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Canada

Ontario fights FIT anti-free trade claim

CANADA: The Ontario government is defending itself on multiple international fronts over accusations that its ambitious green-energy policies are protectionist and discriminatory, but it is the attacks on its own home turf that are creating the most turmoil for wind-energy investors in the province.

The World Trade Organisation announced in late July that it had established a panel to hear a complaint from Japan that Ontario's Green Energy Act violated international trade law by tying the awarding of premium-priced feed-in tariff (FIT) contracts to local-supplier requirements. Just a week earlier, Texan oil tycoon T Boone Pickens served notice of his plans to launch a challenge under the North American Free Trade Agreement (Nafta) alleging discrimination against his company, US-based renewables developer Mesa Power Group.

Rule changes

In its notice of intent, Mesa claimed the Ontario government had arbitrarily changed the rules under which wind-energy companies would get much-coveted access to a new transmission line currently under construction, and the FIT contracts to go with it.

"This case is about unfairness, the abuse of power and process and undue political influence in the regulations of renewable power in Ontario," the company said. Mesa is seeking at least C$775 million (US$784 million) in damages.

The company is pursuing four projects in south-western Ontario with a total capacity of 565MW - two of those rank high on a list of priority projects that was released in December. But in June, Ontario energy minister Brad Duguid ordered rule changes to allow companies to change their interconnect points, a move Mesa claimed allowed some projects to jump to the head of the queue.

Mesa's projects consequently lost their priority ranking and were not offered FIT contracts, it claimed.

The company's complaint also raised questions over the transparency of the Ontario Power Authority's (OPA) ranking criteria. It cites Nafta violations in relation to the province's domestic-content requirements and challenges the preferential treatment given to certain participants in the programme, including Korea's Samsung C&T.

The company heads a consortium that signed a C$7-billion agreement setting aside transmission capacity and providing financial incentives in return for generation and manufacturing investments in the province.

Duguid rejects Mesa's complaint that it has been unfairly treated. "The OPA runs an open, fair and transparent process to award clean-energy contracts under the feed-in tariff programme," he said. "Both Ontario and internationally based companies have been awarded contracts under the programme."

The province, said Duguid, would work with the federal government to vigorously defend the case. Ontario also believes the FIT programme is in compliance with Canada's WTO obligations, he added.

Prevailing doubt

While the two challenges have the potential to change the rules under which Ontario's wind industry works, Canadian Wind Energy Association president Robert Hornung says a more pressing concern is the ongoing doubt over the future of the province's green energy policies.

Ontario is in the midst of an election campaign, with the opposition Conservatives campaigning on a promise that if they win the 6 October vote, they will end the FIT programme and cancel the Samsung deal.

The provincial government tried to inject some stability into the situation in August with new rules that give the OPA much less leeway to cancel any of the nearly 3.2GW of wind energy contracts awarded under the programme.

Under the old system, the OPA had the right to terminate contracts up until a relatively late stage in the development process. Now the agency has to waive that right at a much earlier stage on the condition that a developer has a domestic-content plan and turbine supply agreement in place by set deadlines.

There has been concern within the industry that contracts that had not reached the necessary milestone under the previous regulations - known as the notice to proceed - would be at risk of being cancelled under a Conservative government at a later date.

The OPA's termination rights were acting as a roadblock to investment in other ways as well, including the ability for developers to access financing. "It added a level of uncertainty and risk that was making it more challenging for projects just to get moving," said Hornung.

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