Republicans bash EPA over GHG rules

By Reuters


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Republican lawmakers, who unveiled a bill to stop the Environmental Protection Agency from regulating greenhouse gases, said the agency's rules will hurt jobs and send manufacturing overseas.

"I know American manufacturers can compete — but not if they are saddled with burdensome regulations that put us at an unfair advantage," Representative Fred Upton, the chairman of the House Energy and Commerce Committee told a hearing on his new bill.

Upton and other Republicans said rapidly developing countries such as China were not placing the same rules on their businesses, so some manufacturing could be forced abroad.

EPA Administrator Lisa Jackson, a witness at the hearing, said she expected the rules mitigating pollution from big plants would lead to more job creation.

She quoted a report released by Ceres, a coalition of institutional investors and environmentalists, that said EPA rules would create nearly 1.5 million temporary jobs in engineering, construction and other professions through 2015.

The EPA rules on mercury and chemicals that cause smog will force utilities to build new capacity and add pollution controls, creating a net addition of more than 2,000 permanent jobs in operations and management, it said.

Jackson said Upton's bill, and similar legislation that has been introduced by fellow Republican James Inhofe in the Senate, would kill jobs in the renewable fuels business.

An analyst said the Upton's bill faces an uphill battle. "I think the Upton/Inhofe bill, by permanently cutting off EPA's authority to regulate greenhouse gases, is too harsh in its scope to secure enough votes to pass," said Divya Reddy, an energy analyst at the Eurasia Group.

She said a bill sponsored by Senator Jay Rockefeller, a Democrat, that would delay the EPA rules for two years had a better chance of passing, but even if it did, Obama would likely veto that.

Republicans are also trying to cut EPA funding under a spending plan released earlier that could hurt the agency's ability to regulate the gases.

The EPA launched its first climate rules in January. They make big polluters like refineries and power plants hold permits for emitting greenhouse gases. The agency will propose limits on emissions from big plants starting in July.

President Barack Obama had always said the EPA would act if Congress failed to pass a comprehensive climate and energy bill, and such legislation died last year.

The EPA determined in 2009 that greenhouse gases emissions from tailpipes and smokestacks endanger human health and welfare, which set it up to issue the rules.

Upton and other Republicans questioned the science behind the finding, saying the agency relied heavily on the United Nation's science panel, which has been criticized by some for errors that have since been corrected.

But the EPA's Jackson said her agency relied on a wide range of peer-reviewed climate research and that the U.S. National Academy of Sciences as well as the leading U.S. science organizations stated many lines of evidence showing human actions were warming the planet.

At the hearing Representative Henry Waxman, a Democrat, mentioned a letter he circulated late on Tuesday written by Jackson's predecessor under Republican President George W. Bush that suggested he believed that human actions where warming the planet.

Stephen Johnson, the former EPA chief, wrote the memo in 2008 to Bush. It suggested the science-supported findings that greenhouse gases were linked to rising temperatures and that the EPA should propose regulations on the gases.

The letter, which had not been revealed publicly before February 8, was "proof that it is not me sitting in the administrative chair" who looks at the science and makes recommendations, Jackson said.

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'For now, we're not touching it': Quebec closes door on nuclear power

Quebec Energy Strategy focuses on hydropower, energy efficiency, and new dams as Hydro-Que9bec pursues Churchill Falls deals and the Champlain Hudson Power Express to New York, while nuclear power remains off the agenda.

 

Key Points

Quebec's plan prioritizes hydropower, efficiency, and new dams, excludes nuclear, and expands exports via CHPE.

✅ Nuclear power shelved; focus on renewables and dams

✅ Hydro-Que9bec pursues Churchill Falls and Gull Island talks

✅ CHPE line to New York advances; export contract with NYSERDA

 

Quebec Premier François Legault has closed the door on nuclear power, at least for now.

"For the time being, we're not touching it," said Legault when asked about the subject at a press scrum in New York on Tuesday.

The government is looking for new sources of energy as Hydro-Québec begins talks on a $185-billion strategy to wean the province off fossil fuels. In an interview with The Canadian Press at Quebec's official residence in New York, Legault said there are a number of avenues to explore:

  • Energy efficiency.
  • Negotiations with Newfoundland and Labrador over Churchill Falls and Gull Island.
  • Upgrading existing dams and building new ones.

"Nuclear power is not on the agenda," he said.

Yet the premier seemed open to the nuclear question some time ago. In August, Radio-Canada reported that he had raised the idea of nuclear power in front of dozens of MNAs at the National Assembly last April.

Also in August, Hydro-Québec was evaluating the possibility of reopening the Gentilly-2 nuclear power plant, which has been closed since 2012.

Asked about his leader's statement on Tuesday, the Minister of the Economy, Pierre Fitzgibbon, maintained his line: "At the moment, we're looking at everything that's possible because we know that we have a significant deficit in the supply of green energy," he said.

Another step forward for the Quebec-New York line

Premier Legault took part in Tuesday morning's announcement that construction had begun on the New York converter station of the Champlain Hudson Power Express line. New York State Governor Kathy Hochul was present at the announcement.

In November 2021, Hydro-Québec signed a contract with the New York State Energy Research and Development Authority (NYSERDA) to export 10.4 terawatt-hours of electricity to the American metropolis over 25 years, while Ontario declined to renew a deal with Quebec.

At a time when the Quebec government is constantly asserting that more energy will be needed for future economic projects -- particularly the battery industry -- Legault sees no contradiction in selling electricity to the Americans and to neighboring provinces such as NB Power deals to import Hydro-Québec power.

"Whether it's this contract or the contract for companies coming to set up in Quebec, it's out of the surplus we currently have in Quebec. Now, we have dozens of investment project proposals in Quebec where we need additional electricity," he explained.

The line will supply 20 per cent of New York City's electricity needs, despite transmission constraints on Quebec-to-U.S. deliveries. Commissioning is scheduled for May 2026. The spin-offs are estimated at $30 billion, according to the premier.

Will this money be used to finance new dams, such as the La Romaine hydroelectric complex built in recent years?

"It's certain that future projects will cost several tens of billions of dollars. Hydro-Québec has the capacity to borrow. It's a very healthy company. There's no doubt that these revenues will improve Hydro-Québec's image," he said.

 

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A Texas-Sized Gas-for-Electricity Swap

Texas Heat Pump Electrification replaces natural gas furnaces with electric heating across ERCOT, cutting carbon emissions, lowering utility bills, shifting summer peaks to winter, and aligning higher loads with strong seasonal wind power generation.

 

Key Points

Statewide shift from gas furnaces to heat pumps in Texas, reducing emissions and bills while moving grid peak to winter.

✅ Up to $452 annual utility savings per household

✅ CO2 cuts up to 13.8 million metric tons in scenarios

✅ Winter peak rises, summer peak falls; wind aligns with load

 

What would happen if you converted all the single-family homes in Texas from natural gas to electric heating?

According to a paper from Pecan Street, an Austin-based energy research organization, the transition would reduce climate-warming pollution, save Texas households up to $452 annually on their utility bills, and flip the state from a summer-peaking to a winter-peaking system. And that winter peak would be “nothing the grid couldn’t evolve to handle,” according to co-author Joshua Rhodes, a view echoed by analyses outlining Texas grid reliability improvements statewide today.

The report stems from the reality that buildings must be part of any comprehensive climate action plan.

“If we do want to decarbonize, eventually we do have to move into that space. It may not be the lowest-hanging fruit, but eventually we will have to get there,” said Rhodes.

Rhodes is a founding partner of the consultancy IdeaSmiths and an analyst at Vibrant Clean Energy. Pecan Street commissioned the study, which is distilled from a larger original analysis by IdeaSmiths, at the request of the nonprofit Environmental Defense Fund.

In an interview, Rhodes said, “The goal and motivation were to put bounding on some of the claims that have been made about electrification: that if we electrify a lot of different end uses or sectors of the economy...power demand of the grid would double.”

Rhodes and co-author Philip R. White used an analysis tool from the National Renewable Energy Laboratory called ResStock to determine the impact of replacing natural-gas furnaces with electric heat pumps in homes across the ERCOT service territory, which encompasses 90 percent of Texas’ electricity load.

Rhodes and White ran 80,000 simulations in order to determine how heat pumps would perform in Texas homes and how the pumps would impact the ERCOT grid.

The researchers modeled the use of “standard efficiency” (ducted, SEER 14, 8.2 HSPF air-source heat pump) and “superior efficiency” (ductless, SEER 29.3, 14 HSPF mini-split heat pump) heat pump models against two weather data sets — a typical meteorological year, and 2011, which had extreme weather in both the winter and summer and highlighted blackout risks during severe heat for many regions.

Emissions were calculated using Texas’ power sector data from 2017. For energy cost calculations, IdeaSmiths used 10.93 cents per kilowatt-hour for electricity and 8.4 cents per therm for natural gas.

Nothing the grid can't handle
Rhodes and White modeled six scenarios. All the scenarios resulted in annual household utility bill savings — including the two in which annual electricity demand increased — ranging from $57.82 for the standard efficiency heat pump and typical meteorological year to $451.90 for the high-efficiency heat pump and 2011 extreme weather year.

“For the average home, it was cheaper to switch. It made economic sense today to switch to a relatively high-efficiency heat pump,” said Rhodes. “Electricity bills would go up, but gas bills can go down.”

All the scenarios found carbon savings too, with CO2 reductions ranging from 2.6 million metric tons with a standard efficiency heat pump and typical meteorological year to 13.8 million metric tons with the high-efficiency heat pump in 2011-year weather.

Peak electricity demand in Texas would shift from summer to winter. Because heat pumps provide both high-efficiency space heating and cooling, in the scenario with “superior efficiency” heat pumps, the summer peak drops by nearly 24 percent to 54 gigawatts compared to ERCOT’s 71-gigawatt 2016 summer peak, even as recurring strains on the Texas power grid during extreme conditions persist.

The winter peak would increase compared to ERCOT’s 66-gigawatt 2018 winter peak, up by 22.73 percent to 81 gigawatts with standard efficiency heat pumps and up by 10.6 percent to 73 gigawatts with high-efficiency heat pumps.

“The grid could evolve to handle this. This is not a wholesale rethinking of how the grid would have to operate,” said Rhodes.

He added, “There would be some operational changes if we went to a winter-peaking grid. There would be implications for when power plants and transmission lines schedule their downtime for maintenance. But this is not beyond the realm of reality.”

And because Texas’ wind power generation is higher in winter, a winter peak would better match the expected higher load from all-electric heating to the availability of zero-carbon electricity.

 

A conservative estimate
The study presented what are likely conservative estimates of the potential for heat pumps to reduce carbon pollution and lower peak electricity demand, especially when paired with efficiency and demand response strategies that can flatten demand.

Electric heat pumps will become cleaner as more zero-carbon wind and solar power are added to the ERCOT grid, as utilities such as Tucson Electric Power phase out coal. By the end of 2018, 30 percent of the energy used on the ERCOT grid was from carbon-free sources.

According to the U.S. Energy Information Administration, three in five Texas households already use electricity as their primary source of heat, much of it electric-resistance heating. Rhodes and White did not model the energy use and peak demand impacts of replacing that electric-resistance heating with much more energy efficient heat pumps.

“Most of the electric-resistance heating in Texas is located in the very far south, where they don’t have much heating at all,” Rhodes said. “You would see savings in terms of the bills there because these heat pumps definitely operate more efficiently than electric-resistance heating for most of the time.”

Rhodes and White also highlighted areas for future research. For one, their study did not factor in the upfront cost to homeowners of installing heat pumps.

“More study is needed,” they write in the Pecan Street paper, “to determine the feasibility of various ‘replacement’ scenarios and how and to what degree the upgrade costs would be shared by others.”

Research from the Rocky Mountain Institute has found that electrification of both space and water heating is cheaper for homeowners over the life of the appliances in most new construction, when transitioning from propane or heating oil, when a gas furnace and air conditioner are replaced at the same time, and when rooftop solar is coupled with electrification, aligning with broader utility trends toward electrification.

More work is also needed to assess the best way to jump-start the market for high-efficiency all-electric heating. Rhodes believes getting installers on board is key.

“Whenever a homeowner’s making a decision, if their system goes out, they lean heavily on what the HVAC company suggests or tells them because the average homeowner doesn’t know much about their systems,” he said.

More work is also needed to assess the best way to jump-start the market for high-efficiency all-electric heating, and how utility strategies such as smart home network programs affect adoption too. Rhodes believes getting installers on board is key.

 

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Australian operator warns of reduced power reserves

Australia Electricity Supply Shortfall highlights AEMO's warning of reduced reserves as coal retirements outpace capacity, risking load shedding. Calls for 1GW strategic reserves and investment in renewables, storage, and dispatchable power in Victoria.

 

Key Points

It is AEMO's forecast of reduced reserves, higher outage risk, and a need for 1GW strategic backup capacity.

✅ Coal retirements outpacing firm, dispatchable capacity

✅ AEMO urges 1GW strategic reserves in Victoria and South Australia

✅ Investment needed: renewables, storage, grid and reliability services

 

Australia’s electricity operator has warned of threats to electricity supply including a shortfall in generation and reduced power reserves on the horizon.

The Australian Energy Market Operator (AEMO) has called for further investment in the country’s energy portfolio as retiring coal plants are replaced by intermittent renewables poised to eclipse coal, leaving the grid with less back-up capacity.

AEMO has said this increases the chances of supply interruption and load shedding.

It added the federal government should target 1GW of strategic reserves in the states most at risk – Victoria and South Australia, even as the Prime Minister has ruled out taxpayer-funded power plants in the current energy battle.

CEO of the Clean Energy Council, Kane Thornton, said the shortfall in generation, reflected in a short supply of electricity, was due a decade of indecisiveness and debate leading to a “policy vacuum”.

He added: “The AEMO report revealed that the new projects added to the system under the renewable energy target will help to improve reliability over the next few years.

“We need to accept that the energy system is in transition, with lessons from dispatchable power shortages in Europe, and long term policy is now essential to ensure private investment in the most efficient new energy technology and solutions.”

 

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Manchin Calls For Stronger U.S. Canada Energy And Mineral Partnership

U.S.-Canada Energy and Minerals Partnership strengthens energy security, critical minerals supply chains, and climate objectives with clean oil and gas, EV batteries, methane reductions, cross-border grid reliability, and allied trade, countering Russia and China dependencies.

 

Key Points

A North American alliance to secure energy, refine critical minerals, cut emissions, and fortify supply chains.

✅ Integrates oil, gas, and electricity trade for reliability

✅ Builds EV battery and critical minerals processing capacity

✅ Reduces methane, diversifies away from Russia and China

 

Today, U.S. Senator Joe Manchin (D-WV), Chairman of the Senate Energy and Natural Resources Committee, delivered the following remarks during a full committee hearing to examine ways to strengthen the energy and mineral partnership between the U.S. and Canada to address energy security and climate objectives.

The hearing also featured testimony from the Honorable Jason Kenney (Premier, Alberta, Canada), the Honorable Nathalie Camden (Associate Deputy Minister of Mines, Ministry of Energy and Natural Resource, Québec, Canada), the Honorable Jonathan Wilkinson (Minister, Natural Resources Canada) and Mr. Francis Bradley (President and CEO, Electricity Canada). Click here to read their testimony.

Chairman Manchin’s remarks can be viewed as prepared here or read below:

Today we’re welcoming our friends from the North, from Canada, to continue this committee’s very important conversation about how we pursue two critical goals – ensuring energy security and addressing climate change.

These two goals aren’t mutually exclusive, and it’s imperative that we address both.

We all agree that Putin has used Russia’s oil and gas resources as a weapon to inflict terrible pain on the Ukrainian people and on Europe.

And other energy-rich autocracies are taking note. We’d be fools to think Xi Jinping won’t consider using a similar playbook, leveraging China’s control over global critical minerals supply chains.

But Putin’s aggression is bringing the free world closer together, setting the stage for a new alliance around energy, minerals, and climate.
Building this alliance should start here in North America. And that’s why I’m excited to hear today about how we can strengthen the energy and minerals partnership between the U.S. and Canada.

I recently had the privilege of being hosted in Alberta by Premier Kenney, where I spent two days getting a better understanding of our energy, minerals, and manufacturing partnership through meetings with representatives from Alberta, Saskatchewan, the Northwest Territories, the federal government, and tribal and industry partners.

Canadians and Americans share a deep history and are natural partners, sharing the longest land border on the planet.

Our people fought side-by-side in two world wars. In fact, some of the uranium used by the Manhattan Project and broader nuclear innovation was mined in Canada’s Northwest Territories and refined in Ontario.

We have cultivated a strong manufacturing partnership, particularly in the automotive industry, with Canada today being our biggest export market for vehicles. Cars assembled in Canada contain, on average, more than 50% of U.S. value and parts.

Today we also trade over 58 terawatt hours of electricity, including green power from Canada across the border, 2.4 billion barrels of petroleum products, and 3.6 trillion cubic feet of natural gas each year.

In fact, energy alone represents $120 billion of the annual trade between our countries. Across all sectors the U.S. and Canada trade more than $2 billion per day.
There is no better symbol of our energy relationship than our interconnected power grid and evolving clean grids that are seamless and integral for the reliable and affordable electricity citizens and industries in both our countries depend on.

And we’re here for each other during times of need. Electricity workers from both the U.S. and Canada regularly cross the border after extreme weather events to help get the power back on.

Canada has ramped up oil exports to the U.S. to offset Russian crude after members of our committee led legislation to cut off the energy purchases fueling Putin’s war machine.

Canada is also a leading supplier of uranium and critical minerals to the U.S., including those used in advanced batteries—such as cobalt, graphite, and nickel.
The U.S-Canada energy partnership is strong, but also not without its challenges, including tariff threats that affect projects on both sides. I’ve not been shy in expressing my frustration that the Biden administration cancelled the Keystone XL pipeline.

In light of Putin’s war in Ukraine and the global energy price surge, I think a lot of us wish that project had moved forward.

But to be clear, I’m not holding this hearing to re-litigate the past. We are here to advance a stronger and cleaner U.S.-Canada energy partnership for the future.
Our allies and trading partners in Europe are begging for North American oil and gas to offset their reliance on Russia.

There is no reason whatsoever we shouldn’t be able to fill that void, and do it cleaner than the alternatives.

That’s because American oil and gas is cleaner than what is produced in Russia – and certainly in Iran and Venezuela. We can do better, and learn from our Canadian neighbors.

On average, Canada produces oil with 37% lower methane emissions than the U.S., and the Canadian federal government has set even more aggressive methane reduction targets.

That’s what I mean by climate and security not being mutually exclusive – replacing Russian product has the added benefit of reducing the emissions profile of the energy Europe needs today.

According to the International Energy Agency, stationary and electric vehicle batteries will account for about half of the mineral demand growth from clean energy technologies over the next twenty years.

Unfortunately, China controls 80% of the world’s battery material processing, 60% of the world’s cathode production, 80% of the world’s anode production, and 75% of the world’s lithium ion battery cell production. They’ve cornered the market.

I also strongly believe we need to be taking national energy security into account as we invest in climate solutions.

It makes no sense whatsoever for us to so heavily invest in electric vehicles as a climate solution when that means increasing our reliance on China, because right now we’re not simultaneously increasing our mining, processing, and recycling capacity at the same rate in the United States.

The Canadians are ahead of us on critical minerals refining and processing, and we have much to learn from them about how they’re able to responsibly permit these activities in timelines that blow ours out of the water.

I’m sure our Canadian friends are happy to export minerals to us, but let me be clear, the United States also needs to contribute our part to a North American minerals alliance.

So I’m interested in discussing how we can create an integrated network for raw minerals to move across our borders for processing and manufacturing in both of our countries, and how B.C. critical minerals decisions may affect that.

I believe there is much we can collaborate on with Canada to create a powerful North American critical minerals supply chain instead of increasing China’s geopolitical leverage.

During this time when the U.S., Canada, and our allies and friends are threatened both by dictators weaponizing energy and by intense politicization over climate issues, we must work together to chart a responsible path forward that will ensure security and unlock prosperity for our nations.

We are the superpower of the world, and blessed with abundant energy and minerals resources. We cannot just sit back and let other countries fill the void and find ourselves in a more dire situation in the years ahead.

We must be leaning into the responsible production of all the energy sources we’re going to need, and strengthening strategic partnerships – building a North American Energy Alliance.

 

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Wind has become the ‘most-used’ source of renewable electricity generation in the US

U.S. Wind Generation surpassed hydroelectric output in 2019, EIA data shows, becoming the top renewable electricity source, driven by PTC incentives, expanded capacity, and utility-scale projects across states, boosting the national electricity mix.

 

Key Points

U.S. Wind Generation is the nation's top renewable, surpassing hydro as EIA-tracked capacity grows under PTC incentives.

✅ EIA: wind topped hydro in 2019, over 300M MWh generated

✅ PTC credits spurred growth in utility-scale wind projects

✅ 103 GW installed; 77% added in the last decade

 

Last year saw wind power surging in the U.S. to overtake hydroelectric generation for the first time, according to data from the U.S. Energy Information Administration (EIA).

Released Wednesday, the figures from the EIA’s “Electric Power Monthly” report show that yearly wind generation hit a little over 300 million megawatt hours (MWh) in 2019. This was roughly 26 million MWh more than hydroelectric production.

Wind now represents the “most-used renewable electricity generation source” in the U.S., the EIA said, and renewables hit a 28% monthly record in April in later data.

Overall, total renewable electricity generation — which includes sources such as solar's 4.7% share in 2022 as one example, geothermal and landfill gas — at utility scale facilities hit more than 720 million MWh in 2019, compared to just under 707 million MWh in 2018. To put things in perspective, generation from coal came to more than 966 million MWh in 2019, while renewables surpassed coal in 2022 nationally according to later analyses.

According to the EIA’s “Today in Energy” briefing, which was also published Wednesday, generation from wind power has grown “steadily” across the last decade, and by 2020, renewables became the second-most prevalent source in the U.S. power mix.

This, it added, was partly down to the extension of the Production Tax Credit, or PTC, amid favorable government plans supporting solar and wind growth. According to the EIA, the PTC is a system which gives operators a tax credit per kilowatt hour of renewable electricity production. It applies for the first 10 years of a facility’s operation.

At the end of 2019, the country was home to 103 gigawatts (GW) of wind capacity, with 77% of this being installed in the last decade, and wind capacity surpassed hydro in 2016 according to industry data. The U.S. is home 80 GW of hydroelectric capacity, according to the EIA.

“The past decade saw a steady increase in wind capacity across the country and we capped the decade with a monumental achievement for the industry in reaching more than 100 GW,” Tom Kiernan, the American Wind Energy Association’s CEO, said in a statement issued Thursday.

“And more wind energy is coming, as the industry is well into investing $62 billion in new projects over the next few years that put us on the path to achieving 20 percent of the nation’s electricity mix in 2030,” Kiernan went on to state.

“As a result, wind is positioned to remain the largest renewable energy generator in the country for the foreseeable future.”

 

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

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

 

Key Points

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

✅ Appeals Court revived case for full record review

✅ Dispute centers on regulatory charge vs tax classification

✅ FIT renewables contracts and procurement policies at issue

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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