Some farmers call land offer 'an insult'

By Wisconsin State Journal


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It doesn't happen often: A high-power transmission line is planned and there's very little opposition.

That's the case, though, with a 35-mile, $133 million line that would run from the town of Christiana in eastern Dane County south to the town of Beloit, in Rock County.

Known as the proposed Paddock-Rockdale line, named for the electrical substations marking each end, the 345-kilovolt transmission line is expected to win the Wisconsin Public Service Commission's approval in May or June.

Citizen groups are not raging against the plan, nor are environmentalists crying foul. Citizens Utility Board executive director Charlie Higley said the line "is probably a good idea."

But there are a few unhappy campers — namely, some farmers over whose land the high-voltage line will hang. They say American Transmission Co. (ATC), the Madison utility company that owns, operates and builds much of the electricity highways carrying power around the state, is offering insultingly low compensation for use of their land.

Franklin Lien, his wife, Beverly, and sister-in-law Carolyn Lien grow soybeans and corn on their 1,200 acre farm in Christiana. Franklin Lien said an ATC representative proposed paying $7,000 an acre for land that would be used to expand the Rockdale substation.

"This is prices from years ago," Franklin Lien said. "We've already sold land to the village of Rockdale for a sewer plant for $30,000 an acre. Other (farmers) in the area got $40,000 for a lot to build a house on.

"You kind of look at those figures and $7,000 an acre doesn't get you excited," he said.

Lien said ATC also proposed paying him $79,000, or 10 cents a square foot, for a mile-long easement to allow the new line to run across his property.

Landowners fear the prices being tossed around on this project are a strong signal for what's to come on a much bigger transmission proposal just around the bend — the 35- to 55-mile, 345-kilovolt line planned to traverse the width of Dane County.

Mary Carpenter, ATC local relations representative, wouldn't comment on specific prices but said they are just the first step in negotiations. "It's not at all unusual for there to be differing starting points," she said.

Local farmers are not objecting to hosting the highly charged transmission line, said Franklin Lien's brother, Stanley.

"My people don't have a problem with the line as long as they do it right," said Stanley Lien, a former Christiana Town Board chairman. Lien has submitted papers to the PSC that allow him to represent nine Dane County land owners in the Paddock-Rockdale case.

One reason the proposal hasn't attracted a lot of attention is that the favored route is along an existing transmission line path. It would require adding only about two miles of right-of-way, Carpenter said.

In the 1970s, decades before ATC was created in 2001, local utility companies negotiated with some of the same farmers to put the existing line across their land. Easement payments then were 24 cents a square foot, Stanley Lien said.

Now, 30 years later, the offer to his brother amounts to 10 cents a square foot for an easement. That's "an insult," Stanley Lien said, and promised a court fight if no agreement is reached.

If the project is approved, here's how the process works:

• ATC enters formal negotiations with landowners for easements to use their property.

• If no agreement is reached, both sides can hire appraisers and negotiate again.

• If they still can't agree, ATC makes its final offer. If the landowner doesn't accept it within 20 days, ATC can file a circuit court petition seeking condemnation.

• A condemnation commission decides appropriate compensation. If either side rejects that, the case can be heard by a judge or jury.

The entire process can take eight months to a year, said Teresa Kochaver, ATC's real estate manager.

"If utilities don't want to come out of the 1950s, then we're going to fight," Stanley Lien said.

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Bill Gates’ Nuclear Startup Unveils Mini-Reactor Design Including Molten Salt Energy Storage

Natrium small modular reactor pairs a sodium-cooled fast reactor with molten salt storage to deliver load-following, dispatchable nuclear power, enhancing grid flexibility and peaking capacity as TerraPower and GE Hitachi pursue factory-built, affordable deployment.

 

Key Points

A TerraPower-GE Hitachi SMR joining a sodium-cooled reactor with molten salt storage for flexible, dispatchable power.

✅ 345 MW base; 500 MW for 5.5 hours via thermal storage

✅ Sodium-cooled coolant and molten salt storage enable load-following

✅ Backed by major utilities; factory-built modules aim lower costs

 

Nuclear power is the Immovable Object of generation sources. It can take days just to bring a nuclear plant completely online, rendering it useless as a tool to manage the fluctuations in the supply and demand on a modern energy grid.  

Now a firm launched by Bill Gates in 2006, TerraPower, in partnership with GE Hitachi Nuclear Energy, believes it has found a way to make the infamously unwieldy energy source a great deal nimbler, drawing on next-gen nuclear ideas — and for an affordable price. 

The new design, announced by TerraPower on August 27th, is a combination of a "sodium-cooled fast reactor" — a type of small reactor in which liquid sodium is used as a coolant — and an energy storage system. While the reactor could pump out 345 megawatts of electrical power indefinitely, the attached storage system would retain heat in the form of molten salt and could discharge the heat when needed, increasing the plant’s overall power output to 500 megawatts for more than 5.5 hours. 

“This allows for a nuclear design that follows daily electric load changes and helps customers capitalize on peaking opportunities driven by renewable energy fluctuations,” TerraPower said. 

Dubbed Natrium after the Latin name for sodium ('natrium'), the new design will be available in the late 2020s, said Chris Levesque, TerraPower's president and CEO.

TerraPower said it has the support of a handful of top U.S. utilities, including Berkshire Hathaway Energy subsidiary Pacificorp, Energy Northwest, and Duke Energy. 

The reactor's molten salt storage add-on would essentially reprise the role currently played by coal- or gas-fired power stations or grid-scale batteries: each is a dispatchable form of power generation that can quickly ratchet up or down in response to changes in grid demand or supply. As the power demands of modern grids become ever more variable with additions of wind and solar power — which only provide energy when the wind is blowing or the sun shining — low-carbon sources of dispatchable power are needed more and more, and Europe is losing nuclear power at a difficult moment for energy security. California’s rolling blackouts are one example of what can happen when not enough power is available to be dispatched to meet peak demand. 

The use of molten salt, which retains heat at extremely high temperatures, as a storage technology is not new. Concentrated solar power plants also collect energy in the form of molten salt, although such plants have largely been abandoned in the U.S. The technology could enjoy new life alongside nuclear plants: TerraPower and GE Hitachi Nuclear are only two of several private firms working to develop reactor designs that incorporate molten salt storage units, including U.K.- and Canada-based developer Moltex Energy.

The Gates-backed venture and its partner touted the "significant cost savings" that would be achieved by building major portions of their Natrium plants through not a custom but an industrial process — a defining feature of the newest generation of advanced reactors is that their parts can be made in factories and assembled on-site — although more details on cost weren't available. Reuters reported earlier that each plant would cost around $1 billion.

NuScale Power

A day after TerraPower and GE Hitachi's unveiled their new design, another nuclear firm — Portland, Oregon-based NuScale Power — announced that the U.S. Nuclear Regulatory Commission (NRC) had completed its final safety evaluation of NuScale’s new small modular reactor design.

It was the first small modular reactor design ever to receive design approval from the NRC, NuScale said. 

The approval means customers can now pursue plans to develop its reactor design confident that the NRC has signed off on its safety aspects. NuScale said it has signed agreements with interested parties in the U.S., Canada, Romania, the Czech Republic, and Jordan, and is in the process of negotiating more. 

NuScale previously said that construction on one of its plants could begin in Utah in 2023, with the aim of completing the first Power Module in 2026 and the remaining 11 modules in 2027.

NuScale
An artist’s rendering of NuScale Power’s small modular nuclear reactor plant. NUSCALE POWER
NuScale’s reactor is smaller than TerraPower’s. Entirely factory-built, each of its Power Modules would generate 60 megawatts of power. The design, typical of advanced reactors, uses pressurized water reactor technology, with one power plant able to house up to 12 individual Power Modules. 

In a sign of the huge amounts of time and resources it takes to get new nuclear technology to the market’s doorstep, NuScale said it first completed its Design Certification Application in December 2016. NRC officials then spent as many as 115,000 hours reviewing it, NuScale said, in what was only the first of several phases in the review process. 

In January 2019, President Donald Trump signed into law the Nuclear Energy Innovation and Modernization Act (NEIMA), designed to speed the licensing process for advanced nuclear reactors, and the DOE under Secretary Rick Perry moved to advance nuclear development through parallel initiatives. The law had widespread bipartisan support, underscoring Democrats' recent tentative embrace of nuclear power.

An industry eager to turn the page

After a boom in the construction of massive nuclear power plants in the 1960s and 70s, the world's aging fleet of nuclear plants suffers from rising costs and flagging public support. Nuclear advocates have for years heralded so-called small modular reactors or SMRs as the cheaper and more agile successors to the first generation of plants, and policy moves such as the UK's green industrial revolution lay out pathways for successive waves of reactors. But so far a breakthrough on cost has proved elusive, and delays in development timelines have been abundant. 

Edwin Lyman, the director of nuclear power safety at the Union of Concerned Scientists, suggested on Twitter that the nuclear designs used by TerraPower and GE Hitachi had fallen short of a major innovation. “Oh brother. The last thing the world needs is a fleet of sodium-cooled fast reactors,” he wrote.  

Still, climate scientists view nuclear energy as a crucial source of zero-carbon energy, with analyses arguing that net-zero emissions may be impossible without nuclear in many scenarios, if the world stands a chance at limiting global temperature increases to well below 2 degrees Celsius above pre-industrial levels. Nearly all mainstream projections of the world’s path to keeping the temperature increase below those levels feature nuclear energy in a prominent role, including those by the United Nations and the International Energy Agency (IEA). 

According to the IEA: “Achieving the clean energy transition with less nuclear power is possible but would require an extraordinary effort.”

 

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Is nuclear power really in decline?

Nuclear Energy Growth accelerates as nations pursue decarbonization, complement renewables, displace coal, and ensure grid reliability with firm, low-carbon baseload, benefiting from standardized builds, lower cost of capital, and learning-curve cost reductions.

 

Key Points

Expansion of nuclear capacity to cut CO2, complement renewables, replace coal, and stabilize grids at low-carbon cost.

✅ Complements renewables; displaces coal for faster decarbonization

✅ Cuts system costs via standardization and lower cost of capital

✅ Provides firm, low-carbon baseload and grid reliability

 

By Kirill Komarov, Chairman, World Nuclear Association.

As Europe and the wider world begins to wake up to the need to cut emissions, Dr Kirill Komarov argues that tackling climate change will see the use of nuclear energy grow in the coming years, not as a competitor to renewables but as a competitor to coal.

The nuclear industry keeps making headlines and spurring debates on energy policy, including the green industrial revolution agenda in several countries. With each new build project, the detractors of nuclear power crowd the bandwagon to portray renewables as an easy and cheap alternative to ‘increasingly costly’ nuclear: if solar and wind are virtually free why bother splitting atoms?

Yet, paradoxically as it may seem, if we are serious about policy response to climate change, nuclear energy is seeing an atomic energy resurgence in the coming decade or two.

Growth has already started to pick up with about 3.1 GW new capacity added in the first half of 2018 in Russia and China while, at the very least, 4GW more to be completed by the end of the year – more than doubling the capacity additions in 2017.

In 2019 new connections to the grid would exceed 10GW by a significant margin.

If nuclear is in decline, why then do China, India, Russia and other countries keep building nuclear power plants?

To begin with, the issue of cost, argued by those opposed to nuclear, is in fact largely a bogus one, which does not make a fully rounded like for like comparison.

It is true that the latest generation reactors, especially those under construction in the US and Western Europe, have encountered significant construction delays and cost overruns.

But the main, and often the only, reason for that is the ‘first-of-a-kind’ nature of those projects.

If you build something for the first time, be it nuclear, wind or solar, it is expensive. Experience shows that with series build, standardised construction economies of scale and the learning curve from multiple projects, costs come down by around one-third; and this is exactly what is already happening in some parts of the world.

Furthermore, those first-of-a-kind projects were forced to be financed 100% privately and investors had to bear all political risks. It sent the cost of capital soaring, increasing at one stroke the final electricity price by about one third.

While, according to the International Energy Agency, at 3% cost of capital rate, nuclear is the cheapest source of energy: on average 1% increase adds about US$6-7 per MWh to the final price.

When it comes to solar and wind, the truth, inconvenient for those cherishing the fantasy of a world relying 100% on renewables, is that the ‘plummeting prices’ (which, by the way, haven’t changed much over the last three years, reaching a plateau) do not factor in so-called system and balancing costs associated with the need to smooth the intermittency of renewables.

Put simply, the fact the sun doesn’t shine at night and wind doesn’t blow all the time means wind and solar generation needs to be backed up.

According to a study by the Potsdam Institute for Climate Impact Research, integration of intermittent renewables into the grid is estimated in some cases to be as expensive as power generation itself.

Delivering the highest possible renewable content means customers’ bills will have to cover: renewable generation costs, energy storage solutions, major grid updates and interconnections investment, as well as gas or coal peaking power plants or ‘peakers’, which work only from time to time when needed to back up wind and solar.

The expected cost for kWh for peakers, according to investment bank Lazard is about twice that of conventional power plants due to much lower capacity factors.

Despite exceptionally low fossil fuel prices, peaking natural gas generation had an eye-watering cost of $156-210 per MWh in 2017 while electricity storage, replacing ‘peakers’, would imply an extra cost of $186-413 per MWh.

Burning fossil fuels is cheaper but comes with a great deal of environmental concern and extensive use of coal would make net-zero emissions targets all but unattainable.

So, contrary to some claims, nuclear does not compete with renewables. Moreover, a recent study by the MIT Energy Initiative showed, most convincingly, that renewables and load following advanced nuclear are complementary.

Nuclear competes with coal. Phasing out coal is crucial to fighting climate change. Putting off decisions to build new nuclear capacities while increasing the share of intermittent renewables makes coal indispensable and extends its life.

Scientists at the Brattle group, a consultancy, argue that “since CO2 emissions persist for many years in the atmosphere, near-term emission reductions are more helpful for climate protection than later ones”.

The longer we hesitate with new nuclear build the more difficult it becomes to save the Earth.

Nuclear power accounta for about one-tenth of global electricity production, but as much as one-third of generation from low-carbon sources. 1GWe of installed nuclear capacity prevents emissions of 4-7 million metric tons of CO2 emissions per year, depending on the region.

The International Energy Agency (IEA) estimates that in order to limit the average global temperature increase to 2°C and still meet global power demand, we need to connect to the grid at least 20GW of new nuclear energy each year.

The World Nuclear Association (WNA) sets the target even higher with the total of 1,000 GWe by 2050, or about 10 GWe per year before 2020; 25 GWe per year from 2021 to 2025; and on average 33 GWe from 2026 to 2050.

Regulatory and political challenges in the West have made life for nuclear businesses in the US and in Europe's nuclear sector very difficult, driving many of them to the edge of insolvency; but in the rest of the world nuclear energy is thriving.

Nuclear vendors and utilities post healthy profits and invest heavily in next-gen nuclear innovation and expansion. The BRICS countries are leading the way, taking over the initiative in the global climate agenda. From their perspective, it’s the opposite of decline.

Dr Kirill Komarov is first deputy CEO of Russian state nuclear energy operator Rosatom and chairman of the World Nuclear Association.

 

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Ermineskin First Nation soon to become major electricity generator

Ermineskin First Nation Solar Project delivers a 1 MW distributed generation array with 3,500 panels, selling power to Alberta's grid, driving renewable energy revenue, jobs, and regional economic development with partner SkyFire Energy.

 

Key Points

A 1 MW, 3,500-panel distributed generation plant selling power to Alberta's grid to support revenue and jobs.

✅ 1 MW array, 3,500 panels; grid-tied distributed generation

✅ Annual revenue projected at $80k-$150k, scalable

✅ Built with SkyFire Energy; expansion planned next summer

 

The switch will soon be flipped on a solar energy project that will generate tens of thousands of dollars for Ermineskin First Nation, while energizing economic development across Alberta, where selling renewables is emerging as a promising opportunity.

Built on six acres, the one-megawatt generator and its 3,500 solar panels will produce power to be sold into the province’s electrical grid, providing annual revenues for the band of $80,000 to $150,000, depending on energy demand and pricing.

The project cost $2.7 million, including connection costs and background studies, said Sam Minde, chief executive officer of the band-owned Neyaskweyahk Group of Companies Inc.

It was paid for with grants from the Western Economic Diversification Fund and the province’s Climate Leadership Plan, and, amid Ottawa’s green electricity contracting push, is expected to be connected to the grid by mid-December.

“It’s going to be the biggest distributed generation in Alberta,” he said.

Called the Sundancer generator, it was built and will be operated through a partnership with SkyFire Energy, reflecting how renewable power developers design better projects by combining diverse resources.

Minde said the project’s benefits extend beyond Ermineskin First Nation, one of four First Nations at Maskwacis, 20 km north of Ponoka, in a province where renewable energy surge could power thousands of jobs.

“Our nation is looking to do the best it can in business. It’s competitive, but at the same time, what is good for us is good for the region.

“If we’re creating jobs, we’re going to be building up our economy. And if you look at our region right now, we need to continue to create opportunities and jobs.”

Electricity prices are rock bottom right now, in the six to nine cents per kilowatt hour range, with recent Alberta solar contracts coming in below natural gas on cost. During the oilsands boom, when power demand was skyrocketing, the price was in the 16 to 18 cent range.

That means there is a lot of room for bigger returns for Ermineskin in the future, especially if pipelines such as TransMountain get going or the oilsands pick up again, and as Alberta solar growth accelerates in the years ahead.

The band is so confident that Sundancer will prove a success that there are plans to double it in size, a strategy echoed by community-scale efforts such as the Summerside solar project that demonstrate scalability. By next summer, a $1.5-million to $1.7-million project funded by the band will be built on another six acres nearby.

Minde said the project is an example of the community’s connection with the environment being used to create opportunities and embracing technologies that will likely figure large in the world’s energy future.

 

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NRC Begins Special Inspection at River Bend Nuclear Power Plant

NRC Special Inspection at River Bend reviews failures of portable emergency diesel generators, nuclear safety measures, and Entergy Operations actions after Fukushima; off-site power loss readiness, remote COVID-19 oversight, and corrective action plans are assessed.

 

Key Points

An NRC review of generator test failures at River Bend, assessing nuclear safety, root causes, and corrective actions.

✅ Evaluates failures of portable emergency diesel generators

✅ Reviews causal analyses and adequacy of corrective actions

✅ Remote COVID-19 oversight; public report expected within 45 days

 

The Nuclear Regulatory Commission has begun a special inspection at the River Bend nuclear power plant, part of broader oversight that includes the Turkey Point renewal application, to review circumstances related to the failure of five portable emergency diesel generators during testing. The plant, operated by Entergy Operations, is located in St. Francisville, La., as nations like France outage risks continue to highlight broader reliability concerns.

The generators are used to supply power to plant systems in the event of a prolonged loss of off-site electrical power coupled with a failure of the permanently installed emergency generators, a concern underscored by incidents such as the SC nuclear plant leak that shut down production for weeks. These portable generators were acquired as part of the facility's safety enhancements mandated by the NRC following the 2011 accident at the Fukushima Dai-ichi facility in Japan, and amid constraints like France limiting output from warm rivers, the emphasis on resilience remains.

The three-member NRC team will develop a chronology of the test failures and evaluate the licensee's causal analyses and the adequacy of corrective actions, informed by lessons from cases like Davis-Besse closure stakes that underscore risk management.

Due to the COVID-19 pandemic, they will complete most of their work remotely, while other regions address constraints such as high river temperatures limiting output for nuclear stations. An inspection report documenting the team's findings, released as global nuclear project milestones continue across the sector, will be publicly available within 45 days of the end of the inspection.
 

 

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Solar Plus Battery Storage Cheaper Than Conventional Power in Germany

Germany Solar-Plus-Storage Cost Parity signals grid parity as solar power with battery storage undercuts conventional electricity. Falling LCOE, policy incentives, and economies of scale accelerate the energy transition and decarbonization across Germany's power market.

 

Key Points

The point at which solar power with battery storage is cheaper than conventional grid electricity across Germany.

✅ Lower LCOE from tech advances and economies of scale

✅ EEG incentives and streamlined installs cut total costs

✅ Enhances energy security, reduces fossil fuel dependence

 

Germany, a global leader in renewable energy adoption, with clean energy supplying about half of its electricity in recent years, has reached a significant milestone: the cost of solar power combined with battery storage has now fallen below that of conventional electricity sources. This development marks a transformative shift in the energy landscape, showcasing the increasing affordability and competitiveness of renewable energy technologies and reinforcing Germany’s position as a pioneer in the transition to sustainable energy.

The decline in costs for solar power paired with battery storage represents a breakthrough in Germany’s energy sector, especially amid the recent solar power boost during the energy crisis, where the transition from traditional fossil fuels to cleaner alternatives has been a central focus. Historically, conventional power sources such as coal, natural gas, and nuclear energy have dominated electricity markets due to their established infrastructure and relatively stable pricing. However, the rapid advancements in solar technology and energy storage solutions are altering this dynamic, making renewable energy not only environmentally preferable but also economically advantageous.

Several factors contribute to the cost reduction of solar power with battery storage:

  1. Technological Advancements: The technology behind solar panels and battery storage systems has evolved significantly over recent years. Solar panel efficiency has improved, allowing for greater energy generation from smaller installations. Similarly, cheaper batteries have advanced, with reductions in cost and increases in energy density and lifespan. These improvements mean that solar installations can produce more electricity and store it more effectively, enhancing their economic viability.

  2. Economies of Scale: As demand for solar and battery storage systems has grown, manufacturers have scaled up production, leading to economies of scale. This scaling has driven down the cost of both solar panels and batteries, making them more affordable for consumers. As the market for these technologies expands, prices are expected to continue decreasing, further enhancing their competitiveness.

  3. Government Incentives and Policies: Germany’s commitment to renewable energy has been supported by robust government policies and incentives. The country’s Renewable Energy Sources Act (EEG) and other supportive measures, alongside efforts to remove barriers to PV in Berlin that could accelerate adoption, have provided financial incentives for the adoption of solar power and battery storage. These policies have encouraged investment in renewable technologies and facilitated their integration into the energy market, contributing to the overall reduction in costs.

  4. Falling Installation Costs: The cost of installing solar power systems and battery storage has decreased as the industry has matured. Advances in installation techniques, increased competition among service providers, and streamlined permitting processes have all contributed to lower installation costs. This reduction in upfront expenses has made solar with battery storage more accessible and financially attractive to both residential and commercial consumers.

The economic benefits of solar power with battery storage becoming cheaper than conventional power are substantial. For consumers, this shift translates into lower electricity bills and reduced reliance on fossil fuels. Solar installations with battery storage allow households and businesses to generate their own electricity, store it for use during times of low sunlight, and even sell excess power back to the grid, reflecting how solar is reshaping electricity prices in Northern Europe as markets adapt. This self-sufficiency reduces exposure to fluctuating energy prices and enhances energy security.

For the broader energy market, the decreasing cost of solar power with battery storage challenges the dominance of conventional power sources. As renewable energy becomes more cost-effective, it creates pressure on traditional energy providers to adapt and invest in cleaner technologies, including responses to instances of negative electricity prices during renewable surpluses. This shift can accelerate the transition to a low-carbon energy system and contribute to the reduction of greenhouse gas emissions.

Germany’s achievement also has implications for global energy markets. The country’s success in making solar with battery storage cheaper than conventional power serves as a model for other nations pursuing similar energy transitions. As the cost of renewable technologies continues to decline, other countries can leverage these advancements to enhance their own energy systems, reduce carbon emissions, and achieve energy independence amid over 30% of global electricity now from renewables trends worldwide.

The impact of this development extends beyond economics. It represents a significant step forward in addressing climate change and promoting sustainability. By reducing the cost of renewable energy technologies, Germany is accelerating the shift towards a cleaner and more resilient energy system. This progress aligns with the country’s ambitious climate goals and reinforces its role as a leader in global efforts to combat climate change.

Looking ahead, several challenges remain. The integration of renewable energy into existing energy infrastructure, grid stability, and the management of energy storage are all areas that require continued innovation and investment. However, the decreasing cost of solar power with battery storage provides a strong foundation for addressing these challenges and advancing the transition to a sustainable energy future.

In conclusion, the fact that solar power with battery storage in Germany has become cheaper than conventional power is a groundbreaking development with wide-ranging implications. It underscores the technological advancements, economic benefits, and environmental gains associated with renewable energy technologies. As Germany continues to lead the way in clean energy adoption, this achievement highlights the potential for renewable energy to drive global change and reshape the future of energy.

 

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Ontario takes constitutional challenge of its global adjustment electricity fee to Supreme Court

Ontario Global Adjustment Supreme Court Appeal spotlights a constitutional challenge to Ontario's electricity charge, pitting National Steel Car against the IESO over regulatory charge vs tax, procurement policy, and renewable energy feed-in tariff contracts.

 

Key Points

An SCC leave bid on whether Ontario's global adjustment is a valid regulatory charge or an unconstitutional tax.

✅ Appeals Court revived case for full record review

✅ Dispute centers on regulatory charge vs tax classification

✅ FIT renewables contracts and procurement policies at issue

 

The Ontario government wants the Supreme Court of Canada to weigh in on a constitutional challenge being brought against a large provincial electricity charge, a case the province claims raises issues of national importance.

Ontario’s attorney general and its Independent Electricity System Operator applied for permission to appeal to the Supreme Court in January, according to the court’s website.

The province is trying to appeal a Court of Appeal decision reinstating the challenge from November that said a legal challenge by Hamilton, Ont.-based National Steel Car Ltd. should be sent back to a lower-court for a full hearing.

Court reinstates constitutional challenge to Ontario's hefty ‘global adjustment’ electricity charge
National Steel Car appealing decision in legal challenge of Ontario electricity fee it calls an unconstitutional tax
Doug Ford’s cancellation of green energy deals costs Ontario taxpayers $231 million
National Steel Car launched its legal challenge in 2017, with the maker of steel rail cars claiming the province’s global adjustment electricity charge was a tax intended to fund certain post-financial-crisis policy goals. Since it is allegedly a tax, and one not imposed by the provincial legislature, the company’s argument is the global adjustment is unconstitutional, and also in breach of a provincial law requiring a referendum for new taxes.

The global adjustment mostly bridges the gap between the province’s hourly electricity price and the price guaranteed under contracts and regulated rates with power generators. It also helps cover the cost of building new electricity infrastructure and providing conservation programs, but the fee now makes up most of the commodity portion of a household power bill in the province.

Ontario argued the global adjustment is a valid regulatory charge, and moved to have National Steel Car’s challenge thrown out. An Ontario Superior Court judge agreed, and dismissed the challenge in 2018, saying it was “plain, obvious and beyond doubt” it could not succeed. However, an appeals court judge disagreed, writing in a decision last November that the “merits should not have been determined on a pleadings motion and without the development of a full record.”

In filings made to the Supreme Court, both the IESO and Ontario’s Ministry of the Attorney General argued their proposed appeals raise “issues of national and public importance,” such as whether incorporating environmental and social policy goals in procurement could turn attempts by a public body to recover costs into an unconstitutional tax.

Most applications for leave to appeal to the Supreme Court are dismissed, but the Ontario government claims the court’s guidance is required in this case, as it could lead to questions being raised about other fees or charges, such as money raised from fishing licences.

“A failure to dispose of this claim at the pleadings stage may well result in such uncertainty that public authorities across Canada decline to incorporate the kind of environmental and social policy goals objected to in this case into the decisions they make about how to spend funds raised from regulatory charges,” the filing from the attorney general states. “Alternatively, it may induce governments not to engage in cost recovery in connection with publicly supplied goods and services, which can otherwise be sound public policy.”

The government has so far had to pay National Steel Car $250,000 in legal costs “to avoid responding to the credible claim that the Global Adjustment is an unconstitutional tax,” said David Trafford of Morse Shannon LLP, one of National Steel Car’s lawyers.

“The application for leave to appeal is the next step in this effort to avoid having to respond to the case on the merits,” Trafford added in an email.

The application for leave to appeal is the next step in this effort to avoid having to respond to the case on the merits

David Trafford of Morse Shannon, one of National Steel Car’s lawyers
 
National Steel Car has particularly taken issue with the part of the global adjustment that funded contracts for renewable energy under a “feed-in tariff” program, or FIT, which the company called “the main culprit behind the dramatic price increases for electricity.”

The FIT program has been ended, but contracts awarded under it remain in place and form part of the global adjustment. Ontario’s auditor general estimated in 2015 that electricity consumers would pay $9.2 billion more for renewable energy under the government’s guaranteed-price program, a figure that later featured in a dispute between the auditor and the electricity regulator that drew political attention.

National Steel Car said its global adjustment costs grew from $207,260 in 2008 to almost $3.4 million in 2016, reflecting how high electricity rates have pressured manufacturers, to almost $3.4 million in 2016. For 2018, there was approximately $11.2 billion in global adjustment collected, according to the IESO’s reporting.

A spokesperson for the IESO said it “is not in a position to comment” because the case is still before the courts.

Electricity prices have been an ongoing problem for both Ontario consumers and politicians, which the previous Liberal government tried to address in 2017 by, among other things, refinancing global-adjustment costs through the Fair Hydro Plan and other measures.

Since National Steel Car filed its lawsuits, though, the Liberals lost power in the province and were succeeded in 2018 by Premier Doug Ford and the Progressive Conservatives, who made changes to the previous government’s power policies, including legislation to lower electricity rates introduced early in their mandate.

The province has also pursued interprovincial power arrangements, including building on an electricity deal with Quebec as part of its broader energy strategy.

“The present government of Ontario does not agree with the former government’s electricity procurement program, which ceased awarding new contracts in 2016,” Ontario’s attorney general said in a filing. “However, Ontario submits that (the lower-court judge) was correct in holding that it does not give rise to a claim susceptible to being remedied by the courts.”

 

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