This year is the 100th anniversary of public utility regulation in Alberta, a milestone that has been marked by various events, publications and presentations. In May, the occasion was reflected in the program for the annual conference of the Canadian Association of Members of Public Utility Tribunals (CAMPUT), which was hosted in Calgary in May by the Alberta Utilities Commission (AUC) under the title “A Century of Regulation: Honouring the Past, Shaping the Future.” Earlier in the year, the AUC itself had celebrated the occasion with the publication of Alberta Utilities Commission: 100 years of service to Alberta 1915-2015.

We are pleased to observe the AUC’s centenary by publishing a presentation by the Commission’s current chair, Willie Grieve Q.C., under the title “One Hundred Years of Public Utility Regulation in Alberta.” In Grieve’s own words, the purpose of his presentation is “to put Alberta’s public utility regulatory agency into some economic, legal, political and historical context.” He achieves more than that. He first recounts that the foundations of the regulatory bargain can be traced back to Magna Carta. While invoking the “foundational principles” of utility regulation, however, his presentation is equally mindful of the changing role of regulation, noting that the facts underlying any set of concepts change over time.

Grieve’s paper conveniently provides a theme for much of the content of this issue of Energy Regulation Quarterly, revolving around the transition from the past into the future of energy regulation.

Mark Jamison’s paper on “The Economic and Political Realities of Regulation: Lessons for the Future” reminds readers that the past practices of utility regulation include both lessons and myths. In looking at the past, it is incumbent on regulators to properly understand the difference. He examines three important lessons regarding the importance and role of information, the design of incentives and the design of markets.

Of the many dynamics at play in the current energy regulation environment, one of the most challenging for regulators, regulated industries and governments alike is the rapid emergence of the “social licence” phenomenon. In demanding that regulators themselves must acquire and maintain a social licence to regulate (apart from the social licence to operate that is demanded of project proponents), the concept threatens the very legitimacy of regulatory institutions. Mike Cleland addresses the issues in “The Social Licence to Regulate: Energy and the Decline of Confidence in Public Authorities.”

Scott Hempling’s article “From Streetcars to Solar Panels: Stranded Cost Policy in the United Sates” addresses a recurring issue in utility regulation, again with an underlying theme, as is clear from the title, of moving from the past into the future. While the article discusses the U.S. experience, we expect the review of basic issues and principles will be valuable for Canadian readers as well.

The continual emergence of new technologies is, of course, one of the most significant dynamics in today’s energy industries, frequently requiring new responses from regulators. The resulting changes are often incremental. The development of tidal power in Nova Scotia, however, goes beyond incremental change, calling for a new regulatory framework for the development and oversight of marine-based renewable energy activities. William Lahey reviews developments in “Regulation and the Development of a New Energy Industry: Tidal Energy in Nova Scotia.”

While “transition” permeates much of the current energy regulation environment, lawyers must continue to be conversant with certain enduring legal principles, particularly as such principles are to be applied in the context of regulatory proceedings. Philip Tunley’s article on “Expert Evidence for Energy Lawyers and Regulators” offers a comprehensive review of the principles that apply to the admissibility and use of expert opinion evidence that is frequently central to specific regulatory proceedings. The article is likely to become a valuable reference for energy lawyers and regulators alike.

Another area in which general legal principles may bear directly on the ultimate outcomes of energy regulatory proceedings is the courts’ approach to judicial review of such proceedings. William Lahey’s Case Comment reviews a decision of the Nova Scotia Court of Appeal quashing a decision of the Nova Scotia Utility and Review Board in which the Board had approved the inclusion in Nova Scotia Power Incorporated’s rate base of an investment in a wind power project. The Board had based its decision on what it saw as the application of “a fundamental principle of public utility regulation.” All parties and the Court of Appeal itself agreed that the standard of review was reasonableness. Lahey concludes, however, that the Court nevertheless proceeded to review the Board’s decision for reasonableness much as it would have for correctness, “with not a hint of deference…” The Court’s decision provides yet another example of the ongoing transition into the post-Dunsmuir world in which the judicial deference to be extended to the decisions of energy regulators is perhaps better understood in theory than in practice.1

  1.   See David Mullan, “2014 Developments in Administrative Law Relevant to Energy Law and Regulation” 3:1  Energy Regulation Quarterly 17.

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