The BC Utilities Commission’s failure to conduct proceedings in a public and open manner is undermining its credibility as an impartial adjudicator.
Introduction
The BCUC has been cutting back on public involvement in its proceedings all year. In the name of regulatory efficiency, a worthy enough cause, it has declined to involve public advocacy groups in proceedings where in previous years their views would have been heard and considered. A good example would be the March 2024 decision to approve BC Hydro’s latest rates with no public input.
Now most recently, on November 4, the BCUC rejected the request from the BC Sustainable Energy Association (BCSEA) to intervene in its proceeding to review BC Hydro’s long-term resource plan for the Fort Nelson region. The BCSEA is a regular intervener in BCUC proceedings and advocates for those customers concerned about energy sustainability and climate change mitigation.
The BCSEA requested and received reasons for its rejection, but inexplicably the BCUC declined BCSEA’s request to make those reasons public on the proceeding’s web page. Rather than leaving the matter there, the BCSEA wrote a letter of comment to the BCUC complaining about its “patently unreasonable and unfair” treatment, so this letter is now on the proceeding’s web page for us all to enjoy.
Environmental issues
BC Hydro’s plan for the Fort Nelson region raises important environmental issues. Fort Nelson’s electricity currently comes from a gas-fired generating station and a transmission line from Alberta. The plan proposes some solutions to reduce the associated greenhouse gas (GHG) emissions, for example by using geothermal energy. Are these the best or cheapest solutions?
Also, BC Hydro is also “advancing” (whatever that means) a diesel generator as a backup for the transmission line, which was damaged by wildfires in 2023 and only went back into service in June 2024. This wasn’t mentioned in BC Hydro’s application, and only came to light thanks to some diligent questioning by BCUC staff. Who knows what other issues the BCSEA might have uncovered as an intervener?
Despite these issues, the BCUC did not allow the BCSEA to represent those customers in Fort Nelson who are concerned about the environment. Among the interveners that were accepted in this proceeding, none appear to have expertise that the BCSEA would have brought to the table. And with at least 20 years’ experience as a BCUC intervener, the BCSEA is hardly a novice that might slow things down.
No-one is happy
I confirmed with the BCUC that the BCSEA’s request to intervene was the only one rejected. Mind you, that’s hardly a surprise. It’s likely the other regular interveners simply didn’t bother to apply, since the BCUC’s procedural order includes the unwelcoming sentence “Intervention will be limited to those parties that are directly or sufficiently affected by the Application.”
What makes matters worse is that even the interveners that were accepted in this proceeding are not being given the opportunity to participate in a meaningful way. They have been limited to making a letter of comment, which the BCUC’s own rules make clear are “not automatically accorded the same weight as evidence that has been either adopted under oath, subject to information requests or otherwise tested.” In other words, the BCUC is going to take the evidence from BC Hydro’s application a lot more seriously than anything provided by anyone else in the proceeding.
Two of the three interveners, the local chamber of commerce and the Northern Rockies Regional Municipality, did submit letters of comment. But in both cases, rather than make a submission on the merits of the application, they posed questions that they wanted BC Hydro to answer. They also requested the right to make a final submission once they had answers to their questions. There has been no response from the BCUC yet to these requests.
I imagine even BC Hydro is probably embarrassed about the unseemly haste with which the BCUC seems to be trying to conduct this application. BC Hydro had proposed an efficient hearing using the BCUC’s streamlined review process, but did not request that the proceeding be limited to letters of comment (the BCUC ignored BC Hydro’s suggestion). Now, BC Hydro faces the risk that the BCUC approves its application despite no support from interveners, and the perception that the decision was not made fairly.
Procedural unfairness
The BCUC claims on its web site that its proceedings are “public, open, and transparent”. It’s hard to see how an application that proposes adding diesel generation to a gas generation plant can be considered either public or open when the most experienced environmental advocacy intervener in the province is expressly excluded. Denying the interveners the right to question BC Hydro about its application is the very opposite of openness.
Even the BCUC’s own rules state that its processes must be “consistent in all cases with the requirements of procedural fairness.” Since one of the basic rules of procedural fairness is that affected parties have the right to be heard, I think it’s fair to say we have a problem here, since none of the three interveners or the BCSEA are being given the right to make a final argument.
The BCSEA told the BCUC that it should not accept BC Hydro’s Fort Nelson plan because there has not yet been a “proper public hearing” to review it. I agree.
Conclusion
This failure of due process is causing considerable concern about the BCUC’s perceived impartiality. In its letter of comment, the BCSEA stated that its rejection by the BCUC “fosters the presumably incorrect conclusion that the [BCUC] already knows what it wants to do with the Application” (emphasis added). It’s rare for an intervener to go public with a statement like that, however cautiously it’s phrased.
Sadly, this proceeding adds to the growing evidence that the BCUC is simply “rubber stamping” applications from BC Hydro. As I said last week, it feels like the BCUC is trying to avoid regulating BC Hydro altogether. It might be better if the BCUC simply stopped reviewing BC Hydro’s long-term resource plans, rather than trying to give the impression they are reviewed in a “public, open, and transparent” proceeding, when in fact nothing of the sort is taking place.
Is it possible that BC Hydro will help the BCUC out here? The utility has the right to reply to the letters of comment by today (December 10). Given that the application is not supported by any intervener, there are outstanding questions from two of them, plus the BCSEA’s concerns, BC Hydro might suggest again that the BCUC conduct some other process rather than rubber stamping the application. Let’s see.
Postscript
The BCUC’s disinclination to hear from environmental advocates seems only to apply to applications from BC Hydro. When it comes to investor-owned utilities, the approach is different.
Consider the application from FortisBC Energy Inc. to build a gas storage facility in Kelowna to ensure that its customers in the Okanagan will be supplied with gas throughout the winter (the BCUC rejected the utility’s application to expand its pipeline, even while acknowledging that the utility faces an “imminent shortfall” in supply).
In this case, where clearly there are also environmental considerations, the BCUC accepted not one but two interveners to represent these interests – the BCSEA and First Things First Okanagan Climate Action.
One standard for the provincially owned BC Hydro, another for all other utilities?