Category Archives: Energy

British Columbia and the Northern Gateway Pipeline

PDF version: British Columbia and the Northern Gateway Pipeline

Document commented on: BC Outlines requirements for heavy oil pipeline projects, July 23, 2012.

The proposed Northern Gateway Pipeline is proving to be extremely contentious on a number of fronts. It raises important questions about the duty to consult and accommodate indigenous peoples who may be affected by the project; it raises questions about the joint review panel and the role of the National Energy Board (see post here) and the amendments to the National Energy Board brought about by the Budget Bill, Bill C-38, now SC 2012, c 19); and, most recently, the province of British Columbia’s Environment Minister, Terry Lake and Aboriginal Relations and Reconciliation Minister, Mary Polak, have outlined the government of British Columbia’s five minimum requirements that must be met for that province “to consider the construction and operation of heavy oil pipelines within its borders.”

Continue reading →

The Proposed Single Energy Regulator: Where Are We Now and Where Do We Go from Here?

PDF version: The Proposed Single Energy Regulator: Where Are We Now and Where Do We Go from Here?

Report commented on: Enhancing Assurance: Developing an integrated energy resources regulator, A Discussion Document, May 2011 

It has been over a year since the latest proposal to move to a single regulator for energy development in Alberta was released (see Enhancing Assurance: Developing an integrated energy resources regulator, A Discussion Document, May 2011 (Discussion Document)). Many Albertans are likely asking what, if anything, has happened since then.  This post outlines the proposal currently before government, updates readers on any progress made, and highlights the critical issues that ought to be addressed on a go-forward basis.

Continue reading →

Low Carbon Energy Policies: Vested Rights, Legitimate Expectations, and Differential Treatment in Domestic and International Law

By: Nigel Bankes

PDF Version: Low Carbon Energy Policies: Vested Rights, Legitimate Expectations, and Differential Treatment in Domestic and International Law

Cases and Matters Commented On: Secretary of State for Climate Change v Friends of the Earth and Others, [2012] EWCA Civ. 28,  aff’g lower decision; Mesa Power Group LLC v Government of Canada, Notice of Intent to Submit a Claim to Arbitration under Chapter Eleven of NAFTA, July 6, 2011; Mercer International Inc v Government of Canada, Notice of Intent to Submit a Claim to Arbitration under Chapter Eleven of NAFTA, 26 January 2012, and request for arbitration (ICSID Additional Facility), April 30, 2012

Governments around the world are adopting a variety of low carbon and green energy policies designed to increase the share of renewable energy sources in the energy mix. In addition, some governments, including the government of Alberta, have also adopted policies to provide for the sequestration of carbon dioxide emissions where carbon fuels continue to make up a significant part of the energy mix. These policies often provide financial incentives to investors in order to persuade them to commit to the new technology. For example, many governments provide for feed-in-tariffs (FIT) to encourage the development of wind and solar energy. A FIT represents a commitment by the government directly or through the incumbent utility to purchase the output from the designated facility (e.g. wind generator, solar panels or biomass generation) at a specified price for a prescribed number of years (typically representing the amortization period of the asset). Such commitments are designed to be “bankable” in the sense that the proponent will be able to use the commitment to raise capital to fund the venture. Similarly, many governments have found it necessary to provide financial support (subsidies or “state aid” in the language of the European Union) for the first commercial scale carbon capture and storage projects. For example, the province of Alberta is currently providing support for three different sequestration related projects in the province (see here). Continue reading →

Unjustly discriminatory rates on Ventures Pipeline to continue; the Commission decides that it lacks jurisdiction to set interim or final rates.

PDF version: Unjustly discriminatory rates on Ventures Pipeline to continue; the Commission decides that it lacks jurisdiction to set interim or final rates.

Cases and decisions commented on:

(1) AEUB Decision 2006-105, Suncor Energy Inc., Preliminary Decision Regarding Jurisdiction to have the Ventures Pipeline (Oil Sands Pipeline) Regulated Under the Provisions of the Gas Utilities Act, Section 24 of the Gas Utilities Act, October 24, 2006;

(2) TransCanada Pipeline Limited v Alberta (Energy and Utilities Board), 2008 ABCA 55 (appeal of AEUB Decision 2006-105);

(3) AUC Decision 2009-065, TransCanada Pipeline Ventures Ltd, Suncor Energy Inc, Application to Have the Ventures Pipeline (Oil Sands Pipeline) Regulated Under the Provisions of the Gas Utilities Act, Section 24 of the Gas Utilities Act – Investigation, May 20, 2009;

(4) TransCanada Pipeline Ventures Ltd v. Alberta (Utilities Commission), 2010 ABCA 96 (appeal of AUC 2009-065);

(5) AUC Decision 2012-164, Williams Energy (Canada), Inc, Application to Terminate the Williams Contract for Ventures Pipeline Transportation Service or, in the Alternative, Set Rates to be Imposed and Observed by the Owners of Ventures Pipeline, June 14, 2012.

On June 14, 2012 the Alberta Utilities Commission (AUC\Commission) handed down its decision in the latest effort by the contract shippers on Ventures Pipeline to obtain relief from what the Commission has already ruled to be rates that are “unjust or unreasonable, unjustly discriminatory or unduly preferential” (AUC Decision 2009-065 at paras 145 & 147).  The AUC declined to grant the relief sought.  How could this be?  The simple answer is that section 5 of the Gas Utilities Act, RSA 2000, c G-5 (GUA) provides that the Commission may only exercise its authority under certain key sections of the GUA (including the rate setting provisions) if the Commission has been authorized to do so by means of an Order in Council (OC), or if the gas utility in question is covered by an exemption under the regulations.  The Commission held that Ventures did not fall within any of the existing categories of exemption and further, that since there was no OC in place (despite the Commission’s request), the Commission had no jurisdiction to fix final or interim rates for Ventures.

Continue reading →

Building energy empires on (legal) foundations of sand, or, can I have my cake and eat it too?

PDF version: Building energy empires on (legal) foundations of sand, or, can I have my cake and eat it too?

Case commented on: Remington Development Corporation v Enmax Power Corporation, 2011 ABQB 694, aff’d 2012 ABCA 196.

Most people would think that if Utility Co (U Co) needs access to cross Y’s land in order to construct a major capital investment in the form of a utility right of way, U Co will secure any necessary access rights (easement or utility right of way) either: (1) by way of an agreement, or (2) by way of expropriation if Y tries to extract hold-out rents.  In either case, U Co will want the expropriation or agreement to bind the land: i.e. to run with the land no matter what Y does with it (sell it, assign it into bankruptcy etc.).  And in either case one would think that U Co (and its lawyers) would want to make sure that the agreement bound the land for so long as U Co needed the right of way – or at least for a reasonable amortization period for the investment that U Co is about to make, so as to ensure that it does not have stranded assets on its hands, or worse still, a gap in its transmission system.

Continue reading →