Case considered: ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2009 ABCA 246
PDF version: The fat lady is singing: ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission)
The ongoing saga of the Alberta Utilities Commission’s treatment of the removal of utility assets from rate base continues.
In 2007 ATCO filed a general rate application with the then Alberta Energy and Utilities Board (“EUB”) for approval of rates for the 2008 and 2009 test years. It advised the EUB that it was excluding the “Salt Cavern” assets from its applied-for rate base. Its justification for doing so was that while those assets had historically been included, they were no longer being used for transmission service, and would not be used in the foreseeable future. The Alberta Utilities Commission (AUC) advised ATCO that ATCO could not exclude the assets from the application absent an application by ATCO (and AUC approval) under s. 26 of the Gas Utilities Act, R.S.A. 2000, c. G-5. Section 26 requires a gas utility to obtain permission prior to the sale, lease, mortgage, disposal or encumbrance of property. ATCO argued that since it was not selling the property or otherwise disposing of it, but was simply moving it out of rate base, approval under s. 26 should not be required. The AUC took the position that a unilateral withdrawal from rate base was equivalent to a disposition. ATCO appealed that decision to the Court of Appeal.