More Managers Charged For Price Fixing At Ukraine Power Producer


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DTEK Rotterdam+ price-fixing case scrutinizes alleged collusion over coal-based electricity tariffs in Ukraine, with NABU probing NERC regulators, market manipulation, consumer overpayment, and wholesale pricing tied to imported coal benchmarks.

 

Key Points

NABU probes alleged DTEK-NERC collusion to inflate coal power tariffs via Rotterdam+; all suspects deny wrongdoing.

✅ NABU alleges tariff manipulation tied to coal import benchmarks.

✅ Four DTEK execs and four NERC officials reportedly charged.

✅ Probe centers on 2016-2017 overpayments; defendants contest.

 

Two more executives of DTEK, Ukraine’s largest private power and coal producer and recently in energy talks with Octopus Energy, have been charged in a criminal case on August 14 involving an alleged conspiracy to fix electricity prices with the state energy regulator, Interfax reported.

They are Ivan Helyukh, the CEO of subsidiary DTEK Grid, which operates as Ukraine modernizes its network alongside global moves toward a smart electricity grid, and Borys Lisoviy, a top manager of power generation company Skhidenergo, according to Kyiv-based Concorde Capital investment bank.

Ukraine’s Anti-Corruption Bureau (NABU) alleges that now four DTEK managers “pressured” and colluded with four regulators at the National Energy and Utilities Regulatory Commission to manipulate tariffs on electricity generated from coal that forced consumers to overpay, reflecting debates about unjustified profits in the UK, $747 million in 2016-2017.

 

DTEK allegedly benefited $560 million in the scheme.

All eight suspects are charged with “abuse of office” and deny wrongdoing, similar to findings in a B.C. Hydro regulator report published in Canada.

There is “no legitimate basis for suspicions set out in the investigation,” DTEK said in an August 8 statement.

Suspect Dmytro Vovk, the former head of NERC, dismissed the investigation as a “wild goose chase” on Facebook.

In separate statements over the past week, DTEK said the managers who are charged have prematurely returned from vacation to “fully cooperate” with authorities in order to “help establish the truth.”

A Kyiv court on August 14 set bail at $400,000 for one DTEK manager who wasn’t named, as enforcement actions like the NT Power penalty highlight regulatory consequences.

The so-called Rotterdam+ pricing formula that NABU has been investigating since March 2017, similar to federal scrutiny of TVA rates, was in place from April 2016 until July of this year.

It based the wholesale price of electricity by Ukrainian thermal power plants on coal prices set in the Rotterdam port plus delivery costs to Ukraine.

NABU alleges that at certain times it has not seen documented proof that the purchased coal originated in Rotterdam, insisting that there was no justification for the price hikes, echoing issues around paying for electricity in India in some markets.

Ukraine started facing thermal-coal shortages after fighting between government forces and Russia-backed separatists in the eastern part of the country erupted in April 2014. A vast majority of the anthracite-coal mines on which many Ukrainian plants rely are located on territory controlled by the separatists.

Overnight, Ukraine went from being a net exporter of coal to a net importer and started purchasing coal from as far away as South Africa and Australia.

 

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The crisis in numbers: How COVID-19 has reshaped Saskatchewan

Saskatchewan COVID-19 economic impact: real-time data shows drops in electricity demand, oil well licensing, traffic and tickets, plus spikes in internet usage, government site visits, remote work, and alcohol wholesale volumes.

 

Key Points

COVID-19 reduced energy use, drilling and traffic, while pushing activity online; jobs, rents and sales show strain.

✅ Electricity demand down 6.7%; residential usage up

✅ Oil well license applications fell 15-fold in April

✅ Internet traffic up 16%-46%; wireless LTE up 34%

 

We’re only just beginning to grasp how COVID-19 has upended Saskatchewan’s economy, its government and all of our lives.

The numbers that usually make headlines — job losses, economic contraction, bankruptcies — are still well behind the pace of the virus and its toll.

But other numbers change more quickly. Saskatchewan people are using less power, and the power industry is adopting on-site staffing plans to ensure reliability as conditions evolve. We’re racking up fewer speeding tickets. And as new restrictions come, we’re clicking onto Saskatchewan.ca as much as 10,000 times per minute.

Here’s some data that provides a first glimpse into how much our province has changed in just six weeks.

Electricity use tends to rise and fall in tandem with the health of the economy, and the most recent data from SaskPower suggests businesses are powering down, while regional utilities such as Manitoba Hydro seek unpaid days off to trim costs.

Peak load requirements between March 15 and April 26 were 220 MW lower than during the same period in 2019, and elsewhere BC Hydro is posting COVID-19 updates at Site C as it manages project impacts. That’s a decrease of 6.7 per cent, with total load on April 29 at 2,551 MW. A megawatt is enough electricity to power about 1,000 homes.

Separate from pandemic impacts, an external investigation at Manitoba Hydro has drawn attention to workplace conduct issues.

But it’s not homes that are turning off the lights. SaskPower spokesman Joel Cherry said commercial and industrial usage is down, while residential demand is up, with household electricity bills rising as more people stay home.

The timing of power demand has also shifted, a pattern seen as residential electricity use rises during work-from-home routines. Peak load would usually come around 8 or 9 p.m. in April. Now it’s coming earlier, typically between 5 and 6 p.m.

Oil well applications fall 15-fold
Oil prices have cratered since late February, and producers in Saskatchewan have reacted by pulling back on drilling plans, while neighbouring Alberta provides transition support for coal workers amid broader energy shifts.

Applications for well licences fell from 242 in January to 203 in February (including nine potash and one helium operations), before dropping to 84 in March. April, the month benchmark oil prices went negative for one day, producers submitted just 15 applications.

That’s 15 times fewer than the 231 applications the Ministry of Energy and Resources received in April 2019.

Well licences are needed for drilling, operating, injecting, producing or exploring an oil and gas or potash well in the province.

There has been no clear trend in well abandonment, however. There were 176 applications for abandonment in March and 155 in April, roughly in line with figures from the year before.

SGI spokesman Tyler McMurchy believes the lower numbers might stem from a combination of lower traffic volumes during part of the month, possibly combined with a shift in police priorities. The March 2020 numbers are also well below January and February figures.

Indeed, the Ministry of Highways and infrastructure reported a 16 per cent decrease in average daily traffic last month compared to March 2019, through its traffic counts at 11 different spots on highways across the province.

In Regina, traffic counts at 16 locations dropped from a high of 2.1 million in the first week of March to a low of 1.3 million during the week of March 22. That’s a 44 per cent decrease.

Counts have gradually recovered to 1.6 million in the weeks since. The data was fairly consistent at all 16 spots, which are largely major intersections, though the city cautioned they may not be representative of Regina as a whole.

Tickets for cellphone use while driving also fell, dropping from 562 in February to 314 in March. McMurchy noted that distracted driving numbers in general have been falling since November as stiffer penalties were announced. Impaired driving tickets were up, by contrast, but still within a typical range.

Internet traffic shoots up 16 per cent, far more for rural high speed
You may be spending a lot more time on Netflix and Facebook in the age of social distancing, and SaskTel has noticed.

From late February to late April, SaskTel has seen “very significant increases in provincial data traffic.” DSL and fibre optic networks have handled a 16 per cent increase in traffic, while demand on the wireless LTE network is up 34 per cent.

Usage on the Fusion network up 46 per cent. That network serves rural areas that don’t have access to other high-speed options.

The specific reference dates for comparison were February 24 and April 27.

“We attribute these changes in data usage to the pandemic and not expected seasonal or yearly shifts in usage patterns,” said spokesman Greg Jacobs.

Saskatchewan.ca was attracting just 70 page views per minute on average in February. But page views jumped over 10,000 per minute at 2:38 p.m. on March 18, as Moe was still announcing the new measures.

That’s a 14,000 per cent increase.

For all of March, visitor sessions on the site clocked in at 3,905,061, almost four times the 944,904 recorded for February.

Bureaucracy has increasingly migrated to cyberspace, with 62 per cent of civil servants now working from home. Government Skype calls, both audio and video, have tripled from 12,000 sessions per day to 35,000.Telephone conference calls increased by a factor of 14 from the first week of February to the second full week of April, with 25 times more weekly call participants. 

The Ministry of Central Services reported a 17 per cent jump in emails received by government over the past two months, excluding the Ministry of Health.

But as civil servants spend more time on their computers, the government’s fleet is spending a lot less time on the road. The ministry has purchased 40 per cent fewer litres of fuel for its vehicles over the past four weeks, compared to the same time last year.

Alcohol wholesale volumes up 22 per cent, then fall back to normal
Retailers bought more alcohol from the Saskatchewan Liquor and Gaming Authority (SLGA) last month, just as the government began tightening pandemic restrictions.

Wholesale sales volumes were up 22 per cent over March 15 to 28, compared to the same period in 2019. SLGA spokesman David Morris said the additional demand “was likely the result of retailers stocking-up as restrictions related to COVID-19 took effect.”

But the jump didn’t last. Wholesale volumes were back to normal for the first two weeks of April. SLGA did notice a very slight uptick last week, however, with volumes out of its distribution centre up three per cent. The numbers do not include Brewer’s Distributors Ltd.

It’s unclear how much more alcohol consumers actually purchased, since province-wide retail numbers were not available.

There was no discernible trend in March for anti-anxiety medication, however. The number of prescriptions filled for benzodiazepines like Valium, Xanax and Ativan see-sawed over March, according to data provided by the College of Physicians and Surgeons, but its associate registrar does not believe the trends are statistically relevant.

One-fifth of tenants miss April rent
About 20 per cent of residential rent went totally unpaid in the first six days of April, according to the Saskatchewan Landlord Association (SLA).

The precise number is 19.7 per cent, but there’s some uncertainty due to the survey method, which is based on responses from 300 residential landlords with 14,000 units. An additional 12 per cent of tenants paid a portion of their rent, but not the full amount. The figures do not include social housing.

Cameron Choquette, the association’s executive officer, partly blames the province’s decision to suspend most landlord tenant board hearings for evictions, saying it “allows more people to take advantage of landlords by not paying their rent and not facing any consequences.”

The government has defended the suspension by saying it’s needed to ensure everyone has a safe place to self-isolate if needed during the pandemic.

March’s jobs numbers were bad, with almost 21,000 fewer Saskatchewan people employed compared to February.

April’s labour force survey is expected on Friday. But new April numbers released Wednesday show that two-thirds of the province’s businesses managed to avoid laying off staff almost entirely.

According to Statistics Canada, 66.2 per cent of businesses reported laying off between zero and one per cent of their employees due to COVID-19. That was better than any other province. Just 7.6 per cent laid off all of their employees, again the best number outside the territories. The survey period was April 3 to 24.

Some businesses are even hiring. Walmart, for instance, has hired 300 people in Saskatchewan since mid-March.

Trade and Export Development Minister Jeremy Harrison chalked the data up to a relatively more optimistic business outlook in Saskatchewan, combined with “very targeted” restrictions and a support program for small and medium businesses.

That support program, which provides $5,000 grants to qualifying businesses affected by government restrictions, has only been around for three weeks. But it’s already been bombarded with 6,317 applications.

The total value of those applications would be $24,178,000, according to Harrison. Of them, 3,586 have been approved with a value of $11,755,000.

Businesses are coming to Harrison’s ministry with thousands of questions. Since it opened in March, the Business Response Team has received 4,125 calls and 1,758 emails.

The kinds of questions have changed over the course of the pandemic. Many are now asking when they can open their doors, according to Harrison, as they wonder about “grey areas” in the Re-Open Saskatchewan plan.

 

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Bitcoin consumes 'More electricity than Argentina' - Cambridge

Bitcoin energy consumption is driven by mining electricity demand, with TWh-scale power use, carbon footprint concerns, and Cambridge estimates. Rising prices incentivize more hardware; efficiency gains and renewables adoption shape sustainability outcomes.

 

Key Points

Bitcoin energy consumption is mining's electricity use, driven by price, device efficiency, and energy mix.

✅ Cambridge tool estimates ~121 TWh annual usage

✅ Rising BTC price incentivizes more mining hardware

✅ Efficiency, renewables, and costs shape footprint

 

"Mining" for the cryptocurrency is power-hungry, with power curtailments reported during heat waves, involving heavy computer calculations to verify transactions.

Cambridge researchers say it consumes around 121.36 terawatt-hours (TWh) a year - and is unlikely to fall unless the value of the currency slumps, even as Americans use less electricity overall.

Critics say electric-car firm Tesla's decision to invest heavily in Bitcoin undermines its environmental image.

The currency's value hit a record $48,000 (£34,820) this week. following Tesla's announcement that it had bought about $1.5bn bitcoin and planned to accept it as payment in future.

But the rising price offers even more incentive to Bitcoin miners to run more and more machines.

And as the price increases, so does the energy consumption, according to Michel Rauchs, researcher at The Cambridge Centre for Alternative Finance, who co-created the online tool that generates these estimates.

“It is really by design that Bitcoin consumes that much electricity,” Mr Rauchs told BBC’s Tech Tent podcast. “This is not something that will change in the future unless the Bitcoin price is going to significantly go down."

The online tool has ranked Bitcoin’s electricity consumption above Argentina (121 TWh), the Netherlands (108.8 TWh) and the United Arab Emirates (113.20 TWh) - and it is gradually creeping up on Norway (122.20 TWh).

The energy it uses could power all kettles used in the UK, where low-carbon generation stalled in 2019, for 27 years, it said.

However, it also suggests the amount of electricity consumed every year by always-on but inactive home devices in the US alone could power the entire Bitcoin network for a year, and in Canada, B.C. power imports have helped meet demand.

Mining Bitcoin
In order to "mine" Bitcoin, computers - often specialised ones - are connected to the cryptocurrency network.

They have the job of verifying transactions made by people who send or receive Bitcoin.

This process involves solving puzzles, which, while not integral to verifying movements of the currency, provide a hurdle to ensure no-one fraudulently edits the global record of all transactions.

As a reward, miners occasionally receive small amounts of Bitcoin in what is often likened to a lottery.

To increase profits, people often connect large numbers of miners to the network - even entire warehouses full of them, as seen with a Medicine Hat bitcoin operation backed by an electricity deal.

That uses lots of electricity because the computers are more or less constantly working to complete the puzzles, prompting some utilities to consider pauses on new crypto loads in certain regions.

The University of Cambridge tool models the economic lifetime of the world's Bitcoin miners and assumes that all the Bitcoin mining machines worldwide are working with various efficiencies.

Using an average electricity price per kilowatt hour ($0.05) and the energy demands of the Bitcoin network, it is then possible to estimate how much electricity is being consumed at any one time, though in places like China's power sector data can be opaque.
 

 

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Hydro One crews restore power to more than 277,000 customers following damaging storms in Ontario

Hydro One Power Restoration showcases outage recovery after a severe windstorm, with crews repairing downed power lines, broken poles and crossarms, partnering with utilities and contractors to boost grid resilience and promote emergency kit preparedness.

 

Key Points

A coordinated response by Hydro One and partners to repair storm damage, restore outages, strengthen grid resilience.

✅ Crews repaired downed lines, broken poles, and crossarms

✅ Partners and contractors aided rapid outage restoration

✅ Investments improve grid resilience and emergency readiness

 

Hydro One crews have restored power to more than 277,000 customers following back-to-back storms, with impacts felt in communities like Sudbury where local crews worked to reconnect service, including a damaging windstorm on that caused 57 broken poles, 27 broken crossarms, as well as downed power lines and fallen trees on lines. Hydro One crews restored power to more than 140,000 customers within 24 hours of Friday's windstorm, even as Toronto outages persisted for some customers elsewhere.

'We understand power outages bring life to a halt, which is why we are continuously improving our storm response, as employee COVID-19 support demonstrated, while making smart investments in a resilient, reliable and sustainable electricity system to energize life for families, businesses and communities for years to come,' said David Lebeter, Chief Operating Officer, Hydro One. 'We thank our customers for their patience as our crews worked tirelessly, alongside our utility partners and contractors, including Ontario crews in Florida, to restore power as quickly and as safely as possible.'

Hydro One thanks all of its utility partners and contractors who assisted with restoration efforts following the windstorm (alongside similar Quebec outages that highlighted the broader impact), including Durham High Voltage, EPCOR, ERTH Power, K-Line Construction Ltd., Lakeland Power Distribution Ltd., North Bay Hydro, Sproule Powerline Construction Ltd. and Valard Construction.

Hydro One encourages customers to restock their emergency kits following these storms, which utilities such as BC Hydro have also characterized as atypical, and to be aware of support programs like our pandemic relief fund that can help during difficult periods, to ensure they're prepared for an emergency or extended power outage.

 

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Warren Buffett’s Secret To Cheap Electricity: Wind

Berkshire Hathaway Energy Wind Power drives cheap electricity rates in Iowa via utility-scale wind turbines, integrated transmission, battery storage, and grid management, delivering renewable energy, stable pricing, and long-term rate freezes through 2028.

 

Key Points

A vertically integrated wind utility lowering Iowa rates via owned generation, transmission, and advanced grid control.

✅ Owned wind assets meet Iowa residential demand

✅ Integrated transmission lowers costs and losses

✅ Rate freeze through 2028 sustains cheap power

 

In his latest letter to Berkshire Hathaway shareholders, Warren Buffett used the 20th anniversary of Berkshire Hathaway Energy to tout its cheap electricity bills for customers.

When Berkshire purchased the majority share of BHE in 2000, the cost of electricity for its residential customers in Iowa was 8.8 cents per kilowatt-hour (kWh) on average. Since then, these electricity rates have risen at a paltry <1% per year, with a freeze on rate hikes through 2028. As anyone who pays an electricity bill knows, that is an incredible deal.  

As Buffett himself notes with alacrity, “Last year, the rates [BHE’s competitor in Iowa] charged its residential customers were 61% higher than BHE’s. Recently, that utility received a rate increase that will widen the gap to 70%.”

 

The Winning Strategy

So, what’s Buffett’s secret to cheap electricity? Wind power.

“The extraordinary differential between our rates and theirs is largely the result of our huge accomplishments in converting wind into electricity,” Buffett explains. 

Wind turbines in Iowa that BHE owns and operates are expected to generate about 25.2 million megawatt-hours (MWh) of electricity for its customers, as projects like Building Energy operations begin to contribute. By Buffett’s estimations, that will be enough to power all of its residential customers’ electricity needs in Iowa.  


The company has plans to increase its renewable energy generation in other regions as well. This year, BHE Canada is expected to start construction on a 117.6MW wind farm in Alberta, Canada with its partner, Renewable Energy Systems, that will provide electricity to 79,000 homes in Canada’s oil country.

Observers note that Alberta is a powerhouse for both green energy and fossil fuels, underscoring the region's unique transition.

But I would argue that the secret to BHE’s success perhaps goes deeper than transitioning to sources of renewable energy. There are plenty of other utility companies that have adopted wind and solar power as an energy source. In the U.S., where renewable electricity surpassed coal in 2022, at least 50% of electricity customers have the option to buy renewable electricity from their power supplier, according to the Department of Energy. And some states, such as New York, have gone so far as to allow customers to pick from providers who generate their electricity.

What differentiates BHE from a lot of the competition in the utility space is that it owns the means to generate, store, transmit and supply renewable power to its customers across the U.S., U.K. and Canada, with lessons from the U.K. about wind power informing policy.

In its financial filings for 2019, the company reported that it owns 33,600MW of generation capacity and has 33,400 miles of transmission lines, as well as a 50% interest in Electric Transmission Texas (ETT) that has approximately 1,200 miles of transmission lines. This scale and integration enables BHE to be efficient in the distribution and sale of electricity, including selling renewable energy across regions.

BHE is certainly not alone in building renewable-energy fueled electricity dominions. Its largest competitor, NextEra, built 15GW of wind capacity and has started to expand its utility-scale solar installations. Duke Energy owns and operates 2,900 MW of renewable energy, including wind and solar. Exelon operates 40 wind turbine sites across the U.S. that generate 1,500 MW.

 

Integrated Utilities Power Ahead

It’s easy to see why utility companies see wind as a competitive source of electricity compared to fossil fuels. As I explained in my previous post, Trump’s Wrong About Wind, the cost of building and generating wind energy have fallen significantly over the past decade. Meanwhile, improvements in battery storage and power management through new technological advancements have made it more reliable (Warren Buffett bet on that one too).

But what is also striking is that integrated power and transmission enables these utility companies to make those decisions; both in terms of sourcing power from renewable energy, as well as the pricing of the final product. Until wind and solar power are widespread, these utility companies are going to have an edge of the more fragmented ends of the industry who can’t make these purchasing or pricing decisions independently. 

Warren Buffett very rarely misses a beat. He’s not the Oracle of Omaha for nothing. Berkshire Hathaway’s ownership of BHE has been immensely profitable for its shareholders. In the year ended December 31, 2019, BHE and its subsidiaries reported net income attributable to BHE shareholders of $2.95 billion.

There’s no question that renewable energy will transform the utility industry over the next decade. That change will be led by the likes of BHE, who have the power to invest, control and manage their own energy generation assets.

 

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California Skirts Blackouts With Heat Wave to Test Grid Again

California Heatwave Power Crisis strains CAISO as record demand triggers emergency alerts, demand response, and rolling blackout warnings. PG&E prepares outages while solar fades at peak, drought cuts hydropower, and reliability hinges on conservation.

 

Key Points

Extreme heat driving record demand in California, straining CAISO and prompting conservation to avert rolling blackouts.

✅ CAISO hit a record 52 GW peak load amid triple-digit heat

✅ Emergency alerts spurred demand response, cutting load spikes

✅ Solar drop and drought-weakened hydro worsened evening shortfall

 

California narrowly avoided blackouts for a second successive day even as blistering temperatures pushed electricity demand to a record and stretched the state’s power grid close to its limits.

The state imposed its highest level of energy emergency for several hours late Tuesday and urged consumers to turn off lights, curb air conditioners and shut off power-hungry appliances after a day of extraordinary stress on electricity infrastructure as temperatures in many regions topped 110 degrees Fahrenheit (43 Celsius).

Electricity use had reached 52 gigawatts Tuesday, easily breaking a record that stood since 2006, according to the California Independent System Operator. The state issued emergency alerts direct to cell phones in several counties asking for immediate power conservation, and grid data show that demand plunged in response. Emergency measures were finally lifted at about 9 p.m. local time.

Much of California remains under an excessive heat warning through Friday, with authorities already preparing for more severe pressure on the power system on Wednesday amid a looming supply shortage across the grid. “We aren’t out of the woods yet,” Governor Gavin Newsom said in a message posted on his office’s Twitter account. “We will see continued extreme temps this week and if we rallied today, we can do it again.”

The state’s largest power company, PG&E Corp. said earlier Tuesday that it had notified about 525,000 homes and businesses that they could lose power for up to two hours. That warning came as temperatures in downtown Sacramento hit 116 degrees Fahrenheit, topping a previous 1925 record.

Newsom earlier signed an executive order extending until Friday emergency measures to free up additional power supplies, rather than allowing them to expire as planned on Wednesday. Many state buildings were ordered to power down lights and air conditioning at 4 p.m., and he urged residents and businesses to conserve the equivalent of 3 gigawatts of power in order to stave off blackouts. 

California's Early Brush With Blackouts Bodes Ill For Days Ahead
The downtown skyline during a heatwave in Los Angeles.Photographer: Eric Thayer/Bloomberg
California faced a similar energy emergency Monday, which was alleviated in part by activating temporary gas-fired power plants operated by the California Department of Water Resources. The current heat wave, which began in the last week of August, is remarkable in both its ferocity and duration, according to officials. 

The prospect of outages underscores how grids have become vulnerable in the face of extreme weather as California transitions from fossil fuels to renewable energy, an approach it is increasingly exporting to Western states as well. California's climate policies have aggressively closed natural-gas power plants in recent years, leaving the state increasingly dependent on solar farms that go dark late in the day just as electricity demand peaks. At the same time, the state is enduring the Southwest’s worst drought in 1,200 years, sapping hydropower production.

The average 15-minute wholesale power price in Caiso surged to $1,806 a megawatt-hour at 4:45 p.m. local time, according to the grid operator’s website.

Average day-ahead prices top $300 a megawatt-hour in Southern California
  
A break from the heat will come across Southern California later this week, thanks to Tropical Storm Kay in the Pacific Ocean, according to weather officials. Kay is forecast to edge up the coastline of Mexico’s Baja California peninsula. As it moves north, the storm will pump moisture and clouds into Southern California and Arizona, taking an edge off the heat.

 

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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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