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Davis LLP Web Logs or "Blogs" are intended to provide general comments on developments in the law. They are not intended to be a comprehensive review nor are they intended to provide legal advice. Readers should not act on information in the blogs without seeking specific advice on the particular matter. Please contact a lawyer listed on the blog pages for additional details, or to discuss how blog information is relevant to a specific situation.

Environmental, Energy and Resources Law

BC Hydro announces 19 Clean Power Call projects

Submitted by Grant Boyle

BC Hydro announced it has selected 19 projects for an award of an electricity purchase agreement in its Clean Power Call: 14 run-of-river hydro and 5 wind projects representing around 900 MW of capacity. 28 projects are still under consideration.

Following the execution of the contracts, BC Hydro will submit the electricity purchase agreements to the British Columbia Utilities Commission for review. Project details, including the range of electricity prices to be paid, will be available in the Commission filing.

The announcement of the awards comes after a long journey for BC's Clean Power call, including the BC Utilities Commission's rejection of BC Hydro's Long-term Acquisition Plan, uncertainty over the adequacy of First Nations consultations and uncertainty over the size of the Call.

Hydro-Québec, Green Mountain Power and Central Vermont Public Service Corporation announce a 26-year Power Supply and Purchase Agreement

Québec Premier Jean Charest and Vermont Governor Jim Douglas today jointly announced the signing of a Memorandum of Understanding (MOU) for a 26-year power supply and purchase agreement.

Hydro-Québec, who currently provides about one-third of Vermont's electricity pursuant to a contract signed on December 4, 1987 and set to expire in 2016, would continue to do so as a result of the proposed agreement. The contract would take effect in 2012 and run through 2038. Key terms of the deal were not disclosed, however the Vermont utilities would buy up to 225 megawatts and use a "price-smoothing mechanism" that would shield Vermont customers from market price spikes throughout the duration of the contract.

Certainly a key consideration for Hydro-Québec, Vermont lawmakers would enact legislation currently before lawmakers which designates large hydro power, including that produced by Hydro-Québec, as renewable energy, with any resulting credits to be shared by the three corporations.

In a joint news release, Central Vermont Public Service Corporation's President Bob Young, and his counterpart at Green Mountain Power, Mary Powell, were quoted as saying "This agreement sets the stage for a new contract that will help us maintain what is arguably the cleanest power supply in the nation, while ensuring a relatively stable and affordable future for our customers [...] It continues a relationship that has helped us provide competitive rates in the Northeast, with minimal air and greenhouse impacts."

Negotiations had been ongoing for over a year, although Vermont's energy future drew attention in early 2010 following reported tritium leaks in Entergy's Yankee nuclear power plant. Although an application has been made for a 20-year extension, the plant is scheduled to close when its license expires in 2012.

Quebec Mining Sector remains strong in 2009, record investments expected in 2010

The province of Quebec's Statistical Institute ("QSI") today released its 2009 analysis of mining sector data which confirms that notwithstanding diminished investment, the sector remained strong in 2009. The QSI based its analysis on preliminary data gathered from mining companies through Q3 2009. In total, $1.67 billion was invested in the province's mining sector, down 17% from the preceding record year, but in line with 2007.

Quebec's Abitibi-Temiscamingue region led investment with a total of $661million, mostly as a result of Osisko's flagship Canadian Malartic project, as well as Agnico-Eagle's continued work on the LaRonde, Lapa and Goldex projects. The Côte-Nord region followed with $508 million in investments, due to several iron ore projects.

Investments in exploration diminished slightly more during the financial downturn ($370 million), down 34% from 2008, however consistent with the 5-year average. Exploration by juniors slipped from 78% to 64% of the total, with the majors playing a more active role.

At an average price per ounce close to $1100 in 2009, gold remains the main mining play, taking up 61% of the total exploration and extraction investments. Copper, Zinc and Nickel dropped to 16%, slightly ahead of Uranium, at 13% and Lithium, which drew 1.6% of 2009 investments.

Detailed tables showing 2009 mining investment in Quebec are available on the QSI's website (French only).

2010 may very well be a record-breaking year, as mining companies have indicated that they expect to increase overall investment 30% compared to 2009, up to $2.2 billion, of which $467 million will be for exploration activities.

OPA announces a total of 510 FIT contracts

Further to our posting this morning about Loblaw's, the Ontario Power Authority ("OPA") offered a total of 510 Feed-in Tariff ("FIT") contracts today. In its press release, the OPA described the allocation of contracts as follows:

"The 510 projects are to be built in 120 communities across Ontario by farmers, municipalities, local distribution companies, commercial businesses, industrial customers, public institutions, such as schools and hospitals, a winery and even a church. The projects range from 10 kilowatts to 500 kilowatts and have a total generating capacity of 112 megawatts - enough energy to power more than 13,000 homes. About 95 percent of the projects are for solar generation. The remaining projects are biogas (20), water (4), onshore wind (3) and biomass (1)."

A complete list of projects and their proponents is available on the OPA's website.

All of the projects qualify as capacity-allocation exempt projects, meaning that they are not subject to the Transmission Availability Test under the FIT rules.

Up next: projects that are not capacity allocation exempt. These will include distribution-connected projects over 250 kW if connected to a less than 15 kV line or 500 kW if connected to a 15 kV or greater line and stand-alone projects as well as transmission connected projects. Proponents of these projects are no doubt anxious to hear from the OPA: not only are these projects bigger, but they are also subject to the Transmission Availability Test. Proponents may have made some big bets on their shovel-readiness under the OPA's FIT program launch rules.

Ontario Power Authority awards first FIT contracts to Loblaw's; more to follow

The Ontario Power Authority ("OPA") awarded its first 100 Feed-in Tariff ("FIT") contracts to Loblaw's this morning. More announcements are expected today and in the coming weeks.

"These projects will create a new source of income for businesses while providing new clean and green electricity in Ontario -- particularly on hot, sunny summer days when demand soars," said Brad Duguid, Ontario Minister of Energy and Infrastructure. "With our new domestic content rules, these projects will also help create new green collar jobs here in Ontario as well as major economic investments in equipment and services here at home." Bob Chant, vice president, corporate affairs, Loblaw Companies Limited added that Loblaw's believes "green energy production using innovative technologies such as these pilot projects, supports our commitment to the environment."

Loblaw's will be working with Northland Power Income Fund to implement the first four projects as a pilot. "We believe that solar energy, especially rooftop solar energy, will play a major role in Ontario's green energy future while dramatically reducing greenhouse gas emissions," said Jim Temerty, Chairman of Northland Power Income Fund. Assuming the pilot is a success, Loblaw's will then roll out the balance of the projects.

The announcement has been eagerly anticipated by prospective renewable power developers. The OPA accepted over 2,000 applications during the launch phase of the FIT, which ran during October and November of last year, and has received over 2,000 more applications since. The OPA awarded 700 microFIT contracts before Christmas, but these very small scale projects only amounted to a total of about 8.6 MW of generating capacity. Applicants who proposed larger scale projects have been waiting for over three months for the OPA to begin awarding FIT contracts.

OPA and MEI enhance stakeholder consultation regarding FIT domestic content requirements

Ontario has been praised internationally for its renewable energy Feed-in Tariff ("FIT"), the first of its kind in North America. If commentators have one reservation, however, it is about the domestic content rules, which require project proponents to source prescribed percentages of equipment and labour in Ontario. With the Ontario Power Authority ("OPA") set to announce the next wave of FIT offers in the coming weeks, proponents are now peppering the OPA and the Ministry of Energy and Infrastructure ("MEI") with questions about the domestic content rules. To their credit, both the OPA and MEI appear committed to continuing the open consultation process that has characterized the development of the FIT.

Beginning last December, the OPA posted interpretations of the domestic content rules online. The OPA announced this week that it will now be undertaking a more transparent and accountable process for issuing guidance on the domestic content rules. The new process will include the following steps:

  • stakeholders may submit feedback and questions relating to designated activities for domestic content;
  • the OPA and/or MEI will review feedback and questions;
  • the MEI/OPA will produce draft interpretations and post them on the FIT Program website;
  • stakeholders may provide feedback on the draft interpretations;
  • the OPA and/or MEI will review of feedback; and
  • they will post the final interpretation on the FIT Program website.

The OPA will announce draft interpretations on its website and by email to FIT email update subscribers.

The first draft interpretation to be developed pursuant to this process concerns designated activities for inverters. The draft interpretation was posted March 3 and is open for comments until March 10.

Canadian Government to invest close to $80 million in Quebec Ethanol Plant

Steven Blaney, Member of Parliament for Lévis-Bellechasse, today announced that the Government of Canada's ecoENERGY for Biofuels program will provide funding of up to $79.75 million over 7 years to GreenField Ethanol's Varennes production facility.

GreenField's Varennes facility will produce about 145 million litres of ethanol a year and is Quebec's first ethanol producer. Compared with gasoline, grain-based ethanol can reduce greenhouse gas (GHG) emissions by up to 40 percent on a life-cycle basis. For biodiesel, the emissions reduction can be as much as 60 percent.

Through the ecoENERGY for Biofuels program, the Government of Canada is to invest up to $1.5 billion in such ventures over nine years. The Government's Economic Action Plan also dedicates $1 billion to the Clean Energy Fund and $1 billion for the Green Infrastructure Fund.

SDTC now accepting statements of interest for next round of SD Tech Fund funding

Sustainable Technology Development Canada ("SDTC") will be accepting Statements of Interest ("SOIs") for its the SD Tech Fund from February 24 to April 21, 2010. The SOI is an initial application used for preliminary screening and is subject to a competitive review process by SDTC and a panel of independent experts.

SDTC's SD Tech Fund supports projects that address climate change, air quality, clean water, and clean soil. To date, SDTC has completed 15 funding rounds and allocated a total of $464 million to 183 projects. SDTC funding has been leveraged with an additional $1.1 billion in funding from other project partners for a total project value of $1.5 billion.

SDTC focuses on funding development and demonstration projects, which SDTC also describes as projects that take technologies out of the laboratory and prove them in real-world test situations. SDTC funding is not available for primary research and development or for initial proof of concept projects. Applicants must therefore demonstrate that:

  • the proposed project is technically sound and undertaken by an applicant with the necessary technical, financial and management capacity;
  • the proposed project will be undertaken in a collaborative and innovative manner;
  • the new technology and related intellectual property will be diffused in a timely manner in the relevant market sectors; and
  • the funding is necessary to ensure that the project proceeds in a manner to ensure broad benefits to Canadians nationally or regionally.

Projects must pertain to one of the following primary sectors of Canada's economy:

  • Energy Exploration, Production, Transmission and Distribution;
  • Power Generation;
  • Energy utilization;
  • Transportation;
  • Agriculture, Forestry and Mining;
  • Waste Management; or
  • Cross-sectoral initiatives.

Part of SDTC's mandate is to encourage consortia that include key technology stakeholders including researchers, product developers, manufacturers, distributors, retailers and end customers. Applicants for SDTC funding must therefore meet SDTC's consortium requirements.

SDTC has published two helpful webinars for prospective SOI applicants. The first helps potential applicants to determine if they should submit a SOI. The second is a guide to creating a high quality SOI submission.

US spurs new nuclear construction; Ontario tries to keep existing fleet alive (for now)

As the U.S. continues to reveal incentives to spur a nuclear renaissance south of the border, officials in Ontario attempt to extend the life of existing reactors. The two sets of policies reveal how nuclear power is intertwined with economic concerns, green energy policy, and efforts to combat climate change.

US loan guarantees

As reported by BusinessGreen.com, President Obama announced US$8.3 billion in loan guarantees for the construction of two new nuclear reactors in Georgia. This is only one slice of the $18.5 billion loan guarantee pie that Congress has already approved. The Obama administration is seeking approval of an additional $54 billion in loan guarantees, all as part of a strategy to revive the dormant nuclear industry in the U.S.

Environmentalists are angered at the prospect of new nuclear plants, despite the President's promise in his recent State of the Union Address to build "a new generation of safe, clean nuclear power plants."

However, the President's push for nuclear appears to be significantly motivated by environmental concerns. Specifically, the loan guarantees are viewed by many as a way to garner Republican support for the climate change bills that are mired in Congress. As discussed below, nuclear power also fits into the province's climate change strategy, although in a much different way.

Ontario refurbishments and planned closure

Ontario Power Generation ("OPG"), which is owned by the province, made two significant announcements in the past week. First, OPG revealed that it will close the Pickering nuclear station in 10 years, but only after spending $300 million to refurbish the reactors in the interim. Pickering station has a nominal output of 3,100 MW, which accounts for about 8% of Ontario's installed capacity. Second, OPG indicated that it would spend an undisclosed amount on refurbishing the Darlington nuclear station. It is unclear if the refurbishment would spell the end of the proposed procurement of new reactors for Darlington, which the Ontario government suspended last year, citing the suprising cost of private-sector bids from AECL and Areva (pegged north of $20 billion) as the reason for doing so.

Opposition critics were quick to pounce on the McGuinty government, expressing concern about the price tag for keeping the stations running. The Toronto Star quotes New Democrat energy critic Peter Tabuns as saying, "You don't make a multi-billion dollar decision based on a guess. "Either they're withholding numbers from the public or they're making a guess. In either case, that's indefensible."

Environmentalist, on the other hand, praised the decision. Referring to the Pickering announcement, Greenpeace energy specialist Sean-Patrick Stensil said, "For once OPG has told the truth about a project being uneconomic and saved the ratepayers millions if not billions of dollars. The ball is now in the government's court, and they need to give direction as to how Pickering will be replaced, and it can be replaced with green energy."

Premier McGuinty appears to agree that the focus should be green energy. The Star reports that the Premier is asking Ottawa to provide more funding for green energy. This funding should complement the funding being provided for carbon capture and sequestration, said McGuinty. "I'm not going to pass judgment on the merit of the science associated with carbon sequestration. But what I am going to say is if the federal government chooses to support that kind of research, we'd like them to provide comparable levels of financial support for things that we know in fact work."

Implications

In Ontario, the nuclear question is therefore intimately tied to policy considerations regarding green energy and climate change. The McGuinty government characterizes its Green Energy Act in many ways as a climate change initiative, particularly because it will allow the province to eliminate coal fired generation. A diminishing supply of nuclear power could mean a growing demand for renewables. However, nuclear baseload generation will likely continue to be essential to the stability and reliability of supply in the province.

Both nuclear and green energy policy will also have significant economic implications. New nuclear construction and refurbishment as well as Ontario's generous renewable Feed-in Tariff rates will result in higher electricity bills in the province. However, those costs may be outweighed by the economic benefits of creating new jobs in the province. While nuclear projects would certainly employ a number of people, the province's Green Energy Act is intended to create 50,000 green collar jobs.

The challenge for the province will therefore be to balance its nuclear and green energy policies so as to achieve a reliable supply of power that minimizes greenhouse gases and has a net economic benefit for the province.

In so doing, the province should not lose sight of what is happening south of the border. A successful nuclear renaissance in the US could drain Ontario of most of its nuclear expertise. A successful climate change bill would also have significant repercussions for the province, which could be very positive if the province successfully becomes a green and cleantech centre of excellence.

BC's Speech from the Throne calls for "Future Powered by Clean Energy"

Submitted by Grant Boyle

On February 9th BC delivered its Speech from the Throneand continued its rhetorical push to promote renewable energy in the province. Two interesting developments to watch will be the release of the work of the Green Energy Advisory Task Forceand the development of a Clean Energy Act.Below are some excerpted highlights from the speech:

Clean energy is this century's greenfield of opportunity.

British Columbia is blessed with enormous untapped energy potential.

We can harness that potential to generate new wealth and new jobs in our communities while we lower greenhouse gas emissions within and beyond our borders.

Clean energy is a cornerstone of our Climate Action Plan to reduce greenhouse gas emissions by one

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