Biomass plan triggers questions

By Checkbiotech.org


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A proposal by We Energies to generate power by burning waste wood at a Wisconsin paper mill comes at a time when the paper industry and environmentalists have raised concerns about another wood-burning power plant in northern Wisconsin.

The Milwaukee utility this month said it wants to build a $250 million power plant near Wausau in Rothschild that would generate 50 megawatts of electricity, enough to power 40,000 homes.

The biomass project is in response to the state's renewable energy mandate that requires 10% of Wisconsin's electricity to come from wind turbines, solar panels and other renewable sources by 2015.

Plans for another project in Ashland on Lake Superior have raised concerns about the impact of the plant on the state's papermaking industry.

The Wisconsin Paper Council and the Flambeau River Papers in Park Falls have raised concerns about plans by Xcel Energy Corp. to convert a coal-fired boiler in Ashland to burn wood.

If approved by state regulators, the Ashland site would become the biggest biomass power plant in the Midwest, Xcel said last year.

The Clean Wisconsin environmental group sought a review of the Ashland plant to determine the impact on northern forests and greenhouse gas emissions.

And Flambeau River Papers of Park Falls raised questions about whether the Xcel project would raise prices for wood that would be used in a bio-refinery that Flambeau intends to build to make biodiesel and wax.

"We don't want to overharvest the forest, we want to make sure there's enough residue on the forest floor," said Keith Reopelle of Clean Wisconsin.

"With all of the additional projects going on in the area, particularly pellet plants and the broad interest in use of biomass for energy, we think there's a serious risk of harming existing forest products industries," said Earl Gustafson, vice president at the Wisconsin Paper Council, based in Neenah.

Experts hired by Xcel Energy of Eau Claire, including the Energy Center of Wisconsin, said there is plenty of waste wood left over after forests are culled for logging.

"We spoke with the foresters from the counties in the area and they indicated the vast majority of this resource is not being collected," said Sean Weitner of the Energy Center during a hearing on the Xcel proposal.

"There's enough wood to go around for everyone," said Pete Coutu of Plum Creek Timber, the largest owner of private forestland in the state.

An analysis by the state Public Service Commission said there is a risk to the northern forests from biomass power projects, but only if loggers and timber companies fail to follow sustainable harvesting practices.

Wisconsin has been a leader in sustainable forestry, Gov. Jim Doyle said at the announcement of the We Energies biomass power plant this month.

But Katie Nekola of Clean Wisconsin said the PSC should do a more detailed review of the project and its impact on greenhouse gas emissions, taking into account emissions caused by logging.

"If biomass is worth doing, it's worth doing right," she said.

The move to burn more wood is part of a push by the state Office of Energy Independence to boost the supply of renewable energy and expand markets for energy that can be produced in Wisconsin - as opposed to coal, which is imported from Wyoming and other states.

If approved by state regulators, the We Energies biomass plant would burn 500,000 tons of waste wood per year when built in 2013.

While critical of the Ashland project, the Paper Council supports the project proposed by We Energies and Domtar Corp., a Montreal-based paper company that's a member of the council.

"Domtar has decades of experience in the forest products industry," Gustafson said. "They and We Energies are targeting waste wood. As a paper manufacture itself, Domtar won't be doing anything to harm their market for pulp wood."

Waste wood - tree trimmings, bark and chips left over from logging - amounts to a plentiful resource.

A study by the U.S. Department of Energy in 2006 found the Upper Midwest, including Iowa, Minnesota, Illinois, Wisconsin and North Dakota, has the biggest potential biomass resource.

Energy from wood pulp and plant fibers could be a key economic engine for the state, Doyle said.

The Great Lakes Bioenergy Research Center at the University of Wisconsin-Madison is researching ways to develop energy from wood, switchgrass and other plant matter.

In 2007, it received the largest federal grant in the university's history - $125 million. The center is a cornerstone of plans to develop a UW energy institute, Doyle said.

Across Wisconsin, a string of biomass or biofuel projects that would burn waste wood have been announced over the past year or so, including Flambeau's Park Falls bio-refinery. They include:

• In Cassville, DTE Energy Services Inc. of Ann Arbor, Mich., has begun construction to convert a coal-fired power plant to burn wood, primarily urban wood waste, said John Austerberry of DTE. The conversion is projected to create 60 construction jobs and 30 permanent jobs, DTE executives told Cassville community leaders this year.

• In Menasha, studies are under way to explore burning biomass instead of coal at a utility power plant.

• The New North, the economic development arm that is northern Wisconsin's counterpart to the Milwaukee 7, is seeking investors to develop a cellulosic ethanol plant at a former paper mill in Niagara and is conducting a two-phase study to assess the biomass resource in the north central part of the state.

• The state plans to spend $250 million to convert the Charter Street heating plant at the UW-Madison to burn biomass. Similar projects are being studied at other UW campuses.

In Ashland, the Xcel project was supported because it would create more opportunities for the state's timber and logging interests.

"This project will mean jobs for our loggers in an area that is desperately in need of economic stimuli," Roger Hanson of Ashland testified at a hearing last month.

Clean Wisconsin said questions remain about biomass, even if it's better than coal.

Like coal-fired power plants, generators burning wood release carbon dioxide into the air.

David Mladenoff, a UW forestry expert, testifying for Clean Wisconsin in the Ashland case, said the state needs to do a more thorough review of the impact of these projects on the North Woods and on greenhouse gas emissions.

"Wisconsin is at an important policy juncture," Mladenoff said.

"It is not enough to say that burning wood is better than burning coal, while ignoring the impacts of burning wood. We need to get this right from the beginning."

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Florida PSC approves Gulf Power’s purchase of renewable energy produced at municipal solid waste plant

Gulf Power renewable energy contract underscores a Florida PSC-approved power purchase from Bay County's municipal solid waste plant, delivering 13.65 MW at a fixed price, boosting fuel diversity, lowering landfill waste, and saving customers money.

 

Key Points

A fixed-price PPA for 13.65 MW from Bay County's waste-to-energy plant, approved by Florida PSC to cut costs.

✅ Fixed-price purchase; pay only for energy produced.

✅ 13.65 MW from Bay County waste-to-energy facility.

✅ Cuts landfill waste and natural gas dependency.

 

The Florida Public Service Commission (PSC) approved Tuesday a contract under which Gulf Power Company will purchase all the electricity generated by the Bay County Resource Recovery Facility, a municipal solid waste plant, similar to SaskPower-Manitoba Hydro deal structures seen elsewhere, over the next six years.

“Gulf’s renewable energy purchase promotes Florida’s fuel diversity, further reducing our dependency on natural gas,” PSC Chairperson Julie Brown said. “This renewable energy option also reduces landfill waste, saves customers money, and serves the public interest.”

The contract provides for Gulf to acquire the Panama City facility’s 13.65 megawatts of renewable generation for its customers beginning in July 2017. Gulf will pay a fixed price, aligned with approaches in Alberta's clean electricity RFP programs, and only pays for the energy produced. The contract is expected to save approximately $250,000 and provides security for customers, a contrast to overruns at the Kemper power plant project, because if the plant does not supply energy, Gulf does not have to provide payment.

This contract is the third renewable energy contract between Gulf and Bay County, at a time when the Southern California plant closures may be postponed, continuing agreements approved in 2008 and 2014. In making the decision, the PSC considered Gulf’s need for power and developments such as the Turkey Point license renewal process, as well as the contract’s cost-effectiveness, payment provisions, and performance guarantees, as required by rule.

 

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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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Electricity prices rise more than double EU average in first half of 2021

Estonia energy prices 2021 show sharp electricity hikes versus the EU average, mixed natural gas trends, kWh tariffs on Nord Pool spiking, and VAT, taxes, and support measures shaping household bills.

 

Key Points

EU-high electricity growth, early gas dip, then Nord Pool spikes; taxes, VAT, and subsidies shaped energy bills.

✅ Electricity up 7% on year; EU average 2.8% in H1 2021.

✅ Gas fell 1% in H1; later spiked with global market.

✅ VAT, taxes, excise and aid impacted household costs.

 

Estonia saw one of the highest rates in growth of electricity prices in the first half of 2021, compared with the same period in key trends in 2020 across Europe. These figures were posted before the more recent, record level of electricity and natural gas prices; the latter actually dropped slightly in Estonia in the first half of the year.

While electricity prices rose 7 percent on year in the first half of 2021 in Estonia, the average for the EU as a whole, where energy prices drove inflation across the bloc, stood at 2.8 percent over the same period, BNS reports.

Hungary (€10 per 100 Kwh) and Bulgaria (€10.20 per 100 Kwh) saw the lowest electricity prices EU-wide, while at €31.9 per KWH, Germany's power prices posted the most expensive rate, while Denmark, Belgium and Ireland also had high prices, in excess of €25 per Kwh.

Slovenia saw the highest electricity price rise, at 15 percent, and even the United States' electricity prices saw their steepest rise in decades during the same era, while Estonia was in third place, joint with Romania at 7 percent as noted, and behind Poland (8 percent).

Lithuania, on the other hand, experienced the third highest electricity price fall over the first half of 2021, compared with the same period in 2020, at 6 percent, behind only Cyprus (7 percent) and the Netherlands (10 percent, largely due to a tax cut).

Urmas Reinsalu: VAT on electricity, gas and heating needs to be lowered
The EU average price of electricity was €21.9 percent per Kwh, with taxes and excise accounting for 39 percent of this, even as prices in Spain surged across the day-ahead market.

Estonia has also seen severe electricity price rises in the second half of the year so far, with records set and then promptly broken several times earlier in October, while an Irish electricity provider raised prices amid similar pressures, and a support package for low income households rolled out for the winter season (October to March next year). The price on the Nord Pool market as of €95.01 per Kwh; a day earlier it had stood at €66.21 per Kwh, while on October 19 the price was €140.68 per Kwh.

Gas prices
Natural gas prices to household, meanwhile, dropped in Estonia over the same period, at a sharper rate (1 percent) than the EU average (0.5 percent), according to Eurostat.

Gas prices across the EU were lowest in Lithuania (€2.8 per 100 Kwh) and highest in the Netherlands (€9.6 per KWH), while the highest growth was seen in Denmark (19 percent), in the first half of 2021.

Natural gas prices dropped in 20 member states, however, with the largest drop again coming in Lithuania (23 percent).

The average price of natural gas EU-side in the first half of 2021 was €6.4, and taxes and excise duties accounted on average for 36 percent of the total.

The second half of the year has seen steep gas price rises in Estonia, largely the result of increases on the world market, though European gas benchmarks later fell to pre-Ukraine war levels.

 

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Ermineskin First Nation soon to become major electricity generator

Ermineskin First Nation Solar Project delivers a 1 MW distributed generation array with 3,500 panels, selling power to Alberta's grid, driving renewable energy revenue, jobs, and regional economic development with partner SkyFire Energy.

 

Key Points

A 1 MW, 3,500-panel distributed generation plant selling power to Alberta's grid to support revenue and jobs.

✅ 1 MW array, 3,500 panels; grid-tied distributed generation

✅ Annual revenue projected at $80k-$150k, scalable

✅ Built with SkyFire Energy; expansion planned next summer

 

The switch will soon be flipped on a solar energy project that will generate tens of thousands of dollars for Ermineskin First Nation, while energizing economic development across Alberta, where selling renewables is emerging as a promising opportunity.

Built on six acres, the one-megawatt generator and its 3,500 solar panels will produce power to be sold into the province’s electrical grid, providing annual revenues for the band of $80,000 to $150,000, depending on energy demand and pricing.

The project cost $2.7 million, including connection costs and background studies, said Sam Minde, chief executive officer of the band-owned Neyaskweyahk Group of Companies Inc.

It was paid for with grants from the Western Economic Diversification Fund and the province’s Climate Leadership Plan, and, amid Ottawa’s green electricity contracting push, is expected to be connected to the grid by mid-December.

“It’s going to be the biggest distributed generation in Alberta,” he said.

Called the Sundancer generator, it was built and will be operated through a partnership with SkyFire Energy, reflecting how renewable power developers design better projects by combining diverse resources.

Minde said the project’s benefits extend beyond Ermineskin First Nation, one of four First Nations at Maskwacis, 20 km north of Ponoka, in a province where renewable energy surge could power thousands of jobs.

“Our nation is looking to do the best it can in business. It’s competitive, but at the same time, what is good for us is good for the region.

“If we’re creating jobs, we’re going to be building up our economy. And if you look at our region right now, we need to continue to create opportunities and jobs.”

Electricity prices are rock bottom right now, in the six to nine cents per kilowatt hour range, with recent Alberta solar contracts coming in below natural gas on cost. During the oilsands boom, when power demand was skyrocketing, the price was in the 16 to 18 cent range.

That means there is a lot of room for bigger returns for Ermineskin in the future, especially if pipelines such as TransMountain get going or the oilsands pick up again, and as Alberta solar growth accelerates in the years ahead.

The band is so confident that Sundancer will prove a success that there are plans to double it in size, a strategy echoed by community-scale efforts such as the Summerside solar project that demonstrate scalability. By next summer, a $1.5-million to $1.7-million project funded by the band will be built on another six acres nearby.

Minde said the project is an example of the community’s connection with the environment being used to create opportunities and embracing technologies that will likely figure large in the world’s energy future.

 

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Research shows that Ontario electricity customers want more choice and flexibility

Hydro One Account Customization lets Ontario customers pick billing due dates, enable balanced billing, get early high usage notifications, monitor electricity consumption, and receive outage alerts, offering flexibility during COVID-19.

 

Key Points

A flexible toolkit to set due dates, balance bills, get usage alerts, and track electricity.

✅ Pick your billing due date for better cash flow

✅ Balanced billing smooths seasonal usage spikes

✅ Early high usage and outage alerts via text or email

 

Hydro One announced it is providing its customers with the flexibility to customize their account. Customers can choose their own billing due date, flatten usage spikes from temperature fluctuations through balanced billing and the Ultra-Low Overnight Price Plan, and monitor their electricity consumption by signing up for early high usage notifications.

Research shows that Ontario electricity customers want more choice and flexibility (CNW Group/Hydro One Inc.)
"Being in-tune with our customers' needs is more important than ever. As we continue to navigate the COVID-19 pandemic, customers tell us that choice and flexibility, alongside electricity relief, will help them during this difficult time," said Jason Fitzsimmons, Chief Corporate Affairs and Customer Care Officer, Hydro One. "As a customer-driven organization, we have an important responsibility to support customers with relief, flexibility and choice."

According to recent research conducted by Angus Reid, 78 per cent of Ontario electricity customers said balanced billing would help them better manage their finances, even as peak hydro rates remained unchanged for many self-isolating customers. Balanced billing flattens out the spikes in electricity usage that commonly occurs in the summer due to air conditioning use and in the winter due to heating.

The research also found that 72 per cent of customers would like to pick their own due date to better manage their finances. This feature is now included in Hydro One's new customization bundle, which will be shared with customers through an awareness campaign. Other customization tools include alerts when electricity usage falls outside of the customer's normal pattern, the ability to report outages online and the ability to receive text messages or emails when outages occur. Customers can visit www.HydroOne.com/Choice to learn more.

"Customers can pick and choose the tools that work best for them. We are now able to offer a suite of features built for any lifestyle as our employees support Ontario's COVID-19 response across the province," said Fitzsimmons.

In addition to these customization options, Hydro One has also developed a number of customer support measures during COVID-19, including a Pandemic Relief Fund to offer payment flexibility and financial assistance to customers. The company is also extending its ban on electricity disconnections to ensure that no customer is disconnected at a time when support is needed most. More information about Hydro One's Pandemic Relief Program can be found at www.HydroOne.com/PandemicRelief. Customers can continue to contact Hydro One to determine individual payment plans and determine financial assistance programs available to meet their needs, especially as disconnection pressures can arise for some households.

 

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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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