Yves: Welcome back to another episode of Modern Law, where we delve deep into the pressing issues and assess the law’s ability to keep pace with change. I’m your host, Yves Faguy.

Today we dig into the intricate challenges Canada faces on its path to achieving a decarbonized economy. The goal of reaching net zero greenhouse gas emissions by 2050 is a commitment we’ve made to the world after all. The journey towards deep decarbonization demands nothing less than radical changes in our energy, our transportation and our construction sectors. These are changes that must occur at an unprecedented rate and scale. And we also need to make substantial investments in low carbon energy sources.     

But it also demands political action. And in this country, crafting an effective and legally sound approach to decarbonization will require meticulous coordination, compromise and a strategy that addresses the complexities of federal, provincial, territorial and indigenous relations. These challenges will undoubtedly test our determination.

But to have, I think, any chance of seeing through all of this, we need a sense of how our electricity distribution works in this country, how it came to be this way, and how it operates today in the context of our constitutional division of powers. And that’s why I wanted Kristen van de Biezenbos to come on the show.     

Van de Biezenbos is law professor, California Western. Newly arrived, she teaches environmental law as well as energy and climate change law, and has written extensively about energy justice and electricity regulation. Her research has also brought her to Canada. She taught here for several years in fact at the University of Calgary where she focused on Canada’s energy transmission policy and she continues to serve as an expert on the mitigation panel for the Canadian Climate Institute, which advises the Federal Government on climate change.

You’re listening to Modern Law, presented by the Canadian Bar Association’s National Magazine.

Kristen van de Biezenbos, welcome to Modern Law.

Kristen: Thank you very much for having me.

Yves: First, you know, you have a very unique expertise. Perhaps just tell us a little bit about yourself. How did you become what you’ve become and what set you on this path of becoming a lawyer focused on energy and electricity law, not just in the US, but in Canada as well.

Kristen: That is a good question. I feel like most of the people that I know who practice energy law and electricity law as well, have kind of a circuitous path to reaching energy as their expertise. A lot of people don’t start out thinking that’s what they’ll do, but we end up there in one way or the other. And my story isn’t any different in that regard. So I thought that I was going to be a copyright and trademark lawyer, that I would represent the rights of visual artists, novelists, musicians, because I am a failed artist myself.

But instead, I actually went to law school in New Orleans and I ended up practicing there. And one of the larger industries in Louisianna is offshore oil and gas work. And so as an attorney in New Orleans, I represented many people who were either directly or indirectly impacted by offshore oil and gas activity in the Gulf of Mexico. In fact, one of the first cases that I worked on, in just sort of a peripheral way, but it was the Deep-Water Horizon disaster. One of the things that really began to stand out to me the more people that I represented in that capacity as an attorney was the ways in which the energy industry really – the division of benefits and burdens of that kind of natural resource extraction really are unequally distributed. And that is actually how I first became interested in academia, because I found myself really wanting to explore those topics beyond what I was able to do in the context of specific legal cases for clients.

So that’s how I got interested in both academia and energy law as a specialty.

Yves: How do you mean about the distribution of those burdens and benefits?

Kristen: So Southeast Louisianna has been radically changed. It suffers the loss of something like a football field’s worth of swamp land everyday because of dredging that was done in order to lay underwater pipelines to connect offshore oil and gas drilling platforms to refineries in Southeast Louisianna.

So you can see that the tremendous habitat loss and just the change of the natural environment in Southeast Louisianna, because of the oil and gas industry, has been significant. But at the same time, many of the people in Southeast Louisianna work for these companies. So there’s an interesting dynamic where many people feel very loyal to the same companies that are, in some ways, responsible for the loss of their way of life, and some pretty critical impingements on them being able to carry on a lot of their cultures that are also connected to hunting and fishing and crabbing, going to get oysters and crawfish, those sorts of things. It’s becoming increasingly difficult to do that because of the condition of Southeast Louisianna and the Gulf Coast.

And a lot of that is due to the exploitation of the natural environment by the oil and gas companies there.

Yves: And so we can get to that later. But I imagine you saw similar or parallel phenomena happening in Canada. But first, what brought you to University of Calgary?

Kristen: Well I was practicing – sorry, not practicing – I was teaching energy law at the University of Oklahoma College of Law. And I met some of the faculty at the University of Calgary, so they actually were looking for someone to sort of add to their natural resources, environment law and energy program, which is significant, I think the largest of its kind in Canada, and possibly the largest of its kind in North America.    

And so it wasn’t actually very difficult for them to convince me to apply for the position. And then they hired me and so I had a very short period of time in which to learn Canadian law. But it was a really rewarding experience actually. I’m very grateful to it. And having sort of now a fairly decent grasp on energy regulation in Canada, including these reconstitutional and federal aspects of it, as well as the electricity system in Alberta, and in other provinces too, I think has really been – it’s been a really wonderful and enriching experience to just learn those thing. And it has allowed me to meet many people in Canada who are working very hard on the energy transition.

Yves: Yeah, and I think part of the reason why we’re so happy to have you on this show is to sort of get your perspective as someone who also is very familiar with the legal and regulatory environment in the US. And so essentially the backdrop for our conversation today is I guess several fold. I mean we’ve, first we’ve just been through this crazy summer of fires and floods. I mean we’re speaking here in late September after , you know, I think it’s the worst wildfire season on record in Canada and there’s still some burning.

But you know, at the same time, overall, Canada’s emissions are maybe slowly declining, depending on which sort of period of time we’re looking at, as the government pushes forward with its climate policy agenda. And even though there’s still considerable disparity between our existing policies and Canada’s Net Zero target, as well as our alignment with the 1.5-degree Celsius degree warming limit.

But the prevailing sentiment seems to be that while the plan policies might be helping a bit, additional measures are badly needed. And then there’s also the Canadian Net Zero Accountability Act which became law in 2021 I think, essentially legislating our commitment to achieve Net Zero emissions. And recently there was a release of draft federal clean energy regulations intended to create a net zero power grid I guess across Canada by 2035.

So there are a lot of things happening here. I’d love it for you to try and give us first, a sense of the scale, and the complexity of this transition, of this energy transition that we’re trying to achieve, and what is it that makes it so difficult?

Kristen: That is a good question. So Canada has a sort of enviable position among economically developed countries. Canada has one of the highest percentages of zero emitting power in terms of its total electricity mix. So if you look at the whole country, disregarding provincial borders and just sort of take stock of what percentage of our electricity is coming from what sources.

In Canada, because there is so much large-scale hydro and a decent number of still functioning nuclear power plants, over 80% of the electricity in Canada is actually already zero emitting. So the difficulty for Canada though is trying to close that gap that last 20 or so percent is going to be extraordinarily difficult. And to explain why, it might be good just to take a step back for a minute to say something about how electricity is delivered to people’s homes and businesses, how it’s made into a utility that can be used to power homes, electric cars, you know, all of the electric powered appliances that are in your homes.

In order to get electricity to you, it first has to be generated at a power plant. Then the power has to be transmitted at a fairly high voltage over sometimes a considerable distance using what are called transmissions lines. Then the voltage of the power is lowered at a substation and it’s sent into distribution lines, and those are the lines on poles that you see in towns and cities. Those are the lines that actually carry electricity directly into buildings.

So that’s three different sectors, and in Canada, in most places, those sectors are entirely regulated by the provinces. And we can get into why that might not be the only way it could be regulated, but that has been the way it’s been done in Canada for basically all of the history of the electricity industry here. Canada was somewhat late to come to electrification on a large scale compared to the United States for example. And early on, many provinces made the decision to publicly fund the construction of large hydro facilities.

But they didn’t all decide to do that, so there are some provinces that don’t have those big hydro facilities, and in particular, Alberta, Saskatchewan and Nova Scotia don’t really have those big – we call them base load facilities. So those are power plants that are capable of being turned on and off pretty much any time. And they can in least in theory generate power 24 hours a day, 7 days a week. So they’re capable of providing us with a sort of base level of power.

Those types of facilities in Alberta, Saskatchewan and Nova Scotia, because of historical decisions mostly, are not hydro facilities. They have been first, coal fire plants and then increasingly natural gas fire power plants. And trying to figure out how to replace those larger fossil fuel power plants with something that is zero emitting is going to be the challenge, especially when from the Federal Government’s point of view, they don’t have, as the Federal Government directed jurisdiction over at least two out of the three parts of the electricity sector.

Yves: Just to add onto that, I think what also complicates – I mean you’re talking about this energy profile that we have, it’s particularly difficult for a resource dependent economy like ours, where natural resource products make up close to half to our total exports. You got energy which is about a fifth of this category. And I mean oil still might be the dominant contributor in terms of our exports. You know that makes it a big pillar of our energy profile obviously, but also our trade, our international relations.  

So as a result of that, we have some challenges here because we do have a diverse energy profile, because let’s not forget that more than half of the electricity in Canada comes from hydro sources. And then there are the other ones like natural gas, wind, solar, coal. How difficult is it for a country with an energy profile as diverse as ours, with different economic interests, and in this particular federal structure – I mean that’s going to create some tension obviously, right?

Kristen: It does, because it really – the real potential burden here, at least financially, is on those three provinces that don’t already have significant hydro resources or nuclear power plants. And so, adding to the complexity of this, so on the one hand, you’re talking about trying to make these provinces power down, at least create a plan to eventually power down all of their fossil fuel plants and replace them with renewable power, or at least zero emitting power.

But doing that is technically difficult. It is really expensive, and the Federal Government can’t make them do it directly. They have to try as hard as they can to make it as attractive a proposition as possible. There are also some potential levers that the Federal Government has to try to get those provinces to cooperate more quickly. But I think it’s trying at least initially to create a kind of carrot and stick, you know, both adding – there’s a stick in the sense that we are going to try to impose these emissions standards on power plants. But there’s also quite a lot of time that the provinces have to take those facilities offline.

I think ten years is how long they’re allowed to continue to operate, with the idea being that that’s the transition period that these provinces will need to begin replacing those fossil fuelled power plants with alternatives.

But another wrinkle to this is that of the three provinces that are mostly dependent on fossil fuels for their power, two of the three don’t have crown corporations as their primary electricity provider.

Yves: So why is that important?

Kristen: It’s important because the two provinces are Alberta and Nova Scotia. So Nova Scotia Power is a private company and it provides most of the electricity in Nova Scotia. So it owns all of those three steps that we talked about. It owns the power plants. It owns the transmission lines and it owns the distribution system.

In Alberta it gets even more complicated because it’s not one private company that supplies those things. It’s many private companies that supply them. There’s also a difference between which companies supply generation, which companies own the transmission, and which companies own the distribution. The identity of the companies that own those three things is not always the same.

And so that makes it even more difficult because even if you could get for example Alberta to say yes we’re going to do this within the time that has been asked of us, in 10 years we will take all of our fossil fuel plants online, they then – they can’t just do it. They have to make the private companies in Alberta do it.

So there’s sort of multiple levels of you’re trying to push on other actors to get them to do something.

Yves: Is it more difficult to push the private actors or is it more difficult to push the crown corporations?

Kristen: The benefit of – so I mean, that’s true. It can be difficult to get the province to sign on for sure. But I guess the difference would be that if you can get the province to agree to do it, it’s a lot easier for the province to say – and now for example, Saskatchewan, if Saskatchewan were to say, yes, in 10 years we’re going to phase it out, they actually own Sask Power. So they can tell Sask Power, this is what you’re going to do.

Whereas for both Albert and Nova Scotia, to a certain extent, they may feel a bit captured by these utilities, because the utilities turn around and say, well it can’t be done, how do you feel about being plunged into a cold darkness, because all of the power is going to go offline, which isn’t really true. But there is kind of a bargaining position that those utilities have, especially since they are very well established in the provinces that they’re in. So they have a fair amount of not just economic power but political power too.

Yves: So what are the different pressure points that the Federal Government can use? Or like what are the carrots and stick that it can use to sort of herd everyone together in the same direction?

Kristen: So right now, the Federl Government – I just want to make clear too that the Federal Government hasn’t done everything it could do. I and other legal scholars feel that there are other constitutional powers that the Federal Government has to potentially bring the provinces to the table and also try to take over the process for certain projects if they had to.      

But in Canada, because the Federal Government traditionally hasn’t taken a role in electricity really at all, they sometimes play a role, the CER plays a role in permitting international transmission lines sometimes, but really, they have nothing to do with interprovincial projects and they really have nothing to do with projects that are just within a single province. So it’s hard for the Federal Government because they come from a position of relative ignorance.

So they know a lot about the electricity systems in the different provinces but there’s a certain amount of information that is not easy to get. And because the Canada Energy Regulator, the CER, has not transitionally done much in this area, they also don’t necessarily have the institutional knowledge to be able to fully understand what’s going on in these systems, the markets, the structure of their markets, who all the actors are and what it takes to get those actors to move in a particular direction.

So the Federal Government is starting with kind of the low hanging fruit. I mean they start with using emissions standard, which they have done before, and they kind of couple that with funding being made available. So if for example you are a natural gas power plant and you want to integrate carbon capture and usage and see sequestration, you may be able to stay online longer than the 10 years. But you will need to get that CCUS infrastructure implemented. And there is federal money on the table to help do that.

So they’re kind of trying to do the carrot and the stick. So yes, there’s a stick, but there is also money on the table to try to help you to avoid the worst-case scenario which is that the stick actually hits you and you have to pay fines.

But I think a lot of people feel like the Federal Government doing that is really not the most forceful thing that they could do. And truthfully there are lot of examples of the Federal Government trying to use the power of money and financial incentives to make something happen, but it doesn’t always – that’s not always going to be enough, because there are times where that money would be nice but it’s actually economically a sounder course of action not to do anything.

Yves: You see, this is where I do want to sort of draw in the U.S. Inflation Reduction Act, which is obviously a big deal for everybody in your country, but as well for us, for all the impacts it has on our economy. But the IRA relies also on funding and incentives to speed up the transition to clean energy economy. Why is it that Canada, which also has an investment plan, which has been billed as a response to the IRA, why is it that we can’t use financial incentives to the same extent to change the electricity infrastructure in this country?

Kristen: That is a very good question, and it’s a little complicated. So hopefully I can explain this clearly.

Yves: Take your time.

Kristen: The first part of it is really just the difference in the size of the two governments and how deep their pockets are. So the US is a much larger country. It has a much larger population. It has many more companies. So it’s already, because of the size of the population and the level of potential investment, it’s already an attractive target for green tech startups and established green tech companies.

And the amount of money that they’re offering, and a lot of this is taking place through tax incentives that are being administered through the Internal Revenue Service or the IRS, which is also kind of interesting because it puts the IRS in the position of being the primary agency in charge of climate change, which I’m sure many people in the IRS never really saw that coming.

But it’s a huge amount – so the first thing is just the size of the program is not something that the Canadian Government can do. They just, they don’t have the ability to offer those types of incentives because they could not actually fund them all. But the other thing I think is that in the US, the regulatory picture is different. So the equivalent of a crown corporation in the US would be a publicly owned utility. So there are some. There are municipal utilities, so those are utilities that are owned by cities. There were utilities that were owned, federally owned like Bonneville Power and the Tennessee Valley Authority that built actually large hydro dams.

But most of the utilities in the US are actually privately owned. And so, at least on the generation side – so we talked about those three steps. When it comes to generation at least, there is a very competitive market in most parts of the United States, so not in the Southeastern part of the US or the Mountain US, but the rest of the US is a very – it has a very strong competitive aspect to it. So it’s already got lots of independent companies. Sometimes they’re called independent power producers, or IPPs. They’re already out there pushing for these new renewable projects.

And so that is already – there’s sort of this existing dynamic market there already, and the US can take advantage of that too by growing an existing competitive market. In Canada, of all the provinces – also to make clear to your listeners, we haven’t even said anything really that applies to the Territories. But just with respect to the provinces, there’s only one province that has a competitive generation market and that’s Alberta.

I mean there have been attempts to make competitive generation a thing in Ontario, but Ontario, and I say this will full fondness, I love Ontario, but Ontario has a very difficult time staying out of electricity. They have tried to divest some of the provincially owned assets. They’ve tried to get more private industry interested in electricity in Ontario. But any time the prices go up too much, the government gets involved.

Whereas Alberta is very much a hand off, let the market do its thing, or at least it was. I think it’s difficult to justify the freeze on renewable projects that came from the Alberta Government not long ago under free market principles, because generally what Alberta has done is they have allowed for the creation of – or encouraged I should say – the creation of a competitive market for generation. So private companies that are not traditional utilities are out there building and operating power plants and specifically in Alberta, wind and solar power plants.

But that’s just one province. There’s one existing competitive market for generation in this country, just one, whereas in the US, there are dozens.

Yves: Okay, so help me understand this, because you know, it’s often thought of as Alberta being a little bit the rebel here, not just because it would have a competitive market, but because it is also quite resistant to federal efforts on climate policy. But I hear this, and then my first reaction is well wouldn’t Alberta as a province want to grow its competitive market beyond its provincial borders?

Kristen: Well, I would have thought so. If you just thought about from a sort of, again, that free market perspective that says if the market decides that the renewable power industry is going to be a hot industry, a big growth industry in Alberta, then the provincial government should stay out of the way. That is kind of the ideology or the philosophical and ideological approach that Alberta has typically taken to private industry.  

I think it’s difficult to square that with the freeze on renewable projects, and I think what that reflects is a sort of combination of concern coming from different stakeholders in the province that outweighs what would ordinarily be very much the kind of pro business story that the provincial government would, you know, exemplify and would enjoy and would do everything that they could to encourage and certainly not hinder.

But there are other factors at play here that I think have concerned the Conservative Government of Alberta, not the least of which I think a sort of general anti-renewable sentiment that is coming from some conservative circles that doesn’t actually have much to do with whether or not renewables are actually good business bet.

Yves: Right. Now we’re not going to just pick on Alberta either, because as we know here in Canada, transmission lines do tend to flow north to south. And there have certainly been disputes between other provinces. The first one that comes to mind is obviously Quebec, and Newfoundland with the whole history behind Churchill Falls.

But you know, make the case for, if you could, make the case for why is it important? Why do we need a national grid? Why do we need transmission lines to sort of connect across provinces in a more systematic way? Why is that important? Why is it important for our future? What should we be trying to achieve here?

Kristen: That is a very good question. And I can’t believe it took me this long in this podcast to actually get to the idea of a national grid and interprovincial transmission. I am a big believer in the possibilities of interprovincial transmission. We talked before about how many of the provinces in Canada, most of the provinces actually, have these crown corporations that own large hydro power facilities that provide a tremendous amount of baseload power in those provinces, using hydro power which is zero emitting.

And transitionally, those provinces have exported the power that they don’t use to the United States. And so the question then is well, what if you instead of exporting it to the US, what if you exported it to your neighbour that depends on fossil fuels? So it does just so happen that Nova Scotia is part of Atlantic Canada. The other provinces in Atlantic Canada have a lot of hydro power, some nuclear. Why not connect Nova Scotia with them and their power sources? Why not connect Saskatchewan with Manitoba? Why not connect Alberta with British Columbia?

The answer I think is that historically, there is on the one hand more money to be made from the Americans, so that was always a big part of it. The US has long been interested in buying hydro power from Canada because it is so much cheaper than the alternatives. There’s no fuel cost really involved in hydro. So once you pay off the construction costs of building the dam, the power itself is very cheap.

So the US has always been interested in buying. There’s also, as somebody who didn’t grow up in Canada – so I am a dual citizen. I love Canada. I lived there for many years. I go back to visit my husband’s family. But there are some things about Canada that even to this day, I do have some difficulty fully understanding.

And one is this kind of interprovincial hostility. The provinces won’t seem to have a problem with really just picking fights, with doing things that are economically advantageous for them, but economically disadvantageous for their neighbours. And it’s interesting because it is true that there are many benefits to living in Canada versus the United States. But the US, because it does have – there is a clause in the US Constitution that prevents the states from being able to try to favour themselves economically at the – if the disadvantage of their neighbours. You can’t do that in the US and attempts to do it are struck down pretty forcefully.

And so because of that, in the US, the Federal Government has jurisdiction over transmission. And they do exert their jurisdiction over transmission, which isn’t to say that it is not a bumpy ride. But the Federal Government here in the US is able to help plan. They have an agency, FERC, the Federal Energy Regulatory Commission, that does play a role in planning and permitting. They do it in coordination with the independent system operators which are neutral third parties that manage transmission systems over very large regions. In fact there are a few ISOs, independent system operators in Canada. And one of them, actually, Manitoba is a member of the Mid-Atlantic Independent System Operator which is a US based ISO. And that’s because Manitoba wants to more easily be able to sell power to the US.

So why can’t we do that? Why can’t the Canadian Government, which through the interprovincial works clause in the Canadian Constitution does actually have jurisdiction over interprovincial transmission? Why can’t we have regional planning? Why can’t we have the Federal Government say, Alberta, British Columbia, you guys need to get together and figure this out, because it’s not going to be as difficult to transition for Alberta if they can actually replace at least some of the power they’re currently getting from fossil fuel plants, with clean hydro power from British Columbia.

But it just isn’t – it’s never been done. Nova Socia is actually part of a plan to create an interprovincial transmission network called the Atlantic Loop. And even just maybe three years ago, people were so excited about this and really thinking like this is going to happen. And then another year went by, and another year, and another year, and there’s still no Atlantic Loop.

So this is really the difficulty in Canada is that for over 100 years, the only government that have had any role in developing transmission or distribution or generation or any province is the provincial government of that province. And that’s it. They are not used to working together and they are not used to working with the Federal Government. And it’s not even, you know, there may be for some provinces hostility to the idea, but also some of it is just we’ve never done this before. “I’m not even really sure what you’re asking for.” Trying to imagine a world different from the way that it’s always been can be surprisingly difficult.

And that’s not unique to places like Alberta. I imagine that, you know, BC Hydro, Manitoba Hydro, Hydro Quebec, I’m not sure how those crown corporations of the provincial governments that own them would feel about being told: this is what you will do, by the Federal Government.

Yves: Well I mean your constitution is much older than ours, but ours isn’t exactly the youngest either. And it also reflects a world that was mid-19^th century. And I guess the other question I have is, so now you have these provinces who are all playing in their own little sandlots with their own electricity grid systems, sometimes flowing south, how sustainable is that, given the challenges that we perceive ahead with rising temperatures, greater strain on those electricity grids? There’s got to be some kind of incentive from the urgency of the situation that should get some policy makers and law makers moving in a different direction, should it not?

Kristen: I think that’s a very good point. And I feel like, I have to say it for the lawyers who are listening, that I want to acknowledge that the part of the Canadian Constitution Act that gives the provinces exclusive jurisdiction over their electricity systems, is in Section 92, which was added to the constitution in 1982. So it’s not that old. Interprovincial works is quite old though.

But still, in 1982, there were definitely people who knew that climate change was happening and who could see the potential dangers ahead, but I don’t think most people understood it or saw those dangers coming. So it is still I think coming from a different world, perhaps a more innocent world, where we didn’t realize that that status quo that had always served the provinces so well up until now, was going to become potentially a major roadblock to being able to decarbonize as fast as we need to.

Because in my mind, not connecting the provinces to each other, you can still decarbonize Canada without doing it, but it’s going to take a lot longer. It’s going to be a lot harder.

Yves: And more expensive.

Kristen: I mean it’ll be expensive to connect the provinces too. I don’t want to downplay that. Transmission lines are shockingly expensive. But yes, it could potentially be more expensive. And certainly there’s a lot of technical challenges about – and economic downsides to just waiting until the last minute to do something that would be much more manageable if it were done in a planned way instead of, oh no, we’ve run out of time and now the Federal Government says we have to turn off these power plants.

Yves: So I want to talk about some of the other things that the Federal Government can do. But first, how do you evaluate the clean energy regulation, the draft regulations? What would implementing them successfully look like to you?

Kristen: Well I think that it would be, you know, not dissimilar, even though the legal justification underpinning for the clean electricity standards are different from the carbon tax. I think a successful rollout would look something like the carbon tax where you see every province present a plan for how it’s going to meet the requirements of the clean electricity standard.

So I think that would the best-case scenario is that every province provides the plan on time and begins enacting the plan in a way that shows a real commitment to being able to reach those net zero goals.

I mean I feel like it’s already not happening. I feel like we are just like any day now, Alberta’s going to file suit with the Alberta Court of Appeals to have the Clean Electricity Standard declared unconstitutional. So perhaps we have to wait for two years of litigation to go by. But I think there’s a very good chance that the Clean Electricity Standard is constitutional under the police power, or the criminal law power I should say. That was a bit of US law coming through.

Yves: That’s okay.

Kristen: But yeah, I think that in an ideal world, I think that actually the Clean Electricity Standard could be very powerful and very successful, but I mean we’ll see what actually happens. Because the difficult thing about this is that it does apply to all the provinces. But there are in particular three provinces that are going to have a much harder time than the rest being able to meet these requirements.

Yves: Let’s assume that it is constitutional or that it would survive a challenge, are they ambitious enough to get to a point where we can start considering building a national grid?

Kristen: You know, I think that there is a – reasonable minds could disagree on this – because you could make the argument that what the Federal Government has done is try to make allowances for the fact that some provinces are going to have a difficult time achieving this. And you can see that reflected in the fact that, for example, carbon capture, usage and sequestration is going to be allowed as one way that a fossil fuel plant could actually stay online and qualify as a net zero facility.

I think there are plenty of people who would say that provision alone shows that the Federal Government is spending more time trying to sweeten the deal here for provinces like Alberta and Saskatchewan, than it is in actually trying to meet this net zero goal. Because there are real questions about whether CCUS even actually works. Does it actually make a facility net zero? And then we haven’t seen any facility in Canada actually even make real, substantial progress on building or even implementing a plan to build CCUS.

So a lot of people feel like this is just giving some provinces and the companies within those provinces the ability to kick the can down the road. So there’s probably a way to argue both sides of that. My feeling is that it probably doesn’t do enough. I think in general, I’m sure there’s many people in the Government of Alberta who would strongly disagree with me, but as an energy and environmental scholar, I often feel like the Federal Government spends a lot of time trying to make everyone happy. And I’m not sure why because they never do.

Yves: No, they never do make anybody happy. So I mean obviously a major obstacle to Canada reaching its net zero commitments is this balkanized electricity system. And then the other one is the politics of it all. So I know you vote this notion that the Federal Government could, should, or consider at least exercising its jurisdiction over interprovincial power lines. I mean is that up for debate, that it has jurisdiction there? Help us understand that part of your thinking.

Kristen: My argument in favour of federal jurisdiction only over interprovincial transmissions. So this would not actually work for any transmission line that’s only within the province. And I do want to make that clear because listeners who are familiar with the Federal Government of the United States’ jurisdiction over transmission, know that the US actually has jurisdiction over all transmission, even if it’s only within a particular state. And the one exception to that is Texas, because Texas refuses to connect to any other state, which is kind of another story.

But in Canada, I think it’s pretty clear, based on the application of the Interprovincial Works Clause to very similar projects like oil and natural gas pipelines, which the Federal Government does have jurisdiction over and no one questions that. Even Alberta doesn’t question that the Federal Government has jurisdiction over interprovincial oil and natural gas pipelines. And there isn’t anything about an electricity transmission line that makes it less of an interprovincial work than a pipeline would be.

So I actually don’t think that the proposition that the Federal Government has jurisdiction over interprovincial transmission in and of itself is controversial. I think what people have a difficult time accepting is that the Federal Government could have jurisdiction over those connections because we do actually have a small number of interprovincial transmission lines now, and the way that the provinces treat them, they sort of just pretend like it’s actually a provincial line that ends right at the provincial border.

And so the two different provinces will regulate their respective sides of the line. But the Federal Government has the power potentially to issue the permits for those lines to approve the siting for those lines. That kind of power is the sort of thing that the US Federal Government wishes that it has, because in the US, US states actually have the siting authority over all types of energy except for natural gas. But over like oil pipelines, energy, electricity transmission, the initial permit has to come from the US government, but siting is actually approved by the states.

So the Canadian Government, if it actually exercised its jurisdiction, would have an enormous amount of power to say: here’s where we need the line and here’s where it’s going to be. The difficulty is what happens after that because now you’re connecting a line to two different electricity systems that are part of completely different electricity markets that function in totally different ways. And that’s the part of it that I think a lot of people really struggle with is what happens then? How much does the power that goes through this line cost? If you have a line that goes from Alberta to British Columbia, does that power cost the same to the people in Alberta and British Columbia? Is it also sending power from Alberta? Like what is this? How is this supposed to work, who owns this line, who regulates this line and how are they going to be – if it’s the CER, then how do they coordinate with the provincial regulators on either side of that line?

Yves: I presume that would even still be complicated between two provinces where it’s crown corporations who are running this, because they have probably different interests as well that don’t necessarily align with one another.

Kristen: They do, but you know, the other part of this that we haven’t really talked about is the additional value of those lines in terms of proving reliability. And by that we mean backup power, because last summer – I don’t know about this summer because I did move to the US this past summer. But the summer before, Alberta is beginning to experience very strong heat waves that are lasting longer and longer during the summer. And when that happens, it puts extraordinary stress on the grid.

And so at least a few times, the Alberta electricity grid actually went into emergency, meaning there was almost more demand on the power system than there was power. And so in at least one instance, what kept the electricity grid in Alberta from failing was the interprovincial connection with British Columbia, which was brought back online. It was down for maintenance. And it was brought back online for the sole purpose of bringing power from British Columbia to keep the Alberta grid from failing.

Yves: And so what other areas of Canada might be at risk of this, of basically running out of power?

Kristen: So all of them potentially, because it’s not just a question of increasing demand. So we tend to think about oh we’re going to need more generation because there’s more people and because of these electrification policies. And that’s true. The more that you see people switch over to heat pumps instead of natural gas-powered traditional H-vac or people using like a heat pump powered water heater that uses electricity instead of natural gas, or an EV, an electric vehicle that has to be plugged in.

So it is true that we are potentially looking at a pretty, you know, a market increase in demand just because of that. But the other part of this is that the other reason why the demand is increasing is because the weather is becoming more and more extreme. And there comes a point at which we have to say that for example in Alberta, we must require air conditioning for all new builds, because it gets so hot in the summer that people’s lives are in danger if they don’t have it. That’s also true for parts of British Columbia now too.

And so if we begin doing things like that, that by itself, every house suddenly having air conditioning, when they didn’t, that will add a lot more strain to the grid at unexpected times, than adding electric vehicles or heat pumps would. Every part of Canada’s in danger of extreme weather from climate change.

Yves: Yeah. Yes, except some have maybe more power to generate than others. I’m thinking particularly about Quebec with its hydro resources. But all the same though, you do illustrate some of the risk that we’re facing, and I guess there’s a risk also to this whole energy transition. But the biggest risk it seems to me is if the different parts of the country are not working and getting engaged with one another in a partnership of sorts.

There’s also the matter of supporting indigenous owned electricity projects. They are also another group growing in power and influence in this country in terms of where projects go. So I’m wondering from your vantage point, how we make those partnerships happen realistically? I mean I understand that the Feds can step in and start throwing their weight around a little but what should we try to be contemplating here? Are we contemplating a fully national grid or should we be contemplating region ones instead? How can we achieve this a little bit more realistically?

Kristen: I think certainly to begin with, a regional grid is a good idea, regional grids I should say. And you can start pretty – you start in western. A western grid that goes from Manitoba to British Columbia and an eastern grid that goes from Quebec all the way to Newfoundland.

And so I think that that actually makes a lot of sense for multiple reasons including the geography, population sizes and particularly for the western grid, this sort of – the western grid that exists in my mind – one of the benefits of it is that it really nicely pairs the big hydro power facilities in Manitoba and British Columbia, with the huge wind and solar resources in Alberta and Saskatchewan.

Saskatchewan for example has the greatest wind resources in Canada, bar none. It just hasn’t built much wind because it has a crown corporation, Sask Power that prioritizes building base load generation, i.e. fossil fuel plants. So having a regional grid also unlocks the potential both for hydro facilities that already exist, hydro facilities that might be coming online, and then also a new industry in Saskatchewan, winded solar – I shouldn’t say totally new. I’m sure there are people trying to build wind and solar right now in Saskatchewan. But just really unlocking the potential. I mean you’re always going to be more limited in terms of scope and ambition when you’re talking about, well you can build a power plant here, but that power plant can only serve the 4 million people of Alberta.

What if it also could serve the people of British Columbia and the people of Saskatchewan? You know, they can build transmission lines now that are capable of transmitting power the distance between Calgary and Saskatoon with no power loss. So it’s actually incredible what you can do technically on a regional scale. We’ve just never tried to do it before. So it would be – and I think if the Federal Government spearheaded having the governments of the different provinces involved and actually creating regional grid plans, I think that could actually be transformational.

Yves: There are also the indigenous communities to think about in all this as well.

Kristen: Yes. Many indigenous communities are prioritizing first building wind and solar facilities on reserve or on claimed land so that they can be self-sufficient for power. And that’s not just a question of sovereignty. Sometimes it is, but also practically speaking there are many indigenous communities in Canada that are not actually connected to an electricity right now.

Actually many, many indigenous communities in different provinces are not connected to electricity. And in the Territories there’s almost no electricity infrastructure on any kind of scale outside of Yellowknife and Whitehorse. All of Nunavut for example runs off of diesel power.

So there’s quite a lot of, I think, missed opportunities for small power producers including indigenous communities that can make themselves self-sufficient for their own power but also if they’re generating excess power, to sell it into the grid and to become electricity players in an interprovincial power market as well.

Yves: I know you’ve given some thought to social license as well. How does that complicate the picture, to achieve some of these ambitions that we’re discussing today?

Kristen: I think it’s going to be an important piece of this. So social license really refers to the community level acceptance of energy projects that are happening within those communities. And the term was really coined by the mining industry in the 90s to refer to projects that they were undertaking in South America where they would go through the process of getting a legal license from whatever the relative government entity was, only to discover when they actually arrived at the mine site, that the local community had no faith or trust in that government, and so they did not respect the license. And they would actively work to disrupt or thwart mining activities, sometimes even threatening people who worked at the mines.

And so it was worth it from the point of view from the mining companies to get the buy-in or the social licence of those communities as well. And sometimes you do it through hiring local people, through paving roads, building schools, adding to the infrastructure or sometimes just paying royalties essentially, or lease payments, however you’d like to characterize it.

And this really gets back to the beginning of the conversation. We were talking about unequal benefits and burdens. And so with energy, this is a persistent problem. Many different types of energy projects, not just renewable power projects, do create specific burdens where they’re located, but they don’t necessarily offer any benefits to those communities. A power line for example will go through a community, but deliver them no electricity. A wind farm will be built next to a community but all of the power is destined for a city 60 kilometres away.

So what are you going to do about the fact that people resent that? And sometimes that resentment takes the form of just an anti-renewable stance if you’re talking about wind and solar. Sometimes it gets even more amplified by other people who are resistant to wind and solar projects for different reasons. But the result is that you can see the community opposition to these types of projects. And that type of opposition can be used to, for example, justify a pause for renewable investment from the Province of Alberta.

So I think that social license is a tremendous piece of the puzzle here, especially in provinces that don’t have those hydro facilities, that will have to build more renewables, including wind and solar, but even if we get to the point where we can also build alternative power like small modular reactors, which are years away, but even then, you can imagine communities may have some questions if you tell them you’re going to build a small nuclear power plant nearby.

So it is really important that we don’t find ourselves in a position where we prioritize building all of these things as fast as we can, and only realize later that what we’ve done has also disenfranchised many different communities who already probably feel like they’re not being heard by their constituent governments.

Yves: You know, it’s interesting because I think a good lot of us throughout the population have a pretty good understanding of the general direction now of climate change. We have felt the shift happen over the last few years, even if we don’t fully understand the impacts in the future or long-term impact. But I think we get broadly that yes, an energy transition of some sort, and over some period of time, undefined as that might be in people’s minds, has to take place.

But if you look broadly at the political leadership, the policy makers in this country, I’d be interested in how you feel about it in comparison to your country in the United States. Do we in Canada have an adequate sense in the direction in which our energy transition needs to head? And by we, I mean our policy makers, law makers, elected representatives. And I understand that layered all over this is the political and economic environment. But do you get a sense from the people who have consulted you and the people you’ve spoken to that some idea of the direction we’re heading in has to be this? Or is there anything you would hope that our leaders, provincial, federal, territorial, indigenous, would have a better understanding of regarding their responsibilities?

Kristen: I get the feeling that there is a very strong sense among the Canadian public that it’s important to take bold action to fight climate change. I think Canada is absolutely feeling the impacts of climate change. We are seeing that, heat waves, cold snaps, bigger storms, longer storms, bigger fires, more fires. So it’s definitely true that Canadians in general are quite aware of what we need to do.

In terms of next steps, I mean there is a sense sometimes that the people at kind of the top levels of power in the Federal Government for example are often sort of taking their cues from for example the United States, following up with a bold funding plan for green tech because of the Inflation Reduction Act in the US. But at the same time, I do actually think that there is a – there are groups of people in Canada both within the provinces, at universities, at think tanks, at NGOs, and you know, siting on the boards of corporations who think about this stuff a lot.

And I think for Canada it’s always that tension which a lot of countries face, but as you said, Canada is a natural resource-based economy, meaning of course that Canada is extraordinarily blessed with many different types of abundant natural resources. But that both makes it very clear when things are changing as far as climate change affecting the weather and the ecosystem in Canada, because I think Canadians feel deeply connected to the environment that they’re in. Canada is very beautiful. Canadians loves to be outside when they can be.

Maybe actually, I live in California now and people, sometimes you just see people at the park sitting in their car. And I’m like a Canadian would never, right. The sun is out. It’s actually nice outside and you could not stop Canadians from being outside.

So I think that there is a sense – but in terms of like specifically what we need to do next, yes, I think there are lots of people in Canada that have a very clear idea of what to do. Are those the people who are actually making the policy calls? Well, not always. And I mean I think that’s a problem for many, many different countries. And the people are in the position to make the decisions often feel torn in different directions.

On the one hand, they might want to take action on climate change, but in particular, during a time of very high inflation like right now, there are so many other things that seem to be taking kind of the top spot in terms of their attention and time. And I think we shouldn’t lose sight of the fact that it is true, the economy is in a really rough place right now. But climate change isn’t going to pause just because the interest rates are very high.

So we do need to be mindful of what it’s going to cost us, but that shouldn’t stop us or slow us down from taking action.

Yves: Kristen van de Biezenbos, thank you for coming on the program and enlightening us.

Kristen: Thank you very much, Yves.

Yves: You’re listening to Modern Law, presented by the Canadian Bar Association’s National Magazine.