Alberta Appeals Court hears Heartland arguments

Nearly a year after opponents sought to appeal a ruling by the Alberta Utilities Commission (AUC) approving the Heartland transmission project and more than six months after opponents were given the OK to proceed, the Alberta Court of Appeal on Oct. 12 heard arguments about whether the AUC should have conducted a needs assessment before approving the Heartland transmission project last November (Case No. 1103-0304AC).

The dispute centers on the interpretation of Bill 50, a measure passed in 2009 by the Legislative Assembly of Alberta under Premier Ed Stelmach that declared the Heartland line along with the Eastern Alberta Transmission Line (EATL) and the Western Alberta Transmission Line (WATL) “critical transmission infrastructure (CTI).”

Appearing before Court of Appeal Justices Marina Paperny, Frans Slatter, and C.S. Brooker, opponents of the project argued that the AUC’s restricting its examination to the proposed route before granting its approval of the project last year was an error.

For most transmission projects, the AUC would have performed a needs assessment before moving to route selection and approval. However, the AUC took the position that the need for the proposed C$609m (US$621.6m), 500-kV Heartland project, as well as for the other two lines, had been determined by the legislature, and that all it had the responsibility and authority to do was decide on the route.

A section of Bill 50 directs that the AUC “shall not refuse an approval of a transmission line designated as critical transmission infrastructure … on the basis that, in its opinion, it does not meet the needs of Alberta or is not in the public interest.”

Heartland project proponents AltaLink and Epcor agreed that the AUC was correct in its determination of its authority and responsibility.

The justices have “reserved their decision” on the matter, meaning that a decision will be issued at an undetermined future date, a court clerk told TransmissionHub Oct. 15.

The appeal heard by the court was the last outstanding challenge to the Heartland line. On May 15, an AUC review panel rejected requests by several parties that the AUC reconsider its approval of the Heartland transmission project (Decision 2011-436). Strathcona County, Responsible Electricity Transmission for Albertans (RETA), two families and a farm near the AltaLink/EPCOR line’s proposed route filed challenges to the AUC’s original decision. A challenge by a sixth group, the FIRST group, was dismissed in a Jan. 24 ruling.

Considering that three projects were declared CTI under the same legislation, a decision on the Heartland line will likely have implications for the EATL and the WATL, as well as provide guidance to the AUC about how to proceed should any additional lines be declared CTI.

The prospects for that happening, however, do not appear likely.

Earlier this year, in response to a report by the Critical Transmission Review Committee, a blue-ribbon panel appointed to review the need for the three CTI lines, the provincial government acknowledged that Bill 50 was no longer needed and would introduce legislation in the fall of 2012 to repeal the bill.

“[W]ith the ‘catch-up’ provided by the CTI projects and improvements to the regulatory approval process, the Cabinet authority to approve future CTI is no longer required,” then-Energy Minister Ted Morton said at the time, returning responsibility for considering the need for future transmission projects to the AUC.

Such legislation has yet to be introduced. However, a spokesperson for Alberta Energy Minister Ken Hughes told TransmissionHub on Oct. 15 that the government does plan to move forward with such a bill, and noted that the schedule for the fall sitting of the first session of the 28th legislature is set to be released later in the week.