AUC WATL Hearing

  As you may have heard, the Alberta Utilities Commission hearings for the second Bill 50 line (WATL) are underway in Red Deer.

A couple of weeks ago, lawyers for landowners asked the AUC to adjourn the WATL hearing until after the Court of Appeal rules on the Heartland Appeal  (Shaw  v.  Alberta (Utilities Commission) and Altalink).

That appeal will decide whether the Commission can turn down a Bill 50 line on public interest grounds.  If the evidence put to the Commission at a hearing shows that a proposed Bill 50 line will do more social and economic harm than good, the Commission must deny the line.  It has to deny the line because building the line is not in the public interest.

 To better understand the legal grounds for the Heartland Appeal go to this link:

 If the Court of Appeal rules in our favour on the Heartland, it would mean that landowners and industry groups can put the evidence in front of the Commission that shows that neither WATL or EATL are in the public interest—just like landowners and industry did in the AUC Heartland hearing.

 There is overwhelming evidence proving there is no demand and no electricity for these massive new lines.  To see some of that evidence go to these links:

In the May 12, 2012 Calgary Herald, Mayor Nenshi made some interesting statements about the Bill 50 transmission lines—they are not needed but the government is going to force them on us anyway.  Here’s an excerpt from the Calgary Herald story:

 Although it appears the war’s been fought and lost, Mayor Naheed Nenshi railed Friday against the province’s move to build north-south power transmission lines and vowed to continue pressing for a way to shield Calgarians from surcharges for the lines.

At the annual general meeting of Enmax — the first one for new CEO Gianna Manes — the mayor called the $3-billion twin power lines a “terrible” idea that won’t be needed because of the city-owned utility’s own project, a $1-billion gas-fired power plant in the Shepard district.

“And to build both of them and to put those costs on everyone, even the ratepayers in Calgary who, once the Shepard Energy Centre is built, actually won’t be using them very much, strikes me as very, very strange public policy,” the mayor told reporters after the meeting.

Alberta’s major industries are frustrated too.  The Industrial Power Consumers Association of Alberta (IPCAA) has not given up and is also hoping that the Court avenue will help stop the Bill 50 madness.

 We have posted the request from lawyer Gavin Fitch for the WATL hearing to be adjourned on our website at this link:

 Here are some excerpts from what the lawyers for landowners and industry said to the Commission when they asked the WATL hearing be adjourned until the outcome of the Heartland Appeal:

 Lawyer Gavin Fitch:  The present motion [for adjournment] is advanced on the following related grounds:

The Court of Appeal’s granting of leave on the question of the Commission’s interpretation of its public interest assessment in the case of CTI projects, such as WATL, casts significant doubt as to the correctness of the Commission’s approach to its consideration of CTI projects; and

 The outcome of the Shaw appeal may result in a broadening of the scope of the Commission’s public interest assessment such that interveners in the WATL proceeding may, and likely would need to file additional evidence addressing the broader socio-economic impacts associated with approval of the WATL line;

 The 566 Corridor Group submits that any prejudice to AltaLink would be minimal. Conversely, interveners to the current proceeding would be significantly prejudiced should the hearing proceed as scheduled as they would be forced to participate in a hearing that may need to later be re-opened as a result of a decision from the Court of Appeal granting the Shaw Appeal

 Furthermore, the Commission has, in other cases opined that local interveners should not be compelled to dedicate their time to prepare for and attend a hearing unless the Commission could be in a position to rule on the application

 In our respectful submission, the granting of leave to appeal on such a critical jurisdictional question suggests that the Commission is not currently in a position to rule on the application and on this basis should properly adjourn the proceeding pending the outcome the Shaw appeal.

Lawyer John Gruber:  The Midway Group supports the Motion. We have reviewed the written submission of the 566 Corridor Group and concur with its contents.

The legislation deeming the subject matter of certain utility transmission applications to be Critical Transmission Infrastructure represents a departure from how applications for utility transmission infrastructure were considered in the past. Given the nature of this change, the scope of these projects, and the resulting impact on rural landowners, it is imperative that the jurisdiction of the AUC in these applications be correctly understood.

The Motion is premised on the Court of Appeal granting leave to appeal a jurisdictional question arising from the Heartland Decision. Such leave is not granted lightly.  The issue subject to leave in the Heartland Decision is at the core of the WATL application.

The time for certainty as to jurisdiction is before the hearing – not during or subsequent.  Should the AUC proceed with WATL on a jurisdictional understanding that is ultimately not shared by the Court of Appeal, it is likely that the process would have to essentially be repeated. Going forward in the absence of certainty would mean that landowner interveners would be participating with the knowledge that there is a reasonable prospect that they will have to do it all over again.

 ENMAX lawyers:  The Alberta Court of Appeal has made it clear that “in the interests of certainty and consistency” it must review the legislative interpretation made by the Commission in the Heartland Decision. As the Commission well understands certainty and consistency are two of the hallmarks of a fair impartial administrative process. Where serious jurisdictional questions exist the necessary element of certainty can not be achieved by this or any other tribunal. Put simply, the AUC’s ability to consider a significant portion of the issues which will arise in the WATL process is currently uncertain.  In the absence of this certainty, both Intervener and Applicant alike are placed in an unfair position in both understanding the case that must be meet and in preparing the case it intends to put forward.

Lawyer Jim Laycraft for the WCG landowner group:  The WCG submits that Justice Berger’s leave decision in Shaw makes it clear that the Court of Appeal considers the scope of the Commission’s public interest jurisdiction in CTI cases to be an important question and, as Mr. Fitch has noted, Justice Berger has gone as far as to state that it is “imperative” that his court consider the issue.

 The Commission should adjourn this hearing pending clarification.  Proceeding with the hearing may create unfairness for parties, and will certainly cause a waste of time and resources in the event the Court of Appeal ultimately takes a different view on the Commission’s public interest jurisdiction.

Attached are some newspaper stories about the adjournment request for WATL that you should read.

 In the end, here is what the Commission decided to do:

           Ruling on the motion of 566 Corridor Group to adjourn — The Commission has considered the submissions of all the parties and denies the motion to adjourn filed by the 566 Corridor Group.  Proceeding now is not a waste of time, it allows examination of the evidence already filed and will ultimately save time and reduce the prejudice to landowners who have had to wait many years for a resolution of the Western Alberta Transmission Line Project.  The parties are ready to go, the evidence is relevant regardless of the Alberta Court of Appeal decision, so the hearing will reconvene on Thursday June 14, 2012 at 9:00 a.m. at the Winspear Room at the Holiday Inn 67 Street in Red Deer.

 So much for the Commission being concerned about fairness to landowners and ratepayers.


Update re Shaw (Heartland) Appeal to the Court of Appeal

 Significant progress has been made getting the appeal ready for the Court to hear the case.

The Shaw’s lawyer, Keith Wilson, has obtained a number of Court Orders to move the appeal forward and has completed the major steps in terms of Appeal Records needed to have the case heard.

 Attached is letter that describes some of the steps.

 Copies of the Court documents filed by Wilson are posted on our website under the heading Heartland Hearing.

 We will update you on timing and other important developments shortly.

 If we can win the Heartland appeal, we might be able to stop all of the Bill 50 madness. 

 Thanks for your support on this important appeal.

 Alberta Landowners Council