Author: Nigel Bankes Page 6 of 89

Nigel Bankes is emeritus professor of law at the University of Calgary. Prior to his retirement in June 2021 Nigel held the chair in natural resources law in the Faculty of Law.

By: Nigel Bankes

Cases commented on: (1) Benga Mining Limited v Alberta Energy Regulator, 2022 ABCA 30 (CanLII), (January 8, 2022); (2) Benga Mining Limited v Alberta Energy Regulator, et al, 2022 CanLII 88683 (SCC), (September 29, 2022); (3) Stoney Nakoda Nations v His Majesty the King In Right of Alberta As Represented by the Minister of Aboriginal Relations (Aboriginal Consultation Office), 2023 ABKB 700 (CanLII), (December 4, 2023); and (4) Benga Mining Limited v Canada (Environment and Climate Change), 2024 FC 231 (CanLII), (February 12, 2024).

PDF Version: Taking Stock of The Grassy Mountain Litigation as of February 2024

This post is a public service announcement to update all of those concerned about coal mining in Alberta, and specifically for those concerned about the status of the rejected Grassy Mountain coal project and ongoing litigation concerning that project. This is old territory for ABlawg. Readers will recall that we launched an extended coal law and policy series in 2021 when the Minister of Energy first revoked the Lougheed coal development policy of 1976.

Utility Law Meets Net Zero

By Nigel Bankes

On February 9, 2024

In Energy

By: Nigel Bankes

Decisions Commented on: Ontario Energy Board, “Decision and Order, EB-2022-0200, Enbridge Gas Inc, Application for 2024 Rates – Phase 1”, December 21, 2023 [Enbridge Decision]; British Columbia Utilities Commission, “FortisBC Energy Inc. Application for Certificate of Public Convenience and Necessity for the Okanagan Capacity Upgrade Project”, Decision and Order G-361-23, December 22, 2023 [Fortis Decision].

PDF Version: Utility Law Meets Net Zero

Utility connections for gas, electricity, and water tend to be long-lived, capital-intensive projects that typically depreciate over the expected life of the asset. At the same time, depreciation rates should also reflect the risk that an asset may be abandoned or cease to be “used and useful” before the end of its physical life. To give an easy (non-climate) example, suppose that a mine seeks an electrical utility connection. The dedicated distribution line that the mine requires might be expected to have a useful life of 40 years, but the mine itself only has proven reserves for a twenty-year life. If the local utility provides service, it will seek approval to depreciate that line over a maximum of a 20-year period. If it were to use a 40-year period and the mine shut down as expected when the ore body was exhausted after 20 years, the utility would have a stranded asset; that is to say it would have an asset that had lost its utility before the end of its physical life and for which the utility could not obtain a return of the undepreciated cost of the asset (50%).

What Does La Rose Tell Us About Climate Change Litigation in Canada?

By Nigel Bankes

On February 2, 2024

In Constitutional, Environmental, Equality

By: Nigel Bankes, Jennifer Koshan, Jonnette Watson Hamilton, and Martin Olszynski

Case Commented On: La Rose v Canada, 2023 FCA 241 (CanLII)

PDF Version: What Does La Rose Tell Us About Climate Change Litigation in Canada?

The last decade has seen an explosion of domestic climate change litigation around the world and an equally rich body of academic literature examining the case law from a variety of disciplinary perspectives. The Sabin Center for Climate Change Law maintains an excellent data base covering these developments. Important cases in other jurisdictions include the Urgenda decision (Urgenda v Netherlands (2019)) and Shell decision (Milieudefensie et al v Shell (2021)) in the Netherlands, and the 2021 decision of the German constitutional court (Neubauer et al v Germany). Australian environmental non-governmental organizations (ENGOs) have been particularly active in bringing climate change issues before the courts, especially in the context of proposed natural gas and coal projects, most famously in the Sharma case (Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, appeal allowed, [2022] FCAFC 35).

The Department of Energy and Minerals Finally Releases the Text of a Ministerial Order Delegating Technical CCS-Related Decision-Making Authority to the Alberta Energy Regulator

By Nigel Bankes

On January 29, 2024

In Carbon Capture and Storage, Privacy

By: Nigel Bankes

Matter Commented On: Minister of Energy, Ministerial Order 060/2023, Delegating certain powers of the Minister under the Mines and Minerals Act and the Carbon Sequestration Tenure Regulation, to persons holding particular positions within the Alberta Energy Regulator, April 25, 2023

PDF Version: The Department of Energy and Minerals Finally Releases the Text of a Ministerial Order Delegating Technical CCS-Related Decision-Making Authority to the Alberta Energy Regulator

On April 25, 2023 Peter Guthrie, then Minister of Energy for the Province of Alberta, signed Ministerial Order 060/2023 delegating certain of the Minister’s powers with respect to carbon capture and storage (CCS) projects to staff within the Alberta Energy Regulator (AER). In my view this, in principle, is a sound decision and reflects the recommendations made by the Steering Committee of Alberta’s Regulatory Framework Assessment more than a decade ago. In the interests of transparency, I disclose that I was a member of that Committee. The Committee took the view that while the Department of Energy (now the Department of Energy and Minerals) should have responsibility for decisions related to carbon sequestration tenure and broad questions of policy, responsibility for the more technical decisions related to a CCS project, such as the conditions for issuing a closure certificate, should be made by the AER. The distinction between these different types of decisions had been blurred with the adoption of the CCS amendments to the Mines and Minerals Act, RSA 2000, c M-15 (MMA) in 2010.

Transmission Policy in Alberta

By Nigel Bankes

On November 21, 2023

In Energy

By: Nigel Bankes

Document commented on: Alberta, Ministry of Affordability and Utilities, Transmission Policy Review: Delivering the Electricity of Tomorrow, A Green Paper, October 23, 2023

PDF Version: Transmission Policy in Alberta

The Ministry of Affordability and Utilities is currently engaged in a short-fuse consultation on important questions of transmission policy in Alberta. Existing policy in Alberta is informed by a policy paper issued in 2003 that was implemented through provisions of the Electric Utilities Act, SA 2003, c E-5.1 (EUA) and amendments to the Transmission Regulation initially adopted in 2004: Alta Reg 86/2007 (TReg). The principal vehicle for the current consultation is what the Ministry describes as a ‘Green Paper’, Transmission Policy Review: Delivering the Electricity of Tomorrow. As the Green Paper acknowledges, the world has changed significantly since 2003 and it is important to reflect on whether the policy choices made two decades ago are still appropriate given developments in technology, generation mix, and energy and climate policy.