On March 15, 2024, the BCUC denied a request from the BC Sustainable Energy Association (BCSEA) to reconsider the BCUC’s recent decision on thermal energy systems exemptions (TES Report), which is currently being evaluated by the Ministry of Energy, Mines and Low Carbon Innovation.
In the TES Report, the BCUC recommended changes that would, for the most part, reduce its regulation of thermal energy systems. However, the commission also recommended that two classes of thermal energy systems, Micro (with a capital cost of less then $500,000) and Strata (serving only a strata’s members) should in future be subject to sections 23, 25, 38 and 41 of the Utilities Commission Act.
These four sections of the Act are, respectively, the general supervision of public utilities; the BCUC’s ability to order improved service; the obligation of public utilities to provide service; and the restriction on public utilities discontinuing service without permission. At present both Micro and Strata thermal energy systems are exempt from these sections.
The BCUC had determined in the TES Report that it was in the public interest for Micro and Strata thermal energy systems to be subject to these sections of the Act because of the importance of their customers receiving safe and reliable supplies of thermal energy.
The BCSEA claimed that the BCUC made errors of “fact, law or jurisdiction” in reaching this decision, for example by making the decision in the absence of evidence of actual safety or reliability problems faced by past or current Micro or Strata thermal energy systems.
The BCUC summarily dismissed the BCSEA’s request, finding that it had “failed to establish, on its face, any reasonable grounds for the BCUC’s recommendations in the [TES Report] to be reconsidered.”
In its reasons, the BCUC noted that the six points the BCSEA raised to justify its request are consistent with the BCSEA’s submission in the proceeding that led to the TES Report, and in fact the BCUC had addressed these points in its decision. The BCUC closed by saying it “understands BCSEA disagrees with the recommendations made by the BCUC in the [TES Report] but disagreements alone are not adequate grounds for reconsideration.”
Analysis
The BCUC’s Rules of Practice and Procedure contain a provision (section 28) to allow summary dismissal of an application for reconsideration of a decision if it “fails to establish, on its face, any reasonable grounds for reconsideration of the decision.” This rule allows the BCUC to filter out requests that stand no realistic chance of success if a proceeding were to be held. Without this ability, parties in proceedings would be able to tie the BCUC in procedural knots, ultimately increasing the cost of regulation paid by the ratepayer.
Summary dismissals also allow the BCUC to rule out “second kicks at the can”, where parties play “regulatory roulette” to see if a different panel of commissioners might rule more favorably. It’s clear that the BCUC believed this was the situation here.
The decision to summarily dismiss the BCSEA’s request for reconsideration reinforces both the TES Report, which the government is currently evaluating, and the conclusions of the BCUC’s 2022 report on its jurisdiction over public utility safety.