Protecting valuable historic sites.

Requiring a decommissioning bond for removing the equipment at the end of the solar farm's life. The bond is protection in case the company goes bankrupt. The county commissioners have been making such a bond a requirement when granting recent tax breaks.

Looking at allowing solar farms in stormwater-management areas.

Other counties, particularly in Western Maryland and on the Eastern Shore, are having issues with solar farms even as research to improve solar and wind advances, because land is cheaper and there are wide-open spaces, Goodrich said.

Many solar projects are being developed or proposed because state lawmakers passed legislation requiring 50% of electricity produced in the state to come from renewable sources by 2030, and a federal plan to expand solar is also shaping expectations. Of that 50%, 14.5% is to come from solar energy.

In Maryland, the average number of homes that can be powered by 1 megawatt of solar energy is about 110, according to the Solar Energy Industries Association's website.

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Near-Field Thermophotovoltaics captures radiated energy across a nanoscale gap, using thin-film photovoltaic cells and indium gallium arsenide to boost power density and efficiency, enabling compact Army portable power from emitters via radiative heat transfer.

Key Points

A nanoscale TPV method capturing near-field photons for higher power density at lower emitter temperatures.

✅ Nanoscale gap boosts radiative transfer and usable photon flux

✅ Thin-film InGaAs cells recycle sub-band-gap photons via reflector

✅ Achieved ~5 kW/m2 power density with higher efficiency

With the addition of sensors and enhanced communication tools, providing lightweight, portable power has become even more challenging, with concepts such as power from falling snow illustrating how diverse new energy-harvesting approaches are. Army-funded research demonstrated a new approach to turning thermal energy into electricity that could provide compact and efficient power for Soldiers on future battlefields.

Hot objects radiate light in the form of photons into their surroundings. The emitted photons can be captured by a photovoltaic cell and converted to useful electric energy. This approach to energy conversion is called far-field thermophotovoltaics, or FF-TPVs, and has been under development for many years; however, it suffers from low power density and therefore requires high operating temperatures of the emitter.

The research, conducted at the University of Michigan and published in Nature Communications, demonstrates a new approach, where the separation between the emitter and the photovoltaic cell is reduced to the nanoscale, enabling much greater power output than what is possible with FF-TPVs for the same emitter temperature.

This approach, which enables capture of energy that is otherwise trapped in the near-field of the emitter is called near-field thermophotovoltaics or NF-TPV and uses custom-built photovoltaic cells and emitter designs ideal for near-field operating conditions, alongside emerging smart solar inverters that help manage conversion and delivery.

This technique exhibited a power density almost an order of magnitude higher than that for the best-reported near-field-TPV systems, while also operating at six-times higher efficiency, paving the way for future near-field-TPV applications, including remote microgrid deployments in extreme environments, according to Dr. Edgar Meyhofer, professor of mechanical engineering, University of Michigan.

"The Army uses large amounts of power during deployments and battlefield operations and must be carried by the Soldier or a weight constrained system," said Dr. Mike Waits, U.S. Army Combat Capabilities Development Command's Army Research Laboratory. "If successful, in the future near-field-TPVs could serve as more compact and higher efficiency power sources for Soldiers as these devices can function at lower operating temperatures than conventional TPVs."

The efficiency of a TPV device is characterized by how much of the total energy transfer between the emitter and the photovoltaic cell is used to excite the electron-hole pairs in the photovoltaic cell, where insights from near-light-speed conduction research help contextualize performance limits in semiconductors. While increasing the temperature of the emitter increases the number of photons above the band-gap of the cell, the number of sub band-gap photons that can heat up the photovoltaic cell need to be minimized.

"This was achieved by fabricating thin-film TPV cells with ultra-flat surfaces, and with a metal back reflector," said Dr. Stephen Forrest, professor of electrical and computer engineering, University of Michigan. "The photons above the band-gap of the cell are efficiently absorbed in the micron-thick semiconductor, while those below the band-gap are reflected back to the silicon emitter and recycled."

The team grew thin-film indium gallium arsenide photovoltaic cells on thick semiconductor substrates, and then peeled off the very thin semiconductor active region of the cell and transferred it to a silicon substrate, informing potential interfaces with home battery systems for distributed use.

All these innovations in device design and experimental approach resulted in a novel near-field TPV system that could complement distributed resources in virtual power plants for resilient operations.

"The team has achieved a record ~5 kW/m2 power output, which is an order of magnitude larger than systems previously reported in the literature," said Dr. Pramod Reddy, professor of mechanical engineering, University of Michigan.

Researchers also performed state-of-the-art theoretical calculations to estimate the performance of the photovoltaic cell at each temperature and gap size, informing hybrid designs with backup fuel cell solutions that extend battery life, and showed good agreement between the experiments and computational predictions.

"This current demonstration meets theoretical predictions of radiative heat transfer at the nanoscale, and directly shows the potential for developing future near-field TPV devices for Army applications in power and energy, communication and sensors," said Dr. Pani Varanasi, program manager, DEVCOM ARL that funded this work.

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Sustainable Marine tidal energy delivers in-stream power to Nova Scotia's grid from Grand Passage, proving low-impact, renewable generation and advancing a floating tidal array at FORCE and Minas Passage in the Bay of Fundy.

Key Points

The first in-stream tidal project supplying clean power to Nova Scotia's grid, proven at Grand Passage.

✅ First to deliver in-stream tidal power to Canada's grid

✅ Demonstration at Grand Passage informs FORCE deployments

✅ Low-impact design and environmental monitoring validated

Sustainable Marine has officially powered up its tidal energy operation in Canada and is delivering clean electricity to the power system in Nova Scotia, on the country’s Atlantic coast, as the province moves to increase wind and solar projects in the years ahead. The company’s system in Grand Passage is the first to deliver in-stream tidal power to the grid in Canada, following provincial approval to harness Bay of Fundy tides that is spurring further development.

The system start-up is the culmination of more than a decade of research, development and testing, including lessons from Scottish tidal projects in recent years and a powerful tidal turbine feeding onshore grids, managing the technical challenges associated with operating in highly energetic environments and proving the ultra-low environmental impact of the tidal technology.

Sustainable Marine is striving to deliver the world’s first floating tidal array at FORCE (Fundy Ocean Research Centre for Energy). This project will be delivered in phases, drawing upon the knowledge gained and lessons learned in Grand Passage, and insights from offshore wind pilots like France’s first offshore wind turbine in Europe. In the coming months the company will continue to operate the platform at its demonstration site at Grand Passage, gradually building up power production, while New York and New England clean energy demand continues to rise, to further prove the technology and environmental monitoring systems, before commencing deployments in the Minas Passage – renowned as the Everest of tidal energy.

The Bay of Fundy’s huge tidal energy resource contains more than four times the combined flow of every freshwater river in the world, with the potential to generate approximately 2,500 MW of green energy, underscoring why independent electricity planning will be important for integrating marine renewables.

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California Electricity Reliability covers grid resilience amid heat waves, rolling blackouts, renewable energy integration, resource adequacy, battery storage, natural gas peakers, ISO oversight, and peak demand management to keep homes, businesses, and industry powered.

Key Points

Dependable California power delivery despite heat waves, peak demand, and challenges integrating renewables into grid.

✅ Rolling blackouts revealed gaps in resource adequacy.

✅ Early evening solar drop requires fast ramping and storage.

✅ Agencies pledge planning reforms and flexible backup supply.

One hallmark of an advanced society is a reliable supply of electrical energy for residential, commercial and industrial consumers. Uncertainty that California electricity will be there when we need it it undermines social cohesion and economic progress, as demonstrated by the travails of poor nations with erratic energy supplies.

California got a small dose of that syndrome in mid-August when a record heat wave struck the state and utilities were ordered to impose rolling blackouts to protect the grid from melting down under heavy air conditioning demands.

Gov. Gavin Newsom quickly demanded that the three overseers of electrical service to most of the state - the Public Utilities Commission, the Energy Commission and the California Independent Service Operator – explain what went wrong.

"These blackouts, which occurred without prior warning or enough time for preparation, are unacceptable and unbefitting of the nation's largest and most innovative state," Newsom wrote. "This cannot stand. California residents and businesses deserve better from their government."

Initially, there was some fingerpointing among the three entities. The blackouts had been ordered by the California Independent System Operator, which manages the grid and its president, Steve Berberich, said he had warned the Public Utilities Commission about the potential supply shortfall facing the state.

"We have indicated in filing after filing after filing that the resource adequacy program was broken and needed to be fixed," he said. "The situation we are in could have been avoided."

However, as political heat increased, the three agencies hung together and produced a joint report that admitted to lapses of supply planning and grid management and promised steps to avoid a repeat next summer.

"The existing resource planning processes are not designed to fully address an extreme heat storm like the one experienced in mid August," their report said. "In transitioning to a reliable, clean and affordable resource mix, resource planning targets have not kept pace to lead to sufficient resources that can be relied upon to meet demand in the early evening hours. This makes balancing demand and supply more challenging."

Although California's grid had experienced greater heat-related demands in previous years, most notably 2006, managers then could draw standby power from natural gas-fired plants and import juice from other Western states when necessary.

Since then, the state has shut down a number of gas-fired plants and become more reliant on renewable but less reliable sources such as windmills and solar panels.

August's air conditioning demand peaked just as output from solar panels was declining with the setting of the sun and grid managers couldn't tap enough electrons from other sources to close the gap.

While the shift to renewables didn't, unto itself, cause the blackouts, they proved the need for a bigger cushion of backup generation or power storage in batteries or some other technology. The Public Utilities Commission, as Beberich suggested, has been somewhat lax in ordering development of backup supply.

In the aftermath of the blackouts, the state Water Resources Control Board, no doubt with direction from Newsom's office, postponed planned shutdowns of more coastal plants, which would have reduced supply flexibility even more.

Shifting to 100% renewable electricity, the state's eventual goal, while maintaining reliability will not get any easier. The state's last nuclear plant, Diablo Canyon, is ticketed for closure and demand will increase as California eliminates gasoline- and diesel-powered vehicles in favor of "zero emission vehicles" as part of its climate policies push and phases out natural gas in homes and businesses.

Politicians such as Newsom and legislators in last week's blackout hearing may endorse a carbon-free future in theory, but they know that they'll pay the price as electricity prices climb if nothing happens when Californians flip the switch.

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Ontario Electricity Billing Changes include OEB-backed shifts to time-of-use or tiered pricing, landlord blanket elections, LDC implementation guidance, a customer choice webpage with a bill calculator, and ENDM rate mitigation messaging.

Key Points

They are OEB measures enabling TOU-to-tiered switching, landlord elections, LDC guidance, and ENDM bill messages.

✅ Option to switch from TOU to tiered pricing

✅ Landlord blanket elections on tenant turnover

✅ ENDM-led bill info and rate mitigation messaging

By David Stevens, Aird & Berlis LLP

Electricity consumers in Ontario may see a couple of electricity rate changes in their bills in the coming months.

First, as we have already discussed, as of November 1, 2020, regulated price plan customers will have the option to switch to "tiered pricing" instead of time-of-use (TOU) pricing structures. Those who switch to "tiered pricing" will see changes in their electricity bills.

The Ontario Energy Board (OEB) has now issued final amendments to the Standard Supply Service Code to support the customer election process necessary to switch from TOU pricing to tiered pricing. The main change from what was already published in previous OEB notices is that landlords will be permitted to make a "blanket election" between TOU pricing and tiered pricing that will apply each time a tenant's account reverts back to the landlord on turnover of the rental unit. In its most recent notice, the OEB acknowledges that implementing the new customer billing option as of Nov. 1 (less than two months from now) will be challenging and directs Local Distribution Companies (LDCs) who cannot meet this date to be immediately in touch with the OEB. Finally, the OEB indicates that there will be a dedicated "customer choice webpage for consumers, including a bill calculator" in place by early October.

Second, as of January 1, 2021 low-volume consumers will see additional messaging on their bills to inform them of available rate mitigation programs.

A recent proposal posted on Ontario's Regulatory Registry indicates that the Ministry of Energy, Northern Development and Mines (ENDM) proposes that LDCs and Utility Sub-Meter Providers will be required to include a new on-bill message for low-volume consumers that "will direct customers to ENDM's new web page for further information about how the province provides financial support to electricity consumers." This new requirement is planned to be in place as of January 1, 2021. In conjunction with this requirement, the ENDM plans to launch a new web page that will provide "up-to-date information about electricity bills," including information about rate mitigation programs available to consumers. Parties are invited to submit comments on the ENDM proposal by October 5, 2020.

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