Whether positive or negative, the Alberta Court of Appeal’s pending decision about the Heartland transmission project could have an effect on other projects either underway or planned for the province, including the Eastern Alberta Transmission Line (EATL) and the Western Alberta Transmission Line (WATL).
All three transmission lines, as well as two other projects, were declared “critical transmission infrastructure” (CTI) by Bill 50, legislation passed in 2009 by the Legislative Assembly of Alberta under former Premier Ed Stelmach.
On Nov. 1, 2011, the Alberta Utilities Commission (AUC) approved the route for the Heartland line, determining that approval of the route and not the overall need for the line was the limit of its authority under Bill 50.
Alberta residents Stuart and Karen Shaw sought permission to appeal the AUC’s decision. On March 28 they were granted leave, or permission, to appeal the AUC’s approval of the route for the Heartland project to the Court of Appeal on two grounds. One was whether the AUC had the authority and responsibility to determine the need for the line.
In issuing leave to appeal, Justice Ronald Berger said the question of the AUC’s responsibility to determine need, or lack thereof, under Bill 50 was a pivotal point that needed to be addressed. “In my opinion, it is imperative in the interests of certainty and consistency that this court pronounce upon the issue,” he wrote in his decision.
A second issue for which the Shaws were granted permission to appeal was whether then-Energy Minister Ted Morton exerted undue influence on the AUC and interfered in the Heartland proceedings.
Two sources familiar with the situation told TransmissionHub that the issue of undue influence did not appear to have been raised when arguments were presented to the court on Oct. 12.
If the appeal included allegations of interference and the ultimate ruling addressed that allegation, the ruling’s scope could be limited to the Heartland land. However, if the issue of the AUC’s authority and responsibility was the sole issue argued, and will therefore be the sole question decided by the court, it is possible that any decision rendered by the court could be applied to all CTI projects, as the role of the AUC would be applied similarly to all CTI projects.
In all, four projects were designated CTI under Bill 50: the Heartland line, the EATL and WATL which the Alberta Electric System Operator regards as a single project, a substations in the southeast area of Calgary, and a 500-kV Edmonton to Fort McMurray transmission line.
Even though the substation and the Edmonton to Fort McMurray transmission line are still pending and have not yet risen to the surface of public discussion, they could also be affected by the pending court ruling.
It is, however, unlikely that any other projects beyond those listed in Bill 50 will be affected.
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 EATL, WATL, and Heartland lines, the provincial government acknowledged that Bill 50 had served its purpose and was no longer needed.
“[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.
On Oct. 23, Minister of Energy Ken Hughes introduced Bill 8, which would effectively repeal Bill 50, limiting its impact to the four projects listed in the legislation and returning responsibility for considering the need for all future transmission projects to the AUC.
If the court upholds the legislature’s designation of the Heartland line as critical, project proponents and supporters could assert that, by extension, the decision ought to apply to the EATL and WATL, as well as the two other projects designated CTI.
However, opponents could seek leave to appeal such a decision to the Supreme Court of Canada, which is the court of last appeal for courts of provincial jurisdiction.
If the court finds that the AUC should have performed a needs assessment, that may also be applied to the balance of projects in the province’s CTI portfolio, and developers could be faced with possibly lengthy delays as the projects are revisited.
When asked about whether the AUC would appeal a decision requiring it to conduct needs assessments, an AUC spokesperson told TransmissionHub the organization could not comment on on-going court matters.
The appeals court justices have “reserved their decision” on the matter, meaning that a decision will be issued at an undetermined future date, As of press time Oct. 26, the decision was still pending.