Wind farm opponents turn up heat

Electric Vehicle Grid Integration aligns EV charging with grid capacity using smart charging, time-of-use rates, V2G, and demand response to reduce peak load, enable renewable energy, and optimize infrastructure planning.

Key Points

Aligning EV charging with grid needs via smart charging, TOU pricing, and V2G to balance load and support renewables.

✅ Time-of-use rates shift charging to off-peak hours

✅ Smart charging responds to real-time grid signals

✅ V2G turns fleets into distributed energy storage

When Seattle City Light unveiled five new electric vehicle charging stations last month in an industrial neighborhood south of downtown, the electric utility wasn't just offering a new spot for drivers to fuel up. It also was creating a way for the service to figure out how much more power it might need as electric vehicles catch on.

Seattle aims to have nearly a third of its residents driving electric vehicles by 2030. Washington state is No. 3 in the nation in per capita adoption of plug-in cars, behind California and Hawaii. But as Washington and other states urge their residents to buy electric vehicles — a crucial component of efforts to reduce carbon emissions — they also need to make sure the electric grid can handle it amid an accelerating EV boom nationwide.

The average electric vehicle requires 30 kilowatt hours to travel 100 miles — the same amount of electricity an average American home uses each day to run appliances, computers, lights and heating and air conditioning.

An Energy Department study found that increased electrification across all sectors of the economy could boost national consumption by as much as 38 percent by 2050, in large part because of electric vehicles. The environmental benefit of electric cars depends on the electricity being generated by renewables.

So far, states predict they will be able to sufficiently boost power production. But whether electric vehicles will become an asset or a liability to the grid largely depends on when drivers charge their cars.

Electricity demand fluctuates throughout the day; demand is higher during daytime hours, peaking in the early evening. If many people buy electric vehicles and mostly try to charge right when they get home from work — as many now do — the system could get overloaded or force utilities to deliver more electricity than they are capable of producing.

In California, for example, the worry is not so much with the state’s overall power capacity, but rather with the ability to quickly ramp up production and maintain grid stability when demand is high, said Sandy Louey, media relations manager for the California Energy Commission, in an email. About 150,000 electric vehicles were sold in California in 2018 — 8 percent of all state car sales.

The state projects that electric vehicles will consume 5.4 percent of the state’s electricity, or 17,000 gigawatt hours, by 2030.

Responding to the growth in electric vehicles will present unique challenges for each state. A team of researchers from the University of Texas at Austin estimated the amount of electricity that would be required if every car on the road transitioned to electric. Wyoming, for instance, would need to nudge up its electricity production only 17 percent, while Maine would have to produce 55 percent more.

Efficiency Maine, a state trust that oversees energy efficiency and greenhouse gas reduction programs, offers rebates for the purchase of electric vehicles, part of state efforts to incentivize growth.

“We’re certainly mindful that if those projections are right, then there will need to be more supply,” said Michael Stoddard, the program’s executive director. “But it’s going to unfold over a period of the next 20 years. If we put our minds to it and plan for it, then we should be able to do it.”

A November report sponsored by the Energy Department found that there has been almost no increase in electricity demand nationwide over the past 10 years, while capacity has grown an average of 12 gigawatts per year (1 GW can power more than a half-million homes). That means energy production could climb at a similar rate and still meet even the most aggressive increase in electric vehicles, with proper planning.

Charging during off-peak hours would allow not only many electric vehicles to be added to the roads but also utilities to get more use out of power plants that run only during the limited peak times through improved grid coordination and flexible demand.

Seattle City Light and others are looking at various ways to promote charging during ideal times. One method is time-of-day rates. For the Seattle chargers unveiled last month, users will pay 31 cents per kilowatt hour during peak daytime hours and 17 cents during off-peak hours. The utility will monitor use at its charging stations to see how effective the rates are at shifting charging to more favorable times.

The utility also is working on a pilot program to study charging behavior at home. And it is partnering with customers such as King County Metro that are electrifying large vehicle fleets, including growing electric truck fleets that will demand significant power, to make sure they have both the infrastructure and charging patterns to integrate smoothly.

“Traditionally, our utility approach is to meet the load demand,” said Emeka Anyanwu, energy innovation and resources officer for Seattle City Light.

Instead, he said, the utility is working with customers to see whether they can use existing assets without the need for additional investment.

Numerous analysts say that approach is crucial.

“Even if there’s an overall increase in consumption, it really matters when that occurs,” said Sally Talberg, head of the Michigan Public Service Commission, which oversees the state’s utilities. “The encouragement of off-peak charging and other technology solutions that could come to bear could offset any negative impact.”

One of those solutions is smart charging, a system in which vehicles are plugged in but don’t charge until they receive a signal from the grid that demand has tapered off a sufficient amount. This is often paired with a lower rate for drivers who use it. Several smart-charging pilot programs are being conducted by utilities, although they have not yet been phased in widely, amid ongoing debates over charging control among manufacturers and utilities.

In many places, the increased electricity demand from electric vehicles is seen as a benefit to utilities and rate payers. In the Northwest, electricity consumption has remained relatively stagnant since 2000, despite robust population growth and development. That’s because increasing urbanization and building efficiency have driven down electricity needs.

Electric vehicles could help push electricity consumption closer to utilities’ capacity for production. That would bring in revenue for the providers, which would help defray the costs for maintaining that capacity, lowering rates for all customers.

“Having EV loads is welcome, because it’s environmentally cleaner and helps sustain revenues for utilities,” said Massoud Jourabchi, manager of economic analysis for the Northwest Power and Conservation Council, which develops power plans for the region.

Colorado also is working to promote electric cars, with the aim of putting 940,000 on the road by 2030. The state has adopted California’s zero-emission vehicles mandate, which requires automakers to reach certain market goals for their sales of cars that don’t burn fossil fuels, while extending tax credits for the purchase of such cars, investing in charging stations and electrifying state fleets.

Auto dealers have opposed the mandate, saying it infringes on consumer freedom.

“We think it should be a customer choice, a consumer choice and not a government mandate,” said Tim Jackson, president and chief executive of the Colorado Automobile Dealers Association.

Jackson also said that there’s not yet a strong consumer appetite for electric vehicles, meaning that manufacturers that fail to sell the mandated number of emission-free vehicles would be required to purchase credits, which he thinks would drive up the price of their other models.

Republicans in the state have registered similar concerns, saying electric vehicle adoption should take place based on market forces, not state intervention.

Many in the utility community are excited about the potential for electric cars to serve as mobile energy storage for the grid. Vehicle-to-grid technology, known as V2G, would allow cars charging during the day to take on surplus power from renewable energy sources.

Then, during peak demand times, electric vehicles would return some of that stored energy to the grid. As demand tapers off in the evening, the cars would be able to recharge.

In practice, V2G technology could be especially beneficial if used by heavy-duty fleets, such as school buses or utility vehicles. Those fleets would have substantial battery storage and long periods where they are idle, such as evenings and weekends — and even longer periods such as summer and the holiday season when school is out. The batteries on a bus, Jourabchi said, could store as much as 10 times the electricity needed to power a home for a day.

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OEB Hydro One Rate Decision 2023-2027 sets approved transmission and distribution rates in Ontario, with a settlement reducing revenue requirement, modest bill impacts, higher productivity factors, inflation certainty, DVA credits, and First Nations participation measures.

Key Points

OEB-approved Hydro One 2023-2027 transmission and distribution rates settlement, lowering costs and limiting bill impacts.

✅ $482.7M revenue reductions vs. original proposal

✅ Avg bill impact: +$0.69 trans., +$2.43 distr. per month

✅ Faster DVA refunds; productivity and efficiency incentives

The Ontario Energy Board (OEB) issued its Decision and Order on an application filed by Hydro One Networks Inc. (Hydro One) on August 5, 2021 seeking approval for changes to the rates it charges for electricity transmission and distribution, beginning January 1, 2023 and for each subsequent year through to December 31, 2027. 

The proceeding resulted in the filing of a settlement proposal that the OEB has now approved after concluding that it is in the public interest. 

The negotiated reductions in Hydro One's transmission and distribution revenue requirements over the 2023 to 2027 period total $482.7 million compared to the requests made by Hydro One in its application.

The OEB found that the reductions in Hydro One's proposed capital expenditure and operating, maintenance and administration costs were reasonable, and should not compromise the safety and reliability of Hydro One's transmission and distribution systems. It also concluded that the estimated bill impacts for both transmission and distribution customers are reasonable, and that the January 1, 2023 implementation and effective date of the new rates is appropriate.

In the broader Canadian context, pressures on utility finances at other companies, such as Manitoba Hydro's debt provide additional background for stakeholders.

Bill Impacts

This proceeding related to both transmission and distribution operations.

Transmission

The new transmission revenue requirement will affect Ontario electricity consumers across the province because it will be incorporated into updated transmission rates, which are paid by electricity distributors and other large consumers connected directly to the transmission system, and distributors then pass this cost on to their customers.

As a result of the settlement approved on the transmission portion of the application, it is estimated that for a typical Hydro One residential customer with a monthly consumption of 750 kWh, the total bill impact averaged over the 2023-2027 period will be an increase of $0.69 per month or 0.5%, which follows the 2021 electricity rate reductions that affected many businesses.

Distribution

The new OEB-approved distribution rates will affect Hydro One's distribution customers, including areas served through acquisitions such as the Peterborough Distribution sale which expanded its customer base.

As a result of the settlement reached on the distribution portion of the application, it is estimated that for a typical residential distribution customer of Hydro One with a monthly consumption of 750 kWh, the total bill impact averaged over the 2023-2027 period will be an increase of $2.43 per month or 1.5%.
This proceeding included 24 approved intervenors representing a wide variety of customer classes and other interests. Representatives of 18 of those intervenors participated in the settlement conference. Having this diversity of perspective enriches the already thorough examination of evidence and argument that the OEB routinely undertakes when considering an application.

Other features of the settlement proposal include:

• A commitment by Hydro One to include, in future operational and capital investment plans, a discussion of how the proposed spending will directly support the achievement of Hydro One's climate change policy.
• Eliminating further updates to reflect changes to inflation in 2022 and 2023 as originally proposed, to provide Hydro One's customers with greater certainty as to the potential impacts of inflation on their bills.
• Increases in the productivity factors and supplemental stretch factors for both the distribution and transmission business segments which will provide Hydro One with additional incentives to achieve greater efficiencies during the 2023 to 2027 period.
• Undertaking certain measures to seek economic participation or equity investment opportunities from First Nations.
• Disposition of net credit balances in deferral and variance accounts (DVAs) owed to customers will be returned over a shorter period of time:
• Transmission DVA – $22.5M over a one-year period in 2023 (versus five years)
• Distribution DVA – $85.9M over a three-year period – 2023-2025 (versus five years)
• Undertaking certain measures to continue examining cost-effective transmission and distribution line losses
• In the decision, the OEB acknowledged the efforts involved by parties to participate in this entire proceeding, including the settlement conference, considering the number of participants, the complexity of the issues, and the challenging logistics of a "virtual" proceeding. The OEB commended the parties and OEB staff for achieving a comprehensive settlement on all issues.

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DOE Office of Fossil Energy safeguards energy security via the Strategic Petroleum Reserve, domestic critical minerals from coal byproducts, and carbon capture to curb CO2, strengthening resiliency amid shocks and supporting U.S. manufacturing and defense.

Key Points

A DOE program advancing energy security through SPR stewardship, critical minerals R&D, and carbon capture.

✅ Manages the Strategic Petroleum Reserve for emergency crude supply

✅ Develops domestic critical minerals from coal and mining byproducts

✅ Deploys carbon capture, utilization, and storage to cut CO2

The global economy has just experienced a period of unique transformation because of COVID-19. The fact that remains constant in this new economic landscape is that our society relies on energy; it’s an integral part of our day-to-day lives, even as U.S. energy use has evolved over time. According to the U.S. Energy Information Administration, approximately 80 percent of energy consumption in the United States comes from fossil fuels, so having access to a secure and reliable supply of those energy resources is more important than ever for national energy security considerations today. Below are three examples that highlight how our work at the U.S. Department of Energy’s Office of Fossil Energy (FE) helps ensure the Nation’s energy security and resiliency.

(1) Open crude oil reserves to respond to crises

FE has overall program responsibility for carrying out the mission of the Strategic Petroleum Reserve (SPR), the world’s largest supply of emergency crude oil. These federally-owned stocks are stored in massive underground salt caverns along the coastline of the Gulf of Mexico. The SPR is a powerful tool U.S. leaders use to respond to a wide range of crises, including energy crisis impacts on electricity and fuels, involving crude oil disruption or demand loss.  When the COVID-19 pandemic hit, the oil markets crashed and crude oil demand dropped drastically across the world. U.S. oil producers turned to the SPR to store their oil while broader energy dominance constraints were becoming evident in practice. This helped alleviate the pressure on producers to shut in oil production and proved to be a critical asset for American energy and national security.

(2) Use the Nation’s abundant coal reserves to produce valuable materials

Critical materials, including rare earth elements, are a group of chemical elements and materials with unique properties that support manufacturing of most modern technologies. They are essential components for critical defense and homeland security applications, green energy technologies, hybrid and electric vehicles, and high-value electronics. While these materials are not rare, they are hard to separate and expensive to extract. The United States relies heavily on imports from China. To reduce U.S. dependence on foreign sources, FE has a research and development program aimed at producing a domestic supply of critical materials from the Nation’s abundant coal resources and associated byproducts from legacy and current mining operations. Many of the technologies being developed can also be used to separate critical minerals from other mining materials and byproducts. Tapping into these resources has the potential to create new industries and revitalize coal communities and the workforce in coal-producing regions.

(3) Decrease carbon emissions for a cleaner energy future

FE is committed to balancing the Nation’s energy use with the need to protect the environment, and has a comprehensive portfolio of technological solutions that help keep carbon dioxide (CO2) emissions out of the atmosphere. For example, amid high natural gas prices that reinforce the case for clean electricity, the Department has been investing in carbon capture, utilization, and storage technologies for over a decade. These technologies capture CO2 emissions from various sources, including coal-fired power plants and manufacturing plants, before they enter the atmosphere. Several of these cutting-edge technologies have been deployed at major demonstration sites, supported by clean energy funding that aims to benefit millions. Three of these projects—Petra Nova, Archer Daniels Midland, and Air Products & Chemicals—have captured and injected over 10.8 million metric tons of CO2. The success of these projects is paving the way toward a cleaner and more sustainable American energy future.

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Alberta Energy Price Spike signals rising electricity and natural gas costs; lock in fixed rates as storage is low, demand surged in heat waves, and exports rose after Hurricane Ida, driving volatility and higher futures.

Key Points

An anticipated surge in Alberta electricity and natural gas prices, urging consumers to lock fixed rates to reduce risk.

✅ Fixed-rate gas near $3.79/GJ vs futures approaching $6/GJ

✅ Low storage after heat waves and U.S. export demand

✅ Switch providers or plans; UCA comparison tool helps

Energy economists are warning Albertans to review their gas and electricity bills and lock in a fixed rate if they haven't already done so because prices are expected to spike in the coming months.

"I have been urging anyone who will listen that every single Albertan should be on a fixed rate for this winter," University of Calgary energy economist Blake Shaffer said Monday. "And I say that for both natural gas and power."

Shaffer said people will rightly point out energy costs make up only roughly a third of their monthly bill. The rest of the costs for such things as delivery fees can't be avoided. 

But, he said, "there is an energy component and it is meaningful in terms of savings." 

For example, Shaffer said, when he checked last week, a consumer could sign a fixed rate gas contract for $3.79 a gigajoule and the current future price for gas is nearly $6 a gigajoule.

A typical household would use about 15 gigajoules a month, he said, so a consumer could save $30 to $45 a month for five months. For people on lower or fixed incomes, "that is a pretty significant saving."

Comparable savings can also be achieved with electricity, he said.

Shaffer said research has shown households that are least able to afford sharp increases in gas and electrical bills are less likely to pick up the phone and call their energy provider and either negotiate a lower fixed rate contract or jump to a new provider. 

But, he said, it is definitely worth the time and effort, particularly as Calgary electricity bills are rising across the city. Alberta's Utilities Consumer Advocate has a handy cost comparison tool on its website that allows consumers to conduct regional price comparisons that will assist in making an informed decision.

"Folks should know that for most providers you can change back to a floating rate any time you want," Shaffer said.

Summer heat wave affected natural gas supply
Why are energy prices set to spike in Alberta, which is a major producer of natural gas?

Sophie Simmonds, managing director of the brokerage firm Anova Energy, said Alberta is now generating the majority of its power using natural gas. 

The heat wave in June and July created record electrical demand. Normally, natural gas is stored in the summer for use in the winter. But this year, there was much greater gas consumption in the summer and so less was stored. 

Alberta also set a new electricity usage record during a recent deep freeze, underscoring system stress.

On top of that, Alberta has been exporting much more natural gas to the United States since August and September because Hurricane Ida knocked out natural gas assets in the Gulf of Mexico.

"So what this means is we are actually going into winter with very, very low storage numbers," Simmonds said.

Why natural gas prices have surged to some of their highest levels in years
Canadians to remain among world's top energy users even as government strives for net zero
Consultant Matt Ayres said he believes rising electricity prices also are being affected by Alberta's transition from carbon-intensive fuel sources to less carbon-intensive fuel sources.

"That transition is not always smooth," said Ayres, who is also an adjunct assistant professor at the University of Calgary's School of Public Policy. 

"It is my view that at least some of the price increases we are seeing on electricity comes down to difficulties imposed by that transition and also by a reduction in competition amongst generators, as well as power market overhaul debates shaping policy." 

In 2019, under the leadership of Premier Jason Kenney the UCP government removed the former NDP government's rate cap on electricity at the time.

The NDP has called for the government to reinstate the cap but the UCP government has dismissed that as unsustainable and unrealistic.

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Hydro One-Avista acquisition sparks Idaho regulatory scrutiny over foreign ownership, utility merger impacts, rate credits, and public interest, as FERC and FCC approvals advance and consumers question governance, service reliability, and long-term rate stability.

Key Points

A cross-border utility merger proposal with Idaho oversight, weighing foreign ownership, rates, and reliability.

✅ Idaho PUC review centers on public interest and rate impacts.

✅ FERC and FCC approvals granted; state decisions pending.

✅ Avista to retain name and Spokane HQ post-transaction.

“Please don’t sell us to Canada.” That refrain, or versions of it, is on full display at the Idaho Public Utilities Commission, which admittedly isn’t everyone’s go-to entertainment site. But it is vitally important for this reason: the first big test of the expansionist dreams of the politically tempest-tossed Hydro One, facing political risk as it navigates markets, rests with its successful acquisition of Avista Corp., provider of electric generation, transmission and distribution to retail customers spread from Oregon to Washington to Montana and Idaho and up into Alaska.

The proposed deal — announced last summer, but not yet consummated — marks the first time the publicly traded Hydro One has embarked upon the acquisition of a U.S. utility. And if Idahoans spread from Boise to Coeur d’Alene to Hayden are any indication, they are not at all happy with the idea of foreign ownership. Here’s Lisa McCumber, resident of Hayden: “I am stating my objection to this outrageous merger/takeover. Hydro One charges excessive fees to the people it provides for, this is a monopoly beyond even what we are used to. I, in no way, support or as a customer, agree with the merger of this multi-billion-dollar, foreign, company.”

#google#

Or here’s Debra Bentley from Coeur d’Alene: “Fewer things have more control over a nation than its power source. In an age where we are desperately trying to bring American companies back home and ‘Buy American’ is somewhat of a battle cry, how is it even possible that it would or could be allowed for this vital necessity … to be controlled by a foreign entity?”

Or here’s Spencer Hutchings from Sagle: “This is an incredibly bad idea.”

There are legion of similar emails from concerned consumers, and the Maine transmission line debate offers a parallel in public opposition.

The rationale for the deal? Last fall Hydro One CEO Mayo Schmidt testified before the Idaho commission, which regulates all gas, water and electricity providers in the state. “Hydro One is a pure-play transmission and distribution utility located solely within Ontario,” Schmidt told commissioners. “It seeks diversification both in terms of jurisdictions and service areas. The proposed Transaction with Avista achieves both goals by expanding Hydro One into the U.S. Pacific Northwest and expanding its operations to natural gas distribution and electric generation. The proposed Transaction with Avista will deliver the increased scale and benefits that come from being a larger player in the utility industry.”

Translation: now that it is a publicly traded entity, Hydro needs to demonstrate a growth curve to the investment community. The value to you and me? Arguable. This is a transaction framed as a benefit to shareholders, one that won’t cause harm to customers. Premier Kathleen Wynne is feeling the pain of selling off control of an essential asset. In his testimony to the commission, Schmidt noted that the Avista acquisition would take the province’s Hydro ownership to under 45 per cent. (The Electricity Act technically prevents the sale of shares that would take the government’s ownership position below 40 per cent, though acquisitions appear to allow further dilution. )

Stratospheric compensation, bench-marked against other chief executives who enjoy similarly outsized rewards, is part of this game. I have written about Schmidt’s unconscionable compensation before, but that was when he was making a relatively modest $4 million. Relative, that is, to his $6.2 million in 2017 compensation ($3.5 million of that is in the form of share based awards).

Should the acquisition of Avista be approved, amendments to the CIC, or change in control agreements, for certain named Avista executive officers will allow them to voluntarily terminate their employment without “good reason.” That includes Scott Morris, the company’s CEO, who will exit with severance of $6.9 million (U.S.) and additional benefits taking the total to a potential $15.7 million.

Back to the deal: cost savings over time could be achieved, Schmidt continued in his testimony, though he was unable to quantify those. The integration between the two companies, he promised, will be “seamless.” Retail customers in Idaho, Washington and Oregon would benefit from proposed “Rate Credits” equalling an estimated $15.8 million across five years, even as Hydro One seeks to redesign its bills in Ontario. Idahoans would see a one per cent rate decrease through that period.

While Avista would become a wholly owned Hydro subsidiary, it would retain its name, and its headquarters in Spokane, Wash. In the case of Idaho specifically, a proposed settlement in April, subject to final approval by the commission, stipulates agreements on everything from staffing to governance to community contributions.

Will that meet the test? It’s up to the commission to determine whether the proposed transaction will keep a lid on rates and is “consistent with the public interest.” Hydro One is hoping for a decision from regulatory agencies in all the named states by mid-August and a closing date by the end of September, though U.S. regulators can ultimately determine the fate of such deals. The Federal Energy Regulatory Commission granted its approval in January, followed last week by the Federal Communications Commission. Washington and Alaska have reached settlement agreements. These too are pending final state approvals.

The $5.3-billion deal (or $6.7 billion Canadian) is subject to ongoing hearings in Idaho, and elsewhere rate hikes face opposition as hearings begin. Members of the public are encouraged to have their say. The public comment deadline is June 27.

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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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