Regulating the Regulator - Pembina intervenes after the fact
In a decision providing ammunition for public interest groups denied an opportunity to intervene before a regulator, the Alberta Court of Appeal denied leave to Pembina on the issue of whether the Alberta Utilities Commission made various errors in approving a power plant.
This blog entry, however, will address only the fact that Pembina was granted standing before the Court of Appeal, despite not having intervened in this matter before the Commission.
Maxim filed a request for approval of a power plant in February 2009. The Commission issued a notice of application on March 4, 2011, indicating that there would be no hearing if there were no parties found to be “directly and adversely affected” under the applicable legislation. Although Pembina responded to the application, Pembina was not found to be “directly and adversely affected”. Pembina was, therefore, not granted standing.
The Commission granted interim approval for the power plant on June 30, 2011, and final approval on August 10, 2011. Pembina did not seek leave to appeal the final approval of the power plant.
At the Court of Appeal, Pembina conceded that it did not meet the test to intervene at the Commission of being “directly and adversely affected”. Pembina argued that, at the Court of Appeal, there was no requirement to be “directly and adversely affected”. Pembina argued that:
…if only those parties found to be directly and adversely affected by the Commission’s decision have standing on appeal, then once a determination has been made that no such party exists, the Commission would be immune from any oversight in its decision-making; the Commission would essentially be able to act with impunity in such circumstances.
The Court of Appeal (in not so many words) agreed with Pembina, finding that, in the circumstances, there was “…a concern regarding respect for limits to administrative authority…” and that, as no parties were granted standing by the Commission there “…is no other means by which this issue could be brought before this court…”
This decision provides significant authority for those wishing to appeal a regulator's decision after being denied the opportunity to intervene. Regulators are now on notice that potential interveners may get to make their submissions at the appellate level if denied that opportunity before a regulator.
Despite leave to appeal being denied, this can be regarded as a significant victory for Pembina.
Albert Court of Appeal Docket Number: 1101-0193-AC
Date Leave Denied: October 21, 2011
Alberta Court of Appeal Alberta Utilities Commission intervening before regulator power plant