Category: Energy Page 45 of 57

Methodological Pluralism: Canadian Utility Law Does Not Prescribe any Particular Prudent Expenditure or Prudent Investment Test that a Regulator Must Apply

On October 9, 2015

In Energy, Supreme Court of Canada, Utility Regulation

By: Nigel Bankes

PDF Version: Methodological Pluralism: Canadian Utility Law Does Not Prescribe any Particular Prudent Expenditure or Prudent Investment Test that a Regulator Must Apply

Case Commented On: Ontario (Energy Board) v Ontario Power Generation Inc., 2015 SCC 44, (OPG) and ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2015 SCC 45 (ATCO)

The last two weeks of September 2015 saw the release of three important court decisions dealing with utility regulation, two from the Supreme Court of Canada, the OPG case and the ATCO case, and one from Alberta’s Court of Appeal, the Utility Asset Disposition case (UAD): Fortis Alberta Inc v Alberta (Utilities Commission), 2015 ABCA 295. The two Supreme Court cases (which were heard together) deal with a utility’s opportunity to recover operating costs and the application of prudency tests to those costs. Justice Rothstein is the principal author of both judgments. The ATCO case is unanimous while Justice Abella offers a dissent in the OPG Case. The UAD case deals with what I have previously referred to as the continuing fall-out from the majority decision of the Supreme Court in Stores Block (ATCO Gas and Pipelines Ltd. v Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140).

This post summarizes the holdings in the ATCO and OPG decisions and then offers some preliminary comments on their implications. The post begins with some general observations on utility regulation statutes. I will aim to do a separate post on the UAD case.

The Alberta Energy Regulator Announces that It will Publish a Broader Range of Decisions

By Nigel Bankes

On September 29, 2015

In Energy, Responsible Energy Development Act

By: Nigel Bankes

PDF Version: The Alberta Energy Regulator Announces that It will Publish a Broader Range of Decisions

Matter Commented On: AER Bulletin 2015-28, Posting of Participation and Procedural Decisions, September 23, 2015

Over the past few years, ABlawg and this writer in particular, have criticized the practice of the Alberta Energy Regulator (AER) in not publishing important procedural rulings. Examples of those posts are available here, here and here. It is therefore appropriate that we also acknowledge that the AER has recently announced an important and positive change in its practice. On September 23, 2015 the AER issued Bulletin 2015-28 in which it announced that “effective immediately” the AER will begin posting on its website participation or standing decisions and substantive procedural decisions made by both hearing panels and other AER decision-makers. These decisions will be available by following Applications & Notices > Decisions on the AER website.

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.

On September 15, 2015

In Administrative Law, Energy, Natural Resources

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?

The SGER Amendments and the New Treatment of Cogeneration

By Nigel Bankes

On July 14, 2015

In Climate Change, Energy, Environmental

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.

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

By James Coleman

On July 7, 2015

In Energy, Environmental

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.