Cap-and-trade likely to raise power rate

By Farmington Daily Times


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A cap-and-trade plan approved by New Mexico regulators could mean a rate hike for residential and commercial customers of the Farmington Electric Utility System.

Electricity rates could increase 1 percent annually until 2020 for residential customers and 2 to 2.5 percent for industrial customers, said Mike Sims, generation manager for the electric utility. The average residential customer pays $70 each month for electricity.

"It's going to definitely increase our costs," Sims said.

The potential rate hike follows approval earlier this month by the state Environmental Improvement Board of the cap-and-trade program aimed at reducing greenhouse gas emissions blamed for global warming. Beginning in 2012, the program calls for 2 percent reductions in emissions by facilities that discharge more than 25,000 metric tons of greenhouse gases per year.

The regulations' effect on the utility "is something that we need to be thinking about and considering," Mayor Tommy Roberts said.

"I think ultimately any costs of compliance that are placed on the electric utility are going to be borne by the consumer," he said. "I think there certainly would be deliberations by the administration at the electric utility and City Council about how to mitigate those cost increases that might arise as a result of compliance with the regulations."

Farmington electric utility administrators such as Sims have testified against the proposed plans at recent environmental board hearings.

Regulations would require the utility to reduce output at its natural gas power plants, Sims said. The utility already buys power from out of state and the regulations would lead it to purchase additional power from coal-fired facilities because it's less expensive.

"We already burn clean natural gas in our power plants," he said. "If we go out on the open market and buy power from Arizona or Colorado or somewhere else, that's probably going to come from coal. It's having the exact opposite effect of reducing greenhouse gas: It's actually making more greenhouse gas."

The utility already buys wind power, but buying additional power generated by that kind of renewable energy will cost more money than buying from coal-fired facilities outside the state. The utility also would spend more to install solar power.

Though there's no fuel costs associated with using solar power, the only viable form of alternative energy in San Juan County, the utility still would need traditional fossil fuels as a supplement when the sun isn't shining, he said.

The city has tried to seek federal and state money to install solar power, "but we have just been totally ignored by both the state and the federal government," Sims said.

The cap-and-trade plan puts New Mexico at a "competitive disadvantage" compared with other states, Sims said.

The higher cost of electricity could send industrial customers such as natural gas processing facilities out of state where electricity costs less, Sims said.

Under the new regulations, facilities that exceed the cap could buy allowances or offsets as part of a regional trade mechanism. Facilities below the cap could profit by selling their unneeded emission allowances.

The plan could face challenges.

Gov.-elect Susana Martinez's administration is determining the most effective way to reverse the cap-and-trade plan, Martinez spokesman Danny Diaz said in a prepared e-mail statement.

"Governor-elect Martinez has been very clear that she opposes cap and trade as it would impose a new energy tax on New Mexico's families and small businesses," he said in the statement. "A cap-and-trade program would make the state less competitive and negatively impact job growth."

House Minority Leader Tom Taylor, R-Farmington, who opposes the cap-and-trade plan, called it "nothing but a process to make fossil fuels more expensive so that they're more competitive with alternative fuels."

"We're prepared to introduce legislation if necessary," he said.

City Manager Rob Mayes called Farmington's 45,000 utility customers "potential victims" of the plan at a July meeting on the regulations.

The regulations would spill over into all sectors of the local economy causing a "death spiral," where energy costs rise, jobs are cut and residents leave the area, he said.

New Mexico Environment Department Officials did not return phone messages seeking comment.

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Duke Energy Florida's smart-thinking grid improves response, power restoration for customers during Hurricane Ian

Self-healing grid technology automatically reroutes power to reduce outages, speed restoration, and boost reliability during storms like Hurricane Ian in Florida, leveraging smart grid sensors, automation, and grid hardening to support Duke Energy customers.

 

Key Points

Automated smart grid systems that detect faults and reroute power to minimize outages and accelerate restoration.

✅ Cuts outage duration via automated fault isolation

✅ Reroutes electricity with sensors and distribution automation

✅ Supports storm resilience and faster field crew restoration

 

As Hurricane Ian made its way across Florida, where restoring power in Florida can take weeks in hard-hit areas, Duke Energy's grid improvements were already on the job helping to combat power outages from the storm.

Smart, self-healing technology, similar to smart grid improvements elsewhere, helped to automatically restore more than 160,000 customer outages and saved nearly 3.3 million hours (nearly 200 million minutes) of total lost outage time.

"Hurricane Ian is a strong reminder of the importance of grid hardening and storm preparedness to help keep the lights on for our customers," said Melissa Seixas, Duke Energy Florida state president. "Self-healing technology is just one of many grid improvements that Duke Energy is making to avoid outages, restore service faster and increase reliability for our customers."

Much like the GPS in your car can identify an accident ahead and reroute you around the incident to keep you on your way, self-healing technology is like a GPS for the grid. The technology can quickly identify power outages and alternate energy pathways to restore service faster for customers when an outage occurs.

Additionally, self-healing technology provides a smart tool to assist crews in the field with power restoration after a major storm like Ian, helping reduce outage impacts and freeing up resources to help restore power in other locations.

Three days after Hurricane Ian exited the state, Duke Energy Florida wrapped up restoration of approximately 1 million customers. This progress enabled the company to deploy more than 550 Duke Energy workers from throughout Florida, as well as contractors from across the country, to help restore power for Lee County Electric Cooperative customers.

Crews worked in Cape Coral and Pine Island, one of the hardest-hit areas in the storm's path, as Canadian power crews have in past storms, and completed power restoration for the majority of customers on Pine Island within approximately one week after arriving to the island.

Prior to Ian in 2022, smart, self-healing technology had helped avoid nearly 250,000 extended customer outages in Florida, similar to Hydro One storm recovery efforts, saving around 285,000 hours (17.1 million minutes) of total lost outage time.

Duke Energy currently serves around 59% of customers in Florida with self-healing capabilities on its main power distribution lines, with a goal of serving around 80% over the next few years.

 

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Restrict price charged for gas and electricity - British MPs

UK Energy Price Cap aims to protect consumers on gas and electricity bills, tackling Big Six overcharging on default and standard variable tariffs, with Ofgem and MPs pushing urgent reforms to the broken market.

 

Key Points

A temporary absolute limit on default energy tariffs to shield consumers from overcharging on gas and electricity bills.

✅ Caps standard variable and default tariffs to protect loyalty.

✅ Targets Big Six pricing; oversight by Ofgem and BEIS MPs.

✅ Aims for winter protection while maintaining competition.

 

MPs are calling for a cap on the price of gas and electricity, with questions over the expected cost of a UK price cap amid fears consumers are being ripped off.

The Business, Energy and Industrial Strategy (BEIS) Select Committee says the Big Six energy companies have been overcharging for years.

MPs on the committee backed plans for a temporary absolute cap, noting debates over EU gas price cap strategies to fix what they called a "broken" energy market.

Labour's Rachel Reeves, who chairs the committee, said: "The energy market is broken. Energy is an essential good and yet millions of customers are ripped off for staying loyal to their energy provider.

"An energy price cap is now necessary and the Government must act urgently to ensure it is in place to protect customers next winter.

"The Big Six energy companies might whine and wail about the introduction of a price cap but they've been overcharging their customers on default and SVTs (standard variable tariffs) for years and their recent feeble efforts to move consumers off these tariffs has only served to highlight the need for this intervention."

The Committee also criticised Ofgem for failing to protect customers, especially the most vulnerable.

Draft legislation for an absolute cap on energy tariffs was published by the Government last year, and later developments like the Energy Security Bill have kept reform on the agenda.

But Business Secretary Greg Clark refused to guarantee that the flagship plans would be in place by next winter, despite warnings about high winter energy costs for households.

Committee members said there was a "clear lack of will" on the part of the Big Six to do what was necessary, including exploring decoupling gas and electricity prices, to deal with pricing problems.

A report from the committee found that customers are paying £1.4bn a year more than they should be under the current system.

Around 12 million households are stuck on poor-value tariffs, according to the report.

National assistance charity Citizens Advice said "loyal and vulnerable" customers had been "ripped off" for too long.

Chief executive Gillian Guy said: "An absolute cap, as recommended by the committee, is crucial to securing protection for the largest number of customers while continuing to provide competition in the market. This should apply to all default tariffs."

 

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Minnesota Power energizes Great Northern Transmission Line

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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U.S. Electricity Sales Projections Continue to Fall

US Electricity Demand Outlook examines EIA forecasts, GDP decoupling, energy efficiency, electrification, electric vehicles, grid load growth, and weather variability to frame long term demand trends and utility planning scenarios.

 

Key Points

An analysis of EIA projections showing demand decoupling from GDP, with EV adoption and efficiency shaping future grid load.

✅ EIA lowers load growth; demand decouples from GDP.

✅ Efficiency and sector shifts depress kWh sales.

✅ EV adoption could revive load and capacity needs.

 

Electricity producers and distributors are in an unusual business. The product they provide is available to all customers instantaneously, literally at the flip of a switch. But the large amount of equipment, both hardware and software to do this takes years to design, site and install.

From a long range planning perspective, just as important as a good engineering design is an accurate sales projections. For the US electric utility industry the most authoritative electricity demand projec-tions come from the Department of Energy’s Energy Information Administration (EIA). EIA's compre-hensive reports combine econometric analysis with judgment calls on social and economic trends like the adoption rate of new technologies that could affect future electricity demand, things like LED light-ing and battery powered cars, and the rise of renewables overtaking coal in generation.

Before the Great Recession almost a decade ago, the EIA projected annual growth in US electricity production at roughly 1.5 percent per year. After the Great Recession began, the EIA lowered its projections of US electricity consumption growth to below 1 percent. Actual growth has been closer to zero. While the EIA did not antici-pate the last recession or its aftermath, we cannot fault them on that.

After the event, though, the EIA also trimmed its estimates of economic growth. For the 2015-2030 period it now predicts 2.1 percent economic and 0.3 percent electricity growth, down from previously projections of 2.7 percent and 1.3 percent respectively. (See Figures 1 and 2.)



 

Table 1. EIA electric generation projections by year of forecast (kWh billions)

 


 

Table 2. EIA forecast of GDP by year of forecast (billion 2009 $)

Back in 2007, the EIA figured that every one percent increase in economic activity required a 0.48 percent in-crease in electric generation to support it. By 2017, the EIA calculated that a 1 percent growth in economic activity now only required a 0.14 percent increase in electric output. What accounts for such a downgrade or disconnect between electricity usage and economic growth? And what factors might turn the numbers 
around?

First, the US economy lost energy intensive heavy industry like smelting, steel mills and refineries; patterns in China's electricity sector highlight how industrial shifts can reshape power demand. A more service oriented economy (think health care) relies more heavily on the movement of data or information and uses far less power than a manufacturing-oriented economy.

A small volcano in Argentina is about to fuel the next tech boom – and a little known company is going to be right at the center. Early investors stand to gain incredible profits and you can too. Read the report.

Second, internet shopping has hurt so-called "brick and mortar" retailers. Despite the departure of heavy industry, in years past a burgeoning US commercial sector increased its demand and usage of electricity to offset the industrial decline. But not anymore. Energy efficiency measures as well as per-haps greater concern about global warming and greenhouse gas emissions and have cut into electricity sales. “Do more with less” has the right ring to it.

But there may be other components to the ongoing decline in electricity usage. Academic studies show that electricity usage seems to increase with income along an S curve, and flattens out after a certain income level. That is, if you earn $1 billion per year you do not (or cannot) use ten times a much electricity as someone earning only $100 million.

But people at typical, middle income levels increase or decrease electricity usage when incomes rise or fall. The squeeze on middle income families was discussed often in the late presidential campaign. In recent decades an increasing percentage of income has gone to a small percentage of the population at the top of the income scale. This trend probably accounts for some weakness in residential sales. This suggests that government policy addressing income inequality would also boost electricity sales.

Population growth affects demand for electricity as well as the economy as a whole. The EIA has made few changes in its projections, showing 0.7 percent per year population growth in 2015- 2030 in both the 2007 and 2017 forecasts. Recent studies, however, have shown a drop in the birth rate to record lows. More troubling, from a national health perspective is that the average age of death may have stopped rising. Those two factors point to lower population growth, especially if the government also restricts immi-gration. Thus, the US may be approaching a period of rather modest population growth.

All of the above factors point to minimal sales growth for electricity producers in the US--perhaps even lower than the seemingly conservative EIA estimates. But the cloud on the horizon has a silver lining in the shape of an electric car. Both the United Kingdom and France have set dates to end of production of automobiles with internal combustion engines. Several European car makers have declared that 20 percent of their output will be electric vehicles by the early 2020s. If we adopt automobiles powered by electricity and not gasoline or diesel, electricity sales would increase by one third. For the power indus-try, electric vehicles represent the next big thing.

We don’t pretend to know how electric car sales will progress. But assume vehicle turnover rates re-main at the current 7 percent per year and electric cars account for 5 percent of sales in the first five years (as op-posed to 1 percent now), 20 percent in the next five years and 50 percent in the third five year period. Wildly optimistic assumptions? Maybe. By 2030, electric cars would constitute 28 percent of the vehicle fleet. They would add about 10 percent to kilowatt hour sales by that date, assuming that battery efficiencies do not improved by then. Those added sales would require increased electric generation output, with low-emissions sources expected to cover almost all the growth globally. They would also raise long term growth rates for 2015-2030 from the present 0.3 percent to 1.0 percent. The slow upturn in demand should give the electric companies time to gear up so to speak.

In the meantime, weather will continue to play a big role in electricity consumption. Record heat-induced demand peaks are being set here in the US even as surging global demand puts power systems under strain worldwide.

Can we discern a pattern in weather conditions 15 years out? Maybe we can, but that is one topic we don’t expect a government agency to tackle in public right now. Meantime, weather will affect sales more than anything else and we cannot predict the weather. Or can we?

 

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Cheap material converts heat to electricity

Polycrystalline Tin Selenide Thermoelectrics enable waste heat recovery with ZT 3.1, matching single crystals while cutting costs, powering greener car engines, industrial furnaces, and thermoelectric generators via p-type and emerging n-type designs.

 

Key Points

Low-cost tin selenide devices that turn waste heat into power, achieving ZT 3.1 and enabling p-type and n-type modules.

✅ Oxygen removal prevents heat-leaking tin oxide grain skins.

✅ Polycrystalline ingots match single-crystal ZT 3.1 at lower cost.

✅ N-type tin selenide in development to pair with p-type.

 

So-called thermoelectric generators turn waste heat into electricity without producing greenhouse gas emissions, providing what seems like a free lunch. But despite helping power the Mars rovers, the high cost of these devices has prevented their widespread use. Now, researchers have found a way to make cheap thermoelectrics that work just as well as the pricey kind. The work could pave the way for a new generation of greener car engines, industrial furnaces, and other energy-generating devices.

“This looks like a very smart way to realize high performance,” says Li-Dong Zhao, a materials scientist at Beihang University who was not involved with the work. He notes there are still a few more steps to take before these materials can become high-performing thermoelectric generators. However, he says, “I think this will be used in the not too far future.”

Thermoelectrics are semiconductor devices placed on a hot surface, like a gas-powered car engine or on heat-generating electronics using thin-film converters to capture waste heat. That gives them a hot side and a cool side, away from the hot surface. They work by using the heat to push electrical charges from one to the other, a process of turning thermal energy into electricity that depends on the temperature gradient. If a device allows the hot side to warm up the cool side, the electricity stops flowing. A device’s success at preventing this, as well as its ability to conduct electrons, feeds into a score known as the figure of merit, or ZT.

 Over the past 2 decades, researchers have produced thermoelectric materials with increasing ZTs, while related advances such as nighttime solar cells have broadened thermal-to-electric concepts. The record came in 2014 when Mercouri Kanatzidis, a materials scientist at Northwestern University, and his colleagues came up with a single crystal of tin selenide with a ZT of 3.1. Yet the material was difficult to make and too fragile to work with. “For practical applications, it’s a non-starter,” Kanatzidis says.

So, his team decided to make its thermoelectrics from readily available tin and selenium powders, an approach that, once processed, makes grains of polycrystalline tin selenide instead of the single crystals. The polycrystalline grains are cheap and can be heated and compressed into ingots that are 3 to 5 centimeters long, which can be made into devices. The polycrystalline ingots are also more robust, and Kanatzidis expected the boundaries between the individual grains to slow the passage of heat. But when his team tested the polycrystalline materials, the thermal conductivity shot up, dropping their ZT scores as low as 1.2.

In 2016, the Northwestern team discovered the source of the problem: an ultrathin skin of tin oxide was forming around individual grains of polycrystalline tin selenide before they were pressed into ingots. And that skin acted as an express lane for the heat to travel from grain to grain through the material. So, in their current study, Kanatzidis and his colleagues came up with a way to use heat to drive any oxygen away from the powdery precursors, leaving pristine polycrystalline tin selenide, whereas other devices can generate electricity from thin air using ambient moisture.

The result, which they report today in Nature Materials, was not only a thermal conductivity below that of single-crystal tin selenide but also a ZT of 3.1, a development that echoes nighttime renewable devices showing electricity from cold conditions. “This opens the door for new devices to be built from polycrystalline tin selenide pellets and their applications to be explored,” Kanatzidis says.

Getting through that door will still take some time. The polycrystalline tin selenide the team makes is spiked with sodium atoms, creating what is known as a “p-type” material that conducts positive charges. To make working devices, researchers also need an “n-type” version to conduct negative charges.

Zhao’s team recently reported making an n-type single-crystal tin selenide by spiking it with bromine atoms. And Kanatzidis says his team is now working on making an n-type polycrystalline version. Once n-type and p-type tin selenide devices are paired, researchers should have a clear path to making a new generation of ultra-efficient thermoelectric generators. Those could be installed everywhere from automobile exhaust pipes to water heaters and industrial furnaces to scavenge energy from some of the 65% of fossil fuel energy that winds up as waste heat. 

 

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Court reinstates constitutional challenge to Ontario's hefty ‘global adjustment’ electricity charge

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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