Solar Power – Facilities
Solar Krafte Utilities Inc. (“Solar Krafte”) applied for approvals to construct and operate a 60-megawatt (“MW”) Vauxhall Solar Power Plant and associated Solstice 549S Substation (collectively, the “Project”). The Project will be constructed on 194 hectares of privately owned land three kilometres northwest of the town of Vauxhall.
The AUC approved the application from Solar Krafte to construct and operate the Vauxhall Solar Power Plant and associated Substation.
Alberta Utilities Commission Act, SA 2007, c A-37. – s 17.
Hydro and Electric Energy Act, RSA 2000, c H-16 – ss. 11, 14 and 15.
Environmental Protection and Enhancement Act, RSA 2000, c E-12.
Conservation and Reclamation Regulation, Alta Reg 115/1993 – s. 17.
Municipal Government Act, RSA 2000, c M-26.
AUC Rule 012: Noise Control.
In the original application, Solar Krafte proposed a project with a capability of 150 MW.. Before submitting its application, Solar Krafte reduced the size of the Project to 60 MW. In July 2022, after the application was submitted to the AUC, Solar Krafte removed 230 acres of the project area.
Environment, Noise and Glare
The Project, as originally submitted to the AUC, posed a moderate risk to wildlife and wildlife habitat, a high risk to birds, and a moderate risk to wetlands and potentially sensitive amphibian breeding sites. Since an overall reduction in impacts to the surface was proposed by Solar Krafte’s amendments, including the avoidance of all native grassland and removal of infringements to several setbacks, the AUC determined that an updated referral report was not required.
The permanent infrastructure of the final Project would impact five wetland setbacks. The AUC was satisfied by the mitigation measures committed to by Solar Krafte. Considering the updated project layout and implementation of mitigation measures, the AUC accepted that the overall residual effects of the Project would not be significant.
The updated application indicated that the final Project would comply with Rule 012: Noise Control and regulations regarding solar glare. To ensure continued compliance with applicable rules, the AUC made the approval conditional on requirements regarding solar glare mitigation and reporting and sound level surveillance and reporting.
Reclamation and Municipally Enacted Laws
The Municipal District (“MD”) of Taber submitted that the application should be denied because of a lack of reclamation security. Alternatively, the MD of Taber requested that Solar Krafte be required to post reclamation security in an amount not exceeding $10,000,000.00 as a condition of approval to be held in trust for the hosting landowners. The MD of Taber argued that: (1) the issuance of such security was required by the public interest, and (2) the MD of Taber’s Land Use Bylaw (the “Bylaw”) required Solar Krafte to issue security in respect of its reclamation obligations.
The AUC determined that Solar Krafte was not required to issue security in respect of its reclamation obligations because the Project is in the public interest without the condition requested by the MD of Taber. The AUC also found that security was not required because, according to the Bylaw and the exercise of the Development Authority’s discretion under the Bylaw, no municipal laws require security to be provided.
The MD of Taber argued that reclamation security should be required to ensure the Project is in the public interest. Their concern was that if Solar Krafte became insolvent and could not fund the discharge of its regulatory reclamation obligations, the security would ensure that the liabilities were paid for. Further, the MD of Taber argued that the Supreme Court of Canada had endorsed the polluter pay principle.
Solar Krafte filed a conservation and reclamation plan in its application and argued that because solar projects require a high initial capital investment and have stable revenues and lower ongoing operating expenditures, any financial issues it encounters will result in a dispute as to who is entitled to continue operating the Project. It would not likely result in the abandonment of the Project. The AUC was satisfied that the filings meet the requirements of Rule 007: Applications for Power Plants, Substations, Transmission Lines, Industrial System Designations, Hydro Developments and Gas Utility Pipelines.
The AUC rejected the argument from the MD of Taber that the polluter pay principle requires the AUC to impose a reclamation security condition. This broad principle has been recognized as a tenet of Canadian environmental law and is recognized by the Environmental Protection and Enhancement Act, but does not dictate the use of specific regulatory tools, such as reclamation security, when an existing regulatory scheme is already in place concerning reclamation obligations. The AUC determined that compliance with existing reclamation requirements, in the form of the Environmental Protection and Enhancement Act, the Conservation and Reclamation Regulation and the Conservation and Reclamation Directive for Renewable Energy Operations, was sufficient to address reclamation concerns.
The AUC determined that according to the Bylaw, the MD of Taber delegated the discretion to impose conditions on development permits to its Development Authority. Even if this discretion included the ability to impose security obligations on Solar Krafte in respect of the Project – and it is not clear that it does – in this case, the Development Authority has not done so.