Energy issues continue to play a central role in Canadian public discourse, shaped by the fluid interaction of evolving public expectations, technological developments, changing markets, public policy and politics. The articles in this issue of Energy Regulation Quarterly address particular aspects of these dynamics, including energy conservation, renewable energy, changes in the natural gas market between Canada and the U.S. and consolidation of electricity LDCs in Ontario with a view to realizing significant cost savings.

Peter Love’s article on “The Past, Present and Future of Energy Conservation in Ontario” summarizes the key components of Ontario’s past and present conservation efforts, then uses this background to suggest the most important developments needed in order for the full potential of conservation to be realized in Ontario.

Love’s article is complemented by Jack Gibbons’ article on “Conservation First: In Theory and Practice”, which reviews the Conservation First policy announced by the Ontario government in December 2013 with respect to electricity and natural gas. Gibbons describes the policy as “both revolutionary and common sense,” while arguing that the Ontario Energy Board is implementing policies that will frustrate the implementation of Conservation First with respect to both electricity and natural gas.

The drivers underlying evolving energy policies are not, of course, unique to North America. Ralf Theater and Silke Goldberg’s article on “The Reform of the Renewable Energy Act in Germany” provides a valuable description of the approach to promoting renewable energy recently adopted in the European Union’s largest economy. The German experience is frequently referenced in North America and is of particular interest when a number of Canadian electricity markets are pursuing significant change.

Significant changes in the structure of the North American gas market have resulted over the last few years from the widespread adoption of “fracking” technology to access extensive deposits of shale gas. André Plourde’s article on “Changing Views of the Role of Canadian Natural Gas in the U.S.” provides an empirical review of these changes. Plourde concludes that the changing role for Canadian natural gas in U.S. markets may create new market opportunities outside Canada and offers some observations on policy and regulatory issues that may arise.

Duncan Melville’s article on “Improving Ontario’s Energy Infrastructure: Reducing the Cost of LDCs” discusses the potential for restructuring in the Ontario electricity market. He concludes that “significant annual cost savings would be realized through consolidation of Ontario’s smallest LDCs.” He suggests that outright privatization should be resisted, in favor of tendering of LDC operations to private concessionaires, which would provide “a suitable solution to the roadblocks currently preventing consolidation.” He recommends that the government ask the Ontario Energy Board to study the feasibility of creating regional distribution companies and tendering of their management to private sector operators.

While Jason Yamashita’s article on “Utility Dealings with Freemen-on-the-Land and Others Raising ‘Organized Pseudolegal Commercial Arguments’” is not directly concerned with energy regulation or policy issues, it addresses a real problem that is faced by some regulated utilities. Yamashita reviews an important Alberta Queen’s Bench decision in which the Court labelled a certain group of “vexatious litigants” as “Organized Pseudolegal Commercial Argument” (or OPCA) litigants. He offers suggestions on how utilities might best deal with OPCA litigants to minimize the associated costs and risks.

In the Case Comments section of this issue of ERQ, Nigel Bankes reviews the numerous judicial challenges to review proceedings with respect to the Northern Gateway project, the proposed TransMountain expansion, the reversal and expansion of Enbridge Line 9 and the proposed Energy East project. In the past, with occasional exceptions such as the original proposal for the Mackenzie Valley pipeline in the 1970s, the regulatory review of proposed new energy infrastructure projects generally proceeded with relatively little controversy. For example, the Norman Wells and the Express oil pipelines and the Maritimes & Northeast and the Alliance natural gas pipelines were approved and constructed as greenfield projects between the mid-1980s and 2000 without the pervasive controversy that is being faced by current pipeline projects. There are approximately 15 judicial proceedings challenging the National Energy Board and the Governor in Council. Indeed, in April, the NEB took the unprecedented step of posting a table on its website to assist interested parties in keeping track.

These challenges raise fundamental issues, including the validity of the NEB’s position that it will not consider climate change effects upstream and downstream of the pipeline projects over which it has jurisdiction. Other issues include restrictions on rights to participate in NEB proceedings that were introduced in 2012 and the constitutional paramountcy of the NEB’s pipeline jurisdiction over the authority of local governments. The judicial resolution of each of these issues will be significant for projects currently before the NEB and for future energy infrastructure projects.

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