Darlington has edge for new nuclear plant

By Toronto Star


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The limited electricity transmission capacity from Lake Huron to the Toronto area is giving the Durham Region community of Darlington the edge over Kincardine when it comes to selecting a host community for a new Ontario nuclear plant, Energy Minister Gerry Phillips said.

The Liberal government plans to build Ontario's first new nuclear reactors in 15 years at the same sites as existing nuclear stations as part of a 20-year, $60-billion electricity supply plan. The two new reactors are expected to cost about $26 billion in total.

The province will decide by the end of June whether the first reactor will be built at Darlington and run by government-owned Ontario Power Generation, or at the privately owned Bruce Nuclear Plant near Kincardine.

Phillips said Hydro One, the government-owned transmission utility, is currently before the Ontario Energy Board seeking to enhance the Bruce-to-Milton transmission line.

"That (line) is one of the major constraints," Phillips said. "So that is a challenge, finding transmission out of Bruce. There's a certain advantage Darlington has there."

Phillips said the lack of transmission capacity from Lake Huron is also holding up about 1,000 megawatts of wind-power projects planned for southwestern Ontario.

"There's a bonus to that transmission line proceeding, and that is it'll give us a lot more clean, renewable energy," he said.

The limited transmission capacity also means OPG has a slight edge over Bruce Power when it comes to being the operator of the new station, but the New Democrats said today it doesn't really matter whether the nuclear plants are publicly or privately operated.

"From my perspective, it's six of one, half-dozen of the other," said NDP Leader Howard Hampton. "I think the real problem is it should be a public process, and it won't be. People know how much it's going to cost."

The Conservatives said they would prefer to see the private operators of the Bruce power station given the chance to operate a new reactor instead of sticking with OPG, which they noted has a history of cost overruns and delays on nuclear projects.

"I think having both sides as part of the equation and making the determination on which is best going to perform for the future security needs of the province (makes sense)," said Opposition Leader Bob Runciman. "My own bias is on the private side of it. I think they've done an outstanding job in Bruce."

After Phillips announces his site location and operator for the new nuclear reactor later this month, he will wait until the end of the year before choosing from three competing companies: Atomic Energy of Canada Ltd., American giant Westinghouse and French company AREVA NP.

As more countries consider building new nuclear plants for the first time in decades, construction and labour costs are being driven up around the world.

But Phillips said he isn't worried about rising construction costs, adding he is confident Ontario can negotiate a deal to protect consumers from cost overruns.

"I think we've got a good process for making sure we get the best possible deal," he said. "I think securing an Ontario plant is something any one of the (three competitors) would very much like, and I think that will help put a little downward pressure on the price."

But Hampton warned the public not to be fooled again by promises of on-budget and on-time nuclear projects, saying they always come in "way over" budget.

"Darlington was supposed to cost $4 billion, (but) when it was finally finished it cost almost $15 billion," Hampton said. "Most of our $20-billion hydro debt in Ontario is the result of nuclear plants that were built in the 1960s, '70s and '80s, and haven't been paid for yet."

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Ireland: We are the global leaders in taking renewables onto the grid

Ireland 65% Renewable Grid Capability showcases world leading integration of intermittent wind and solar, smart grid flexibility, EU-SysFlex learnings, and the Celtic Interconnector to enhance stability, exports, and energy security across the European grid.

 

Key Points

Ireland can run its isolated power system with 65% variable wind and solar, informing EU grid integration and scaling.

✅ 65% system non-synchronous penetration on an isolated grid

✅ EU-SysFlex roadmap supports large-scale renewables integration

✅ Celtic Interconnector adds 700MW capacity and stability

 

Ireland is now able to cope with 65% of its electricity coming from intermittent electricity sources like wind and solar, as highlighted by Ireland's green electricity outlook today – an expertise Energy Minister Denish Naugthen believes can be replicated on a larger scale as Europe moves towards 50% renewable power by 2030.

Denis Naughten is an Irish politician who serves as Minister for Communications, Climate Action and Environment since May 2016.

Naughten spoke to editor Frédéric Simon on the sidelines of a EURACTIV event in the European  Parliament to mark the launch of EU-SysFlex, an EU-funded project, which aims to create a long-term roadmap for the large-scale integration of renewable energy on electricity grids.

What is the reason for your presence in Brussels today and the main message that you came to deliver?

The reason that I’m here today is that we’re going to share the knowledge what we have developed in Ireland, right across Europe. We are now the global leaders in taking variable renewable electricity like wind and solar onto our grid.

We can take a 65% loading on to the grid today – there is no other isolated grid in the world that can do that. We’re going to get up to 75% by 2020. This is a huge technical challenge for any electricity grid and it’s going to be a problem that is going to grow and grow across Europe, even as Europe's electricity demand rises in the coming years, as we move to 50% renewables onto our grid by 2030.

And our knowledge and understanding can be used to help solve the problems right across Europe. And the sharing of technology can mean that we can make our own grid in Ireland far more robust.

What is the contribution of Ireland when it comes to the debate which is currently taking place in Europe about raising the ambition on renewable energy and make the grid fit for that? What are the main milestones that you see looking ahead for Europe and Ireland?

It is a challenge for Europe to do this, but we’ve done it Ireland. We have been able to take a 65% loading of wind power on our grid, with Irish wind generation hitting records recently, so we can replicate that across Europe.

Yes it is about a much larger scale and yes, we need to work collaboratively together, reflecting common goals for electricity networks worldwide – not just in dealing with the technical solutions that we have in Ireland at the fore of this technology, but also replicating them on a larger scale across Europe.

And I believe we can do that, I believe we can use the learnings that we have developed in Ireland and amplify those to deal with far bigger challenges that we have on the European electricity grid.

Trialogue talks have started at European level about the reform of the electricity market. There is talk about decentralised energy generation coming from small-scale producers. Do you see support from all the member states in doing that? And how do you see the challenges ahead on a political level to get everyone on board on such a vision?

I don’t believe there is a political problem here in relation to this. I think there is unanimity across Europe that we need to support consumers in producing electricity for self-consumption and to be able to either store or put that back into the grid.

The issues here are more technical in nature. And how you support a grid to do that. And who actually pays for that. Ireland is very much a microcosm of the pan-European grid and how we can deal with those challenges.

What we’re doing at the moment in Ireland is looking at a pilot scheme to support consumers to generate their own electricity to meet their own needs and to be able to store that on site.

I think in the years to come a lot of that will be actually done with more battery storage in the form of electric vehicles and people would be able to transport that energy from one location to another as and when it’s needed. In the short term, we’re looking at some novel solutions to support consumers producing their own electricity and meeting their own needs.

So I think this is complex from a technical point of view at the moment, I don’t think there is an unwillingness from a political perspective to do it, and I think working with this particular initiative and other initiatives across Europe, we can crack those technical challenges.

To conclude, last year, the European Commission allocated €4 million to a project to link up the Irish electricity grid to France. How is that going to benefit Ireland? And is that related to worries that you may have over Brexit?

The plan, which is called the Celtic Interconnector, is to link France with the Irish electricity grid. It’s going to have a capacity of about 700MW. It allows us to provide additional stability on our grid and enables us to take more renewables onto the grid. It also allows us to export renewable electricity onto the main European grid as well, and provide stability to the French network.

So it’s a benefit to both individual networks as well as allowing far more renewables onto the grid. We’ve been working quite closely with RTE in France and with both regulators. We’re hoping to get the support of the European Commission to move it now from the design stage onto the construction stage. And I understand discussions are ongoing with the Commission at present with regard to that.

And that is going to diversify potential sources of electricity coming in for Ireland in a situation which is pretty uncertain because of Brexit, correct?

Well, I don’t think there is uncertainty because of Brexit in that we have agreements with the United Kingdom, we’re still going to be part of the broader energy family in relation to back-and-forth supply across the Irish Sea, with grid reinforcements in Scotland underscoring reliability needs.  But I think it is important in terms of meeting the 15% interconnectivity that the EU has set in relation to electricity.

And also in relation of providing us with an alternative support in relation to electricity supply outside of Britain. Because Britain is now leaving the European Union and I think this is important from a political point of view, and from a broader energy security point of view. But we don’t see it in the short term as causing threats in relation to security of supply.

 

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Trump unveils landmark rewrite of NEPA rules

Trump NEPA Overhaul streamlines environmental reviews, tightening 'reasonably foreseeable' effects, curbing cumulative impacts, codifying CEQ greenhouse gas guidance, expediting permits for pipelines, highways, and wind projects with two-year EIS limits and one lead agency.

 

Key Points

Trump NEPA Overhaul streamlines reviews, trims cumulative impacts, keeps GHG analysis for foreseeable effects.

✅ Limits cumulative and indirect impacts; emphasizes foreseeable effects

✅ Caps EIS at two years; one-year environmental assessments

✅ One lead agency; narrower NEPA triggers for low federal funding

 

President Trump has announced plans for overhauling rules surrounding the nation’s bedrock environmental law, and administration officials refuted claims they were downplaying greenhouse gas emissions, as the administration also pursues replacement power plant rules in related areas.

The president, during remarks at the White House with supporters and Cabinet officials, said he wanted to fix the nation’s “regulatory nightmare” through new guidelines for implementing the National Environmental Policy Act.

“America is a nation of builders,” he said. But it takes too long to get a permit, and that’s “big government at its absolute worst.”

The president said, “We’re maintaining America’s world-class standards of environmental protection.” He added, “We’re going to have very strong regulation, but it’s going to go very quickly.”

NEPA says the federal government must consider alternatives to major projects like oil pipelines, highways and bridges that could inflict environmental harm. The law also gives communities input.

The Council on Environmental Quality has not updated the implementing rules in decades, and both energy companies and environmentalists want them reworked, even as some industry groups warned against rushing electricity pricing changes under related policy debates.

But they patently disagree on how to change the rules.

A central fight surrounds whether the government considers climate change concerns when analyzing a project.

Environmentalists want agencies to look more at “cumulative” or “indirect” impacts of projects. The Trump plan shuts the door on that.

“Analysis of cumulative effects is not required,” the plan states, adding that CEQ “proposes to make amendments to simplify the definition of effects by consolidating the definition into a single paragraph.”

CEQ Chairwoman Mary Neumayr told reporters during a conference call that definitions in the current rules were the “subject of confusion.”

The proposed changes, she said, do in fact eliminate the terms “cumulative” and “indirect,” in favor of more simplified language.

Effects must be “reasonably foreseeable” and require a “reasonably close causal relationship” to the proposed action, she added. “It does not exclude considerations of greenhouse gas emissions,” she said, pointing to parallel EPA proposals for new pollution limits on coal and gas power plants as context.

Last summer, CEQ issued proposed guidance on greenhouse gas reviews in project permitting. The nonbinding document gave agencies broad authority when considering emissions (Greenwire, June 21, 2019).

Environmentalists scoffed and said the proposed guidance failed to incorporate the latest climate science and look at how projects could be more resilient in the face of severe weather and sea-level rise.

The proposed NEPA rules released today include provisions to codify the proposed guidance, which has also been years in the making.

Other provisions

Senior administration officials sought to downplay the effect of the proposed NEPA rules by noting the underlying statute will remain the same.

“If it required NEPA yesterday, it will require NEPA under the new proposal,” an official said when asked how the changes might apply to pipelines like Keystone XL.

And yet the proposed changes could alter the “threshold consideration” that triggers NEPA review. The proposal would exclude projects with minimal federal funding or “participation.”

The Trump plan also proposes restricting an environmental impact statement to two years and an environmental assessment to one.

Neumayr said the average EIS takes 4 ½ years and in some cases longer. Democrats have disputed those timelines. Further, just 1% of all federal actions require an EIS, they argue.

The proposal would also require one agency to take the lead on permitting and require agency officials to “timely resolve disputes that may result in delays.”

In general, the plan calls for environmental documents to be “concise” and “serve their purpose of informing decision makers.”

Both Interior Secretary David Bernhardt and EPA Administrator Andrew Wheeler, whose agency moved to rewrite coal power plant wastewater limits in separate actions, were at the White House for the announcement.

Reaction

An onslaught of critics have said changes to NEPA rules could be the administration’s most far-reaching environmental rollback, and state attorneys general have mounted a legal challenge to related energy actions as well.

The League of Conservation Voters declared the administration was again trying to “sell out the health and well-being of our children and families to corporate polluters.”

On Capitol Hill, House Speaker Nancy Pelosi (D-Calif.) said during a news conference the administration would “no longer enforce NEPA.”

“This means more polluters will be right there, next to the water supply of our children,” she said. “That’s a public health issue. Their denial of climate, they are going to not use the climate issue as anything to do with environmental decisionmaking.”

Sen. Sheldon Whitehouse (D-R.I.) echoed the sentiment, saying he didn’t need any more proof that the fossil fuel industry had hardwired the Trump administration “but we got it anyway.”

Energy companies, including firms focused on renewable energy development, are welcoming the “clarity” of the proposed NEPA rules, even as debates continue over a clean electricity standard in federal climate policy.

“The lack of clarity in the existing NEPA regulations has led courts to fill the gaps, spurring costly litigation across the sector, and has led to unclear expectations, which has caused significant and unnecessary delays for infrastructure projects across the country,” the Interstate Natural Gas Association of America said in a statement.

Last night, the American Wind Energy Association said NEPA rules have caused “unreasonable and unnecessary costs and long project delays” for land-based and offshore wind energy and transmission development.

Trump has famously attacked the wind energy industry for decades, dating back to his opposition to a Scottish wind turbine near his golf course.

The president today said he won’t stop until “gleaming new infrastructure has made America the envy of the world again.”

When asked whether he thought climate change was a “hoax,” as he once tweeted, he said no. “Nothing’s a hoax about that,” he said.

The president said there’s a book about climate he’s planning to read. He said, “It’s a very serious subject.”

 

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Alberta breaks summer electricity record, still far short of capacity

Alberta Electricity Peak Demand surged to 10,638 MW, as AESO reported record summer load from air conditioning, Stampede visitors, and heatwave conditions, with ample generation capacity, stable grid reliability, and conservation urged during 5-7 p.m.

 

Key Points

It is the record summer power load in Alberta, reaching 10,638 MW, with evening conservation urged by AESO.

✅ Record 10,638 MW at 4 pm; likely to rise this week

✅ Drivers: A/C use, heat, Stampede visitors

✅ AESO reports ample capacity; conserve 5-7 pm

 

Consumer use hit 10,638 MW, blowing past a previous high of 10,520 MW set on July 9, 2015, said the Alberta Electric System Operator (AESO).

“We hit a new summer peak and it’s likely we’ll hit higher peaks as the week progresses,” said AESO spokeswoman Tara De Weerd.

“We continue to have ample supply, and as Alberta's electricity future trends toward more wind, our generators are very confident there aren’t any issues.”

That new peak was set at 4 p.m. but De Weerd said it was likely to be exceeded later in the day.

Heightened air conditioner use is normally a major driver of such peak electricity consumption, said De Weerd.

She also said Calgary’s big annual bash is also likely playing a role.

“It’s the beginning of Stampede, you have an influx of visitors so you’ll have more people using electricity,” she said.

Alberta’s generation capacity is 16,420 MW, said the AESO, with wind power increasingly outpacing coal in the province today.

There are no plans, she said, for any of the province’s electricity generators to shut down any of their plants for maintenance or other purposes in the near future as demand rises.

The summer peak is considerably smaller than that reached in the depths of Alberta’s winter.

Alberta’s winter peak usage was recorded last year and was 11,458 MW.

Though the province’s capacity isn’t being strained by the summer heat, De Weerd still encouraged consumers to go easy during the peak use time of the day, between 5 and 7 p.m.

“We don’t have to be running all of our appliances at once,” she said.

Alberta exports an insignificant amount of electricity to Montana, B.C. and Saskatchewan, where demand recently set a new record.

The weather forecast calls for temperatures to soar above 30C through the weekend.

In northern Canada, Yukon electricity demand recently hit a record high, underscoring how extreme temperatures can strain systems.

 

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Lack of energy: Ottawa’s electricity consumption drops 10 per cent during pandemic

Ottawa Electricity Consumption Drop reflects COVID-19 impacts, with Hydro Ottawa and IESO reporting 10-12% lower demand, delayed morning peaks, and shifted weekend peak to 4 p.m., alongside provincial time-of-use rate relief.

 

Key Points

A 10-12% decline in Ottawa's electricity demand during COVID-19, with later morning peaks and weekend peak at 4 p.m.

✅ Weekday demand down 11%; weekends down 10% vs April 2019.

✅ Morning peak delayed about 4 hours; 6 a.m. usage down 17%.

✅ Weekend peak moved from 7 p.m. to 4 p.m.; rate relief ongoing.

 

Ottawa residents may be spending more time at home, with residential electricity use up even as the city’s overall energy use has dropped during the COVID-19 pandemic.

Hydro Ottawa says there was a 10-to-11 per cent drop in electricity consumption in April, with the biggest decline in electricity usage happening early in the morning, a pattern echoed by BC Hydro findings in its province.

Statistics provided to CTV News Ottawa show average hourly energy consumption in the City of Ottawa dropped 11 per cent during weekdays, mirroring Manitoba Hydro trends reported during the pandemic, and a 10 per cent decline in electricity consumption on weekends.

The drop in energy consumption came as many businesses in Ottawa closed their doors due to the COVID-19 measures and physical distancing guidelines.

“Based on our internal analysis, when comparing April 2020 to April 2019, Hydro Ottawa observed a lower, flatter rise in energy use in the morning, with peak demand delayed by approximately four hours.” Hydro Ottawa said in a statement to CTV News Ottawa.

“Morning routines appear to have the largest difference in energy consumption, most likely as a result of a collective slower pace to start the day as people are staying home.”

Hydro Ottawa says overall, there was an 11 per cent average hourly reduction in energy use on weekdays in April 2020, compared to April 2019. The biggest difference was the 6 a.m. hour, with a 17 per cent decrease.

On weekends, the average electricity usage dropped 10 per cent in April, compared to April 2019. The biggest difference was between 7 a.m. and 8 a.m., with a 13 per cent drop in hydro usage.

Hydro Ottawa says weekday peak continues to be at 4 p.m., while on weekends the peak has shifted from 7 p.m. before the pandemic to 4 p.m. now, though Hydro One has not cut peak rates for self-isolating customers.

The Independent Electricity System Operator says across Ontario, there has been a 10 to 12 per cent drop in energy consumption during the pandemic, a trend reflected in province-wide demand data that is the equivalent to half the demand of Toronto.

The Ontario Government has provided emergency electricity rate relief during the COVID-19 pandemic. Residential and small business consumers on time-of-use pricing, and later ultra-low overnight options, will continue to pay one price no matter what time of day the electricity is consumed until the end of May.

 

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Opinion: Now is the time for a western Canadian electricity grid

Western Canada Electric Grid could deliver interprovincial transmission, reliability, peak-load support, reserve sharing, and wind and solar integration, lowering costs versus new generation while respecting AESO markets and Crown utility structures.

 

Key Points

Interprovincial transmission to share reserves, boost reliability, integrate wind and solar, and cut peak capacity costs.

✅ Cuts reserve margins via diversity of peak loads

✅ Enables wind and solar balancing across provinces

✅ Saves ratepayers vs replacing retiring thermal plants

 

The 2017 Canadian Free Trade Agreement does not do much to encourage provinces to trade electric energy east and west. Would a western Canada electric grid help electricity consumers in the western provinces? Some Alberta officials feel that their electric utilities are investor owned and they perceive the Crown corporations of BC Hydro, SaskPower and Manitoba Hydro to be subsidized by their provincial governments, so an interprovincial electric energy trade would not be on a level playing field.

Because of the limited trade of electric energy between the western provinces, each utility maintains an excessive reserve of thermal and hydroelectric generation greater than their peak loads, to provide a reliable supply during peak load days as grids are increasingly exposed to harsh weather across Canada. This excess does not include variable wind and solar generation, which within a province can’t be guaranteed to be available when needed most.

This attitude must change. Transmission is cheaper than generation, and coordinated macrogrids can further improve reliability and cut costs. By constructing a substantial grid with low profile and aesthetically designed overhead transmission lines, the excess reserve of thermal and hydroelectric generation above the peak electric load can be reduced in each province over time. Detailed assessments will ensure each province retains its required reliability of electric supply.

As the provinces retire aging thermal and coal-fired generators, they only need to replace them to a much lower level, by just enough to meet their future electric loads and Canada's net-zero grid by 2050 goals. Some of the money not spent in replacing retired generation can be profitably invested in the transmission grid across the four western provinces.

But what about Alberta, which does not want to trade electric energy with the other western provinces? It can carry on as usual within the Alberta Electric System Operator’s (AESO) market and will save money by keeping the installed reserve of thermal and hydroelectric generation to a minimum. When Alberta experiences a peak electric load day and some generators are out of service due to unplanned maintenance, it can obtain the needed power from the interprovincial electric grid. None of the other three western provinces will peak at the same time, because of different weather and time zones, so they will have spare capacity to help Alberta over its peak. The peak load in a province only lasts for a few hours, so Alberta will get by with a little help from its friends if needed.

The grid will have no energy flowing on it for this purpose except to assist a province from time to time when it’s unable to meet its peak load. The grid may only carry load five per cent of the time in a year for this purpose. Under such circumstances, the empty grid can then be used for other profitable markets in electric energy. This includes more effective use of variable wind and solar energy, by enabling a province to better balance such intermittent power as well as allowing increased installation of it in every province. This is a challenge for AESO which the grid would substantially ease.

Natural Resources Canada promoted the “Regional Electricity Co-Operative and Strategic Infrastructure” initiative for completion this year and contracted through AESO, alongside an Atlantic grid study to explore regional improvements. This is a first step, but more is needed to achieve the full benefit of a western grid.

In 1970 a study was undertaken to electrically interconnect Britain with France, which was justified based on the ability to reduce reserve generation in both countries. Initially Britain rejected it, but France was partially supportive. In time, a substantial interconnection was built, and being a profitable venture, they are contemplating increasing the grid connections between them.

For the sake of the western consumers of electricity and to keep electricity rates from rising too quickly, as well as allowing productive expansion of wind and solar energy in places like British Columbia's clean energy shift efforts, an electric grid is essential across western Canada.

Dennis Woodford is president of Electranix Corporation in Winnipeg, which studies electric transmission problems, particularly involving renewable energy generators requiring firm connection to the grid.

 

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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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