Robert Hemstock, BComm, LLB
Attorney General of Alberta vs PPA Buyers Lawsuit
One part of the Government's PPA Advocacy Plan was to sue the PPA Buyers if they refused to withdraw their PPA terminations. On July 25, 2016 the Attorney General of Alberta filed a lawsuit by way of an Originating Application in the Court of Queen's Bench of Alberta against the PPA Buyers, The Balancing Pool, and The Alberta Utilities Commission to attempt to prevent the termination of the PPAs.
The lawsuit was accompanied on the same day by a news conference during which Deputy Premier Hoffman delivered a prepared speech and engaged in a subsequent Q&A session. An extensive taxpayer funded media campaign that included paid newspaper ads and a website also followed.
In an astonishing admission, at paragraph 57 of the Attorney General's Originating Application the Attorney General stated that neither the Attorney General, the Energy Minister, or the Environment and Parks Minister had awareness of the provisions of the PPA that could trigger the right of a PPA Buyer to terminate its PPA if a change in law caused the PPA to become “unprofitable or more unprofitable”. The $2 billion estimated cost amount is specifically referenced by the Attorney General in paragraph 49 of her Originating Application.
By the end of 2016 three PPA Buyers, Capital Power, TransCanada, and ASTC Partnership, had each entered into a confidential settlement agreement with the Attorney General. ENMAX refused to settle at that point and instead responded to the Attorney General's lawsuit in an aggressive manner by filing an Application to Dismiss the Attorney General's lawsuit in November 2016. This ENMAX Application to Dismiss the Attorney General's lawsuit is a must read as it provides a cutting rebuke of the Attorney General's lawsuit and a clear and concise chronology of the PPA history. Three sentences in paragraphs 4 and 5 of the ENMAX Application summarize ENMAX's overall view of the weakness of the Attorney General's lawsuit. ENMAX stated:
"The unfounded accusations of improper influence upon the government of the day or the AEUB, should not be condoned or dignified by this Court. The fact that Ministers of the current government are alleged to somehow not have been aware of the AEUB August 2000 Order or the Alberta Regulations relating to the PPAs does not relieve Alberta, and especially the Attorney General, from abiding by a valid AEUB order, its own legislation and regulations. The Crown is presumed to know its own legislation."
In support of its Application to Dismiss the Attorney General's lawsuit, ENMAX questioned, under oath, Mr. John Heaney who at the time was the Deputy Minister, Policy Coordination Office, Executive Council and subsequently became Chief of Staff to Premier Notley. Some time after this questioning of Mr. Heaney the Minister of Energy announced in a short News Release that the Attorney General's lawsuit "will be ended"and the ENMAX PPAs were all terminated.
The Attorney General's lawsuit that started on July 25, 2016 with the fanfare of a speech from Deputy Premier Hoffman, extensive media coverage, and a concerted media campaign ended on March 9, 2018 with a one page news release issued on a Friday afternoon that contained a short quote from Minister of Energy, McCuaig-Boyd and a statement that the Attorney General's lawsuit was ended.
By virtue of the fact the Attorney General ended her lawsuit in March 2018, Albertan’s now know the Attorney General did not achieve any of the remedies she sought in her lawsuit to stop the PPA terminations that are described in paragraphs 74 to 77 of the Originating Notice. More specifically, the PPA Buyers were not prohibited from terminating their PPAs after the Government decision to raise carbon taxes on coal-fired generation. The terms of the Settlement Agreement between the Attorney General and each PPA Buyer have never been publicly disclosed.