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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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NB Power Smart Meter Opt-Out Fees reflect cost causation principles set before the Energy and Utilities Board, covering meter reading charges, transmitter-disable options, rollout targets, and education plans across New Brunswick's smart metering program.

Key Points

Fees NB Power may apply to customers opting out of smart meters, reflecting cost causation and meter-reading costs.

✅ Based on cost causation and meter reading expenses

✅ BC and Quebec charge monthly opt-out surcharges

✅ Policy finalized during rollout after EUB review

NB Power customers who do not want a smart meter installed on their home could be facing a stiff fee for that decision, but so far the utility is not saying how much it might be.  

"It will be based on the principles of cost causation, but we have not gotten into the detail of what that fee would be at this point," said NB Power Senior Vice President of Operations Lori Clark at Energy and Utilities Board hearings on Friday.

In other jurisdictions that have already adopted smart meters, customers not wanting to participate have faced hundreds of dollars in extra charges, while Texas utilities' pullback from smart-home networks shows approaches can differ.

In British Columbia, power customers are charged a meter reading fee of $32.40 per month if they refuse a smart meter, or $20 per month if they accept a smart meter but insist its radio transmitter be turned off. That's a cost of between $240 and $388.80 per year for customers to opt out.

In Quebec, smart meters were installed beginning in 2012. Customers who refused the devices were initially charged $98 to opt out plus a meter reading fee of $17 per month. That was eventually cut by Quebec's energy board in 2014 to a $15 refusal fee and a $5 per month meter reading surcharge.

NB Power said it may be a year or more before it settles on its own fee.

"The opt out policy will be developed and implemented as part of the roll out.  It will be one of the last things we do," said Clark.

Customers need to be on board

NB Power is in front of the New Brunswick Energy and Utilities Board seeking permission to spend $122.7 million to install 350,000 smart meters province wide, as neighboring markets grapple with major rate increases that heighten affordability concerns.  

The meters are capable of transmitting consumption data of customers back to NB Power in real time, which the utility said will allow for a number of innovations in pricing and service, and help address old meter inaccuracies that affected some households.

The meters require near universal adoption by customers to maximize their financial benefit — like eliminating more than $20 million a year NB Power currently spends to read meters manually. The utility has said the switch will not succeed if too many customers opt out.

"We certainly wouldn't be looking at making an investment of this size without having the customer with us," said Clark.

On Thursday, Kent County resident Daniel LeBlanc, who along with Roger Richard, is opposing the introduction of smart meters for health reasons, predicted a cool reception for the technology in many parts of the province, given concerns that include health effects and billing disputes in Nova Scotia reported elsewhere.

"If one were to ask most of the people in the rural areas, I'm not sure you would get a lot of takers for this infrastructure," said LeBlanc, who is concerned with the long-term effect microwave frequencies used by the meters to transmit data may have on human health.

That issue is before the EUB next week.

Haven't tested the waters

NB Power acknowledged it has not measured public opinion on adopting smart meters but is confident it can convince customers it is a good idea for them and the utility, even as seasonal rate proposals in New Brunswick have prompted consumer backlash.

"People don't understand what the smart meter is," said Clark. "We need to educate our customers first to allow them to make an informed decision so that will be part of the roll out plan."

Clark noted that smart meters, helped by stiff opting out penalties, were eventually accepted by 98 per cent of customers in British Columbia and by 97.4 per cent of customers in Quebec.

"We will check and adjust along the way if there are issues with customer uptake," said Clark.

"This is very similar to what has been done in other jurisdictions and they haven't had those challenges."

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Greengen Misfeasance Ruling details a B.C. Supreme Court decision awarding $10.125 million over wrongfully denied Crown land and water licence permits for a Fries Creek run-of-river hydro project under a BC Hydro contract.

Key Points

A B.C. Supreme Court ruling awarding $10.125M for wrongful denial of Crown land and water licences on Greengen's project.

✅ $10.125M damages for misfeasance in public office

✅ Denial of Crown land tenure and water licence permits

✅ Tied to Fries Creek run-of-river and BC Hydro EPA

A B.C. Supreme Court judge has ordered the provincial government to pay $10.125 million after it denied permits to a company that wanted to build a run-of-the river independent power project near Squamish.

In his Oct. 10 decision, Justice Kevin Loo said the plaintiff, Greengen Holdings Ltd., “lost an opportunity to achieve a completed and profitable hydro-electric project” after government representatives wrongfully exercised their legal authority, a transgression described in the ruling as “misfeasance,” with separate concerns reflected in an Ontario market gaming investigation reported elsewhere.

Between 2003 and 2009, the company sought to develop a hydro-electric project on and around Fries Creek, which sits opposite the Brackendale neighbourhood on the other side of the Squamish River. To do so, Greengen Holdings Ltd. required a water licence from the Minister of the Environment and tenure over Crown land from the Minister of Agriculture.

After a lengthy process involving extensive communications between Greengen and various provincial and other ministries and regulatory agencies, the permits were denied, according to Loo. Both decisions cited impacts on Squamish Nation cultural sites that could not be mitigated.

Elsewhere, an Indigenous-owned project in James Bay proceeded despite repeated denials, underscoring varied approaches to community participation.

40-year electricity plan relied on Crown land
The case dates back to December 2005, when BC Hydro issued an open call for power with Greengen. The company submitted a tender several months later.

On July 26, 2006, BC Hydro awarded Greengen an energy purchase agreement, amid evolving LNG electricity demand across the province, under which Greengen would be entitled to supply electricity at a fixed price for 40 years.

Unlike conventional hydroelectric projects, such as new BC generating stations recently commissioned, which store large volumes of water in reservoirs, and in so doing flood large tracts of land, a run of the river project often requires little or no water storage. Instead, from a high elevation, they divert water from a stream or river channel.

Water is then sent into a pressured pipeline known as a penstock, and later passed through turbines to generate electricity, Loo explained, as utilities pursue long-term plans like the Hydro-Québec strategy to reduce fossil fuel reliance. The system returns water to the original stream or river, or into another body of water. 

The project called for most of that infrastructure to be built on Crown land, according to the ruling.

All sides seemed to support the project
In early 2005, company principle Terry Sonderhoff discussed the Fries Creek project in a preliminary meeting with Squamish Nation Chief Ian Campbell.

“Mr. Sonderhoff testified that Chief Campbell seemed supportive of the project at the time,” Loo said.

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European Electricity Market Trends 2020 highlight decarbonisation, rising renewables, EV adoption, shifting energy mix, COVID-19 impacts, fuel switching, hydro, wind and solar growth, gas price dynamics, and wholesale electricity price increases.

Key Points

EU power in 2020 saw lower emissions, more renewables, EV growth, demand shifts, and higher wholesale prices.

✅ Power sector CO2 down 14% on higher renewables, lower coal

✅ Renewables 39% vs fossil 36%; hydro, wind, solar expanded

✅ EV share hit 17%; wholesale prices rose with gas, ETS costs

According to the Market Observatory for Energy DG Energy report, the COVID-19 pandemic and favorable weather conditions are the two key drivers of the trends experienced within the European electricity market in 2020. However, the two drivers were exceptional or seasonal.

The key trends within Europe’s electricity market include:

1. Decrease in power sector’s carbon emissions

As a result of the increase in renewables generation and decrease in fossil-fueled power generation in 2020, the power sector was able to reduce its carbon footprint by 14% in 2020. The decrease in the sector’s carbon footprint in 2020 is similar to trends witnessed in 2019 when fuel switching was the main factor behind the decarbonisation trend.

However, most of the drivers in 2020 were exceptional or seasonal (the pandemic, warm winter, high
hydro generation). However, the opposite is expected in 2021, with the first months of 2021 having relatively cold weather, lower wind speeds and higher gas prices, with stunted hydro and nuclear output also cited, developments which suggest that the carbon emissions and intensity of the power sector could rise.

The European Union is targeting to completely decarbonise its power sector by 2050 through the introduction of supporting policies such as the EU Emissions Trading Scheme, the Renewable Energy Directive and legislation addressing air pollutant emissions from industrial installations, with expectations that low-emissions sources will cover most demand growth in the coming years.

According to the European Environment Agency, Europe halved its power sector’s carbon emissions in 2019 from 1990 levels.

2. Changes in energy consumption

EU consumption of electricity fell by -4% as majority of industries did not operate at full level during the first half of 2020. Although majority of EU residents stayed at home, meaning an increase in residential energy use, rising demand by households could not reverse falls in other sectors of the economy.

However, as countries renewed COVID-19 restrictions, energy consumption during the 4th quarter was closer to the “normal levels” than in the first three quarters of 2020. 

The increase in energy consumption in the fourth quarter of 2020 was also partly due to colder temperatures compared to 2019 and signs of surging electricity demand in global markets.

3. Increase in demand for EVs

As the electrification of the transport system intensifies, the demand for electric vehicles increased in 2020 with almost half a million new registrations in the fourth quarter of 2020. This was the highest figure on record and translated into an unprecedented 17% market share, more than two times higher than in China and six times higher than in the United States.

However, the European Environment Agency (EEA)argues that the EV registrations were lower in 2020 compared to 2019. EEA states that in 2019, electric car registrations were close to 550 000 units, having reached 300 000 units in 2018.

4. Changes in the region’s energy mix and increase in renewable energy generation

The structure of the region’s energy mix changed in 2020, according to the report.

Owing to favorable weather conditions, hydro energy generation was very high and Europe was able to expand its portfolio of renewable energy generation such that renewables (39%) exceeded the share of fossil fuels (36%) for the first time ever in the EU energy mix.

Rising renewable generation was greatly assisted by 29 GW of wind and solar capacity additions in 2020, which is comparable to 2019 levels. Despite disrupting the supply chains of wind and solar resulting in project delays, the pandemic did not significantly slow down renewables’ expansion.

In fact, coal and lignite energy generation fell by 22% (-87 TWh) and nuclear output dropped by 11% (-79 TWh). On the other hand, gas energy generation was not significantly impacted owing to favorable prices which intensified coal-to-gas and lignite-to-gas switching, even as renewables crowd out gas in parts of the market.

5. Retirement of coal energy generation intensify

 As the outlook for emission-intensive technologies worsens and carbon prices rise, more and more early coal retirements have been announced. Utilities in Europe are expected to continue transitioning from coal energy generation under efforts to meet stringent carbon emissions reduction targets and as they try to prepare themselves for future business models that they anticipate to be entirely low-carbon reliant.

6. Increase in wholesale electricity prices

In recent months, more expensive emission allowances, along with rising gas prices, have driven up wholesale electricity prices on many European markets to levels last seen at the beginning of 2019. The effect was most pronounced in countries that are dependent on coal and lignite. The wholesale electricity prices dynamic is expected to filter through to retail prices.

The rapid sales growth in the EVs sector was accompanied by expanding charging infrastructure. The number of high-power charging points per 100 km of highways rose from 12 to 20 in 2020.

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Advanced Traffic Light System for Geothermal Safety models fracture growth and friction with rock physics, geophones, and supercomputers to predict induced seismicity during hydraulic stimulation, enabling real-time risk control for ETH Zurich and SED.

Key Points

ATLS uses rock physics, geophones, and HPC to forecast induced seismicity in real time during geothermal stimulation.

✅ Real-time seismic risk forecasts during hydraulic stimulation

✅ Uses rock physics, friction, and fracture modeling on HPC

✅ Supports ETH Zurich and SED field tests in Iceland and Bedretto

The Swiss Earthquake Service and ETH Zurich want to make geothermal energy safer, so news piece from Switzerland earlier this month. This is to be made possible by new software, including machine learning, and the computing power of supercomputers. The first geothermal tests have already been carried out in Iceland, and more will follow in the Bedretto laboratory.

In areas with volcanic activity, the conditions for operating geothermal plants are ideal. In Iceland, the Hellisheidi power plant makes an important contribution to sustainable energy use, alongside innovations like electricity from snow in cold regions.

Deep geothermal energy still has potential. This is the basis of the 2050 energy strategy. While the inexhaustible source of energy in volcanically active areas along fault zones of the earth’s crust can be tapped with comparatively little effort and, where viable, HVDC transmission used to move power to demand centers, access on the continents is often much more difficult and risky. Because the geology of Switzerland creates conditions that are more difficult for sustainable energy production.

Improve the water permeability of the rock

On one hand, you have to drill four to five kilometers deep to reach the correspondingly heated layers of earth in Switzerland. It is only at this depth that temperatures between 160 and 180 degrees Celsius can be reached, which is necessary for an economically usable water cycle. On the other hand, the problem of low permeability arises with rock at these depths. “We need a permeability of at least 10 millidarcy, but you can typically only find a thousandth of this value at a depth of four to five kilometers,” says Thomas Driesner, professor at the Institute of Geochemistry and Petrology at ETH Zurich.

In order to improve the permeability, water is pumped into the subsurface using the so-called “fracture”. The water acts against friction, any fracture surfaces shift against each other and tensions are released. This hydraulic stimulation expands fractures in the rock so that the water can circulate in the hot crust. The fractures in the earth’s crust originate from tectonic tensions, caused in Switzerland by the Adriatic plate, which moves northwards and presses against the Eurasian plate.

In addition to geothermal energy, the “Advanced Traffic Light System” could also be used in underground construction or in construction projects for the storage of carbon dioxide.

Quake due to water injection

The disadvantage of such hydraulic stimulations are vibrations, which are often so weak or cannot be perceived without measuring instruments. But that was not the case with the geothermal projects in St. Gallen 2013 and Basel 2016. A total of around 11,000 cubic meters of water were pumped into the borehole in Basel, causing the pressure to rise. Using statistical surveys, the magnitudes 2.4 and 2.9 defined two limit values ??for the maximum permitted magnitude of the earthquakes generated. If these are reached, the water supply is stopped.

In Basel, however, there was a series of vibrations after a loud bang, with a time delay there were stronger earthquakes, which startled the residents. In both cities, earthquakes with a magnitude greater than 3 have been recorded. Since then it has been clear that reaching threshold values ??determines the stop of the water discharge, but this does not guarantee safety during the actual drilling process.

Simulation during stimulation

The Swiss Seismological Service SED and the ETH Zurich are now pursuing a new approach that can be used to predict in real time, building on advances by electricity prediction specialists in Europe, during a hydraulic stimulation whether noticeable earthquakes are expected in the further course. This is to be made possible by the so-called “Advanced Traffic Light System” based on rock physics, a software developed by the SED, which carries out the analysis on a high-performance computer.

Geophones measure the ground vibrations around the borehole, which serve as indicators for the probability of noticeable earthquakes. The supercomputer then runs through millions of possible scenarios, similar to algorithms to prevent power blackouts during ransomware attacks, based on the number and type of fractures to be expected, the friction and tensions in the rock. Finally, you can filter out the scenario that best reflects the underground.

Further tests in the mountain

However, research is currently still lacking any real test facility for the system, because incorrect measurements must be eliminated and a certain data format adhered to before the calculations on the supercomputer. The first tests were carried out in Iceland last year, with more to follow in the Bedretto geothermal laboratory in late summer, where reliable backup power from fuel cell solutions can keep instrumentation running. An optimum can now be found between increasing the permeability of rock layers and an adequate water supply.

The new approach could make geothermal energy safer and ultimately help this energy source to become more accepted, while grid upgrades like superconducting cables improve efficiency. Research also sees areas of application wherever artificially caused earthquakes can occur, such as in underground mining or in the storage of carbon dioxide underground.

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California Wildfire Smoke Impact on Solar reduces photovoltaic output, as particulate pollution, soot, and haze dim sunlight and foul panels, cutting utility-scale generation and grid reliability across CAISO during peak demand and heatwaves.

Key Points

How smoke and soot cut solar irradiance and foul panels, slashing PV generation and straining CAISO grid operations.

✅ Smoke blocks sunlight; soot deposition reduces panel efficiency.

✅ CAISO reported ~30% drop versus July during peak smoke.

✅ Longer fire seasons threaten solar reliability and capacity planning.

Smoke from California’s unprecedented wildfires was so bad that it cut a significant chunk of solar power production in the state, even as U.S. solar generation rose in 2022 nationwide. Solar power generation dropped off by nearly a third in early September as wildfires darkened the skies with smoke, according to the US Energy Information Administration.

Those fires create thick smoke, laden with particles that block sunlight both when they’re in the air and when they settle onto solar panels. In the first two weeks of September, soot and smoke caused solar-powered electricity generation to fall 30 percent compared to the July average, according to the California Independent System Operator (CAISO), which oversees nearly all utility-scale solar energy in California, where wind and solar curtailments have been rising amid grid constraints. It was a 13.4 percent decrease from the same period last year, even though solar capacity in the state has grown about 5 percent since September 2019.

California depends on solar installations for nearly 20 percent of its electricity generation, and has more solar capacity than the next five US states trailing it combined as it works to manage its solar boom sustainably. It will need even more renewable power to meet its goal of 100 percent clean electricity generation by 2045, building on a recent near-100% renewable milestone that underscored the transition. The state’s emphasis on solar power is part of its long-term efforts to avoid more devastating effects of climate change. But in the short term, California’s renewables are already grappling with rising temperatures.

Two records were smashed early this September that contributed to the loss of solar power. California surpassed 2 million acres burned in a single fire season for the first time (1.7 million more acres have burned since then). And on September 15th, small particle pollution reached the highest levels recorded since 2000, according to the California Air Resources Board. Winds that stoked the flames also drove pollution from the largest fires in Northern California to Southern California, where there are more solar farms.

Smaller residential and commercial solar systems were affected, too, and solar panels during grid blackouts typically shut off for safety, although smoke was the primary issue here. “A lot of my systems were producing zero power,” Steve Pariani, founder of the solar installation company Solar Pro Energy Systems, told the San Mateo Daily Journal in September.

As the planet heats up, California’s fire seasons have grown longer, and blazes are tearing through more land than ever before, while grid operators are also seeing rising curtailments as they integrate more renewables. For both utilities and smaller solar efforts, wildfire smoke will continue to darken solar energy’s otherwise bright future, even as it becomes the No. 3 renewable source in the U.S. by generation.

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