Texas may have second chance for FutureGen funds

By Knight Ridder Tribune


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Texas is again in the running to host a federally funded project to build near-zero-emission coal plants.

The Department of Energy said that instead of building one $1.8 billion clean-coal research facility, called FutureGen, it will fund only the equipment to eliminate carbon dioxide emissions. And instead of building at one site in Mattoon, Ill. the department will add carbon dioxide equipment to several commercial coal plants around the country, possibly in Texas.

"This approach could allow multiple locations to support advanced coal technology," Energy Secretary Samuel Bodman said. "They would sequester at least double the amount of carbon dioxide as the concept announced in 2003."

The decision, designed to cut the government's costs, reflects recent advances in coal gasification technology.

Some commercial power companies are ready to build coal gasifiers to cut pollution, but they'd like the government help with higher costs.

"There's no question that carbon capture and sequestration at multiple sites is the single greatest contribution to solving global warming," said David Crane, chief executive of NRG Energy. Mr. Crane said a coal gasification plant that NRG is planning in New York might be a good candidate for a FutureGen carbon dioxide site. He'd like to build similar plants in Texas and propose them as FutureGen sites as well, if he can work out the cost here.

Coal gasification plants, known as integrated gasification combined cycle, or IGCC, cost as much as 20 percent more than traditional coal plants, excluding carbon dioxide capture and sequestration equipment.

Energy Future Holdings, formerly called TXU Corp., is also considering building IGCC plants. The company could bid to host a FutureGen carbon dioxide site, and a spokesman said the company isn't ruling anything out.

Rising cost estimates for FutureGen almost caused the Department of Energy to cancel the project. Costs had almost doubled to $1.8 billion, and the department would have been responsible for 74 percent of the tab. The FutureGen Alliance of companies agreed to pay for the rest.

Clay Sell, deputy secretary of energy, said the department asked the alliance in December not to announce that it would build the plant in Mattoon, since the department wanted to restructure the project.

The department requested $156 million from Congress to fund the program in 2009. Rep. Joe Barton, R-Ennis, said he urged the department during the last couple of months not to cancel the project. He wanted the plant built in his home district, in Jewett. Odessa was also in the running, along with two sites in Illinois.

But now, he said, he supports the idea of spreading the federal money among multiple plants.

"I want to see the details, but I support it conceptually," he said. "And I certainly support a potential Texas facility, hopefully in Jewett, Texas, but maybe somewhere else." The Department of Energy aims to begin operating the carbon capture and sequestration equipment by 2015.

The department issued a request for information seeking input from the power and coal industries by March 3. That will determine how many carbon dioxide capture locations the department can pay for. Mr. Barton said he expects the department to build three or four plants.

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US January power generation jumps 9.3% on year: EIA

US January power generation climbed to 373.2 TWh, EIA data shows, with coal edging natural gas, record wind output, record nuclear generation, rising hydro, and stable utility-scale solar amid higher Henry Hub prices.

 

Key Points

US January power generation hit 373.2 TWh; coal led gas, wind and nuclear set records, with solar edging higher.

✅ Coal 31.8% share; gas 29.4%; coal output 118.7 TWh, gas 109.6 TWh.

✅ Wind hit record 26.8 TWh; nuclear record 74.6 TWh.

✅ Total generation 373.2 TWh, highest January since 2014.

 

The US generated 373.2 TWh of power in January, up 7.9% from 345.9 TWh in December and 9.3% higher than the same month in 2017, Energy Information Administration data shows.

The monthly total was the highest amount in January since 377.3 TWh was generated in January 2014.

Coal generation totaled 118.7 TWh in January, up 11.4% from 106.58 TWh in December and up 2.8% from the year-ago month, consistent with projections of a coal-fired generation increase for the first time since 2014. It was also the highest amount generated in January since 132.4 TWh in 2015.

For the second straight month, more power was generated from coal than natural gas, as 109.6 TWh came from gas, up 3.3% from 106.14 TWh in December and up 19.9% on the year.

However, the 118.7 TWh generated from coal was down 9.6% from the five-year average for the month, due to the higher usage of gas and renewables and a rising share of non-fossil generation in the overall mix.

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Coal made up 31.8% of the total US power generation in January, up from 30.8% in December but down from 33.8% in January 2017.

Gas` generation share was at 29.4% in the latest month, with momentum from record gas-fired electricity earlier in the period, down from 30.7% in December but up from 26.8% in the year-ago month.

In January, the NYMEX Henry Hub gas futures price averaged $3.16/MMBtu, up 13.9% from $2.78/MMBtu averaged in December but down 4% from $3.29/MMBtu averaged in the year-ago month.

 

WIND, NUCLEAR GENERATION AT RECORD HIGHS

Wind generation was at a record-high 26.8 TWh in January, up 29.3% from 22.8 TWh in December and the highest amount on record, according to EIA data going back to January 2001. Wind generated 7.2% of the nation`s power in January, as an EIA summer outlook anticipates larger wind and solar contributions, up from 6.6% in December and 6.1% in the year-ago month.

Utility-scale solar generated 3.3 TWh in January, up 1.3% from 3.1 TWh in December and up 51.6% on the year. In January, utility-scale solar generation made up 0.9% of US power generation, during a period when solar and wind supplied 10% of US electricity in early 2018, flat from December but up from 0.6% in January 2017.

Nuclear generation was also at a record-high 74.6 TWh in January, up 1.3% month on month and the highest monthly total since the EIA started tracking it in January 2001, eclipsing the previous record of 74.3 TWh set in July 2008. Nuclear generation made up 20% of the US power in January, down from 21.3% in December and 21.4% in the year-ago month.

Hydro power totaled 25.4 TWh in January, making up 6.8% of US power generation during the month, up from 6.5% in December but down from 8.2% in January 2017.

 

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Demise of nuclear plant plans ‘devastating’ to Welsh economy, MP claims

Wylfa Nuclear Project Cancellation reflects Hitachi's withdrawal, pulling £16bn from North Wales, risking jobs, reshaping UK nuclear power plans as renewables grow and Chinese involvement rises amid shifting energy market policies.

 

Key Points

An indefinite halt to Hitachi's Wylfa Newydd nuclear plant, removing about £16bn investment and jobs from North Wales.

✅ Hitachi withdraws funding amid changing energy market costs

✅ Puts 400 local roles and up to 10,000 construction jobs at risk

✅ UK shifts toward renewables as nuclear project support stalls

 

Chris Ruane said Japanese firm Hitachi’s announcement this morning about the Wylfa project would take £16 billion of investment out of the region.

He said it was the latest in a list of energy projects which had been scrapped as he responded to a statement from business secretary Greg Clark.

Mr Ruane, the Labour member for the Vale of Clywd, said: “In his statement he said the Government are relying now more on renewables, can I put the North Wales picture to him; 1,500 wind turbines were planned off the coast of North Wales. They were removed, those plans were cancelled by the private sector.

“The tidal lagoons for Wales were key to the development of the Welsh economy – the Government itself pulled the support for the Swansea Bay tidal lagoon. That had a knock-on effect for the huge lagoon planned off the coast of North Wales.

“And now today we hear of the cancellation of a £16 billion investment in the North Wales economy. This will devastate the North Wales economy. The people of North Wales need to know that the Prime Minister is batting for them and batting for the UK.”

Mr Clark blamed the changing landscape of the energy market for today’s announcement, and said Wales has been a “substantial and proud leader” in renewable energy during the UK’s green industrial revolution over recent years.

But another Labour MP from North Wales, Albert Owen, of Ynys Mon, said the Wylfa plant’s cancellation in his constituency is putting 400 jobs at risk, as well as the “potential of 8-10,000 construction jobs”, as well as hundreds of operational jobs and 33 apprenticeships.

He asked Mr Clark: “Can I say straightly can we work together to keep this project alive, to ensure that we create the momentum so it can be ready for a future developer or this developer with the right mechanism?”

The minister replied that he and his officials would “work together in a completely open-book way on the options” to try and salvage the project.

But in the Lords, Labour former security minister Lord West of Spithead said the UK’s nuclear industry was in crisis, noting that Europe is losing nuclear power as well.

“In the 1950s our nation led the world in nuclear power generation and decisions by successive governments, of all hues, have got us in the position today where we cannot even construct a large civil nuclear reaction,” he told peers at question time.

Lord West asked: “Are we content that now the only player seems to be Chinese and that by 2035… we are happy for the Chinese to control one third of the energy supply of our nation?”

Business, Energy and Industrial Strategy minister Lord Henley said the Government had hoped for a better announcement from Hitachi but that was not the case.

He said costs in the nuclear sector were rising, amid setbacks at Hinkley Point C, while costs for many renewables were coming down and this was one of the reasons for the problem.

Tory former energy secretary Lord Howell of Guildford said the Chinese were in “pole position” for the rebuilding and replacement “of our nuclear fleet” and this would have a major impact on UK energy policy and plans to meet net zero targets in the 2030s.

Plaid Cymru’s Lord Wigley warned that putting the Wylfa Newydd on indefinite hold would cause economic planning blight in north-west Wales and urged the Government to raise the level of support allocated to the region.

Lord Henley acknowledged the announcement was not welcome but added: “We remain committed to nuclear power. We will look to see what we can do. We still have a great deal of expertise in this country and we can work on that.”

 

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Germany’s renewable energy dreams derailed by cheap Russian gas, electricity grid expansion woes

Germany Energy Transition faces offshore wind expansion, grid bottlenecks, and North-South transmission delays, while Nord Stream 2 boosts Russian gas reliance and lignite coal persists amid a nuclear phaseout and rising re-dispatch costs.

 

Key Points

Germanys shift to renewables faces grid delays, boosting gas via Nord Stream 2 and extending lignite coal use.

✅ Offshore wind grows, but grid congestion curtails turbines.

✅ Nord Stream 2 expands Russian gas supply to German industry.

✅ Lignite coal persists, raising emissions amid nuclear exit.

 

On a blazing hot August day on Germany’s Baltic Sea coast, a few hundred tourists skip the beach to visit the “Fascination Offshore Wind” exhibition, held in the port of Mukran at the Arkona wind park. They stand facing the sea, gawking at white fiberglass blades, which at 250 feet are longer than the wingspan of a 747 aircraft. Those blades, they’re told, will soon be spinning atop 60 wind-turbine towers bolted to concrete pilings driven deep into the seabed 20 miles offshore. By early 2019, Arkona is expected to generate 385 megawatts, enough electricity to power 400,000 homes.

“We really would like to give the public an idea of what we are going to do here,” says Silke Steen, a manager at Arkona. “To let them say, ‘Wow, impressive!’”

Had the tourists turned their backs to the sea and faced inland, they would have taken in an equally monumental sight, though this one isn’t on the day’s agenda: giant steel pipes coated in gray concrete, stacked five high and laid out in long rows on a stretch of dirt. The port manager tells me that the rows of 40-foot-long, 4-foot-thick pipes are so big that they can be seen from outer space. They are destined for the Nord Stream 2 pipeline, a colossus that, when completed next year, will extend nearly 800 miles from Russia to Germany, bringing twice the amount of gas that a current pipeline carries.

The two projects, whose cargo yards are within a few hundred feet of each other, provide a contrast between Germany’s dream of renewable energy and the political realities of cheap Russian gas. In 2010, Germany announced an ambitious goal of generating 80 percent of its electricity from renewable sources by 2050. In 2011, it doubled down on the commitment by deciding to shut down every last nuclear power plant in the country by 2022, as part of a broader coal and nuclear phaseout strategy embraced by policymakers. The German government has paid more than $600 billion to citizens and companies that generate solar and wind power. As a result, the generating capacity from renewable sources has soared: In 2017, a third of the nation’s electricity came from wind, solar, hydropower and biogas, up from 3.6 percent in 1990.

But Germany’s lofty vision has run into a gritty reality: Replacing fossil fuels and nuclear power in one of the largest industrial nations in the world is politically more difficult and expensive than planners thought. It has forced Germany to put the brakes on its ambitious renewables program, ramp up its investments in fossil fuels, amid a renewed nuclear option debate over climate strategy, and, to some extent, put its leadership role in the fight against climate change on hold.

The trouble lies with Germany’s electricity grid. Solar and wind power call for more complex and expensive distribution networks than conventional large power plants do. “What the Germans were good at was getting new technology into the market, like wind and solar power,” said Arne Jungjohann, author of Energy Democracy: Germany’s ENERGIEWENDE to Renewables. To achieve its goals, “Germany needs to overhaul its whole grid.”

 

The North-South Conundrum

The boom in wind power has created an unanticipated mismatch between supply and demand. Big wind turbines, especially offshore plants such as Arkona, produce powerful, concentrated gusts of energy. That’s good when the factory that needs that energy is nearby and the wind kicks up during working hours. It’s another matter when factories are hundreds of miles away. In Germany, wind farms tend to be located in the blustery north. Many of the nation’s big factories lie in the south, which also happens to be where most of the country’s nuclear plants are being mothballed.

Getting that power from north to south is problematic. On windy days, northern wind farms generate too much energy for the grid to handle. Power lines get overloaded. To cope, grid operators ask wind farms to disconnect their turbines from the grid—those elegant blades that tourists so admired sit idle. To ensure a supply of power, operators employ backup generators at great expense. These so-called re-dispatching costs ran to 1.4 billion euros ($1.6 billion) last year.

The solution is to build more power transmission lines to take the excess wind from northern wind farms to southern factories. A grid expansion project is underway to do exactly that. Nearly 5,000 miles of new transmission lines, at a cost of billions of euros, will be paid for by utility customers. So far, less than a fifth of the lines have been built.

The grid expansion is “catastrophically behind schedule,” Energy Minister Peter Altmaier told the Handelsblatt business newspaper in August. Among the setbacks: citizens living along the route of four high-voltage power lines have demanded the cables be buried underground, which has added to the time and expense. The lines won’t be finished before 2025—three years after Germany’s nuclear shutdown is due to be completed.

With this backlog, the government has put the brakes on wind power, reducing the number of new contracts for farms and curtailing the amount it pays for renewable energy. “In the past, we have focused too much on the mere expansion of renewable energy capacity,” Joachim Pfeiffer, a spokesman for the Christian Democratic Union, wrote to Newsweek. “We failed to synchronize this expansion of generation with grid expansion.”

Advocates of renewables are up in arms, accusing the government of suffocating their industry and making planning impossible. Thousands of people lost their jobs in the wind industry, according to Wolfram Axthelm, CEO of the German Wind Energy Association. “For 2019 and 2020, we see a highly problematic situation for the industry,” he wrote in an email.

 

Fueling the Gap

Nord Stream 2, by contrast, is proceeding according to schedule. A beige and black barge, Castoro 10, hauls dozens of lengths of giant pipe off Germany’s Baltic Sea coast, where a welding machine connects them for lowering onto the seabed. The $11 billion project is funded by Russian state gas monopoly Gazprom and five European investors, at no direct cost to the German taxpayer. It is slated to cross the territorial waters of five countries—Germany, Russia, Finland, Sweden and Denmark. All but Denmark have approved the route. “We have good reason to believe that after four governments said yes, that Denmark will also approve the pipeline,” says Nord Stream 2 spokesman Jens Mueller.

Construction of the pipeline off Finland began in September, and the gas is expected to start flowing in late 2019, giving Russia leverage to increase its share of the European gas market. It already provides a third of the gas used in the EU and will likely provide more after the Netherlands stops its gas production in 2030. President Donald Trump has called the pipeline “a very bad thing for NATO” and said that “Germany is totally controlled by Russia.” U.S. senators have threatened sanctions against companies involved in the project. Ukraine and Poland are concerned the new pipeline will make older pipelines in their territories irrelevant.

German leaders are also wary of dependence on Russia but are under considerable pressure to deliver energy to industry. Indeed, among the pipeline’s investors are German companies that want to run their factories, like BASF’s Wintershall subsidiary and Uniper, the German utility. “It’s not that Germany is naive,” says Kirsten Westphal, an energy expert at the German Institute for International and Security Affairs. It’s just pragmatic. “Economically, the judgment is that yes, this gas will be needed, we have an import gap to fill.”

The electricity transmission problem has also opened an opportunity for lignite coal, as coal generation in Germany remains significant, the most carbon-intensive fuel available and the source for nearly a quarter of Germany’s power. Mining companies are expanding their operations in coal-rich regions to strip out the fuel while it is still relevant. In the village of Pödelwitz, 155 miles south of Berlin, most houses feature a white sign with the logo of Mibrag, the German mining giant, which has paid nearly all the 130 residents to relocate. The company plans to level the village and scrape lignite that lies below the soil.

A resurgence in coal helped raise carbon emissions in 2015 and 2016 (2017 saw a slight decline), maintaining Germany’s place as Europe’s largest carbon emitter. Chancellor Angela Merkel has scrapped her pledge to slash carbon emissions to 40 percent of 1990 levels by the year 2020. Several members have threatened to resign from her policy commission on coal if the government allows utility company RWE to mine for lignite in Hambach Forest.

Only a few years ago, during the Paris climate talks, Germany led the EU in pushing for ambitious plans to curb emissions. Now, it seems to be having second thoughts. Recently, the European Union’s climate chief, Miguel Arias Cañete, suggested EU nations step up their commitment to reduce carbon emissions by 45 percent of 1990 levels instead of 40 percent by 2030. “I think we should first stick to the goals we have already set ourselves,” Merkel replied, even as a possible nuclear phaseout U-turn is debated, “I don’t think permanently setting ourselves new goals makes any sense.”

 

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Renewable electricity powered California just shy of 100% for the first time in history

California Renewable Energy Record highlights near-100% clean power as CAISO reports solar, wind, and storage meeting demand, with Interstate 10 arrays and distributed rooftop photovoltaics boosting the grid during Stagecoach, signaling progress toward 100%.

 

Key Points

CA Renewable Energy Record marks CAISO's peak when renewables nearly met total load, led by utility solar and storage.

✅ CAISO hit 99.87% renewables serving load at 2:50 p.m.

✅ Two-thirds of power came from utility-scale solar along I-10.

✅ Tariff inquiry delays solar-storage projects statewide.

 

Renewable electricity met just shy of 100% of California's demand for the first time on Saturday, officials said, much of it from large amounts of solar power, part of a California solar boom, produced along Interstate 10, an hour east of the Coachella Valley.

While partygoers celebrated in the blazing sunshine at the Stagecoach music festival,  "at 2:50 (p.m.), we reached 99.87 % of load served by all renewables, which broke the previous record," said Anna Gonzales, spokeswoman for California Independent System Operator, a nonprofit that oversees the state's bulk electric power system and transmission lines. Solar power provided two-thirds of the amount needed.

Environmentalists who've pushed for years for all of California's power to come from renewables and meet clean energy targets were jubilant as they watched the tracker edge to 100% and slightly beyond. 

"California busts past 100% on this historic day for clean energy!" Dan Jacobson, senior adviser to Environment California, tweeted.

"Once it hit 100%, we were very excited," said Laura Deehan, executive director for Environment California. She said the organization and others have worked for 20 years to push the Golden State to complete renewable power via a series of ever tougher mandates, even as solar and wind curtailments increase across the grid. "California solar plants play a really big role."

But Gonzales said CAISO double-checked the data Monday and had to adjust it slightly because of reserves and other resource needs, an example of rising curtailments in the state. 

Environment California pushed for 1 million solar rooftops statewide, which has been achieved, adding what some say is a more environmentally friendly form of solar power, though wildfire smoke can undermine gains, than the solar farms, which eat up large swaths of the Mojave desert and fragile landscapes.

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'Need to act with that same boldness':A record 10% of the world's power was generated by wind, solar methods in 2021

Deehan said in a statement that more needs to be done, especially at the federal level. "Despite incredible progress illustrated by the milestone this weekend, and the fact that U.S. renewable electricity surpassed coal in 2022, a baffling regulatory misstep by the Biden administration has advocates concerned about backsliding on California’s clean energy targets." 

Deehan said a Department of Commerce inquiry into tariffs on imported solar panels is delaying thousands of megawatts of solar-storage projects in California, even as U.S. renewable energy hit a record 28% in April across the grid.

Still, Deehan said, “California has shown that, for one brief and shining moment, we could do it! It's time to move to 100% clean energy, 100% of the time.”

 

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BMW boss says hydrogen, not electric, will be "hippest thing" to drive

BMW Hydrogen Fuel Cell Strategy positions iX5 and eDrive for zero-emission mobility, leveraging fuel cells, fast refueling, and hydrogen infrastructure as an alternative to BEVs, diversifying drivetrains across premium segments globally, rapidly.

 

Key Points

BMW's plan to commercialize hydrogen fuel-cell drivetrains like iX5 eDrive for scalable, zero-emission mobility.

✅ Fuel cells enable fast refueling and long range with water vapor only.

✅ Reduces reliance on lithium and cobalt via recyclable materials.

✅ Targets premium SUV iX5; limited pilots before broader rollout.

 

BMW is hanging in there with hydrogen, a stance mirrored in power companies' hydrogen outlook today. That’s what Oliver Zipse, the chairperson of BMW, reiterated during an interview last week in Goodwood, England. 

“After the electric car, which has been going on for about 10 years and scaling up rapidly, the next trend will be hydrogen,” he says. “When it’s more scalable, hydrogen will be the hippest thing to drive.”

BMW has dabbled with the idea of using hydrogen for power for years, even though it is obscure and niche compared to the current enthusiasm surrounding vehicles powered by electricity. In 2005, BMW built 100 “Hydrogen 7” vehicles that used the fuel to power their V12 engines. It unveiled the fuel cell iX5 Hydrogen concept car at the International Motor Show Germany in 2021. 

In August, the company started producing fuel-cell systems for a production version of its hydrogen-powered iX5 sport-utility vehicle. Zipse indicated it would be sold in the United States within the next five years, although in a follow-up phone call a spokesperson declined to confirm that point. Bloomberg previously reported that BMW will start delivering fewer than 100 of the iX5 hydrogen vehicles to select partners in Europe, the U.S., and Asia, where Asia leads on hydrogen fuel cells today, from the end of this year.

All told, BMW will eventually offer five different drivetrains to help diversify alternative-fuel options within the group, as hybrids gain renewed momentum in the U.S., Zipse says.

“To say in the U.K. about 2030 or the U.K. and in Europe in 2035, there’s only one drivetrain, that is a dangerous thing,” he says. “For the customers, for the industry, for employment, for the climate, from every angle you look at, that is a dangerous path to go to.” 

Zipse’s hydrogen dreams could even extend to the group’s crown jewel, Rolls-Royce, which BMW has owned since 1998. The “magic carpet ride” driving style that has become Rolls-Royce’s signature selling point is flexible enough to be powered by alternatives to electricity, says Rolls-Royce CEO Torsten Müller-Ötvös. 

“To house, let’s say, fuel cell batteries: Why not? I would not rule that out,” Müller-Ötvös told reporters during a roundtable conversation in Goodwood on the eve of the debut of the company’s first-ever electric vehicle, Spectre. “There is a belief in the group that this is maybe the long-term future.”

Such a vehicle would contain a hydrogen fuel-cell drivetrain combined with BMW’s electric “eDrive” system. It works by converting hydrogen into electricity to reach an electrical output of up to 125 kW/170 horsepower and total system output of nearly 375hp, with water vapor as the only emission, according to the brand.

Hydrogen’s big advantage over electric power, as EVs versus fuel cells debates note, is that it can supply fuel cells stored in carbon-fiber-reinforced plastic tanks. “There will [soon] be markets where you must drive emission-free, but you do not have access to public charging infrastructure,” Zipse says. “You could argue, well you also don’t have access to hydrogen infrastructure, but this is very simple to do: It’s a tank which you put in there like an old [gas] tank, and you recharge it every six months or 12 months.”

Fuel cells at BMW would also help reduce its dependency on raw materials like lithium and cobalt, because the hydrogen-based system uses recyclable components made of aluminum, steel, and platinum. 

Zipse’s continued commitment to prioritizing hydrogen has become an increasingly outlier position in the automotive world. In the last five years, electric-only vehicles have become the dominant alternative fuel — as the age of electric cars dawns ahead of schedule — if not yet on the road, where fewer than 3% of new cars have plugs, at least at car shows and new-car launches.

Rivals Mercedes-Benz and Audi scrapped their own plans to develop fuel cell vehicles and instead have poured tens of billions of dollars into developing pure-electric vehicle, including Daimler's electrification plan initiatives. Porsche went public to finance its own electric aspirations. 

BMW will make half of all new-car sales electric by 2030 across the group, with many expecting most drivers to go electric within a decade, which includes MINI and Rolls-Royce. 
 

 

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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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