Ontario's New Long-Term Energy Plan - Energy Law

1. Introduction

On December 2, 2013, Ontario Energy Minister Bob Chiarelli released the province's latest Long-Term Energy Plan. Several key components had been previewed recently by the Minister, the Ontario Power Authority and others, so some of its contents – the emphasis on conservation, the postponement of new nuclear build, consideration of a capacity market, lower price forecasts than in the 2010 Plan – were expected. Nonetheless, the LTEP contains more than a few surprises and plenty for Ontario's electricity sector to digest.

The main rallying cry in the LTEP is "Conservation First", a policy that is designed to achieve several objectives at once.

For one, it avoids having to make major new financial commitments to generation and transmission. Ontario has added about 12,000 MW of new or refurbished generation since the Liberals came to power (so to speak) in 2003 and took the province from an era of energy deficits to one of surpluses. But the cost has been steep. Not only must the province's ratepayers absorb the price of implementing Ontario's green energy agenda but, perhaps wearing their taxpaying hats as well, they must also bear the burden associated with the cancellation of two new gas-fired plants in the Greater Toronto Area.

The Liberals can certainly take credit for weaning the province off coal, something that none of its neighbouring jurisdictions in the United States can claim. At the same time, the province has a relatively diverse portfolio of generation: hydroelectric, nuclear, natural gas, wind, solar and, to a much lesser degree, biomass and energy from waste. That diversity will be sustained over the time horizon encompassed by the Plan, but the focus will shift very dramatically to conservation. As the LTEP itself states: "The province expects to offset almost all of the growth in electricity demand to 2032 by using [conservation] programs and improved codes and standards".

Another keyword in the LTEP is "flexibility". In a very real sense, the Long-Term Energy Plan is the first in a series of short-term plans (as earlier LTEPs have also proven to be), with the objective being to avoid "overbuilding" the system in an environment of moderating demand. The Ministry will update the LTEP every three years, based largely on more comprehensive annual reports from the Ministry with the input of the Independent Electricity System Operator (IESO) and the Ontario Power Authority (OPA).

There are some things that are conspicuous by their absence in the LTEP. One is the lack of any mention of amalgamating the IESO and the OPA, as had been planned as a part of the introduction of Bill 75 in 2012. The LTEP is full of references to both agencies and the mandates that they will be given in the years ahead, but there is no suggestion that the two will be consolidated. Nonetheless, we do not think that amalgamation of the two agencies is dead.

Similarly, there is remarkably little in the LTEP about the consolidation of LDCs, forced or otherwise. There is a passing reference to the Distribution Sector Review Panel, whose report was released a year ago, but the Plan simply says that "the government expects that LDCs will pursue innovative partnerships and transformative initiatives that will result in electricity ratepayer savings". In fact, we expect that some of the directives emerging from the LTEP, particularly in the area of conservation and technological innovation, as well as ongoing regulatory pressures, will increase the pressures on LDCs to find the kinds of efficiencies that can be achieved through consolidation.

The LTEP reminds us that the Ontario Energy Board is now implementing a renewed regulatory framework for the LDC sector that will set performance outcomes to improve productivity and drive efficient investment. An annual reporting regime will be established addressing criteria such as customer service, operational effectiveness, "public policy responsiveness" and financial performance.

In this special report Gowlings provides its initial analysis of the LTEP. We plan to issue further analysis of the LTEP in the days ahead, focussing, among other things, on regional planning, technological innovation, oil and gas, and the impact of the LTEP on LDCs.

2. Prices and Conservation

by: Paul Harricks

Price Forecasts

The unrelenting focus in the run-up to the release of the LTEP, and in the 48 hours since, has been on the issue of electricity prices. You will want to examine the charts at pages 15 and 18 of the Plan. For residential consumers, the projections are that prices will rise steadily over the next 20 years, from $125 per month today to $210 by 2032. The numbers merit a bit more colour:

They are based on the use of 800 kWh in each month;
They reflect the termination, at the end of 2015, of the Ontario Clean Energy Benefit (10% of the total cost of electricity on eligible bills on the first 3,000 kWh of consumption);
These increases are less than the increases that were projected in the 2010 LTEP. The LTEP credits lower demand forecasts, lower feed-in tariff rates for renewable power, the renegotiated deal with Samsung, the deferral of new nuclear (see below) and conservation efforts.

Industrial rates will rise at a slightly slower rate, from $79/MWh today to $123/MWh in 2032.

Conservation Initiatives

The Conservation First policy will include a range of initiatives to encourage lower electricity usage. It starts with an ambitious goal to reduce gross demand for electricity by 16% over 20 years. The steps proposed to achieve this objective include:

Under the auspices of the IESO, implementing new and enhanced Demand Response to meet 10% of peak demand by 2025 (equivalent to about 2,400 MW);
Working with the IESO to consider the development of a capacity market in which different generation and demand resources (including storage) would compete to address capacity needs;
Providing new financing tools (starting in 2015) to enable consumers to invest in energy efficient retrofits;
The establishment of new efficiency standards for a wide range of consumer products;
The so-called Green Button initiative (more on which below); and
Exploring social benchmarking to enable consumers to compare their usage with one another (an approach that has proven to be remarkably effective in other jurisdictions).

The Role of the LDCs in Conservation

One of the thornier challenges that the province will face in moving ahead with its conservation agenda will be to develop a framework that enables and empowers local distribution companies (LDCs) to integrate conservation into their planning and their rate base.

In 2010 the government established a Conservation and Demand Management Framework with mandatory conservation targets for LDCs. For various reasons it has never been as successful as had been hoped and a new Framework is being proposed to take effect when the current one expires in early 2015. Subject to further input from LDCs and the government agencies involved, the following principles will apply:

There will be long-term, stable funding for conservation so programs can be implemented more effectively;
Customers will have more program choice;
LDCs will be accountable for achieving specified goals and will be given more authority and means to do so;
Innovation and new technologies will be encouraged;
There is likely to be regional disparity in conservation investments; and
Industrial and transmission-connected customers will see expanded program choices and financing flexibility.

Green Button Initiative

This is not a new program. It was introduced in November 2012 through a partnership with MaRS Discovery District in Toronto as a means of developing a secure format for sharing data with electricity customers. Many of the province's largest LDCs have already provided their customers access to Download My Data, an online tool that allows users to download their electricity usage information by clicking on a "green button"

The LTEP proposes next phase that will allow customers to integrate their data with various apps to avoid having to log in to their LDC's web-site to download the file.

3. Consumer Education

by: Paul Harricks

Many in the energy sector, including many consumers, have lamented the fact that the average Ontarian has little understanding of the province's electricity system. Its complexity can be overwhelming. In an effort to educate the public the province is launching emPOWERme, a web feature that uses videos, graphics, interactive tools and fact sheets to explain the basics: http://www.energy.gov.on.ca/en/empowerme/.

In addition, since the LTEP was released Minister Chiarelli has speculated publicly about the establishment of an Energy Education Trust, involving key industry players, to move the education agenda forward.

4. Expanded Role for OPG and Hydro One

by: Paul Harricks

The role played by the provincially-owned Crown corporations - Ontario Power Generation (OPG) and Hydro One – has always been slightly controversial. Are they instruments of government policy? Independent commercial enterprises? Some combination of the two? Certainly the province has come to rely on the dividend stream they generate as part of its fiscal plans.

To the surprise of many, the LTEP reveals that the province is planning to give both corporations an expanded mandate to "explore new business lines and opportunities inside and outside Ontario". The Plan puts this initiative in the context of mitigating electricity rate increases and securing efficiencies in the electricity sector.

What these new business lines will be, how they will be financed, and the degree to which they may involve private sector partnerships or joint ventures, are not clear from the Plan.

5. Nuclear

by: Irene Chang and Mark Madras

On balance, Ontario's nuclear sector should be pleased by the LTEP.

Refurbishment of Bruce and Darlington

The government confirmed its commitment to nuclear with the refurbishment of the Bruce and Darlington generating stations, which has a potential to renew 8,500 MW over 16 years. Both Bruce and Darlington are expected to begin refurbishing one unit each starting in 2016. Final commitments on subsequent refurbishments will take into account the performance of the initial refurbishments with respect to budget and schedule by establishing appropriate off-ramps. During refurbishment, both OPG and Bruce will be subject to the strictest oversight to ensure safety, reliability of supply and value for the Ontario ratepayers. Nuclear refurbishment will follow seven principles established by the government which were designed to affirm ratepayer value. These principles include minimizing commercial risk to the government and the ratepayer and ensuring that operators and contractors are accountable to refurbishment costs and schedules.

Deferral of New Nuclear

In the LTEP, the government affirmed its recent decision to defer the construction of two new nuclear reactors OPG's Darlington site. This shift from the 2010 LTEP resulted from demand for electricity not having grown as expected, due to changes in the economy and gains in conservation and efficiency. The postponement of new nuclear represents up to $15 billion in deferred capital investments. However, the government will work with OPG to maintain the site licence granted by the Canadian Nuclear Safety Commission in order to preserve the option to build new nuclear reactors in the future, should the supply and demand picture in the province change over time.

Shutdown of Pickering

OPG's Pickering generation station is expected to be shut down in 2020. The continued operation of the Pickering units facilitate the refurbishment of the first unit at Darlington and Bruce by providing replacement capacity and energy without greenhouse gas emissions while managing prices. However, an earlier shutdown may be possible depending on a number of factors, including projected demand going forward, the progress of the fleet refurbishment program, and the timely completion of the Clarington Transformer Station.

Export of Nuclear Technology and Expertise

The government will continue to support the export of Ontario's home-grown nuclear technology and expertise to international markets. With approximately 45 years of nuclear power plant operations, the development of supporting industries and services, as well as experience in the successful execution of complex projects such as unit refurbishments and safe storage shutdown, Ontario's nuclear expertise is well positioned to be marketed to a global nuclear industry projected to reach 500 reactors by 2030.

The nature and extent of the province's commitment to the global sales effort for Ontario nuclear expertise is not set out in the Plan.

6. Aboriginal and Métis Communities

by: Paul Seaman and Scott Smith

The twin pillars of Aboriginal participation and Aboriginal consultation are once again central to the LTEP.

Participating in the energy sector is a key component to the economic development of First Nation and Métis communities. To foster participation, Ontario will:

Continue to support First Nation and Métis communities and encourage them to participate in new generation and transmission projects and in conservation initiatives;
Expect companies to consult with potentially affected First Nation and Métis communities about, and involve them (where commercially feasible and where there is an interest) in, proposed projects to build and operate new transmission lines;
Launch an Aboriginal Transmission Fund in early 2014 to help First Nation and Métis communities participate in new transmission projects; and
Continue to encourage Aboriginal participation through the FIT program and future large renewable energy procurements.

Ontario will continue to work with First Nation and Métis communities to reduce electricity consumption through conservation programs. It will also work with Canada and the 25 remote First Nation communities in northwestern Ontario that are not currently connected to the electricity grid to either connect the communities to the grid or find alternatives where it is not economically feasible to do so.

7. Transmission

by: W. Ian Palm

The Plan notes the important role that transmission facilities play in meeting the province's supply mix goals and, while it concludes that such goals will be achieved with the existing transmission system (including projects under development), a number of longer term priority projects are identified.

The government notes the substantial recent investment in transmission and distribution networks. It reports that, since 2003, more than $11 billion has been invested in transmission and distribution networks by Hydro One and Ontario's other distributors have invested a further $8 billion. It also notes the new East-West Tie transmission line now under development. Once finished (currently expected in 2018) these facilities are expected to reduce transmission constraints and allow greater two-way flow of electricity across Northern Ontario.

In addition to the East-West Tie line, the LTEP identifies the following potential transmission projects meet anticipated future increases in energy demand in northwestern Ontario:

The government expects Hydro One to begin planning a new Northwest Bulk transmission line, west of Thunder Bay, with the project scope to be recommended by the OPA. This has been identified as a priority project in the LTEP. Hydro One and Infrastructure Ontario, the province's P# agency, will be expected to work together to explore ways to ensure development on a cost-efficient basis. Presumably, the model used for the East-West Tie line will form a basis for this project;
A new transmission line to Pickle Lake continues to be a key priority project;
The Plan identifies Red Lake area transmission upgrades as another project in the planning stages;
New transmission facilities are identified as essential to meet the longer-term potential for energy demand in the Ring of Fire, a mineral-rich area in the far north of the province;

These projects are largely intended to meet the anticipated increase in mining activity in northwestern Ontario. Another driver for transmission investment in this region is to connect remote Aboriginal communities to transmission facilities and thereby alleviate some of the dependence they have on diesel to generate electricity. The Plan identifies connecting these communities as a priority but notes the need for cooperation and commitment from the federal government.

Taken together, the province has initiated planning that could lead to as much as $2.2 billion in transmission investment in this region.

While a substantial focus in the Plan is the anticipated need for investment in transmission facilities in northern Ontario, a number of transmission planning and investments projects are identified in other parts of the province. These include

Investment in facilities to meet demand growth and intensification in areas such as York Region, Toronto and Ottawa;
Hydro One's wood pole replacement program to address the need to replace and refurbish decades old assets; and
Investment in additional transmission to integrate new renewable generation capacity such as Hydro One's re-wiring of a line west of London.

8. Renewables

by: Thomas J. Timmins, Neeta Sahadev and Marissa Kirsh

Building off the 2010 LTEP, the 2013 Plan introduces some important new changes which Ontario renewable energy sector participants will want to understand.

The 2013 LTEP is structured around five core principles:

cost-effectiveness;
reliability;
clean energy;
community engagement; and
conservation, demand management and storage

Renewable energy, including wind, solar, biomass, biogas and hydro, was brought to the forefront when the 2010 LTEP promised a complete phase-out of coal-fired generation by the end of 2014, with the expectation that renewable energy sources would fill the void. The 2013 LTEP adheres to this commitment.

Forthcoming FIT Changes

The province worked to meet the renewable energy goals originally outlined in the 2010 LTEP through its Feed-in Tariff ("FIT") program. Under this program, more than 9,500 MW of solar, wind and bio-energy capacity has been contracted in Ontario. Ontario's FIT program will undergo substantial alterations under the 2013 LTEP framework.

First, the government has committed to expanding the program by making an additional 900 MW of new capacity available for smaller projects between 2013 and 2018. The FIT program (for systems between 10 kW and 500 kW) will have an annual procurement target of 150 MW and the microFIT program (for systems less than 10 kW) will have an annual target of 50 MW.

Second, the 2010 LTEP projections for wind, solar and bioenergy have been updated in the 2013 LTEP. The government has extended the deadline for the original procurement target of 10,700 MW from 2018 to 2021. However, including hydropower, 20,000 MW of renewable energy is scheduled to be online by 2025 with renewables accounting for 46% of Ontario's generating capability.

Large Scale Procurement

The government has ended the procurement of large renewable projects (projects greater than 500 kW) through the FIT program. Instead, Ontario Minister Chiarelli has directed the Ontario Power Authority ("OPA") to apply a competitive procurement model, with the intent that contracts will be awarded to cost-efficient and well-supported projects. During his interview with Gowlings partner David McFadden, held at a joint OEA/Empire Club of Canada lunch in Toronto on December 3, Minister Chiarelli indicated that he expected to see the launch of the large scale renewable energy process by the end of Q1 2014.

The OPA will consult with the public, municipalities, Aboriginal communities and other stakeholders on the design of this new procurement program in early 2014.

Principles of Engagement

The LTEP outlines several principles that will be applied when launching future energy procurement programs:

follow provincial and/or regional electricity system need;
consider municipal electricity generation preferences;
engage early and regularly with local and Aboriginal communities;
provide opportunity for a diverse set of participants;
identify clear procurement needs, goals and expectations; and
encourage innovative technologies and approaches, including consideration of proposals that integrate energy storage with renewable energy generation.

To the extent that the government is able to comply with each of these high level principles, will come as good news to Ontario energy sector investors. In particular, the implementation of predictable procurement will add an important element of certainty to private sector planning processes.

As stated in the 2013 LTEP, the government plans to make available up to 300 MW of wind, 140 MW of solar, 50 MW of bioenergy and 50 MW of hydroelectric capacity in 2014. The targets are the same for 2015, except that only 45 MW would be made available for hydroelectric capacity. Any capacity that is not procured or developed under existing contracts would be reallocated by renewable technology for procurement in 2016.

New Emphasis on Storage

Perhaps the most intriguing message conveyed in the LTEP is that significant emphasis will now be placed on stored energy capacity. With substantial intermittent power generation capacity being built across the province, limited legacy storage assets and a substantial reliance on relatively inflexible base load nuclear technology, the integration of electricity storage capacity in the province makes good sense for Ontario.

At present, there is significant regulatory uncertainty as to how stored electricity capacity can be integrated and monetized in Ontario. To help remedy this, the government has indicated that it will initiate an examination of the current regulatory barriers affecting energy storage in the province "on a priority basis" and, more significantly, that it will include 50 MW (presumably MW/h) of storage in its procurement process starting in 2014.

LTEP Wind Energy Outlook

The LTEP also addresses individual developments that are specific to wind, solar and combined heat and power generation. Wind projects are gradually moving into a more prominent role in Ontario's energy mix and, as a result, Ontario now has more than 2,300 MW of wind power online. Under the LTEP, the major goal in the wind energy sphere is to further integrate wind energy into the province's electricity system. Specifically, the government wants to improve the ability to forecast when wind energy will be available to supply power to the grid.

At the same time, new rules will be introduced to allow the Independent Electricity System Operator (IESO) to tell wind generators to reduce or stop producing power when the electricity system does not require it. Over time, these market changes are expected to save ratepayers up to $200 million dollars per year, as well as reducing the amount of unnecessary generation.

Responding to significant public and municipal wind energy project siting concerns, the government will provide greater say in wind development to local municipalities such that project proponents are very likely to need strong support from local municipal stakeholders if they are to win a power purchase contract. That said, the government has indicated that it will stop short of giving an absolute veto to local municipal stakeholders.

Growing Solar

As best evidenced by the prominence of solar panels on the cover of the 2013 LTEP Report, solar photovoltaic ("PV") electricity is also achieving a prominent role in Ontario, with more than 900 MW of generation capacity online. Currently, the average cost of a new solar PV system is over 40% lower than the cost at the time the FIT and microFIT programs were launched in 2009. The 2013 LTEP discusses Ontario's vision to take advantage of cost reductions and the ability to employ solar generation near customers, by potentially turning the microFIT program into a net metering program, where homeowners can use solar to offset their own electricity needs. These changes are likely to bring a surge in demand for solar PV systems, particularly as installed costs continue to decline in the province.

Combined Heat and Power

The LTEP also discusses the status of combined heat and power ("CHP") as an electricity source. Since 2005, the OPA has overseen four rounds of competitive procurements and two standards offer programs for small-scale CHP, resulting in 420 MW of capacity from CHP projects. Through this experience, Ontario has concluded that CHP projects generally function better if they are primarily driven by the need for heat, with electricity as a by-product. The projects must be the right size, in the right place and at the right price to ensure optimal benefits to the electricity system as well as ensuring the heat requirements of the project itself are met. As a result, the LTEP states that future procurements will be more restrictive and will focus on considerations such as efficient CHP applications and locations with regional capacity.

Going Forward

Ontario's LTEP demonstrates a continued commitment to renewable energy as well as a welcome degree of adept responsiveness to market feedback and political flashback unseen in many other major renewable markets around the world.

Based on the LTEP, and barring significant economic or political change in the province, the demand for electricity generated from renewable sources can be expected to continue to grow steadily for at least another six years. For investors looking at Ontario, the depth of policy-making experience in the jurisdiction and the over-all maturity of the market show through in both the tone and the message of the LTEP document. The new direction announced with regard to the procurement of significant energy storage capacity could, potentially, write an exciting new chapter in the development of Ontario's energy sector while adding significant value to existing generating assets.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.