Category Archives: Energy

The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

By: Kirk Lambrecht, Q.C.

PDF Version: The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

Matter Commented On: Order in Council PC 2015-1137

In plain language, it seems that the Governor in Council shot the Trans Mountain Pipeline Expansion Project in the foot just as the Project was about the cross the finish line of a two year environmental assessment and regulatory review process overseen by the quasi-judicial National Energy Board [NEB]. A Governor in Council decision to appoint a Proponent’s witness to the NEB, taken while a Panel of the NEB was still considering the Proponent’s application, has occasioned the striking of a part of the Proponent’s evidence in the ongoing environmental assessment process (described here) and regulatory review process (described here) for the Trans Mountain Pipeline Expansion Project (described here). The Governor in Council’s action will cause unexpected changes and delays to these processes; and the clouds of future litigation which lay on the horizon for this Project now darken as a further consequence. This comment is structured around four questions: (1) what happened? (2) how could this happen? (3) will this affect Aboriginal consultation? and (4) what happens next?

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The SGER Amendments and the New Treatment of Cogeneration

By: Nigel Bankes

PDF Version: The SGER Amendments and the New Treatment of Cogeneration

Regulation Commented On: Specified Gas Emitters Amendment Regulation, Alta Reg 104/2015

In a previous post I reported on the Minister’s speech announcing a two-step procedure for developing a new climate change policy for Alberta. The first step involved changes to two of the key variables in the current Specified Gas Emitter Regulation (SGER), Alta Reg 139/2007 while the second step is the more comprehensive review to be conducted by Dr Andrew Leach to assess the full range of options for the management of greenhouse gas emissions in the province. At the time I wrote that post I had not examined the details of the amendments to the SGER to see what other changes (if any) were being proposed. This post picks up where the last left off.

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Supreme Court: EPA Should Have Considered Cost When Deciding Whether Mercury Limits for Power Plants Were Appropriate

By: James Coleman

PDF Version: Supreme Court: EPA Should Have Considered Cost When Deciding Whether Mercury Limits for Power Plants Were Appropriate

Case Commented On: United States Supreme Court, Michigan v United States Environmental Protection Agency (June 29, 2015)

On Monday the United States Supreme Court held that the Environmental Protection Agency (EPA) improperly refused to consider costs when determining whether it was “appropriate and necessary” to regulate mercury emissions from power plants under the Clean Air Act. Ultimately, the EPA may be able to keep the same rules after going back and explaining why the cost of the regulations is justified in the circumstances. But the decision is an important victory for advocates of cost-benefit analysis and those who think environmental agencies should pay more attention to the costs of regulation.

Section 112 of the Clean Air Act directs the EPA to regulate hazardous air pollutants from power plants if it finds “regulation is appropriate and necessary” 42 U.S.C. §7412. The EPA said that regulation was “appropriate and necessary” even without considering costs because 1) power plant emissions posed risks to human health and the environment that were not eliminated by other provisions of the Clean Air Act and 2) there were controls available to reduce those dangerous emissions. So there was no need for the EPA to consider costs to make its initial decision to regulate, but it promised to consider costs when adopting the actual final regulations for power plants.

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Province of Alberta Announces a Two-Step Process for Developing a New Climate Change Policy

By: Nigel Bankes

PDF Version: Province of Alberta Announces a Two-Step Process for Developing a New Climate Change Policy

Matter Commented On: Minister Shannon Phillips’ Press Conference on Alberta’s climate change strategy, June 25, 2015

A central element of Alberta’s climate change strategy is the Specified Gas Emitter Regulation (SGER), Alta Reg 139/2007. The SGER imposes greenhouse gas emissions intensity reduction obligations (ultimately 12%) on regulated emitters (facilities that emit in excess of 100,000 tonnes of CO2e per year). A facility may achieve compliance in one of four ways: (1) meeting its target by producing its product with lower carbon inputs, (2) Alberta based offset credits (emission reductions over a business as usual scenario achieved by a non-regulated entity in accordance with an approved protocol), (3) emission performance credits (credits achieved by a regulated facility which beats its compliance target), or, (4) contribution of $15 per tonne (for excess emissions over the compliance target) to the Climate Change and Emission Management Fund (the so-called compliance price).

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The Social Licence to Operate: Mind the Gap

By: Nigel Bankes

PDF Version: The Social Licence to Operate: Mind the Gap

This post is based on an invited presentation that I gave at the Canadian Energy Law Forum on May 14, 2015 in Lake Louise. I began my remarks by looking at the three elements of the social licence to operate and then offered a summary of a lecture given by Rowland Harrison at the University of Alberta on March 10, 2015 from his position as the TransCanada Chair in Administrative and Regulatory Law, entitled “Social Licence to Operate: The Good, the Bad and the Ominous.” Mr. Harrison is a former member of the National Energy Board. I concluded my remarks by reflecting on four issues: (1) the normative context for thinking about the social licence to operate, (2) why it is that industry itself uses the term “social licence to operate”, (3) the need to narrow the gap between the legal licence and the idea of the social licence, and (4) the implications of allowing the social licence to operate as a veto.

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