Document Type
Article
Abstract
Canada has announced plans to meet its Paris Agreement commitments on reducing greenhouse gas emissions and achieving net-zero by 2035; but standing in the way of these ambitions is an electricity crisis. The crisis is provincially balkanized electricity systems with a dearth of interprovincial transmission lines, and the impacts are three-fold. First, the country is divided into renewable have- and have-not provinces, with some jurisdictions generating more hydropower than they need while others struggle to wean themselves off coal and natural gas. Second, the lack of interprovincial transmission is a deterrent to private investment in renewable energy projects, which is holding Canada back from meeting its climate commitments in a way that could provide major economic gains. Third, much of the country is off-grid, relying on expensive, unreliable, and dangerous diesel fuel for power. An initial step towards addressing these issues would be to create a new market for interprovincial zero-emission power sales by exercising federal jurisdiction over the permitting of interprovincial transmission lines in order to encourage private companies to enter the market and remove some of the financial burden from provinces. Given the national and provincial goals of reducing power from coal-fired power plants and the urgency of energy access issues in many parts of the country, it is time for the federal government to assume at least some of its infrastructure transmission jurisdiction to ensure just transition to safe, renewable power sources, and to promote investment in renewable projects across the country. To that end, this article will lay out the constitutional basis for federal jurisdiction over interprovincial power lines, as well as the constitutional limits on that jurisdiction that will keep provincial grids under provincial control.
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
Citation Information
van de Biezenbos, Kristen.
"Lost in Transmission: A Constitutional Approach to Achieving a Nationwide Net Zero Electricity System."
Osgoode Hall Law Journal
59.3 (2022)
: 629-666.
DOI: https://doi.org/10.60082/2817-5069.3813
https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss3/3
References
1. Daniel Oberhaus, "The Real Challenge for a Green New Deal Isn't Politics," Wired (9
July 2019), online:
[perma.cc/646N-WVR7].
2. See Ian Blue, "Off the Grid: Federal Jurisdiction and the Canadian Electricity Sector" (2009) 32 Dal LJ 339 at 340-42.
3. See Government of Canada, "A Clean Electricity Standard in Support of a Net-Zero Electricity Sector: Discussion Paper" (last modified 16 March 2022), online:
[perma.cc/589V-DF2N].
4. There are additional reasons to increase the number of interprovincial electricity connections, including grid modernization, strengthening grid reliability and load balancing, and increased export opportunities to the United States, but this article focuses on the energy justice and climate change aspects in particular. See ibid.
5. See PJM, "Transmission & Distribution" (n.d.), online: PJM Learning Center [perma.cc/3VUR-GUU9].
6. Ibid. In competitive wholesale power markets, these lines are sometimes called "merchant lines." See Alberta Electric Systems Operator, "Glossary of Terms: Merchant Transmission" (2016), online: [perma.cc/H9DM-SFVZ].
7. See American Wind Energy Association, "Economic Development" (n.d.), online:
[perma.
cc/5B6V-MU2R?type=image]; Wind Energy Technologies Office, "Wind Resource Assessment and Characterization" (n.d.), online: US Department of Energy [perma.cc/QU2B-MPHV].
8. For a finding that federal jurisdiction over an interprovincial pipeline was exclusive, see Reference re Environmental Management Act, 2019 BCCA 181 [RREMA, BCCA], aff'd 2020 SCC 1 [RREMA, SCC].
9. US Energy Information Administration, "Electricity Explained: How Electricity is Delivered to Customers" (3 November 2021), online: [perma.cc/UU6V-ZRVV].
10. An exception to this is solar photovoltaic panels-the same kinds of panels commonly installed on residential roofs, which use a superconducting material to create an
electrical charge. See Andrew Blakers, "Explainer: What is Photovoltaic Solar Energy?," The Conversation (25 March 2013), online: [perma.cc/24T4-J4GR].
11. See David Roberts, "Power Utilities are Built for the 20th Century. That's Why they're Flailing in the 21st," Vox (9 September 2015), online: [perma.cc/D8X2-9LEM].
12. See Hung Po Chao, Shmuel Oren & Robert Wilson, "Reevaluation of Vertical Integration and Unbundling in Restructured Electricity Markets" in Fereidoon P Sioshansi, eds, Competitive Electricity Markets: Design, Implementation, Performance (Elsevier, 2008)
27; Sharon B Jacobs, "The Administrative State's Passive Virtues" (2014) 66 Admin L
Rev 566 at 566-67.
13. See Rebecca T Richards, "Regional Rural Development and Energy Reform: The Case of Electric Deregulation in Montana and Alberta" (2007) 20 Society & Natural Resources 647 at 652; Natural Resources Canada, "About Electricity" (last modified 15 June https://doi.org/10.1080/08941920701385092
2020), online: [perma.cc/93UW-66NT].
14. See Joel B Eisen, "FERC's Expansive Authority to Transform the Electric Grid" (2016) 49 UC Davis L Rev 1783 at 1792-93. Also note that the transmission and distribution sectors in both the United States and Canada are generally still owned by utilities with geographic monopolies. There are several reasons for this, but the simplest explanation is that these systems are "natural" monopolies-the services they provide are at their lowest cost to consumers when there is only one provider.
15. See ibid at 1815-16. Also note that Canadian utilities that sell power to the United States-which is almost all of them-must also abide by FERC's OATT requirements, meaning that they cannot charge different rates from different companies that want to connect to their transmission lines, even within the country. See Blue, supra note 2 at 344-45. This also means that the federal government has a template for setting transmission tariffs for interprovincial connections since most Canadian transmission owners already comply with FERC orders on the subject.
16. See Eisen, supra note 14 at 1815-16.
17. See Gert Brunkreeft, "Network Unbundling and Flawed Coordination: Experience from the Electricity Sector" (2015) 34 Utilities Policy 11 at 13. Note also that because many provinces connect to US-based utilities, they must abide by FERC's OATT requirement as well. See https://doi.org/10.1016/j.jup.2015.03.003
e. g. Manitoba Hydro, "Tariffs" (n.d.), online: [perma.cc/M2TR-8NKE].
18. See Ari Peskoe, "Easing Jurisdictional Tensions by Integrating Public Policy in Wholesale Electricity Markets" (2017) 38 Energy LJ 1 at 3.
19. Federal Power Commission v Florida Power & Light Co, 404 US 453 at 457,
460- 62, 469-75 (1972). https://doi.org/10.1364/JOSA.62.000469
20. See ibid at 461 (explaining that all power entering a "bus" is commingled).
21. See Peskoe, supra note 18.
22. Under the Environmental Protection Act, 1990, Congress gave FERC backstop siting jurisdiction when state utility commissions withheld permission for proposals and the proposed line fell within a federally designated national energy corridor. See Debbie Swanstrom & Meredith M Jolivert, "DOE Transmission Corridor Designations & FERC Backstop Siting Authority: Has the Energy Policy Act of 2005 Succeeded in Stimulating the Development of New Transmission Facilities?" (2009) 30 Energy LJ 415 at 418-421. However, states quickly learned that if they did not rule on a line one way or another, this did not count as a refusal and thus did not trigger FERC's jurisdiction. See Brian R Gish, "Is FERC Backstop Siting Authority Still Alive?," Power Magazine (1 May 2011), online: [perma.cc/4V8G-NEUW].
23. This is not to say transmission projects are not controversial, but occasionally they are controversial because they do not confer any benefits on residents of the states where they are located. See James Coleman, "Pipelines and Powerlines: Building the Energy Transport Future" (2019) 80 Ohio St LJ 263 at 283 (noting resistance by some Arkansas landowners to federal permitting of a transmission line intended to deliver renewable power to another state, but also noting that the legal challenge to the federal permit was later abandoned).
24. See Kate Galbraith, "Why Does Texas Have Its Own Power Grid?" (16 February
2021), online: Houston Public Media
[perma.cc/A5N6-VGY2].
25. See Blue, supra note 2 at 340-41.
26. Ontario has sold its majority stake in Hydro One, although it does still retain some ownership. See Mike Crawley, "How Privatized Power Haunts Ontario Politics," CBC News (9 December 2017), online: [perma.cc/D4DU-K472].
27. See Alberta Electric System Operator, "Guide to Understanding Alberta's Electricity Market" (2016), online: [perma.cc/B9M2-S4ER].
28. Alberta Utilities Commission, "Who We Regulate" (n.d.), online: [perma.cc/FC62-8S4A].
29. In British Columbia, for example, BC Hydro buys additional generation from BC- and US-based private companies via its wholly-owned subsidiary Powerex. See Sarah Cox, "Clean
B. C. is Quietly Using Coal and Gas Power from Out of Province. Here's Why," The Narwhal (3 December 2019), online: [perma.cc/7LYN-YGYV] [Cox, "Clean BC"].
30. See Blue, supra note 2 at 341.
31. This is what is done with international power lines. See e.g. Hydro-Québec,
Press Release, "Energy Supply Contracts Get Green Light from Massachusetts"
(26 June 2019), online:
energy-supply-contracts-get-green-light-from-massachusetts-another-important-milestone-for-hydro-quebec-and-lower-carbon-emissions-for-new-england> [perma.cc/B94W-HEBH]. With respect to interprovincial lines, one official from Manitoba Hydro put the economic calculus plainly:
The single biggest challenge between Manitoba and Saskatchewan is funding. Manitoba's electric sector is already 100% renewable. We already have a very large and adequate interconnected capability into the United States. For us to invest half a billion dollars or a billion dollars in more transmission lines to connect to Saskatchewan doesn't bring the province any more value than we already have. To the extent that the federal government is able to fund the Manitoba portion of that transmission line, it would make it a much more viable project for Saskatchewan.
See Canada, House of Commons, Strategic Energy Interties: Report of the Standing Committee on Natural Resources, 42-1, No 7 (December 2017) at 15 (Chair: James Maloney).
32. See Hydro-Québec, "Exchanges with Ontario" (n.d.), online: [perma.cc/5BP5-79TV][Hydro-Québec, "Exchanges"].
33. In its submission to the House of Commons Standing Committee on Natural Resources, the Canada West Foundation observed that the idea of more interprovincial transmission lines has been floated many times in Western Canada, but often gains little traction for
reasons...related to provincial fears of losing influence over their own electricity grids. At times it was rejected because some provinces feared cheap coal power from Alberta would flood into their markets and harm their own utilities. At other times, Alberta rejected the idea because of fears cheap hydro could put their coal power plants out of business.
See Nick Martin, "Strategic Electricity Inter-ties: Submission to the House of Commons' Standing Committee on Natural Resources," Canada West Foundation (2 October 2017), online: [perma.cc/BH95-C4JZ].
34. North Dakota (like most US states) does not have a state-owned electric utility. See North Dakota Public Service Commission, "Information by Jurisdiction: Electric and Gas Information" (2015), online: Official Portal for North Dakota State Government [perma.cc/VT8K-YR4P]. Interestingly, Alberta also does not have a provincially owned utility, but investor-owned utilities and generators in Alberta may be thought of as an extension of the Alberta government regardless, not because they are in fact, but because not thinking of electricity this way
may be foreign in other provinces. See Alberta Electric System Operator, "Guide to Understanding Alberta's Electricity Market: Evolution of Alberta's Electricity Market" (n.d.), online: [perma.cc/WR9Y-6WPT] ("Unlike most provinces in Canada, the Alberta government has never owned and operated a utility company").
35. Alberta, for example, is on track to fail in meeting its renewable electricity target of 30%by 2030. See Nigel Bankes, "Community Generation Projects in Alberta," Ablawg.ca (30 June 2020) at 6, online (blog): University of Calgary Faculty of Law [perma.cc/J9YM-RELU]("The demise of the renewable energy program (REP) put in place by the Notley government pretty much guarantees that Alberta will not reach its renewable target of 30% by 2030").
36. (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5 [CA, 1867].
37. Canadian Energy Regulator Act, SC 2019, c 28, ss 10, 11(b) [CER Act].
38. See Jason L Churchill, "Pragmatic Federalism: The Politics Behind the 1969 Churchill Falls Contract" (1999) 15 Newfoundland Stud 215 at 216.
39. Ibid at 216-17.
40. See ibid at 217, 228.
41. See ibid at 217-18.
42. Ibid at 227.
43. See Nigel Bankes & Barbara Cosens, "The Future of the Columbia River Treaty" (Program on Water Issues submitted to the Munk School of Global Affairs at the University of Toronto, 11 June 2012).
44. See Churchill, supra note 38 at 230.
45. Ibid at 230.
46. See ibid at 232.
47. See ibid at 232-33.
48. See ibid at 230-31.
49. See ibid at 233.
50. See ibid at 235. The initial power purchase agreement was for forty years with an optional twenty-five-year extension, and by the end of negotiations, Québec had opted to extend the life of the agreement for the full sixty-five years. The agreement will end in 2034 (ibid).
51. See ibid at 234.
52. See James P Feehan & Melvin Baker, "The Churchill Falls Contract and Why Newfoundlanders Can't Get Over It," Policy Options (1 September 2010), online:
[perma.cc/CXC2-J2L2].
53. See "Arguments to Renegotiate Churchill Falls Met with Stern Questions in Supreme Court," CBC News (5 December 2017), online: [perma.cc/VHQ5-RDTS].
54. See e.g. Churchill Falls (Labrador) Corp v Hydro-Québec, 2018 SCC 46; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 SCR 297.
55. See Nigel Bankes, "Pipelines and the Constitution: a Special Issue of the Review of Constitutional Studies" (2018) 23 Rev Const Stud 1 at 14; CER Act, supra note 37, ss 10, 11(b); National Energy Board Act, RSC 1985, c N7, s 58.16.
56. See Blue, supra note 2 at 341.
57. See Hydro-Québec, "Exchanges," supra note 32; Justine Hunter, "Three Viewpoints on the Proposed B.C.-Alberta Hydro Link Project," The Globe and Mail (6 March 2016), online: [perma.cc/T6VZ-K2ZD?type=image].
58. Note that the same connection between Hydro-Québec and Ontario is also touted by the former as increasing its trade capacity to the United States. See Hydro-Québec, "Exchanges," supra note 32. Also, when Alberta and British Columbia were sparring over the Trans Mountain expansion, Alberta threatened the possibility of ending power sales between the provinces. See Justine Hunter & Carrie Tait, "Electricity Talks Between B.C. and Alberta Broke Down Before the Pipeline Spat," The Globe and Mail (5 February 2018), online:
[perma.cc/C48M-HFEU?type=image].
59. CA, 1867, supra note 36, s 92A(1)(c).
60. This would perhaps be an ironic stance since any Canadian utility that sells power to the United States must comply with FERC orders. See e.g. Blue, supra note 25 at 343.
61. See Marcia Valiante, "A Greener Grid? Canadian Policies for Renewable Power and Prospects for a National Sustainable Electricity Strategy" (2013) 25 J Envtl L & Prac 41 at 42.
62. This is especially true since Canadian car buyers prefer larger vehicles. See Timothy Cain,
"Canada's 5 Biggest Auto Segments-and Their Leaders-in 2020's First Half," Driving (10 August 2020), online: [perma.cc/YQ5C-KLFF] (noting that of the five top-selling vehicle categories, only one is not a type of truck or SUV, and that most subcompact vehicles are no longer sold in Canada). On the curtailing of the use of jet fuel, seeInternational Energy Agency, "Global Energy Review 2021: Oil" (2021), online: [perma.cc/WNF6-JGND].
63. See Natural Resources Canada, "Energy Facts" (last modified 23 December 2021),
online: Government of Canada [perma.cc/Z68C-ZXAG] [NRC,
"Energy Facts"].
64. See Christopher Barrington-Leigh & Mark Ouilaris, "The Renewable Energy Landscape in Canada: A Spatial Analysis" (2017) 75 Renewable & Sustainable Energy Rev 809 at 809-12 https://doi.org/10.1016/j.rser.2016.11.061
Tony Seskus, "Alberta could Lead Canada in Wind and Solar Power by 2025, Expert Says," CBC News (21 September 2020), online: [perma.cc/5PXG-FHC9].
65. See Bill 17, Clean Energy Amendment Act, 2020, 5th Sess, 41st Parl, British
Columbia, 2020, cl 1.
66. See e.g. Randy Shore, "B.C. Government Putting Alternative Energy Sector
on Ice," Vancouver Sun (14 February 2019), online:
local-news/b-c-government-putting-alternative-energy-sector-on-ice> [perma.
cc/75KK-SWYA]; Hydro-Québec, "Québec Hydropower: Clean, Renewable and Low
in GHG Emissions" (n.d.), online:
[perma.cc/S3KY-NNKS].
67. Cox, "Clean BC," supra note 29.
68. Ibid. Both Washington and California do use coal and natural gas in their power mixes, and both states are connected to the states surrounding them by interstate transmission lines. Because electricity from all sources, renewable and non-renewable, is identical, once the electricity is in an interconnected transmission line it is often impossible to say for certain where it came from. See ibid.
69. See Ralph Torrie & Céline Bak, "Building Back Better with a Green Power Wave," Corporate Knights (29 April 2020), online: [perma.cc/TH7N-RNR9].
70. See ibid.
71. Shawn McCarthy, "Roundtable: Greening Canada's Electricity Could Help Kickstart Economy," Corporate Knights (29 April 2020), online: [perma.cc/KMX7-2CX8].
72. See Jim Burpee, "Investment in Electricity Sector Could be Just What We Need to Jump-Start Economic Activity," The Globe and Mail (15 July 2020), online: [perma.cc/SVZ5-BLDA].
73. See Blue, supra note 2 at 340-41.
74. See ibid at 343.
75. The need for federal funding in this space has been generally acknowledged, even when potential benefits of federal regulation in the area have not. See Burpee, supra note 72; Jan Carr, "Power Sharing: Developing Inter-Provincial Electricity Trade" (July 2010) CD Howe Institute Commentary No 306 at 13; Brian Topp, "A National Energy Grid Would Be a Clean Win for Canada," Policy Options (18 January 2019), online:
[perma.cc/6HW3-82EU] ("Progress could be made by introducing a new player-a national player-with a public interest mandate sensitive to the economic and fiscal pressures at play, and prepared to partner with incumbents to give them an opportunity to evolve into useful components of a more integrated national system.").
76. See Coleman, supra note 23 at 265. https://doi.org/10.1177/105345128802300309
77. See ibid at 293.
78. See Jan Carr, "Power to the (Other) Provinces," The Globe and Mail (30 July 2010), online:
[perma.cc/597G-JJBY].
79. The federal government has recognized the potential value of interprovincial and international connections to the Territories (specifically, transmission lines from Manitoba and Alaska), although none yet exist. See Senate, Standing Committee on Energy, the Environment and Natural Resources, Powering Canada's Territories, 41-2 (June 2015) at 27, 39 (Hon Paul J Massicotte & Hon Richard Neufeld).
80. See Canada Energy Regulator, "Market Snapshot: Overcoming the Challenges of Powering Canada's Off-Grid Communities" (3 October 2018), online: [perma.cc/8K68-MD6P].
81. See Jimmy Thomson, "How can Canada's North Get Off Diesel?," The Narwhal (11 February 2019), online: [perma.cc/9R9T-A7BN].
82. See ibid.
83. See Alastair Lucas, "The Challenge of Rural Electrification in Canada" in Iñigo del Guayo et al, eds, Energy Justice and Energy Law (Oxford University Press, 2020) 239. https://doi.org/10.1093/oso/9780198860754.003.0014
84. Indeed, in Alberta, the Alberta Utilities Commission does an economic analysis of all options before approving the connection of remote communities to the grid. See e.g. Decision on Preliminary Question: Application for Review of Decision 22125-D01-2018: Jasper Interconnection Project (13 November 2018), Decision 23715-D01-2018, online: Alberta Utilities Commission (in which the AUC ultimately approved a transmission line connection to the remote community of Jasper, after considering several alternatives and determining them to be less cost-effective). Alberta does have more transmission in rural parts of the province than its neighbours, likely because of the need to connect oil sands projects. See Dave Lovekin & Dylan Heerema, "Diesel, Renewables, and the Future of Canada's Remote Communities" (15 January 2019), online (blog): Pembina Institute [perma.cc/78UW-H97X].
85. See Dayna Nadine Scott, "Environmental Justice" in David Coghlan & Mary Brydon-Miller, eds, The SAGE Encyclopedia of Action Research (SAGE, 2014) 299 at 299.
86. See Antoine Halff, Benjamin K Sovacool, Jon Rozhon, "Introduction: The End of Energy Poverty: Pathways to Development" in Antoine Halff, Benjamin K Sovacool, Jon Rozhon, eds, Energy Poverty: Global Challenges and Local Solutions (Oxford University Press, 2014) 1 at 1-4. Note that there are differing definitions of energy poverty, primarily stemming from the traditional economic lens through which poverty is measured. See Benjamin K Sovacool, "The Political Economy of Energy Poverty: A Review of Key Challenges" (2012) 16 Energy for Sustainable Development 272 at 273. https://doi.org/10.1093/acprof:oso/9780199682362.003.0001
87. See Halff, Sovacool & Rozhon, supra note 86 at 3.
88. See ibid at 4-5.
89. As Dayna Scott and Adrian Smith have noted, deep distrust of government, past environmental and health damage, and concern over land use issues (among other factors) have led to resistance against renewable energy projects in some Indigenous communities in Ontario. See Dayna Scott & Adrian A Smith, ''Sacrifice Zones' in the Green Energy Economy: Toward an Environmental Justice Framework" (2017) 62 McGill LJ 861 at https://doi.org/10.7202/1042776ar
871-72 [Scott & Smith, "Sacrifice Zones"].
90. See ibid.
91. Natural Resources Canada, "The Atlas of Canada - Remote Communities Database" (last modified 3 August 2018), online: Government of Canada
index.html> [perma.cc/BPN2-S2L4]. Also note that many diesel-dependent Indigenous communities in British Columbia are not far from the United States border or Vancouver, but they are still not connected to BC Hydro's transmission lines. See ibid.
92. See Catherine JK Sandoval, "Energy Access is Energy Justice: The Yurok Tribe's Trailblazing Work to Close the Native American Reservation Electricity Gap" in Raya Salter, Carmen
G Gonzalez & Elizabeth Ann Kronk Warner, eds, Energy Justice: US and International Perspectives (Edward Elgar, 2018) 166 at 169-70. Note that the Canadian government has taken steps to provide funding programs for transitioning off of diesel, but there has not been any federal or provincial work done to provide access to the grid for these communities.
93. Ibid.
94. See James Knowles, Power Shift: Electricity for Canada's Remote Communities (The Conference Board of Canada, 27 September 2016) at ii ("It is probably fair to say that most Canadians take electricity for granted. For the 99 per cent of the population that is connected to North America's electricity grid, access to electricity is guaranteed and reliable, and electricity costs make up only a small portion of the total cost of living.").
95. See Sandoval, supra note 92 at 2.
96. See Lovekin & Heerema, supra note 84.
97. See ibid.
98. See Rylan Urban, "Electricity Prices in Canada 2021" (last modified 11 March 2021), online: [perma.cc/3DMV-BJZH].
99. This rate is from 2005, the most recent rate I was able to find for off-grid communities
in British Columbia. See Canada, Natural Resources Canada, Status of Remote/Off-Grid Communities in Canada: August 2011, by Jimmy Royer (Natural Resources Canada, 2011) at 10/44, online (pdf): [perma.cc/LXS5-SRVU].
100. See ibid.
101. See Sandoval, supra note 92 at 172-73.
102. See World Health Organization, Preventing Disease Through Healthy Environments, A Global Assessment of the Burden of Disease from Environmental Risks (WHO, May 2014) at 61. The WHO report refers to "particulate matter," which includes black carbon. See also US Environmental Protection Agency, "Black Carbon Research" (last modified 23 September 2016), online: <19january2017snapshot.epa.gov/air-research/black-carbon-research_.html> [perma.cc/BC96-2CC3].
103. These areas are called "sacrifice zones," because they have been made to bear the burden of projects that benefit other, often more populous areas and wealthy companies. See Scott & Smith, "Sacrifice Zones," supra note 89 at 866.
104. See Christopher Pollon, "Why Nobody Seems to know Canada's Total Number of Diesel Spills," The Discourse (2 December 2017), online: [perma.cc/6VAR-E699].
105. See e.g. Stephanie E Chang et al, "Consequences of Oil Spills: A Review and Framework for Informing Planning" (2014) 19 Ecology & Society 26 at 34. https://doi.org/10.5751/ES-06406-190226
106. See Sunny Freeman, "Industry and Indigenous Communities Let the Sun in on the Shared Problem of Diesel," Financial Post (6 January 2017), online: [perma.cc/4KTK-LFH6].
107. See Lucas, supra note 83.
108. See Kyle Greenham, "Off the Grid: Southern Labrador Communities Struggle with Diesel Generators," Saltwire (12 October 2017), online:
[perma.cc/MK8K-YHFU].
109. See e.g. James Wilt, "Canada's Commitment of $220 Million to Transition Remote Communities Off Diesel a Mere 'Drop in the Bucket,'" The Narwhal (6 March 2018), online: [perma.cc/AFL7-QT8R] (regarding British Columbia and BC Hydro's decision to go ahead with the Site C dam project, which made the possibility of supplying the needed power from Indigenous-owned renewable projects moot). See also Sarah Cox, "B.C. First Nations Forced to Shelve Clean Energy Projects as Site C Dam Overloads Grid," The Narwhal (25 June 2018), online: [perma.cc/579J-V642].
110. See Government of Canada, "Clean Energy for Rural and Remote Communities: BioHeat, Demonstration & Deployment Program Streams" (last modified 28 October 2020), online: [perma.cc/Q3LL-PUVJ].
111. See Natural Resources Canada, "Funding, Grants, and Incentives" (last modified
04 May 2021), online: Government of Canada
[perma.cc/WM9U-AVSX].
112. See McCarthy, supra note 71.
113. For many off-grid communities in British Columbia, for example, there is a strong resistance among Indigenous communities to being connected by BC Hydro, as this would make the communities dependent on BC Hydro's decisions, which often include diesel generation instead of renewables or transmission connection. See Maryam Rezaei & Hadi Dowlatabadi, "Off-Grid: Community Energy and the Pursuit of Self-Sufficiency in British Columbia's Remote and First Nations Communities" (2016) 21 Local Environment 789 at 796-97. https://doi.org/10.1080/13549839.2015.1031730
114. See ibid. Adrian A Smith and Dayna Nadine Scott have done field work with Indigenous communities undertaking renewable projects as either part or full owners, and conclude that sovereignty is a major reason why communities rally around these kinds of projects. See "Energy without Injustice? Indigenous Participation in Renewable Energy Generation" in Sumudu A Atapattu, Carmen G Gonzalez, Sara L Seck, eds, The Cambridge Handbook of Environmental Justice and Sustainable Development (Cambridge University Press, 2021) 383. https://doi.org/10.1017/9781108555791.028
115. See Canadian Institute for Climate Choices, "Waves of Change: Indigenous Clean Energy Leadership for Canada's Clean, Electric Future" (February 2022) at 5-8, online (pdf):
[perma.cc/J7ZK-F6HZ].
116. See Alexandra B Klass & Elizabeth J Wilson, "Interstate Transmission Challenges for Renewable Energy: A Federalism Mismatch" (2012) 65 Vand L Rev 1801 at 1811 (a Texas Energy Stakeholder stated that "[t]he list of top three [challenges] for wind industry I would say: transmission, transmission and transmission" at 1802).
117. In Alberta, for example, AltaLink (a private transmission line company owned by Berkshire Hathaway) and the Piikani First Nation came to an agreement giving the Piikani an ownership stake in transmission lines that crossed their reserve by forming a joint venture, PiikaniLink. See AltaLink, News Release, "Limited Partnership Provides Valuable New Revenue for Piikani Nation" (4 June 2019), online: [perma.cc/SVD3-L68Z]. See also Jeffrey Jones,
"Indigenous Groups Continue Move Into Energy Industry, Acquiring 40% of Major Alberta Transmission Line," The Globe and Mail (23 September 2019), online: [perma.cc/74WH-JSDT?type=image]
(detailing a 40 per cent stake in a major transmission line from Fort MacMurray to just west of Edmonton by the Athabasca Chipewyan First Nation, Bigstone Cree Nation, Gunn Métis Local 55, Mikisew Cree First Nation, Paul First Nation, Sawridge First Nation,
and Sucker Creek First Nation). There are also a number of Alberta Utilities Commission decisions on Indigenous ownership of transmission facilities. See e.g. Canadian Utilities Limited and Genesee Lake Holding Corp: Application for the Sale of Alberta PowerLine Limited Partnership (29 November 2019), Decision No 24792-D01-2019, online: Alberta Utilities Commission (granting the sale of interest in a transmission line company to a holding company formed by a group of First Nations and recognizing that holding company as a utility).
118. See Cox, supra note 109.
119. See Alastair R Lucas, "The National Energy Board and Energy Infrastructure Regulation: History, Legal Authority, and Judicial Supervision" (2018) 23 Rev Const Stud 25 at 38-39. Lucas notes that, although the NEB (and its successor, the CER) has comprehensive regulatory authority over interprovincial pipelines, it does not exert the same authority over interprovincial transmission lines (ibid at 29-32).
120. CA, 1867, supra note 36, s 92(10)(a).
121. See RREMA, SCC, supra note 8 (denying appeal based on the lower court's reasons).
122. References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [GGPPA].
123. See House of Commons, supra note 31; BC Hydro, "International Power Lines" (n.d.), online:
[perma.cc/3JFD-BBPG]; Midcontinent Independent System Operator, "About MISO"
(n.d.), online: [perma.cc/J5UV-3BNJ]; Tara Lohan, "Is
New England's Biggest Renewable Energy Project Really a Win for the Climate?," The Revelator (24 September 2020), online: [perma.
cc/5PYK-AYZ9]. But note that Hydro-Québec's proposed transmission line to its hydropower to Massachusetts may have been quashed by Maine voters. See Associated Press, "Construction Halted on $1B Hydro-Québec Transmission Line Project in Maine," CBC News (19 November 2021), online: [perma.cc/KD8H-FSBL].
124. Other authors have suggested the interprovincial trade power could also be used as a basis for nationalizing all transmission lines in the country, but that is not the position taken by this article. See Blue, supra note 2 at 361.
125. It is perhaps worth reiterating here that there are already a few interprovincial connections for the purpose of buying and selling electricity, and the federal government has not exerted jurisdiction over any of them.
126. See CER Act, supra note 37, ss 11(b) (extending the regulator's mandate to interprovincial transmission lines), 247-52 (setting out the permitting procedure).
127. See RREMA, BCCA, supra note 8 at para 1. I have chosen to discuss this case because it involves a clash between two provinces over an energy project, although not an electricity one, and because of its clear articulation of federal dominance in the space.
128. Ibid at paras 2-3.
129. Ibid at paras 93-94.
130. Ibid at para 101.
131. RREMA, SCC, supra note 8.
132. See House of Commons, supra note 31at 2. The Committee did recommend to "engage provinces and territories to identify and address regulatory barriers between jurisdictions to facilitate developing transmission interties, increasing interprovincial and Canada-U.S. electricity trade, and modernizing electric systems and markets" (ibid).
133. See CER Act, supra note 37, s. 11(b).
134. See generally Sincennes v Alberta (Energy and Utilities Board), 2009 ABCA 167 (in which the Court of Appeal of Alberta held that decisions made by the NEB in a hybrid federal-provincial approval process as to the location of a corridor in Alberta in which the proposed transmission line to Montana could be located were binding on the Alberta Utilities Commission).
135. CA, 1867, supra note 36, s 92(10)(a).
136. See Westcoast Energy Inc v Canada (National Energy Board), [1998] 1 SCR 322 at 325
[Westcoast Energy].
137. [1990] 3 SCR 1112 at 1112-13.
138. Ibid at 1113.
139. Ibid at 1113-14.
140. Ibid at 1114.
141. Supra note 136 at 322-23.
142. Ibid at 325.
143. Ibid at 325-26. See also Tokmakjian Inc v Achorn, 2017 FC 1057 (common ownership and overlap of employees did not show functional integration of provincial and interprovincial components); Canadian Pacific Railway Co v British Columbia (AG), [1948] SCR 373
(finding the same).
144. Westcoast Energy, supra note 136 at 327.
145. 2012 SCC 23 at para 55 [Tessier], citing Westcoast Energy, supra note 136 at 328.
146. Ibid at paras 1-4.
147. Ibid at para 51.
148. Ibid at para 22.
149. Ibid at para 25.
150. Westcoast Energy, supra note 136 at 327.
151. GGPPA, supra note 122. An argument could be made that federal jurisdiction could be grounded on the Peace, Order, and Good Government power's national interest test,
as was the federal carbon pricing scheme at issue in this case. However, this article does not make that argument because the federal government has already recognized its power to regulate interprovincial transmission lines under the interprovincial works power; it simply chooses not to do so. As such, interprovincial works provide both a more coherent and less controversial basis for federal jurisdiction.
152. See Government of Canada, "Complete Text for Pan-Canadian Framework on Clean Growth and Climate Change Second Annual Report" (8 August 2019), online: [perma.cc/92AN-Y6VD].
153. See GGPPA, supra note 122 at paras 13-15.
154. Ibid at para 16.
155. Ibid at para 17.
156. Ibid.
157. Ibid at para 18.
158. Ibid at paras 19, 39-46.
159. Ibid at para 7.
160. Ibid at para 12.
161. NRC, "Energy Facts," supra note 63; Canada Energy Regulator, "International Power Lines Dashboard" (last modified 29 November 2021), online: [perma.cc/GCW9-WNWE].
162. See Natural Resources Canada, "Canada's Electric Reliability Framework" (15 June 2020), online: Government of Canada [perma.cc/H7S2-P3WG].