Disposition of Regulated Property Regulation (Draft) AR 4570 Draft DRReg 2010 03 31 (available by Email request)

PDF version: Filling the Gap: The Proposed “Disposition of Regulated Property Regulation”

On March 31, 2010 the Alberta government issued a draft regulation pursuant to the Alberta Utilities Commission Act, S.A. 2007, c. A-37.2 (“AUCA”), the Disposition of Regulated Property Regulation (Draft) (“Draft Regulation”). The power to enact regulations is contained in s. 75 of the AUCA, which gives the Lieutenant-Governor in Council the power to make regulations “adding to, clarifying, limiting or restricting” any of the powers granted pursuant to the AUCA. In this case the Draft Regulation is stated expressly to operate as “an addition to” powers granted to the AUC under the Gas Utilities Act, R.S.A. 2000, c. G-5 and the Public Utilities Act, R.S.A. 2000, c. P-5. (Draft Regulation, s. 2(1)).

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Case considered: ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2009 ABCA 246

PDF version: The fat lady is singing: ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission)

The ongoing saga of the Alberta Utilities Commission’s treatment of the removal of utility assets from rate base continues.

In 2007 ATCO filed a general rate application with the then Alberta Energy and Utilities Board (“EUB”) for approval of rates for the 2008 and 2009 test years. It advised the EUB that it was excluding the “Salt Cavern” assets from its applied-for rate base. Its justification for doing so was that while those assets had historically been included, they were no longer being used for transmission service, and would not be used in the foreseeable future. The Alberta Utilities Commission (AUC) advised ATCO that ATCO could not exclude the assets from the application absent an application by ATCO (and AUC approval) under s. 26 of the Gas Utilities Act, R.S.A. 2000, c. G-5. Section 26 requires a gas utility to obtain permission prior to the sale, lease, mortgage, disposal or encumbrance of property. ATCO argued that since it was not selling the property or otherwise disposing of it, but was simply moving it out of rate base, approval under s. 26 should not be required. The AUC took the position that a unilateral withdrawal from rate base was equivalent to a disposition. ATCO appealed that decision to the Court of Appeal.

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Case considered: ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2009 ABCA 171

PDF version: A Rock and a Hard Place

In its 2006 decision in ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, the Supreme Court of Canada held that the Alberta Energy and Utilities Board (EUB, now the Alberta Utilities Commission) had no jurisdiction to allocate proceeds on the sale of a utility asset to ratepayers where the sale of that asset resulted in no harm to ratepayers in terms of either rates or service. For a bare majority of the Court, Justice Bastarache held that the rights to assets rest without qualification with the utility. Continue reading →