December 4, 2024

By Bill Andrews and Tom Hackney

BCSEA sent a strongly worded “letter of comment” to the BCUC in late November protesting the Commission’s arbitrary restrictions on interveners in a proceeding on BC Hydro’s Fort Nelson Long-Term Resource Plan. BCSEA said the hearing process is not the “public, open, and transparent review process” that the Commission claims.

First, the BCUC panel (Mark Jaccard and Bernard Magnan) cursorily rejected BCSEA’s request to intervene in the proceeding. The BCUC then provided its “reasons” for the rejection (more on that, below), but refused to post the denial on the public website. Consequently, no one would know that the panel had refused to allow BCSEA to participate in the supposedly public proceeding. (Nor does BCSEA know if any other groups were barred from intervening.) Until Dr. Jaccard’s appointment to the BCUC, BCSEA had never been denied intervention status by the BCUC. (Severely cut back on a cost award, yes. But never barred from intervening altogether.) Last July, Dr. Jaccard rejected BCSEA’s application to intervene in the proceeding regarding BC Hydro’s Moresby Lake electricity purchase agreement for Haida Gwaii.

Second, the panel’s “hearing order” in October provides no appropriate role for interveners. The hearing order provides a deadline for requests to intervene, but no opportunity for an approved intervener to make information requests to BC Hydro or to file a final written argument. The hearing order does provide for letters of comment, but a letter of comment is quite different than intervening in the proceeding. An intervener is required by the BCUC’s own Rules “to participate actively, responsibly and respectfully for the duration of the proceeding.”

Third, panel’s hearing order claims to exclude expertise as a basis for intervening in the Fort Nelson LTRP proceeding. This violates the BCUC Rules, which set out two bases for intervening in a proceeding: being directly affected, and having expertise that “would contribute to the BCUC’s decision-making.” BCSEA expressed concern that the hearing order implies that the Panel would not benefit from an intervention that is based on relevant experience, information or expertise (such as the experience that BCSEA would have brought to the proceeding). Unfortunately, this aspect of the hearing order fosters the hopefully incorrect conclusion that the Panel already knows what it wants to do with the Application.

Fourth, the Panel said it rejected BCSEA’s intervention request because the request did not “provide any details demonstrating that BCSEA represents members in Fort Nelson who are impacted by this proceeding nor that the Panel’s final determinations in this proceeding would directly or significantly impact BCSEA’s members’ interests as ratepayers.” BCSEA says this is absurd. All customers of BC Hydro share responsibility for BC Hydro’s GHG emissions and share the costs (through electricity rates) of taking action (or failing to take action).

Fifth, the Panel said it rejected BCSEA’s intervention request because “simply because BCSEA supports or is advocating for a particular outcome with respect to a matter that may be engaged by this proceeding, such as BC’s GHG emissions, this does not give rise to a direct or sufficient impact to their interests [to justify being allowed to intervene.” But wait. For at least ten years the BCUC has (quite properly) allowed groups representing customers who want to receive lower-carbon energy to intervene in BCUC proceedings that may affect the public utility’s BC GHG emissions. Apparently, commissioners Jaccard and Magnan have now decided that ratepayers who want reductions in BC Hydro’s GHG emissions (and who will pay for the costs of action or inaction through their rates) are not “sufficient impacted” to justify them being allowed to intervene in a proceeding. This is an extraordinarily exclusionary approach to what is supposed to be a public hearing.

Sixth, the Panel justified excluding BCSEA from intervening in the proceeding on the grounds of  “regulatory efficiency [and] the need for a timely conclusion to the proceeding.” In its letter of comment, BCSEA took strong exception to this reasoning. BCSEA has never been found to have unnecessarily lengthened a BCUC proceeding, and BCSEA has consistently promoted more-focused proceedings for many years. The Commission’s track record of overly lengthy proceedings results primarily from decisions made by proceeding panels, not from the participation of interveners.

Last but not least, the Panel said that BCSEA’s intervention request was rejected due to “the potential for costs which will ultimately be borne by ratepayers.” The Panel’s reference is to a costs award by the panel after the proceeding. The Panel’s approach here contradicts section 118 of the Utilities Commission Act and Part VI of the BCUC Rules, which expressly authorize costs awards to proceeding participants where the panel finds that a costs award is warranted based on established criteria. The Panel’s approach also blatantly violates the Commission’s assurance in the intervention application form that a requester’s stated intention to request a Participant Cost Award “does not impact your ability to participate.” Further, BCSEA thinks that its participation in a BCUC proceeding adds value for the customers of the regulated utility that exceeds the amount of the costs award. After all, the premise of BCUC regulation of public utilities is that it benefits the customers who nevertheless pay for the regulation through their rates.

For background, Fort Nelson is in the northeast of BC, on the eastern side of the Rocky Mountains. BC Hydro’s Fort Nelson service territory is not connected to BC Hydro’s integrated system. Power comes from the BC Hydro-owned 73 MW Fort Nelson Thermal Generating Station (natural gas-fired) and from a radial transmission line from Alberta as backup. Both are notable sources of GHG emissions, as confirmed in BC Hydro’s Greenhouse Gas Management Plan (filed in the BC Hydro Fiscal 2023 to 2025 Revenue Requirements proceeding.) The Fort Nelson Thermal Generating Station also creates electricity for “trade” (i.e., sales to Alberta). BC Hydro’s June 14, 2024 Fort Nelson Long Term Resource Plan is only 18 pages long (plus appendices and responses to BCUC information requests).

In terms of the substance of the application, BCSEA said the Commission should not accept the Fort Nelson Long Term Resource Plan at this time. BCSEA said the application and BC Hydro’s responses to limited information requests by the Commission do not show that BC Hydro has adequately examined alternative plans for reducing BC GHG emissions from BC Hydro’s gas-fired generation plant in Fort Nelson or for adequate, cost-effective demand-side measures by BC Hydro in the Fort Nelson service territory.