What can we expect from clean hydrogen in Canada

Denmark 2019 electricity CO2 intensity shows record-low emissions as renewable energy surges, wind power dominates, offshore wind expands, and coal phase-out accelerates Denmark's energy transition and grid decarbonization, driven by higher CO2 prices and flexibility.

Key Points

It is 135 g CO2/kWh, a record low enabled by wind power growth, offshore wind, and a sharp coal decline.

✅ Average emissions fell to 135 g CO2/kWh, the lowest on record

✅ Wind and solar supplied 49.9% of national electricity use

✅ Coal consumption dropped 46% as CO2 allowance prices rose

Danish electricity producers set a new green record in 2019, when an average produced kilowatt-hour emitted 135 gr CO2 / kWh.

It is the lowest CO2 emission ever measured in Denmark and about one-seventh of what the electricity producers emitted in 1990.

Never has a kilowatt-hour produced emitted as little CO2 as it did in 2019. And that's according to Energinet's recently published annual Environmental Report on Danish electricity generation and cogeneration, two primary causes.

One reason is that more green power has been produced because the Horns Rev 3 offshore wind farm, which can produce electricity for 425,000 households, was commissioned in 2019. The other is that Danish coal consumption fell by 46 percent from 2018 to 2019, as coal phase-out plans gathered pace across the sector. the dramatic decline in coal consumption is partly due a significant increase in the price of CO2 quotas, and thus also the price of CO2 emissions.

'Historically, 135 gr CO2 / kWh is a really, really low figure, showing the impressive green travel that the Danish electricity system has been on. In 1990, a kilowatt-hour produced emitted over 1000 grams of CO2, ie about seven times as much as today, 'says Hanne Storm Edlefsen, area manager in Energinet Power Systems Responsibility.

Wind energy is the dominant form of electricity generation in Denmark, a pattern the UK wind beat coal in 2016 when shifting away from fossil fuels.

17.1 TWh. Danish wind turbines and solar cells generated so much electricity in 2019, corresponding to 49.9 per cent. of Danish electricity consumption, reflecting broader EU wind and solar growth trends as well. An increase of 15 per cent. The wind turbines alone produced 16 TWh, which is not only a new green record, but also puts a thick line that wind energy is by far the most dominant form of electricity generation in Denmark.

'Thanks to our large wind resources, turbines are by far the largest supplier of renewable energy in Denmark, and this will be for many years to come. The large price drop in new wind energy in recent years - for both onshore and offshore winds - will ensure that wind energy will drive a large part of the growth in renewable energy in the coming years, as new wind generation records are set in markets like the UK, 'says Soren Klinge, electricity market manager at Wind Denmark.

Conversely, total electricity generation from fossil and bio-based fuels decreased by 26 PJ (petajoule ed.), Corresponding to 34 per cent. from 2018 to 2019, mirroring renewables overtaking coal in Germany. Nevertheless, net electricity generation was just under 30 TWh both years.

'It is worth noting that while fossil fuels are being phased out, Denmark maintains its annual net production of electricity. The green, so to speak, replaces the black. It once again underpins that green conversion, high security of supply and an affordable electricity price can go hand in hand, 'says Hanne Storm Edlefsen.

Danish power system is ready for a green future

Including trade in electricity with neighboring countries, 1 kWh in a Danish outlet generates 145 gr CO2 / kWh.

'There has been a very significant development in the Danish electricity system in recent years, where the electricity system can now be operated solely on the renewable energy. It is a remarkable development, also from an international perspective where low-carbon progress stalled in the UK in 2019, that one would not have thought possible for just a few years ago, 'he says.

More than expected have phased out coal

The electricity from the Danish sockets will be greener , predicts Energinet's environmental report , which expects CO2 intensity in the coming years. This is explained by an expectation of increased electrification of energy consumption, together with a continued expansion with wind and solar.

'Wind energy is the cornerstone of the green transition. With the commissioning of the Kriegers Flak offshore wind farm and several major onshore wind turbine projects within the next few years, we can well expect that only the wind's share of electricity consumption will exceed 50 per cent hopefully as early as 2021,' concludes Soren Klinge.

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BC Utilities Commission Site C Dam Questions press BC Hydro on geotechnical risks, stability issues, cost overruns, oversight gaps, seeking transparency for ratepayers and clarity on contracts, mitigation, and the powerhouse and spillway foundations.

Key Points

Inquiry seeking explanations from BC Hydro on geotechnical risks, costs, timelines and oversight for Site C.

✅ Timeline of studies, monitoring, and mitigation actions

✅ Rationale for contracts, costs, and right bank construction

✅ Implications for ratepayers, oversight, and project stability

The watchdog B.C. Utilities Commission has sent BC Hydro 70 questions about the troubled Site C dam, asking when geotechnical risks were first identified and when the project’s assurance board was first made aware of potential issues related to the dam’s stability. 

“I think they’ve come to the conclusion — but they don’t say it — that there’s been a cover-up by BC Hydro and by the government of British Columbia,” former BC Hydro CEO Marc Eliesen told The Narwhal. 

On Oct. 21, The Narwhal reported that two top B.C. civil servants, including the senior bureaucrat who prepares Site C dam documents for cabinet, knew in May 2019 that the project faced serious geotechnical problems due to its “weak foundation” and the stability of the dam was “a significant risk.” 

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“They [the civil servants] would have reported to their ministers and to the government in general,” said Eliesen, who is among 18 prominent Canadians calling for a halt to Site C work until an independent team of experts can determine if the geotechnical problems can be resolved and at what cost.  

“It’s disingenuous for Premier [John] Horgan to try to suggest, ‘Well, I just found out about it recently.’ If that’s the case, he should fire the public servants who are representing the province.” 

The public only found out about significant issues with the Site C dam at the end of July, when BC Hydro released overdue reports saying the project faces unknown cost overruns, schedule delays and, even as it achieved a transmission line milestone earlier, such profound geotechnical troubles that its overall health is classified as ‘red,’ meaning it is in serious trouble. 

“The geotechnical challenges have been there all these years.”

The Site C dam is the largest publicly funded infrastructure project in B.C.’s history. If completed, it will flood 128 kilometres of the Peace River and its tributaries, forcing families from their homes and destroying Indigenous gravesites, hundreds of protected archeological sites, some of Canada’s best farmland and habitat for more than 100 species vulnerable to extinction.

Eliesen said geotechnical risks were a key reason BC Hydro’s board of directors rejected the project in the early 1990s, when he was at the helm of BC Hydro.

“The geotechnical challenges have been there all these years,” said Eliesen, who is also the former Chair and CEO of Ontario Hydro, where Ontario First Nations have urged intervention on a critical electricity line, the former Chair of Manitoba Hydro and the former Chair and CEO of the Manitoba Energy Authority.

Elsewhere, a Manitoba Hydro line to Minnesota has faced potential delays, highlighting broader grid planning challenges.

The B.C. Utilities Commission is an independent watchdog that makes sure ratepayers — including BC Hydro customers — receive safe and reliable energy services, as utilities adapt to climate change risks, “at fair rates.”

The commission’s questions to BC Hydro include 14 about the “foundational enhancements” BC Hydro now says are necessary to shore up the Site C dam, powerhouse and spillways. 

The commission is asking BC Hydro to provide a timeline and overview of all geotechnical engineering studies and monitoring activities for the powerhouse, spillway and dam core areas, and to explain what specific risk management and mitigation practices were put into effect once risks were identified.

The commission also wants to know why construction activities continued on the right bank of the Peace River, where the powerhouse would be located, “after geotechnical risks materialized.” 

It’s asking if geotechnical risks played a role in BC Hydro’s decision in March “to suspend or not resume work” on any components of the generating station and spillways.

The commission also wants BC Hydro to provide an itemized breakdown of a $690 million increase in the main civil works contract — held by Spain’s Acciona S.A. and the South Korean multinational conglomerate Samsung C&T Corp. — and to explain the rationale for awarding a no-bid contract to an unnamed First Nation and if other parties were made aware of that contract. 

Peace River Jewels of the Peace Site C The Narwhal
Islands in the Peace River, known as the ‘jewels of the Peace’ will be destroyed for fill for the Site C dam or will be submerged underwater by the dam’s reservoir, a loss that opponents are sharing with northerners in community discussions. Photo: Byron Dueck

B.C. Utilities Commission chair and CEO David Morton said it’s not the first time the commission has requested additional information after receiving BC Hydro’s quarterly progress reports on the Site C dam. 

“Our staff reads them to make sure they understand them and if there’s anything in then that’s not clear we go then we do go through this, we call it the IR — information request — process,” Morton said in an interview.

“There are things reported in here that we felt required a little more clarity, and we needed a little more understanding of them, so that’s why we asked the questions.”

The questions were sent to BC Hydro on Oct. 23, the day before the provincial election, but Morton said the commission is extraordinarily busy this year and that’s just a coincidence. 

“Our resources are fairly strained. It would have been nice if it could have been done faster, it would be nice if everything could be done faster.” 

“These questions are not politically motivated,” Morton said. “They’re not political questions. There’s no reason not to issue them when they’re ready.”

The commission has asked BC Hydro to respond by Nov. 19.

Read more: Top B.C. government officials knew Site C dam was in serious trouble over a year ago: FOI docs

Morton said the independent commission’s jurisdiction is limited because the B.C. government removed it from oversight of the project. 

The commission, which would normally determine if a large dam like the Site C project is in the public’s financial interest, first examined BC Hydro’s proposal to build the dam in the early 1980s.

After almost two years of hearings, including testimony under oath, the commission concluded B.C. did not need the electricity. It found the Site C dam would have negative social and environmental impacts and said geothermal power should be investigated to meet future energy needs. 

The project was revived in 2010 by the BC Liberal government, which touted energy from the Site C dam as a potential source of electricity for California and a way to supply B.C.’s future LNG industry with cheap power.

Not willing to countenance another rejection from the utilities commission, the government changed the law, stripping the commission of oversight for the project. The NDP government, which came to power in 2017, chose not to restore that oversight.

“The approval of the project was exempt from our oversight,” Morton said. “We can’t come along and say ‘there’s something we don’t like about what you’re doing, we’re going to stop construction.’ We’re not in that position and that’s not the focus of these questions.” 

But the commission still retains oversight for the cost of construction once the project is complete, Morton said. 

“The cost of construction has to be recovered in [hydro] rates. That means BC Hydro will need our approval to recover their construction cost in rates, and those are not insignificant amounts, more than $10.7 billion, in all likelihood.” 

In order to recover the cost from ratepayers, the commission needs to be satisfied BC Hydro didn’t spend more money than necessary on the project, Morton said. 

“As you can imagine, that’s not a straight forward review to do after the fact, after a 10-year construction project or whatever it ends up being … so we’re using these quarterly reports as an opportunity to try to stay on top of it and to flag any areas where we think there may be areas we need to look into in the future.”

The price tag for the Site C dam was $10.7 billion before BC Hydro’s announcement at the end of July — a leap from $6.6 billion when the project was first announced in 2010 and $8.8 billion when construction began in 2015. 

Eliesen said the utilities commission should have been asking tough questions about the Site C dam far earlier. 

“They’ve been remiss in their due diligence activities … They should have been quicker in raising questions with BC Hydro, rather than allowing BC Hydro to be exceptionally late in submitting their reports.” 

BC Hydro is late in filing another Site C quarterly report, covering the period from April 1 to June 30. 

The quarterly reports provide the B.C. public with rare glimpses of a project that international hydro expert Harvey Elwin described as being more secretive than any hydro project he has encountered in five decades working on large dams around the world, including in China.

Read more: Site C dam secrecy ‘extraordinary’, international hydro construction expert tells court proceeding

Morton said the commission could have ordered regular reporting for the Site C project if it had its previous oversight capability.

“Then we would have had the ability to follow up and ultimately order any delinquent reports to be filed. In this circumstance, they are being filed voluntarily. They can file it as late as they choose. We don’t have any jurisdiction.” 

In addition to the six dozen questions, the commission has also filed confidential questions with BC Hydro. Morton said confidential information could include things such as competitive bid information. “BC Hydro itself may be under a confidentiality agreement not to disclose it.” 

With oversight, the commission would also have been able to drill down into specific project elements,  Morton said. 

“We would have wanted to ensure that the construction followed what was approved. BC Hydro wouldn’t have the ability to make significant changes to the design and nature of the project as they went along.”

BC Hydro has been criticized for changing the design of the Site C dam to an L-shape, which Eliesen said “has never been done anywhere in the world for an earthen dam.” 

Morton said an empowered commission could have opted to hold a public hearing about the design change and engage its own technical consultants, as it did in 2017 when the new NDP government asked it to conduct a fast-tracked review of the project’s economics. 

Construction Site C Dam
A recent report by a U.S. energy economist found cancelling the Site C dam project would save BC Hydro customers an initial $116 million a year, with increasing savings growing over time. Photo: Garth Lenz / The Narwhal

The commission’s final report found the dam could cost more than $12 billion, that BC Hydro had a historical pattern of overestimating energy demand and that the same amount of energy could be produced by a suite of renewables, including wind and proposed pumped storage such as the Meaford project, for $8.8 billion or less. 

The NDP government, under pressure from construction trade unions, opted to continue the project, refusing to disclose key financial information related to its decision. 

When the geotechnical problems were revealed in July, the government announced the appointment of former deputy finance minister Peter Milburn as a special Site C project advisor who will work with BC Hydro and the Site C project assurance board to examine the project and provide the government with independent advice.

Eliesen said BC Hydro and the B.C. government should never have allowed the recent diversion of the Peace River to take place given the tremendous geotechnical challenges the project faces and its unknown cost and schedule for completion. 

“It’s a disgrace and scandalous,” he said. “You can halt the river diversion, but you’ve got another four or five years left in construction of the dam. What are you going to do about all the cement you’ve poured if you’ve got stability problems?”

He said it’s counter-productive to continue with advice “from the same people who have been wrong, wrong, wrong,” without calling in independent global experts to examine the geotechnical problems. 

“If you stop construction, whether it takes three or six months, that’s the time that’s required in order to give yourself a comfort level. But continuing to do what you’ve been doing is not the right course. You should have to sit back.”

Eliesen said it reminded him of the Pete Seeger song Waist Deep in the Big Muddy, which tells the story of a captain ordering his troops to keep slogging through a river because they will soon be on dry ground. After the captain drowns, the troops turn around.

“It’s a reflection of the fact that if you don’t look at what’s new, you just keep on doing what you’ve been doing in the past and that, unfortunately, is what’s happening here in this province with this project.”

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Heavy-Duty Truck Electrification is disrupting the aftermarket as diesel declines: fewer parts, regenerative braking, emissions rules, e-drives, gearboxes, and software engineering needs reshape service demand, while ICE fleets persist for years.

Key Points

Transition of heavy trucks to EV systems, reducing parts and emissions while reshaping aftermarket service and skills.

✅ 33% fewer parts; regenerative braking slashes brake wear

✅ Diesel share declines; EVs and natural gas slowly gain

✅ Aftermarket shifts to e-drives, gearboxes, software and service

Those who sell parts and repair trucks might feel uneasy when reports emerge about a coming generation of electric trucks.

There are reportedly about 33% fewer parts to consider when internal combustion engines and transmissions are replaced by electric motors. Features such as regenerative braking are expected to dramatically reduce brake wear. As for many of the fluids needed to keep components moving? They can remain in their tanks and drums.

Think of them as disruptors. But presenters during the annual Heavy Duty Aftermarket Dialogue are stressing that the changes are not coming overnight. Chris Patterson, a consultant and former Daimler Trucks North America CEO, noted that the Daimler electrification plan underscores the shift as he counts just 50 electrified heavy trucks in North America.

About 88% of today’s trucks run on diesel, with the remaining 12% mostly powered by gasoline, said John Blodgett, MacKay and Company’s vice-president of sales and marketing. Five years out, even amid talk of an EV inflection point, he expects 1% to be electric, 2% to be natural gas, 12% to be gasoline, and 84% on diesel.

But a decade from now, forecasts suggest a split of 76% diesel, 11% gasoline, 7% electric, and 5% natural gas, with a fraction of a percent relying on hydrogen-electric power. Existing internal combustion engines will still be in service, and need to be serviced, but aftermarket suppliers are now preparing for their roles in the mix, especially as Canada’s EV opportunity comes into focus for North American players.

“This is real, for sure,” said Delphi Technologies CEO Rick Dauch.

Aftermarket support is needed
“As programs are launched five to six years from now, what are the parts coming back?” he asked the crowd. “Braking and steering. The fuel injection business will go down, but not for 20-25 years.” The electric vehicles will also require a gear box and motor.

“You still have a business model,” he assured the crowd of aftermarket professionals.

Shifting emissions standards are largely responsible for the transformation that is occurring. In Europe, Volkswagen’s diesel emissions scandal and future emissions rules of Euro 7 will essentially sideline diesel-powered cars, even as electric buses have yet to take over transit systems. Delphi’s light-duty diesel business has dropped 70% in just five years, leading to plant closures in Spain, France and England.

“We’ve got a billion-dollar business in electrification, last year down $200 million because of the downturn in light-duty diesel controllers,” Dauch said. “We think we’re going to double our electrification business in five years.”

That has meant opening five new plants in Eastern European markets like Turkey, Romania and Poland alone.

Deciding when the market will emerge is no small task, however. One new plant in China offered manufacturing capacity in July 2019, but it has yet to make any electric vehicle parts, highlighting mainstream EV challenges tied to policy shifts, because the Chinese government changed the incentive plans for electric vehicles.

‘All in’ on electric vehicles
Dana has also gone “all in” on electrification, said chairman and CEO Jim Kamsickas, referring to Dana’s work on e-drives with Kenworth and Peterbilt. Its gasket business is focusing on the needs of battery cooling systems and enclosures.

But he also puts the demand for new electric vehicle systems in perspective. “The mechanical piece is still going to be there.”

The demand for the new components and systems, however, has both companies challenged to find enough capable software engineers. Delphi has 1,600 of them now, and it needs more.

“Just being a motor supplier, just being an inverter supplier, just being a gearbox supplier itself, yes you’ll get value out of that. But in the longhaul you’re going to need to have engineers,” Kamsickas said of the work to develop systems.

Dauch noted that Delphi will leave the capital-intensive work of producing batteries to other companies in markets like China and Korea. “We’re going to make the systems that are in between – inverters, chargers, battery management systems,” he said.

Difficult change
But people working for European companies that have been built around diesel components are facing difficult days. Dauch refers to one German village with a population of 1,200, about 800 of whom build diesel engine parts. That business is working furiously to shift to producing gasoline parts.

Electrification will face hurdles of its own, of course. Major cities around the world are looking to ban diesel-powered vehicles by 2050, but they still lack the infrastructure needed to charge all the cars and truck fleet charging at scale, he added.

Kamsickas welcomes the disruptive forces.

“This is great,” he said. “It’s making us all think a little differently. It’s just that business models have had to pivot – for you, for us, for everybody.”

They need to be balanced against other business demands, including evolving cross-border EV collaboration dynamics, too.

Said Kamsickas: “Working through the disruption of electrification, it’s how do you financially manage that? Oh, by the way, the last time I checked there are [company] shareholders and stakeholders you need to take care of.”

“It’s going to be tough,” Dauch agreed, referring to the changes for suppliers. “The next three to four years are really going to be game changes. “There’ll be some survivors and some losers, that’s for sure.”

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EV Firefighter Cancer Risks: lithium-ion battery fires, toxic metals like nickel and chromium, hazardous smoke plumes, and prolonged exposure threaten first responders; SCBA use, decontamination, and evidence-based protocols help reduce occupational health impacts.

Key Points

Health hazards from EV battery fires exposing responders to toxic metals and smoke, elevating long-term cancer risk.

✅ Nickel and chromium in EV smoke linked to lung and sinus cancers

✅ Use SCBA, on-scene decon, and post-incident cleaning to cut exposure

✅ Adopt EV fire SOPs: cooling, monitoring, isolation, air monitoring

As electric vehicles (EVs) become more popular, the EV fire risks to firefighters are becoming an increasing concern. These fires, fueled by the high-capacity lithium-ion batteries in EVs, produce dangerous chemical exposures that could have serious long-term health implications for first responders.

Claudine Buzzo, a firefighter and cancer survivor, knows firsthand the dangers that come with the profession. She’s faced personal health battles, including rare pancreatic cancer and breast cancer, both of which she attributes to the hazards of firefighting. Now, as EV adoption increases and some research links adoption to fewer asthma-related ER visits in local communities, Buzzo and her colleagues are concerned about how EV fires might add to their already heavy exposure to harmful chemicals.

The fire risks associated with EVs are different from those of traditional gasoline-powered vehicles. Dr. Alberto Caban-Martinez, who is leading a study at the Sylvester Comprehensive Cancer Center, explains that the high concentrations of metals released in the smoke from an EV fire are linked to various cancers. For instance, nickel, a key component in EV batteries, is associated with lung, nasal, and laryngeal cancers, while chromium, another metal found in some EV batteries, is linked to lung and sinus cancers.

Research from the Firefighter Cancer Initiative indicates that the plume of smoke from an EV fire contains significantly higher concentrations of these metals than fires from traditional vehicles. This raises the risk of long-term health problems for firefighters who respond to such incidents.

While the Electric Vehicle Association acknowledges the risks associated with various types of vehicle fires, they maintain that the lithium-ion batteries in EVs may not present a significantly higher risk than other common fire hazards, even as broader assessments suggest EVs are not a silver bullet for climate goals. Nonetheless, the growing body of research is causing concern among health experts, urging for further studies into how these new types of fires could affect firefighter health and how upstream electricity generation, where 18% of electricity in 2019 came from fossil fuels in Canada, factors into overall risk perceptions.

Fire departments and health researchers are working to understand the full scope of these risks and are emphasizing the importance of protective gear, such as self-contained breathing apparatuses, to minimize exposure during EV fire responses, while also considering questions like grid impacts during charging operations and EV sustainability improvements in different regions.

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Air Humidity Energy Harvesting converts thin air into clean electricity using air-gen devices with nanopores, delivering continuous renewable energy from ambient moisture, as demonstrated by UMass Amherst researchers in Advanced Materials.

Key Points

A method using nanoporous air-gen devices to harvest continuous clean electricity from ambient atmospheric moisture.

✅ Nanopores drive charge separation from ambient water molecules

✅ Works across materials: silicon, wood, bacterial films

✅ Predictable, continuous power unlike intermittent solar or wind

Sure, we all complain about the humidity on a sweltering summer day. But it turns out that same humidity could be a source of clean, pollution-free energy, aligning with efforts toward cheap, abundant electricity worldwide, a new study shows.

"Air humidity is a vast, sustainable reservoir of energy that, unlike wind and solar power resources, is continuously available," said the study, which was published recently in the journal Advanced Materials.

While humidity harvesting promises constant output, advances like a new fuel cell could help fix renewable energy storage challenges, researchers suggest.

“This is very exciting,” said Xiaomeng Liu, a graduate student at the University of Massachusetts-Amherst, and the paper’s lead author. “We are opening up a wide door for harvesting clean electricity from thin air.”

In fact, researchers say, nearly any material can be turned into a device that continuously harvests electricity from humidity in the air, a concept echoed by raindrop electricity demonstrations in other contexts.

“The air contains an enormous amount of electricity,” said Jun Yao, assistant professor of electrical and computer engineering at the University of Massachusetts-Amherst and the paper’s senior author. “Think of a cloud, which is nothing more than a mass of water droplets. Each of those droplets contains a charge, and when conditions are right, the cloud can produce a lightning bolt – but we don’t know how to reliably capture electricity from lightning.

"What we’ve done is to create a human-built, small-scale cloud that produces electricity for us predictably and continuously so that we can harvest it.”

The heart of the human-made cloud depends on what Yao and his colleagues refer to as an air-powered generator, or the "air-gen" effect, which relates to other atmospheric power concepts like night-sky electricity studies in the field.

In broader renewable systems, flexible resources such as West African hydropower can support variable wind and solar output, complementing atmospheric harvesting concepts as they mature.

The study builds on research from a study published in 2020. That year, scientists said this new technology "could have significant implications for the future of renewable energy, climate change and in the future of medicine." That study indicated that energy was able to be pulled from humidity by material that came from bacteria; related bio-inspired fuel cell design research explores better electricity generation, the new study finds that almost any material, such as silicon or wood, also could be used.

The device mentioned in the study is the size of a fingernail and thinner than a single hair. It is dotted with tiny holes known as nanopores, it was reported. "The holes have a diameter smaller than 100 nanometers, or less than a thousandth of the width of a strand of human hair."

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Ontario Global Adjustment Charge faces constitutional scrutiny as a regulatory charge vs tax; Court of Appeal revives case over electricity pricing, feed-in tariff contracts, IESO policy, and hydro rate impacts on consumers and industry.

Key Points

A provincial electricity fee funding generator contracts, now central to a court fight over tax versus regulatory charge.

✅ Funds gap between market price and contracted generator rates

✅ At issue: regulatory charge vs tax under constitutional law

✅ Linked to feed-in tariff, IESO policy, and hydro rate hikes

Ontario’s court of appeal has decided that a constitutional challenge of a steep provincial electricity charge should get its day in court, overturning a lower-court judgment that had dismissed the legal bid.

Hamilton, Ont.-based National Steel Car Ltd. launched the challenge in 2017, saying Ontario’s so-called global adjustment charge was unconstitutional because it is a tax — not a valid regulatory charge — that was not passed by the legislature.

The global adjustment funds the difference between the province’s hourly electricity price and the price guaranteed under contracts to power generators. It is “the component that covers the cost of building new electricity infrastructure in the province, maintaining existing resources, as well as providing conservation and demand management programs,” the province’s Independent Electricity System Operator says.

However, the global adjustment now makes up most of the commodity portion of a household electricity bill, and its costs have ballooned, as regulators elsewhere consider a proposed 14% rate hike in Nova Scotia.

Ontario’s auditor general said in 2015 that global adjustment fees had increased from $650 million in 2006 to more than $7 billion in 2014. She added that consumers would pay $133 billion in global adjustment fees from 2015 to 2032, after having already paid $37 billion from 2006 to 2014.

National Steel Car, which manufactures steel rail cars and faces high electricity rates that hurt Ontario factories, said its global adjustment costs went from $207,260 in 2008 to almost $3.4 million in 2016, according to an Ontario Court of Appeal decision released on Wednesday.

The company claimed the global adjustment was a tax because one of its components funds electricity procurement contracts under a “feed-in tariff” program, or FIT, which National Steel Car called “the main culprit behind the dramatic price increases for electricity,” the decision said.

Ontario’s auditor general said the FIT program “paid excessive prices to renewable energy generators.” The program has been ended, but contracts awarded under it remain in place.

National Steel Car claimed the FIT program “was actually designed to accomplish social goals unrelated to the generation of electricity,” such as helping rural and indigenous communities, and was therefore a tax trying to help with policy goals.

“The appellant submits that the Policy Goals can be achieved by Ontario in several ways, just not through the electricity pricing formula,” the decision said.

National Steel Car also argued the global adjustment violated a provincial law that requires the government to hold a referendum for new taxes.

“The appellant’s principal claim is that the Global Adjustment was a ‘colourable attempt to disguise a tax as a regulatory charge with the purpose of funding the costs of the Policy Goals,’” the decision said. “The appellant pressed this argument before the motion judge and before this court. The motion judge did not directly or adequately address it.”

The Ontario government applied to have the challenge thrown out for having “no reasonable cause of action,” and a Superior Court judge did so in 2018, saying the global adjustment is not a tax.

National Steel Car appealed the decision, and the decision published Wednesday allowed the appeal, set aside the lower-court judgment, and will send the case back to Superior Court, where it could get a full hearing.

“The appellant’s claim is sufficiently plausible on the evidentiary record it put forward that the applications should not have been dismissed on a pleadings motion before the development of a full record,” wrote Justice Peter D. Lauwers. “It is not plain, obvious and beyond doubt that the Global Adjustment, and particularly the challenged component, is properly characterized as a valid regulatory charge and not as an impermissible tax.”

Jerome Morse of Morse Shannon LLP, one of National Steel Car’s lawyers, said the Ontario government would now have 60 days to decide whether to seek permission to appeal to the Supreme Court of Canada.

“What the court has basically said is, ‘this is a plausible argument, here are the reasons why it’s plausible, there was no answer to this,’” Morse told the Financial Post.

Ontario and the IESO had supported the lower-court decision, but there has been a change in government since the challenge was first launched, with Progressive Conservative Premier Doug Ford replacing the Liberals and Kathleen Wynne in power. The Liberals had launched a plan aimed at addressing hydro costs before losing in a 2018 election, the main thrust of which had been to refinance global adjustment costs.

Wednesday’s decision states that “Ontario’s counsel advised the court that the current Ontario government ‘does not agree with the former government’s electricity procurement policy (since-repealed).’

“The government’s view is that: ‘The solution does not lie with the courts, but instead in the political arena with political actors,’” it adds.

A spokesperson for Ontario Energy Minister Greg Rickford said in an email that they are reviewing the decision but “as this matter is in the appeal period, it would be inappropriate to comment.” 

Ontario had also requested to stay the matter so a regulator, the Ontario Energy Board, could weigh in, while the Nova Scotia regulator approved a 14% hike in a separate case.

“However, Ontario only sought this relief from the motion judge in the alternative, and given the motion judge’s ultimate decision, she did not rule on the stay,” Thursday’s decision said. “It would be premature for this court to rule on the issue, although it seems incongruous for Ontario to argue that the Superior Court is the convenient forum in which to seek to dismiss the applications as meritless, but that it is not the convenient forum for assessing the merits of the applications.”

National Steel Car’s challenge bears a resemblance to the constitutional challenges launched by Ontario and other provinces over the federal government’s carbon tax, but Justice Lauwers wrote “that the federal legislative scheme under consideration in those cases is distinctly different from the legislation at issue in this appeal.”

“Nothing in those decisions impacts this appeal,” the judge added.
 

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