Canadian Energy Law : Lawyers & Attorneys for Environmental Energy Law

In an effort to remove barriers to resource development in Alberta, the Government of Alberta is seeking to clarify the ownership of coalbed methane within the province.

On October 27, 2010, the provincial legislature introduced Bill 26, the Mines and Minerals (Coalbed Methane) Amendment Act, 2010, 3^rd Sess., 27^th Leg., Alberta, 2010. This Bill declares that coalbed methane is, and always has been, natural gas for both Crown and freehold minerals. Therefore, if the Bill is passed, coalbed methane in Alberta will be owned by natural gas rights holders rather than coal owners.

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On October 22nd, 2010, the government of British Columbia released draft cap and trade regulations for public consultation. The proposed regulations establish the rules for emissions trading and offset projects in the province and are part of the province's commitment to the Western Climate Initiative. The public consultation period is open until December 6, 2010.

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On October 18, 2010, the OPA released an updated timeline for the FIT Program indicating that Transmission Availability Tests and Distribution Availability Tests would commence on October 18, 2010 for non-capacity exempt project applications submitted between December 1, 2009 and June 4, 2010.  The results of such tests are intended to be released in late November 2010.  The existing timeline which was released on June 1, 2010 contemplated that the results of the tests would be released in early July 2010. 
 
Non-capacity allocation exempt applications submitted after June 4, 2010 will be reviewed following the completion of the upcoming Economic Connection Test.  The OPA intends to post an update on the timing of the Economic Connection Test.
 
Applications for capacity allocation exempt projects are reviewed and offered contracts on an ongoing basis.  Contract offers for applications submitted after June 4, 2010 are expected to begin in late October 2010.

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The viability of a California cap-and-trade program will hinge on the outcome of the state's November elections. Voters in California will decide on a proposition to delay action on climate change until certain economic targets are met, and the Republican candidate for governor has also promised to revisit the current climate change plan.

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On October 15, 2010, the Canadian Securities Administrators (CSA) issued a Notice of Amendments to National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities (NI 51-101) and related and consequential amendments. NI 51-101 sets out annual filing requirements for reporting issuers who are involved in oil and gas activities and the disclosure standards applicable both to those annual filings and any other disclosures relating to their oil and gas activities. The stated purposes of the amendments are to clarify the standards of disclosure, codify existing staff guidance and practice, and add requirements to enhance reliability of certain disclosure of reserves and resources other than reserves. Each member of the CSA has made, or are expected to make, the amendments, which will come into force on December 30, 2010 provided that all requisite ministerial approvals are obtained.

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The Ontario Government recently released O. Reg. 389/10, made under the Energy Consumer Protection Act, 2010 (the Act). This regulation will govern the conduct of energy retailers and gas marketers and provides for increased consumer protection. The regulation also contains rules regarding the implementation and use of smart meters by individual units in multi-residential buildings. Both the Act and the regulation come into force on January 1, 2011.  For more information on the Act and regulations please see our post of June 17, 2010.

On a related note, the Ontario Energy Board issued a Revised Notice of Proposal (the Proposal) on October 15, 2010 to revoke and re-issue the Electricity Retailer Code of Conduct and the Code of Conduct for Gas Marketers, and to amend the Gas Distribution Access Rule. The Proposal will implement the consumer protection provisions of the Energy Consumer Protection Act, 2010. Comments on the Proposal are due on October 29, 2010.

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On October 8, 2010, the Ontario Power Authority announced an amendment to its Feed-in-Tariff (FIT) rules that restricts solar PV capacity allocation exempt (CAE) projects (generally those with a capacity between 10 - 500 kW AC) from electing a December 31, 2010 Milestone Commercial Operation Date.  Prior to this amendment, section 6.4 of the FIT rules permitted generators with solar PV and wind CAE projects to elect a 2010 (for solar PV) and a 2011 (for wind) milestone date in order to qualify for the lower domestic content requirements under the FIT rules, being 50% for solar PV and 25% for wind.  All solar PV projects, including CAE projects, that submit FIT applications after October 8, 2010 will be required to meet the 60% domestic content requirements under the FIT rules.  The OPA has stated that this amendment is necessary in light of the time required to complete the FIT application review, project development process steps and FIT contract requirements, all of which is expected to take at least six months.
 
Wind CAE projects may continue to elect a December 31, 2011 Milestone COD in order to qualify for the 25% domestic content requirement applicable to such projects. 
 

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On October 13th, Jason Chee-Aloy of Power Advisory LLC, and Jim Harbell and Glenn Zacher of Stikeman Elliott, held a seminar on the current state of Ontario's Green Energy Act and the investment opportunities available in the province.

The seminar was entitled The Green Energy Act - Part 2: Smart Investing in Ontario.

This seminar was a follow-up to the February seminar Green Energy Act: From Planning to Implementation.

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Ontario's Minister of Energy Brad Duguid announced today that the Ontario government has directed the Ontario Power Authority not to proceed with plans to build a highly controversial gas-fired power plant in Oakville.  The government has decided that changes in demand and supply in ontario electricity sector mean the plant is no longer needed and that the needs of the Southwest Greater Toronto Area can be served by investing in a new transmission. 
 
The proponent of the facility, TransCanada, has issued a statement that it will begin discussions with the OPA "where both sides mutually agree to terminate the contract and discuss reasonable payments TransCanada is entitled to."

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The Ontario Ministry of the Environment has posted a draft amend to the Renewable Energy Approvals Regulation (O. Reg. 359/09) to provide clarity with respect to the regulatory requirements that proposed renewable energy projects must satisfy.  The proposal notice and a draft of the regulation can viewed on the Environmental Registry.
 
Perhaps the most notable amendments include changes to the definition of noise receptors and clarification of the noise receptor setback prohibitions for wind facilities. Uncertainty over the proper interpretation of the current requirements has been a concern of the developers of these facilities.   Other changes of note include stronger requirements for mandatory consultations with the public, Aboriginal communities, municipalities and the Niagara Escarpment Commission, and changes to the assessment of protected properties, protected properties, archaeological and heritage resources, and natural heritage assessment and water assessment.

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As previously reported, Japan has commenced a complaint before the World Trade Organization regarding Ontario’s green strategy.  Japan alleges that Ontario’s plan to give a preference to local suppliers of green technology constitutes an illegal subsidy under WTO rules.

The United States and the European Union have now filed notices with the World Trade Organization that they intend to join in Japan’s complaint.  

Ontario’s Energy Minister, Brad Duguid, continues to state that “Our position is that Ontario's Green Energy Act is consistent with Canada's international trade obligations under the WTO.” 

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Federal Environment Minister, Jim Prentice, has announced the formation of an independent Oilsands Advisory Panel, whose mandate is to provide recommendations on the scientific research and monitoring of environmental effects associated with oilsands development. 

Specifically, the Advisory Panel will:

• Document, review and assess the current body of scientific research and monitoring; and
• Identify the strengths and weaknesses in the scientific monitoring, and the reasons for them.

The Advisory Panel will report to Minister Prentice with their findings at the end of November.  It is expected the focus of the Advisory Panel will be on theRegional Aquatics Monitoring Program (“RAMP”), a monitoring organization led by industry and Alberta regulatory bodies, as well as the research methodologies of RAMP’s Technical Program Committee. 

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