Author: Nigel Bankes Page 1 of 88

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.

Matters Commented On: (1) Motion re the draft federal Clean Electricity Regulation, oral notice given, November 27, 2023, adopted by recorded vote on February 28, 2024, (2) Motion re proposed federal Oil and Gas Sector Greenhouse Gas Emissions Cap Regulations, debated and adopted December 2, 2024 and (3) Proposed Oil and Gas Sector Greenhouse Gas Emissions Cap Regulations, 158 (45) Canada Gazette, Part 1, November 9, 2024 and accompanying regulatory impact analysis statement.

PDF Version: Going Through the Motions to Trigger the Sovereignty Act: Another Paper Tiger?

This post assesses the second motion tabled pursuant to the Alberta Sovereignty Within a United Canada Act SA 2022, c A 33.8 (Sovereignty Act or the Act). The first motion was with respect to the draft federal Clean Electricity Regulation (the CER Motion), adopted on February 28, 2024. The second motion relates to the proposed federal Oil and Gas Sector Greenhouse Gas Emissions Cap Regulations (the Emissions Cap Motion), debated and adopted December 2, 2024. Our focus is on the Emissions Cap Motion simply because it is the most current (but we also note that, ten months later, there do not appear to be any relevant developments in relation to the CER Motion – at least none that are publicly available and certainly none that take the form of implementing regulations under the Sovereignty Act).

The Draft Alberta Quantification Protocol for CO2 Capture and Permanent Geologic Sequestration, Version 2

By Nigel Bankes

On November 18, 2024

In Energy, Oil & Gas

By: Nigel Bankes

Document Commented On: Draft Quantification Protocol for CO₂ Capture and Permanent Geologic Sequestration v2.0, November 1, 2024

PDF Version: The Draft Alberta Quantification Protocol for CO₂ Capture and Permanent Geologic Sequestration, Version 2

Nearly ten years ago I posted an ABlawg comment on a draft of the first version of this Offset Quantification Protocol. The Quantification Protocol (QP) was developed at that time so as to be ready for when Shell’s Quest Project came on stream. A QP is designed to establish the circumstances under which a project, in this case a carbon capture and storage (CCS) project, might generate offset credits under Alberta’s CO₂emissions legislation and regulations, which could then be used to meet the compliance obligations of a regulated emitter. At that time, the relevant regulation was the Specified Gas Emitter Regulation, Alta Reg 139/2007 (SGER); the current regulation is the Technology Innovation and Emissions Reduction Regulation, Alta Reg 133/2019 (TIER Regulation). My earlier post identified a number of issues that remain pertinent today, including the transparency of the process, issues of liability in the event of a reversal, and a question as to the apportionment of regulatory responsibilities between the mechanisms of the QP and the responsibility of the energy regulator (then the Energy Resources Conservation Board, now the Alberta Energy Regulator (AER)) for scheme approvals for injection activities. This latter point continues to present some difficulties in the current draft of Version 2.0, particularly with respect to monitoring for containment assurance, which is explicitly dealt with in s 5.1.6 and Appendix C of the Draft QP (but also relevant to the sections of the QP dealing with reversals). I explore these issues in more detail below.

Alberta’s Carbon Sequestration Agreement: An Analysis

By Nigel Bankes

On November 6, 2024

In Contracts

By: Nigel Bankes

Matter Commented On: Alberta’s Standard Form Carbon Sequestration Agreement

PDF Version: Alberta’s Carbon Sequestration Agreement: An Analysis

The Government of Alberta (GoA) has finally released the form or template of the Carbon Sequestration Agreement (CSA) that it will use for carbon capture and storage (CCS) projects organized as hub projects. A hub project is a CCS project in which one party provides transportation and sequestration (T & S) services to variety of emitters. One example is the Atlas Carbon Storage Hub promoted by ATCO EnPower and Shell Canada Products which received its final investment decision in June 2024. Previous ABlawg posts (here, here and here) have reviewed Alberta’s decision to adopt a hub approach to CCS in preference to the vertically integrated project approach that characterized Shell’s earlier Quest project (see ABlawg post here). A vertically integrated CCS project is a project in which a single party (or joint venture) is responsible for all three elements of the CCS value chain (that is to say, capture and compression, transportation, and injection and geological sequestration). In a hub project (or a hub and spoke project) one party (the hub operator) typically offers transportation and sequestration services (T & S) to a number of different large emitters. I refer readers to the earlier posts for the more detailed explanations of the background.

A Landmark Decision in Canadian Charter-based Climate Litigation: Mathur v Ontario, 2024 ONCA 762

By Nigel Bankes

On October 31, 2024

In Climate Change, Constitutional

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

Case commented on: Mathur v Ontario, 2024 ONCA 762 (CanLII)

PDF Version: A Landmark Decision in Canadian Charter-based Climate Litigation: Mathur v Ontario, 2024 ONCA 762

The Ontario Court of Appeal recently released its decision in Mathur v Ontario, 2024 ONCA 762 (CanLII). ABlawg readers will know that this is one of three Charter-based climate lawsuits currently making their way through Canadian courts. The other two are La Rose v Canada, 2023 FCA 241 (CanLII), which involves a challenge to the federal government’s climate policies, and Dykstra et al v Saskatchewan Power Corporation, which involves a challenge to the Saskatchewan government’s and SaskPower’s decisions to expand gas-fired electricity generation (see our previous post on La Rose here). In this post, we contrast the trial and appellate reasons in Mathur (and where relevant, in La Rose FCA) and offer our commentary on several key issues in this litigation.

Court of Appeal Grants Permission to Appeal Another AER Coal Decision

By Nigel Bankes

On October 8, 2024

In Administrative Law, Energy

By: Nigel Bankes

Decision Commented On: Ranchland (Municipal District No 66) v Alberta Energy Regulator, 2024 ABCA 309 (CanLII)

PDF Version: Court of Appeal Grants Permission to Appeal Another AER Coal Decision

While my recent coal posts (e.g. here and here) have focused on the efforts of Benga/Northback to resurrect (literally bring back from the dead) its Grassy Mountain Project, it is important to acknowledge that the coal policy decisions (the “flip/flop”) of the Kenney and Smith governments have triggered other litigation. Some of that litigation involves claims to compensation for alleged regulatory takings or constructive expropriation (see Cabin Ridge Project Limited v Alberta, 2024 ABKB 189 (CanLII)) but the case that is the subject of this post deals with other issues – reclamation and opaque AER decision-making.