ABLawg

Legislation Commented On: Procedures (Public Health) Amendment Regulation, Alta Reg 92/2021

This amendment to the Procedures Regulation, Alta Reg 63/2017, was recently made by the Lieutenant Governor in Council with Order in Council 124/2021 (May 5, 2021). The amendment raises the specified penalty (the violation ticket amount) from $1000 to $2000 for contravention of a Chief Medical Officer of Health (CMOH) public health order issued under section 29 of the Public Health Act, RSA 2000, c P-37. The amendment came into force on May 19, 2021. This is the fine payable by a person who chooses to plead guilty (see Part 2 of the Provincial Offences Procedure Act, RSA 2000, c P-34) for such things as not wearing a mask where required, gathering in large groups outside, allowing non-family members into their home, or not keeping two metres apart from others. Premier Kenney announced the increased fine on May 4 during the initial ‘Stop the Spike’ announcement where the Premier also warned Albertans that section 73 of the Public Health Act provides for a penalty as high as $100,000 for a first offence in these matters. This is part of Alberta’s response to calls for stronger enforcement on non-compliance with COVID-19 public health orders. The third wave of this pandemic gave us a full display of just how inadequate the bare threat of legal enforcement is towards ensuring compliance with these rules. This deficiency in the authoritative punch of COVID-19 public health orders is also the reason why Alberta (and other provinces) went to the extreme measure of obtaining an injunction from the Court of Queen’s Bench to prohibit the very public and orchestrated violations of COVID-19 public health orders. While politicians across Canada begin to engage in what might end up being a foolhardy race to be the first jurisdiction to end COVID-19 restrictions (Premier Kenney announced Alberta’s ambitious Open for Summer Plan on May 26 – just three weeks after announcing tougher enforcement measures), it would be wise for these lawmakers to pause, reflect, and heed some lessons from the compliance and enforcement mess associated with their COVID-19 public health orders.

Responding to Concerns that Alberta Does Not Collect Enough Security for Environmental Remediation the AER Chooses to Collect Less Security

By Drew Yewchuk

On May 26, 2021

In Energy, Natural Resources, Oil & Gas

By: Drew Yewchuk

PDF Version: Responding to Concerns that Alberta Does Not Collect Enough Security for Environmental Remediation the AER Chooses to Collect Less Security

Document Commented On: Mine Financial Security Program Standard, dated May 6, 2021

On May 6, 2021, the Alberta Government announced they would review and modify the Mine Financial Security Program (MFSP). The MFSP is Alberta’s system for ensuring (purportedly at least) that companies pay for the reclamation of their mines, both oilsands and coal. At first glance, a review and modification sounds like a good idea, since the MFSP has been criticized as severely deficient since at least 2015 when an Auditor General report identified numerous significant problems concluding that in the event that “a mine operator cannot fulfill its reclamation obligations… the province may have to pay a potentially substantial cost for this work to be completed” (at 2). Since then, the Alberta Energy Regulator (AER) has improved its administration of the program, but Alberta Environment and Parks (AEP), the primary department responsible for the policy and design of the MFSP, has not addressed the overall structure of the program (see the Auditor General’s 2019 report). Under the MFSP, the province held $1.57 billion in security against estimated reclamation liabilities of $20.8 billion in December 2014 and $1.46 billion in security against $28.35 billion in estimated reclamation liabilities in June 2018. So reform is long overdue, especially if Alberta is considering approving new coal mines.

Renewed Interest in Potential Carbon Capture and Storage Projects in Alberta

By Nigel Bankes

On May 25, 2021

In Carbon Capture and Storage, Energy

By: Nigel Bankes

PDF Version: Renewed Interest in Potential Carbon Capture and Storage Projects in Alberta

Matter Commented On: Alberta Energy, Information Letter 2021-19, Carbon Sequestration Tenure Management, May 12, 2021

In a recent Information Letter, Alberta’s Department of Energy noted that it “has received a very large number of inquiries related to carbon sequestration tenure (i.e. projects that will undertake dedicated geologic storage [of carbon dioxide captured at industrial facilities within the province], without associated oil or gas recovery)” (at 1). This renewed interest is consistent with developments in the rest of the world, spurred on by the growing commitment to reach net zero carbon dioxide (CO₂) emissions by 2050. See, for example, International Energy Agency, Net Zero by 2050: A Roadmap for the Global Energy Sector (2021).

The Curious Demise of Alberta’s Turn Off the Taps Legislation

By Nigel Bankes

On May 18, 2021

In Constitutional, Energy, Federal Court

By: Nigel Bankes, Andrew Leach and Martin Olszynski

PDF Version: The Curious Demise of Alberta’s Turn Off the Taps Legislation

Matters Commented On: Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) reversing British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 (CanLII), and Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5

The Turn Off the Taps legislation ((or, more properly, Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5) (PCEPA)) was passed under the Notley government in 2018. There have always been serious doubts as to the constitutional validity of the legislation (for discussion of the principal objections to the legislation, see ABlawg here) and it is hardly surprising that the Attorney General of British Columbia (AGBC) commenced actions first in the Alberta Court of Queen’s Bench and later in the Federal Court seeking to test the validity of the Act. As described by a majority of the Federal Court of Appeal in Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) [Turn off the Taps IV], the AGBC had two main arguments. The first was that PCEPA is inconsistent with s 121 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3; the second was that the PCEPA is a law in relation to interprovincial trade that falls outside the protection offered by s 92A(2) of the Constitution Act, 1867, the so-called ‘resource amendment’ to the Constitution. In particular, the AGBC noted that s 92A only protects laws pertaining to “primary production” as defined in the Sixth Schedule, and yet the PCEPA purported to apply to refined fuels which fell outside that definition. The Sixth Schedule provides as follows:

Important AUC Decision on the Treatment of Customer Contributions: Getting the Price Signals Right

By Nigel Bankes

On May 13, 2021

In Energy, Utility Regulation

By: Nigel Bankes

PDF Version: Important AUC Decision on the Treatment of Customer Contributions: Getting the Price Signals Right

Decision Commented On: AUC Decision 26061-D01-2021, Commission-Directed Examination of Distribution Facility Owner Payments under the Independent System Operator Tariff Customer Contribution Policy (23 April, 2021)

This decision has a long and complicated history arising most immediately out of Decision 22942-D02-2019 dealing with the Alberta Electric System Operator’s (AESO) 2018 tariff (for ABlawg comment on some aspects of that decision see here) as well as the AUC’s subsequent variance decision: Decision 24932-D01-2020.

This decision by the Alberta Utilities Commission (the Commission or the AUC) grapples with what are known in utility parlance as contributions in aid of construction (CIAC). Here is a straightforward example of a CIAC. Suppose that you live on an ordinary city block where the costs to tie in your house for utility service will be approximately the same for your house as would be for any other house on the block. You would not expect to pay extra to be tied in, and that this cost would simply be part of the utility’s general rate base. But suppose that you live on an acreage and some distance from the main distribution lines (gas, electricity, or water). In that case, it is entirely possible that you may be asked for a CIAC representing the actual incremental cost of the tie-in (or perhaps that amount above the cost of a standard tie-in). This is fair to other utility customers since your tie-in costs are more than the average and might not make economic sense to the utility, and it avoids inappropriate cross- subsidization. Since you have covered the capital costs of the tie-in, these costs do not form part of the utility’s rate base on which it is entitled to earn a return even if the utility owns that tie-in.

COVID-19 and Enforcement of Public Health Orders

Responding to Concerns that Alberta Does Not Collect Enough Security for Environmental Remediation the AER Chooses to Collect Less Security

Renewed Interest in Potential Carbon Capture and Storage Projects in Alberta

The Curious Demise of Alberta’s Turn Off the Taps Legislation

Important AUC Decision on the Treatment of Customer Contributions: Getting the Price Signals Right