Pursuing the overarching goal of many governments of transitioning to a low carbon economy depends heavily on innovation — innovation in technology, innovation in regulatory treatment of technological developments and innovation by regulators themselves in their approaches to emerging challenges. This issue of Energy Regulation Quarterly revolves around the theme.

In “Canadian Energy Regulators and New Technology,” Gordon Kaiser observes that Canadian energy regulators have been reluctant to fund through rates experimental or research projects, citing as an example the denial of applications to fund electric vehicle charging. In 2020, however, regulators in British Columbia, Ontario and Nova Scotia took steps to promote new technology using technology pilots. Kaiser reviews these developments. He notes that governments are turning to their energy regulators to “lead the way,” pointing to the recent amendment of the Ontario Energy Board Act to include among the objectives of the Ontario Energy Board “[t]o facilitate innovation in the electricity sector.”[1]

Technological innovation in the form of the expanding installation of rooftop solar panels by consumers is also the source of the regulatory challenges addressed by Ahmad Faruqui et al. in “The Battles over Net Energy Metering” (NEM). While the body of the article discusses the topic in the context of the widespread implementation of NEM in the U.S., valuable Ontario, Alberta, and British Columbia perspectives are included.

In addition to the regulatory challenges presented by technological developments, innovation in regulators’ approaches to meeting these challenges will also be needed. The ongoing research of the Positive Energy project at the University of Ottawa aims to support regulators, and others, in meeting these challenges. In particular, Positive Energy has undertaken a collaborative research project with the Canadian Association of Members of Public Utility Tribunals (CAMPUT) that has identified several successful innovations and opportunities “to scale up innovations in energy regulatory decision-making.” Two case studies that were undertaken in this project are reported in Patricia Larkin’s “What Can We Learn from Energy Regulatory Innovation? Case Studies of Formal Regulatory Agreements and Public Engagement Processes.”

The challenges presented by these technological and regulatory innovations arise within the broader policy/legal framework — the quest to get the right balance between the respective roles of policy-makers and regulators continues to present its own ongoing challenge. In “The Expanded Role of the Political Executive in Reviewing Proposed Federal Pipeline Projects: A Case Study,” Rowland Harrison examines a recent proceeding in which the federal cabinet added to its approval of a project a condition that had been expressly rejected by the Canada Energy Regulator (CER) in its recommendation to cabinet. Cabinet concluded that it could improve and strengthen the CER’s recommendations on an issue that did not appear to be a matter of overriding national interest and that was arguably within the CER’s expertise.

The Supreme Court of Canada’s recent reference opinion on challenges to the constitutionality of the federal government’s carbon tax legislation has obvious foundational implications for the ongoing development of policy and legislative initiatives aimed at transitioning to a low carbon economy. In their exhaustive analysis of the opinion in “Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation,” Nigel Bankes et al. conclude that the opinion is “particularly significant insofar as it recognizes a new matter of national concern in the context of developing appropriate legislative responses within the Canadian federation to an existential threat — global climate change.” The opinion confirms that “the federal parliament is not confined to the blunt instruments of the criminal law power and the taxation power and that it may also craft less intrusive backstop legislation, in this case in the form of selectively applied regulatory charges.”

  1. SO 1998, c 15, Schedule B, s 1(1).

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