Negative Electricity Prices Amid Renewable Energy Surplus


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France Negative Electricity Prices highlight surplus renewables as solar and wind output exceeds demand, driving grid flexibility, demand response, and storage signals while reshaping energy markets, lowering emissions, and improving economic efficiency and energy security.

 

Key Points

They occur when surplus solar and wind push wholesale power prices below zero, signaling flexible, low-carbon grids.

✅ Surplus solar and wind outpace demand, flipping price signals

✅ Incentivizes demand response, storage, and flexible loads

✅ Enhances decarbonization, energy security, and market efficiency

 

In a remarkable feat for renewable energy, France has recently experienced negative electricity prices due to an abundant supply of solar and wind power. This development highlights the country's progress towards sustainable energy solutions and underscores the potential of renewables to reshape global energy markets.

The Surge in Renewable Energy Supply

France's electricity grid benefited from a surplus of renewable energy generated by solar panels and wind turbines. During periods of peak production, such as sunny and windy days, the supply of electricity exceeded demand, leading to negative prices and reflecting how solar is reshaping price dynamics in Northern Europe.

Implications for Energy Markets

The occurrence of negative electricity prices reflects a shift towards a more flexible and responsive energy system. It demonstrates the capability of renewables to meet substantial portions of electricity demand reliably and economically, with evidence of falling wholesale prices in many markets, challenging traditional notions of energy supply and pricing dynamics.

Technological Advancements and Policy Support

Technological advancements in renewable energy infrastructure, coupled with supportive government policies and incentives, have played pivotal roles in France's achievement. Investments in solar farms, wind farms, and grid modernization, including the launch of France's largest battery storage platform by TagEnergy, have enhanced the efficiency and reliability of renewable energy integration into the national grid.

Economic and Environmental Benefits

The adoption of renewable energy sources not only reduces greenhouse gas emissions but also fosters economic growth and energy independence. By harnessing abundant solar and wind resources, France strengthens its energy security and reduces reliance on fossil fuels, contributing to long-term sustainability goals and reflecting a continental shift as renewable power has surpassed fossil fuels for the first time.

Challenges and Future Outlook

While France celebrates the success of negative electricity prices, challenges remain in scaling renewable energy deployment and optimizing grid management. Balancing supply and demand, integrating intermittent renewables, and investing in energy storage technologies are critical for ensuring grid stability and maximizing the benefits of renewable energy, particularly in addressing clean energy's curtailment challenge across modern grids.

Global Implications

France's experience with negative electricity prices serves as a model for other countries striving to transition to clean energy economies. It underscores the potential of renewables to drive economic prosperity, mitigate climate change impacts, and reshape global energy markets towards sustainability, as seen in Germany where solar-plus-storage is now cheaper than conventional power in several contexts.

Conclusion

France's achievement of negative electricity prices driven by renewable energy surplus marks a significant milestone in the global energy transition. By leveraging solar and wind power effectively, France demonstrates the feasibility and economic viability of renewable energy integration at scale. As countries worldwide seek to reduce carbon emissions and enhance energy resilience, France's example provides valuable insights and inspiration for advancing renewable energy agendas and accelerating towards a sustainable energy future.

 

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Enbridge Insists Storage Hub Lives On After Capital Power Pullout

Enbridge Alberta CCS Project targets carbon capture and storage in Alberta, capturing emissions from industrial emitters to advance net-zero goals, leveraging carbon pricing, regulatory support, and a hub model despite a key partner's exit.

 

Key Points

A proposed Alberta carbon capture hub by Enbridge to store industrial emissions and support net-zero targets.

✅ Seeks emitters across power, oil and gas, and heavy industry

✅ Backed by carbon pricing, regulation, and net-zero mandates

✅ Faces high capex, storage risk, and anchor-tenant uncertainty

 

Enbridge Inc., a Canadian energy giant, is digging its heels in on its proposed carbon capture and storage (CCS) project in Alberta. This comes despite the recent withdrawal of Capital Power, a major potential emitter that was expected to utilize the CCS technology. Enbridge maintains the project remains viable, but questions linger about its future viability without a cornerstone anchor.

The CCS project, envisioned as a major carbon capture hub in Alberta, aimed to capture emissions from industrial facilities and permanently store them underground. This technology has the potential to play a significant role in reducing greenhouse gas emissions and mitigating the effects of climate change, alongside grid solutions like bridging the Alberta-B.C. electricity gap that can complement decarbonization efforts.

Capital Power's decision to shelve its $2.4 billion Genesee Generating Station project, which was designed to integrate with the CCS hub, threw a wrench into Enbridge's plans. The Genesee project was expected to be a key source of emissions for capture and storage, and its status is being weighed as Ottawa advances the federal coal plan to phase out unabated coal.

Enbridge, however, remains optimistic. The company cites ongoing discussions with other potential emitters interested in utilizing the CCS technology, amid new funding signals such as the U.S. DOE's $110M for CCUS that highlight momentum. They believe the project holds significant value despite Capital Power's departure.

"We are confident in the long-term viability of the project and continue to actively engage with potential customers," said Enbridge spokesperson Rachel Giroux. "Carbon capture and storage is a critical technology for achieving net-zero emissions, and we believe there is a strong business case for our CCS project."

Enbridge's confidence hinges on several factors. Firstly, they believe there is a growing appetite for CCS technology amongst industrial facilities facing increasing pressure to reduce their carbon footprint. Regulations and carbon pricing mechanisms, including new U.S. EPA power plant rules that test CCS readiness, could further incentivize companies to adopt CCS solutions.

Secondly, Enbridge highlights the potential for capturing emissions from not just power plants but also from other industrial sectors like oil and gas production and clean hydrogen projects in Canada, where reforming processes can generate CO2. This broader application could significantly increase the captured carbon volume and strengthen the project's economic viability.

However, skepticism remains. Critics point to the high upfront costs associated with CCS development and the nascent stage of the technology. They argue that without a guaranteed stream of captured emissions, the project might not be financially sound. Additionally, the long-term safety and effectiveness of large-scale carbon storage solutions remain under scrutiny.

The success of Enbridge's CCS project hinges on attracting new emitters. Replacing Capital Power's contribution will be a significant challenge. Enbridge will need to demonstrate the project's economic viability and navigate the complex regulatory landscape surrounding CCS technology.

The Alberta government's position on CCS is crucial. While the government has expressed support for the technology, the level of financial and regulatory incentives offered will significantly impact investor confidence, especially as the IEA net-zero outlook underscores Canada's need for much more electricity. A clear and stable policy framework will be essential for attracting emitters to the project.

The future of Enbridge's CCS project remains uncertain. Capital Power's withdrawal is a setback, but Enbridge's continued commitment suggests they believe the technology holds promise. Whether they can find enough emitters to justify the project's development will be a critical test. The outcome will have significant implications for the future of CCS technology in Alberta and Canada's broader efforts to achieve net-zero emissions, including Canada-Germany clean energy cooperation that seeks to scale low-carbon fuels.

 

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US Electricity Prices Rise Most in 41 Years as Inflation Endures

US Electricity Price Surge drives bills as BLS data show 15.8 percent jump; natural gas and coal costs escalate amid energy crisis, NYISO warns of wholesale prices and winter futures near $200 per MWh.

 

Key Points

A sharp rise in power bills driven by higher natural gas and coal costs and tighter wholesale markets.

✅ BLS reports electricity bills up 15.8% year over year

✅ Natural gas bills up 33% as fuel costs soar

✅ NYISO flags winter wholesale prices near $200/MWh

 

Electricity bills for US consumers jumped the most since 1981, gaining 15.8% from the same period a year ago, according to the US Bureau of Labor Statistics, and residential bills rose 5% in 2022 across the U.S.

Natural gas bills, which crept back up last month after dipping in July, surged 33% from the same month last year, labor data released Tuesday showed, as electricity and natural gas pricing dynamics continue to ripple through markets. Broader energy costs slipped for a second consecutive month because of lower gasoline and fuel oil prices. Even with that drop, total energy costs were still about 24% above August 2021 levels.

Electricity costs are relentlessly climbing because prices for the two biggest power-plant fuels -- natural gas and coal -- have surged in the last year as the US economy rebounds from the pandemic and as Russia’s war in Ukraine triggers an energy crisis in Europe, where German electricity prices nearly doubled over a year. Another factor is the hot and humid summer across most of the lower 48 states drove households and businesses to crank up air conditioners. Americans likely used a record amount of power in the third quarter, according to US Energy Information Administration projections, even as U.S. power demand is seen sliding 1% in 2023 on milder weather.

New York’s state grid operator warned of a “sharp rise in wholesale electric costs expected this winter” with spiking global demand for fossil fuels, lagging supply and instability from Russia’s war in Ukraine driving up oil and gas prices, with multiple energy-crisis impacts on U.S. electricity and gas still unfolding, according to a Tuesday report. Geopolitical factors are ultimately reflected in wholesale electricity prices and supply charges to consumer bills, the New York Independent System Operator said, and as utilities direct more spending to delivery rather than production.

Electricity price futures for this winter have increased fourfold from last year, and potential deep-freeze disruptions to the energy sector could add volatility, with prices averaging near $200 a megawatt-hour, the grid operator said. That has been driven by natural gas futures for the upcoming winter, which are more than double current prices to nearly $20 per million British thermal units.

 

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California Regulators Face Calls for Action as Electricity Bills Soar

California Electricity Rate Hikes strain households as CPUC weighs fixed charges, utility profit caps, and stricter oversight. Wildfire mitigation, transmission upgrades, and aging grid costs push bills higher amid renewable integration and consumer protection debates.

 

Key Points

California power rates are rising from wildfire mitigation, transmission costs, and grid upgrades under CPUC review.

✅ CPUC mulls fixed charges to stabilize bills and rate design.

✅ Advocates push profit caps; utilities cite investment needs.

✅ Stronger oversight sought to curb waste and boost transparency.

 

California residents and consumer groups are demanding relief as their electricity bills continue to climb, putting increasing pressure on state regulators to intervene.  A recent op-ed in the San Francisco Chronicle highlights the growing frustration, emphasizing that California already has some of the highest electricity rates in the country, as coverage on why prices are soaring underscores, and these costs are only getting more burdensome.


Factors Driving High Bills

The rising electricity bills are attributed to several factors:

  • Wildfire Mitigation and Liability: Utility companies are investing heavily in wildfire prevention measures, such as vegetation management and infrastructure hardening. The costs of these initiatives, along with the increasing financial liabilities associated with wildfire risk, are being passed on to consumers.
  • Transmission Costs: California's vast geography and move towards renewable energy sources necessitate significant investments in transmission lines to deliver electricity from remote locations. These infrastructure costs also contribute to higher bills.
  • Aging Infrastructure: California's electricity grid is aging and requires upgrades and maintenance, and the expenses associated with these efforts are reflected in consumer rates.


Proposed Solutions and Debates

Consumer advocates and some lawmakers are calling for various actions to address the issue, including a potential revamp of electricity rates to clean the grid:

  • Fixed Charge Proposal: The California Public Utilities Commission (CPUC) is considering a proposal to introduce an income-based fixed charge on electricity bills. This change aims to make rates more predictable and encourage investment in renewable energy sources. However, opponents argue that it could disproportionately impact low-income households and discourage conservation.
  • Utility Profit Caps: Some advocate for capping utility companies' profits. They believe excessive profits should be returned to customers in the form of lower rates. However, utility companies counter that they need a certain level of profit to invest in infrastructure and maintain a reliable grid.
  • Increased Oversight: Consumer groups are calling for stricter oversight of utility company spending, and legislators are preparing to crack down on utility spending through upcoming votes as well. They demand transparency and want to ensure that funds collected from customers are being used for necessary investments and not for lobbying or excessive executive compensation.

 

Comparisons and National Implications

Similar concerns about rising utility bills are emerging in other parts of the country as more states transition to renewable energy and invest in infrastructure upgrades.

A report by the Energy Information Administration (EIA) shows that average residential electricity rates across the country have been on the rise for the past decade. While California currently ranks amongst the highest, major changes to electric bills are being debated, and other states are following suit, demonstrating the nationwide challenge of balancing affordability with necessary investments.

 

Uncertain Future

The California Public Utilities Commission is reviewing the fixed charge proposal and is expected to make a decision later this year, with income-based flat-fee utility bills moving closer in the process. The outcome of this decision and potential additional regulatory changes will have significant ramifications for California residents, and some lawmakers plan to overturn income-based charges if adopted, which could set a precedent for how other states handle the rising costs associated with the energy transition.

 

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'Unlayering' peak demand could accelerate energy storage adoption

Duration Portfolio Energy Storage aligns layered peak demand with right-sized batteries, enabling peak shaving, gas peaker replacement, and solar-plus-storage synergy while improving grid flexibility, reliability, and T&D deferral through two- to four-hour battery durations.

 

Key Points

An approach that layers battery durations to match peaks, cut costs, replace peakers, and boost grid reliability.

✅ Layers 2- to 4-hour batteries by peak duration

✅ Enables solar-plus-storage and peak shaving

✅ Cuts T&D upgrades, emissions, and fuel costs

 

The debate over energy storage replacing gas-fired peakers has raged for years, but a new approach that shifts the terms of the argument could lead to an acceleration of storage deployments.

Rather than looking at peak demand as a single mountainous peak, some analysts now advocate a layered approach that allows energy storage to better match peak needs and complement ongoing efforts to improve solar and wind power across the grid.

"You don’t have to have batteries that run to infinity."

Some developers of solar-plus-storage projects, bolstered by cheap batteries, say they can already compete head-to-head with gas-fired peakers. "I can beat a gas peaker anywhere in the country today with a solar-plus-storage power plant," Tom Buttgenbach, president and CEO of developer 8minutenergy Renewables, recently told S&P Global.

Customers are very busy these days and rebate programs need to fit the speed of their life. Participation should be quick, easy, and accessible anywhere.

Others disagree. Storage is not disruptive for generation, but will be disruptive for transmission and distribution, Kris Zadlo, executive vice president and chief development officer at Invenergy, told the audience at a Bloomberg New Energy Finance conference last spring. Invenergy, like many renewable power developers, develops generation, energy storage and transmission projects.

But there is another path that avoids the pitfalls of positions on either end of the all-or-none approach. "Do the analysis of the need itself," Ray Hohenstein, market applications director at Fluence, told Utility Dive. If the need is only two hours in duration, it may be best served by a two-hour battery. "You don’t have to have batteries that run to infinity."

 

Storage vs. fossil fuel peakers

Energy storage has several benefits over traditional fossil fuel peaking plants, Hohenstein said. It is instantaneous, it has no emissions and requires no fuel, and has limited infrastructure needs. It can also help the grid absorb higher levels of renewable generation by soaking up excess output, such as solar power at noon, and many planned storage additions will be paired with solar in the next few years. But the one thing energy storage cannot do, he said, is provide limitless energy.

So, instead of looking at replacing an individual peaker, Hohenstein advocated a "duration portfolio" approach that uses energy storage to shave peak load.

If the need is for 150 MW of resources that will never need to run for more than two hours at a time, then a battery is "quite cheap," significantly less than a four or eight-hour battery, said Hohenstein. "If you fill up your peak by duration layer, it could be more cost effective."

 

NREL research driver

Fluence’s approach is informed by research by Paul Denholm and Robert Margolis at the National Renewable Energy Laboratory (NREL), released last spring.

The NREL researchers looked at the California market where they said 11 GW of fossil fuel capacity is expected to be retired by 2029 because of new once-through-cooling requirements that are taking effect. A lot of that capacity is peaking capacity and, according to NREL’s analysis, a large fraction could be replaced with four-hour energy storage, assuming continued storage cost reductions and growth in solar installations.

The key in NREL’s research was the level of solar power penetration. There is a "synergistic" relationship between solar penetration and storage deployment, the researchers wrote, and other studies suggest wind and solar could meet 80% of U.S. demand as these trends continue.

 

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IAEA - COVID-19 and Low Carbon Electricity Lessons for the Future

Nuclear Power Resilience During COVID-19 shows low-carbon electricity supporting renewables integration with grid flexibility, reliability, and inertia, sustaining decarbonization, stable baseload, and system security while prices fell and demand dropped across markets.

 

Key Points

It shows nuclear plants providing reliable, low-carbon power and supporting grid stability despite demand declines.

✅ Low prices challenge investment; lifetime extensions are cost-effective.

✅ Nuclear provides inertia, reliability, and dispatchable capacity.

✅ Market reforms should reward flexibility and grid services.

 

The COVID-19 pandemic has transformed the operation of power systems across the globe, including European responses that many argue accelerated the transition, and offered a glimpse of a future electricity mix dominated by low carbon sources.

The performance of nuclear power, in particular, demonstrates how it can support the transition to a resilient, clean energy system well beyond the COVID-19 recovery phase, and its role in net-zero pathways is increasingly highlighted by analysts today.

Restrictions on economic and social activity during the COVID-19 outbreak have led to an unprecedented and sustained decline in demand for electricity in many countries, in the order of 10% or more relative to 2019 levels over a period of a few months, thereby creating challenging conditions for both electricity generators and system operators (Fig. 1). The recent Sustainable Recovery Report by the International Energy Agency (IEA) projects a 5% reduction in global electricity usage for the entire year 2020, with a record 5.7% decline foreseen in the United States alone. The sustainable economic recovery will be discussed at today's IEA Clean Energy Transitions Summit, where Fatih Birol's call to keep options open will be prominent as IAEA Director General Rafael Mariano Grossi participates.

Electricity generation from fossil fuels has been hard hit, due to relatively high operating costs compared to nuclear power and renewables, as well as simple price-setting mechanisms on electricity markets. By contrast, low-carbon electricity prevailed during these extraordinary circumstances, with the contribution of renewable electricity rising in a number of countries as analyses see renewables eclipsing coal by 2025, due to an obligation on transmission system operators to schedule and dispatch renewable electricity ahead of other generators, as well as due to favourable weather conditions.

Nuclear power generation also proved to be resilient, reliable and adaptable. The nuclear industry rapidly implemented special measures to cope with the pandemic, avoiding the need to shut down plants due to the effects of COVID-19 on the workforce or supply chains. Nuclear generators also swiftly adapted to the changed market conditions. For example, EDF Energy was able to respond to the need of the UK grid operator by curtailing sporadically the generation of its Sizewell B reactor and maintain a cost-efficient and secure electricity service for consumers.

Despite the nuclear industry's performance during the pandemic, faced with significant decreases in demand, many generators have still needed to reduce their overall output appreciably, for example in France, Sweden, Ukraine, the UK and to a lesser extent Germany (Fig. 2), even as the nuclear decline debate continues in Europe. Declining demand in France up to the end of March already contributed to a 1% drop in first quarter revenues at EDF, with nuclear output more than 9% lower than in the year before. Similarly, Russia's Rosatom experienced a significant demand contraction in April and May, contributing to an 11% decline in revenues for the first five months of the year.

Overall, the competitiveness and resilience of low carbon technologies have resulted in higher market shares for nuclear, solar and wind power in many countries since the start of lockdowns (Fig. 3), and low-emissions sources to meet demand growth over the next three years. The share of nuclear generation in South Korea rose by almost 9 percentage points during the pandemic, while in the UK, nuclear played a big part in almost eliminating coal generation for a period of two months. For the whole of 2020, the US Energy Information Administration's Short-Term Energy Outlook sees the share of nuclear generation increasing by more than one percentage point compared to 2019. In China, power production decreased during January-February 2020 by more than 8% year on year: coal power decreased by nearly 9%, hydropower by nearly 12%. Nuclear has proved more resilient with a 2% reduction only. The benefits of these higher shares of clean energy in terms of reduced emissions of greenhouse gases and other air pollutants have been on full display worldwide over the past months.

Challenges for the future

Despite the demonstrated performance of a cleaner energy system through the crisis - including the capacity of existing nuclear power plants to deliver a competitive, reliable, and low carbon electricity service when needed - both short- and long-term challenges remain.

In the shorter term, the collapse in electricity demand has accelerated recent falls in electricity prices, particularly in Europe (Fig. 4), from already economically unsustainable levels. According to Standard and Poor's Midyear Update, the large price drops in Europe result from not only COVID-19 lockdown measures but also collapsing demand due to an unusually warm winter, increased supply from renewables in a context of lower gas prices and CO2 allowances . Such low prices further exacerbate the challenging environment faced by many electricity generators, including nuclear plants. These may impede the required investments in the clean energy transition, with longer term consequences on the achievement of climate goals.

For nuclear power, maintaining and extending the operation of existing plants is essential to support and accelerate the transition to low carbon energy systems. With a supportive investment environment, a 10-20 year lifetime extension can be realized at an average cost of US $30-40/MW*h, making it among the most cost-effective low-carbon options, while also maintaining dispatchable capacity and lowering the overall cost of the clean energy transition. The IEA Sustainable Recovery report indicates that without such extensions 40% of the nuclear fleet in developed economies may be retired within a decade, adding around US$ 80 billion per year to electricity bills. The IEA note the potential for nuclear plant maintenance and extension programmes to support recovery measures by generating significant economic activity and employment.

The need for flexibility

New nuclear power projects can provide similar economic and environmental benefits and applications beyond electricity, but will be all the more challenging to finance without strong policy support and more substantive power market reforms, including improved frameworks for remunerating reliability, flexibility and other services. The need for flexibility in electricity generation and system operation - a trend accelerated by the crisis - will increasingly characterize future energy systems over the medium to longer term.

Looking further ahead, while generators and system operators successfully responded to the crisis, the observed decline in fossil fuel generation draws attention to additional grid stability challenges likely to emerge further into the energy transition. Heavy rotating steam and gas turbines provide mechanical inertia to an electricity system, thereby maintaining its balance. Replacing these capacities with variable renewables may result in greater instability, poorer power quality and increased incidence of blackouts. Large nuclear power plants along with other technologies can fill this role, alleviating the risk of supply disruptions in fully decarbonized electricity systems.

The challenges created by COVID-19 have also brought into focus the need to ensure resilience is built-in to future energy systems to cope with a broader range of external shocks, including more variable and extreme weather patterns expected from climate change.

The performance of nuclear power during the crisis provides a timely reminder of its ongoing contribution and future potential in creating a more sustainable, reliable, low carbon energy system.

Data sources for electricity demand, generation and prices: European Network of Transmission System Operators for Electricity (Europe), Ukrenergo National Power Company (Ukraine), Power System Operation Corporation (India), Korea Power Exchange (South Korea), Operador Nacional do Sistema Eletrico (Brazil), Independent Electricity System Operator (Ontario, Canada), EIA (USA). Data cover 1 January to May/June.

 

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Court reinstates constitutional challenge to Ontario's hefty ‘global adjustment’ electricity charge

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

 

Key Points

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

✅ Funds gap between market price and contracted generator rates

✅ At issue: regulatory charge vs tax under constitutional law

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

 

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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