Category Archives: Energy

Announcing a New Resource for the Letter Decisions of the Alberta Energy Regulator

By: Nigel Bankes, Amy Matychuk, and David Rennie

PDF Version: Announcing a New Resource for the Letter Decisions of the Alberta Energy Regulator

Decisions Commented On: The Participatory/Procedural Decisions of the AER

Several years ago now, ABlawg published a series of posts that were critical of the failure of the Alberta Energy Regulator (AER) and its predecessor the Energy Resources Conservation Board to publish its letter decisions in a systematic way: see here, here and here. Whether in response to that criticism, or for its own good reasons, the AER began posting what it refers to as participatory/procedural decisions (presumably a sub-set of a broader category of letter decisions) in the fall of 2015. When this venture began, the decisions were simply listed with no attached descriptor whatsoever. Now the AER does provide a brief description of the matter at hand but it is still a laborious task to click and retrieve each document and assess its significance.

Having asked the AER to provide this information it accordingly seemed appropriate to try and present it in a more usable and accessible form. Hence this project. The project has three steps. Step one is to provide a digest of each decision. Given the number of these decisions (already over 170) we have not attempted to synthesise or précis these decisions, rather the exercise has been more of a cut-and-paste job hewing closely to the AER’s actual text. We have added key words which are listed below. There is no additional commentary. The result of that exercise has been collated into a PDF document which is available here and is fully searchable. Step two will be to present this information as a set of web-pages. That is a work in progress. Step three will be to write what we anticipate will become a short annual survey of these decisions, assessing trends and perhaps highlighting some of the more important decisions. That too is a work in progress. It goes without saying that while step one is complete until the end of January 2017 we also aim to populate it with new decisions from time to time.

David Rennie (JD 2017) began this work as a summer student in 2016 preparing digests of the first 85 decisions and Amy Matychuk (JD 2018), also a summer student in 2016, continued the work for the latter part of the summer and through the fall. Nigel Bankes provided direction and supervision.

We hope that readers of ABlawg and other researchers will find this tool useful and we welcome your feedback, either by way of a comment on this post or to ndbankes@ucalgary.ca Continue reading →

Assessing Adaptive Management in Alberta’s Energy Resource Sector

By: Martin Olszynski

PDF Version: Assessing Adaptive Management in Alberta’s Energy Resource Sector

Research Commented On: “Failed Experiments: An Empirical Assessment of Adaptive Management in Alberta’s Energy Resources Sector” (UBC L Rev) (Forthcoming)

It was three years and six months ago – almost to the day – that I published my first ABlawg post. The Joint Review Panel (JRP) assigned to conduct the environmental assessment of Shell’s then-proposed Jackpine oil sands mine expansion project had just released its report. That report was notable for several reasons, including that it was the first to conclude that an oil sands mine was likely to result in “significant adverse environmental effects” pursuant to the Canadian Environmental Assessment Act 2012, SC 2012, c 19 (CEAA, 2012). In Shell Jackpine JRP Report: Would the Real “Adaptive Management” Please Stand Up?, however, I focused on the role that adaptive management had played in the Joint Review Panel’s determination of the project’s environmental effects. Briefly, adaptive management is defined by the Canadian Environmental Assessment Agency as “a planned and systematic process for continuously improving environmental management practices by learning about their outcomes.” The concern that I have expressed over the past few years is that, as practiced in Canada, adaptive management appears to be seldom planned or systematic. The problem was that I couldn’t show this to be the case – until now.

In a recent paper, I examine the implementation and effectiveness of adaptive management in Alberta’s energy resources sector. Using freedom of information processes, publicly available documents, and communication with the relevant regulator, I collected the environmental impact statements, environmental assessment reports (e.g. the Shell Jackpine JRP Report), statutory approvals and required follow-up reports for thirteen energy projects in Alberta: two coal mines, three oil sands mines, and eight in situ oil sands operations. In each case, the proponent proposed adaptive management for at least one environmental issue or problem. I then analyzed these various documents to determine the conception, implementation, and, to the extent possible, effectiveness of adaptive management with respect to each project throughout the regulatory cycle (i.e. from the proposal stage through to approval and reporting). Simply put, I set out to determine how adaptive management was actually being applied in this context.

Unfortunately, the results confirm longstanding concerns about the implementation of adaptive management in natural resources development. Continue reading →

The Efficiency Plank in Alberta’s Climate Leadership Plan

By: Nigel Bankes

PDF Version: The Efficiency Plank in Alberta’s Climate Leadership Plan

Report Commented On: Getting it Right: A More Energy Efficient Alberta, Final Report of the Alberta Energy Efficiency Advisory Panel, released 23 January 2017 and related press release

As reported in previous posts, Alberta’s Climate Leadership Plan (CLP) released in November 2015 following receipt of the Leach Report has four key planks: (1) phasing out emissions from coal-generated electricity and developing more renewable energy, (2) implementing a new carbon price on greenhouse gas emissions, (3) a legislated oil sands emission limit, and (4) employing a new methane emission reduction plan.

The government introduced legislation to implement an economy-wide carbon price in June 2016 (the Climate Leadership Implementation Act) with the results of that in the form of the carbon levy coming into force on January 1 of this year (2017). The fall session of the legislature (2016) saw the introduction and passage of Bill 25, The Oil Sands Emission Limit Act to implement the third objective, a legislated oil sands emission limit (I commented on Bill 25 here) and followed this up with Bill 27, the Renewable Electricity Act to implement the second half of the first plank – developing more renewable energy. I commented on Bill 27 here. Then there were subsequent developments with respect to transforming Alberta’s “energy only” market which I commented on here. This last post also commented on the first half of the first plank of the CLP, i.e. the agreement between the province and the owners on the phase-out of coal generating facilities and the level of compensation payable.

As part of the plan to replace coal generation the province has also been looking at energy efficiency policies and micro or distributed generation. Although energy efficiency measures do not result in more generation they do suppress load and avoid (or at least postpone) the need to build or run new generation. While energy efficiency has a lower public profile than new generation, most commentators suggest that energy efficiency and demand side management policies are usually among the most cost effective measures for meeting load and for reducing greenhouse gas emissions – especially where the current energy mix, as in Alberta, is carbon intensive. Continue reading →

The Alberta Energy Regulator in the Post-Information World: Best-in-Class?

By: Shaun Fluker and Sharon Mascher

PDF Version: The Alberta Energy Regulator in the Post-Information World: Best-in-Class?

Statement Commented On: Alberta Energy Regulator Public Statement 2017-01-13

As readers will know, on Friday January 13, 2017 the Supreme Court of Canada released its decision in Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII) and our colleague Jennifer Koshan set out what the Court actually decided in her Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages comment posted to ABlawg on Monday January 16. Our comment here critically reflects on the Public Statement issued by the Alberta Energy Regulator (AER) on Friday the 13th on the Ernst decision. This statement reads like the work of a spin doctor and harms the credibility of the AER as a ‘best-in class regulator’. In our view the Public Statement is inappropriate, contains inaccuracies, and should be rescinded by the AER. Continue reading →

Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages

By: Jennifer Koshan

PDF Version: Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages

Case Commented On: Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII)

On January 13, 2017, the Supreme Court of Canada released its decision in Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII), an appeal it heard in January 2016. As noted in a previous ABlawg post, the appeal arose from the decisions of Alberta courts to strike Jessica Ernst’s claim for damages against the Energy Resources Conservation Board (now the Alberta Energy Regulator) for allegedly violating her freedom of expression under s 2(b) of the Charter. At issue before the Supreme Court was whether the decisions to strike her claim should be upheld, which turned on whether the statutory immunity clause in s 43 of the Energy Resources Conservation Act, RSA 2000, c E-10 (ERCA) could constitutionally bar a claim for damages under s 24(1) of the Charter against the Board. The length of time the Court took to deliver its decision might be explained by the Court’s 4:4:1 split. Justice Abella serves as the swing judge by siding with Justice Cromwell (with Justices Karakatsanis, Wagner, and Gascon) in upholding the decision that Ernst’s claim for Charter damages should be struck, basing her decision primarily on Ernst’s failure to provide notice of the constitutional challenge in earlier proceedings. I had predicted that the Supreme Court would deny leave to appeal based on that lack of notice, yet had to eat my words when a three-member panel of the Court – including Justice Abella – granted leave despite the lack of notice. The other two judges who granted the leave application, Karakatsanis and Côté JJ, are split between the Cromwell faction and the dissent (written by Chief Justice McLachlin and Justices Moldaver and Brown, with Justice Côté concurring), which would have allowed the appeal and permitted Ernst’s claim for Charter damages against the Board to proceed.

This post will parse the three judgments to determine what the Court actually decided on the viability of the Charter damages claim and for what reasons. There may be subsequent posts by my colleagues on other aspects of the decision. It is important to note that Ernst’s underlying tort claims against Encana and the provincial government for contamination of her groundwater are ongoing; the Supreme Court only ruled on whether Ernst’s claim for Charter damages against the Board for violating her freedom of expression could proceed. Continue reading →