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Arbitrations Added to the PPA Soup

By: Nigel Bankes

PDF Version: Arbitrations Added to the PPA Soup

Case Commented On: TransCanada Energy Ltd v Balancing Pool, 2016 ABQB 658 (CanLII)

The power purchase arrangements (PPA) dispute in the Province continues to evolve along a number of different tracks. As noted in a previous post, the negotiation track seems to be producing some positive results with a number of tentative settlements announced. As a second track, ENMAX has its application to determine the effective date of termination of the Battle River PPA (this application is discussed at para 5 of the current decision). This application had been adjourned sine die but ENMAX has recently applied to have the application set down for a hearing. As a third track, the Province, through the Attorney General (AG), continues to maintain its judicial review application. The decision that is the subject of this post reveals a fourth track, that of arbitration actions commenced by some of the PPA buyers (although perhaps some of these arbitrations might be withdrawn under the terms of the tentative settlements referenced above). This decision of Chief Justice Neil Wittmann deals with whether or not the arbitrations were properly commenced (i.e. had a dispute crystallized?) and the interaction between the judicial and arbitral tracks.

Finally, a Plan (albeit drip-by-drip) to Phase Out Coal and Keep the Lights On

By: Nigel Bankes

PDF Version: Finally, a Plan (albeit drip-by-drip) to Phase Out Coal and Keep the Lights On

Documents and press releases commented on:
(1) Press Release, Electricity Price Protection, November 22, 2016;
(2) AESO, Alberta’s Wholesale Electricity Market Transmission Recommendation, dated October 3, 2016, released November 23, 2106, accepted by the Province;
(3) Press Release: Alberta Announces Coal Transition Action, November 24, 2016 and related letter from Terry Boston to the Premier of Alberta (dated September 30, 2016, released November 24, 2016).

The week of November 21, 2016 will go down as a significant week in the evolution of Alberta’s electricity market. Having introduced Bill 27, the Renewable Electricity Act on November 3, 2016 (see post here) the provincial government followed that up this last week with a number of significant initiatives.

First there was the announcement on Tuesday November 22 that the province was going to cap electricity prices in the retail market. Second, on Wednesday November 23, the province announced that it planned to accept the recommendations of the Alberta Electric System Operator (AESO) to introduce a capacity market in Alberta to supplement the existing energy only market and then, third, on Thursday November 24 there was the announcement that the province had reached a settlement with the owners of the six coal generating facilities with useful lives beyond 2030 who will be required to cease burning coal at those facilities by then. And later that same day, the province announced tentative settlements with most of the parties affected by the province’s efforts to question the ability of the buyers under power purchase arrangements (PPAs) to turn responsibility for those arrangements over to the Balancing Pool. “Black” Friday was almost quiet, except for the morning’s announcement that, as of January 1, 2017, the province would “prohibit unsolicited door-to-door selling of energy products to protect people from misleading high-pressure sales tactics.”

This is a very positive package of measures. It offers comfort to consumers that they will be protected at least in the short term from excessive price volatility on the upside. It offers a realistic strategy for obtaining the investment that the province needs to build combined cycle gas generation to replace the coal fleet and thus addresses potentially very serious energy security concerns. It offers comfort to coal generators that they are being treated fairly in relation to stranded assets and gives them both the wherewithal and reason to invest in the construction of new generation. And finally it splits the difference between the province and the PPA buyers in their dispute on the terms of the PPAs. This was an important package to put together. Without it the transition from coal would be more risky (in energy security terms) and likely more expensive (increased cost of capital). While a significant change in market structure such as this is not without its own risks (a perception of continuing change will deter investors) most agreed that an energy only market was not going to deliver on the energy security front.

Bill 27: Financial Support for Renewable Electricity

By: Nigel Bankes

PDF Version: Bill 27: Financial Support for Renewable Electricity

Legislation Commented On: Bill 27, Renewable Electricity Act

Report Commented On: AESO, Renewable Electricity Program, Recommendations, dated May 2016, publicly released November 3, 2016

Press Release Commented On: Government of Alberta, Renewable electricity plan to create jobs, spur investment, November 3, 2016

Alberta’s Climate Leadership Plan (CLP) of November 2015 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
  4. Employing a new methane emission reduction plan

The government introduced legislation to implement an economy-wide carbon price in June (the Climate Leadership Implementation Act) and in the resumed session this fall (2016) it introduced first of all 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) followed now by Bill 27, the Renewable Electricity Act to implement the second half of the first plank – developing more renewable energy. We have yet to see the detailed plans for phasing out coal generation.

Oil Sands Emission Limit Legislation: A Real Commitment or Kicking It Down the Road?

By: Nigel Bankes

PDF Version: Oil Sands Emission Limit Legislation: A Real Commitment or Kicking It Down the Road?

Legislation Commented On: Bill 25: The Oil Sands Emission Limit Act

Alberta’s Climate Leadership Plan 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
  4. Employing a new methane emission reduction plan

The province introduced legislation to implement an economy-wide carbon price in June (the Climate Leadership Implementation Act) and in the resumed session this fall (2016) it has introduced Bill 25: The Oil Sands Emission Limit Act to implement the third objective, a legislated oil sands emission limit. This was not something that the Leach Report had recommended but here is what the Government said in making this commitment:

Attorney General Argues That Backdoor Amendment to PPAs was Unlawful

By: Nigel Bankes

PDF Version: Attorney General Argues That Backdoor Amendment to PPAs was Unlawful

Matter Commented On: Originating Application for Declaratory Relief and Judicial Review, filed by the Attorney General, July 25, 2016

The origins of the Power Purchase Arrangements (PPAs) “termination” saga are discussed in detail in a previous post and readers may wish to refer to that post for the necessary background. In an interesting development the Attorney General has commenced an application seeking a declaration that the amendments that were made to the PPAs after the public review process conducted by the then Alberta Energy and Utilities Board (AEUB) had concluded are unlawful. The crucial amendment was to a clause in the PPA which allows the buyer to transfer responsibility for the PPA to the Balancing Pool when a change of law makes the PPA not just unprofitable but “more unprofitable”.

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