Government Poised to Retroactively Shield Coal-Fired Power Plants from Judicial Scrutiny

Edmonton — In a rare move, the Alberta government is using its power to pass new legislation that may shield two coal-fired power plant expansions owned by EPCOR and TransAlta from scrutiny by the Alberta Court of Appeal.

Section 164 of Bill 3, the Electric Utilities Act, amends the Hydro and Electric Energy Act and directs the Energy and Utilities Board when reviewing a power plant proposal to disregard whether a power plant is needed for domestic or foreign markets. This direction applies retroactively to all power plant applications received by the EUB since 1996. The bill passed third reading in the Legislature on March 26, 2003 and will become law as soon as the Government proclaims it to be in effect.

The Clean Energy Coalition (CEC) — comprising the Environmental Resource Centre, Toxics Watch Society, Pembina Institute and Western Canada Wilderness Committee — has approached the Court of Appeal to challenge the EUB's approval of EPCOR's Genesee 3 and TransAlta's Keephills 3 and 4 coal-fired plant expansions. Last August, the Court granted leave to the CEC to argue that the EUB made an error when it failed to examine whether the expansions were necessary to meet domestic Alberta need or were for export production.

"In deciding on these power plants, the EUB refused to consider whether there was a need for more electricity in Alberta, or whether it is in Alberta's public interest to produce electricity for export," said Mary Griffiths, Environmental Policy Analyst with the Pembina Institute. "Albertans will bear the increased risk of more air and water pollution from coal-fired electricity generation. It is only reasonable that the regulators consider if the need justifies this risk. We believe our previous success in the Court of Appeals, which granted leave to appeal the approvals, supports our position."

"If this bill is proclaimed, the Alberta Government will be telling the EUB to ignore evidence that is required to balance need against risk," said Myles Kitagawa of the Toxics Watch Society. "The public interest of Albertans will be further abandoned to the open market."

The new bill appears directly targeted at the CEC's appeals. "Retroactive legislation is very rare," said Tim Howard of the Sierra Legal Defence Fund and coalition legal counsel. "The Alberta government clearly wants very much to avoid public discussion of these issues. We will have to examine this new law, and see how it affects our appeals."

To view Bill 3: