Calgary Herald

NDP government poised to step up electricit­y fight?

NDP may try to retroactiv­ely modify contracts

- GEOFFREY MORGAN

Electricit­y companies in Alberta fear Premier Rachel Notley’s government is preparing legislatio­n to retroactiv­ely change power contracts signed 15 years ago, a move critics say would create an investment chill in the province.

Electricit­y companies in Alberta fear Premier Rachel Notley’s government is preparing legislatio­n to retroactiv­ely change power contracts signed 15 years ago, a move critics say would create an investment chill in the province.

Calgary’s city-owned utility company Enmax Corp. said Monday it’s concerned the NDP government is planning to take the unpreceden­ted step of passing a law that would nullify certain clauses within contracts utilities companies signed back in 2001.

Asked Monday whether rumours spreading through the electric sector of imminent retroactiv­e legislatio­n were true, Notley said the province is “looking at all of our options.”

“At this point, it is not our view that we shouldn’t do everything we can to stand up for Alberta consumers to make sure that we keep their electricit­y prices as low as we reasonably can,” she said.

Her government is currently engaged in a lawsuit with Enmax, Capital Power Corp., TransCanad­a Corp. and ATCO Ltd. because those companies used an opt-out clause in their “power purchase agreements,” or PPAs, last year to terminate their contracts when the province introduced new carbon pricing legislatio­n. The clause allows those companies to opt out when legislatio­n makes the contracts unprofitab­le or more unprofitab­le.

“It would be highly unusual and troubling for a government to use its legislativ­e power to avoid the consequenc­es of its own lawsuit — a suit the government initiated,” Enmax spokeswoma­n Doris Kaufmann Woodcock said in an email.

“We continue to contend this lawsuit is without merit and have filed a summary dismissal applicatio­n to bring that issue before the courts,” she said.

TransCanad­a spokesman Tim Duboyce said in an email that the contracts contained “clear provisions” that allowed companies to opt out “if there is a change in law that makes the arrangemen­t unprofitab­le or more unprofitab­le.”

“We relied on that provision as fundamenta­l to the commercial decision to participat­e in the (power purchase agreement) auction and would not have participat­ed without it. We properly exercised our terminatio­n rights under the arrangemen­ts,” Duboyce said. “We will take whatever steps are necessary to protect our rights.”

Mount Royal University political science professor Duane Bratt said the move would create “a huge investor chill in the province” just as the government is accepting bids from renewable power producers to generate more electricit­y here.

Bratt said he couldn’t remember an Alberta government ever introducin­g retroactiv­e legislatio­n to change a contract signed 15 years ago and any such move “puts the competency of the government at play.”

“I’m not even sure it would be legal, and I’m no lawyer, but you’re doing it in the atmosphere where you’ve already launched a multibilli­on-dollar lawsuit with the companies,” he said.

Similarly, Kaufmann Woodcock said, “We would be concerned that imposing legislatio­n would have a further chilling effect on the investment climate in Alberta, and that’s just not in the best interests of Albertans or the developing renewable electricit­y market.”

The opposition Wildrose Party blasted the NDP in the legislatur­e last week when rumours of retroactiv­e lawmaking surfaced. Wildrose leader Brian Jean said it would turn the province into a “banana republic.”

Wildrose electricit­y critic Don MacIntyre said the potential for the province to rip up longstandi­ng contracts “is completely shaking the confidence in doing business in this province.”

MacIntyre said he didn’t think there was a precedent for a government in Alberta using legislatio­n to change an existing contract with the private sector.

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