B-8 July 18, 2014 File No.: 240148.00715/15951 David Curtis Direct +1 604 631 4827 Facsimile +1 604 632 4827 dcurtis@fasken.com By Email British Columbia Utilities Commission 6 th Floor, 900 Howe Street Vancouver, BC V6Z 2N3 Dear Sirs/Mesdames: Re: FortisBC Energy Utilities (FEU) - 2014 Long Term Resource Plan Project No. 3698776 Further to Exhibit A-4, the FEU provide the following reply submissions to BCSEA- SCBC s request for scope determinations as set out in its letter to the Commission dated 9 July 2014. Reply Submissions on Scope Issue #1 Reply to BCSEA-SCBC Submissions 1. In its July 16 submission, BCSEA-SCBC say that because the FEU have relied on GHGenius it is inconsistent for the FEU to now argue that GHGenius is beyond the scope of the proceeding. It says that the Commission should not allow the FEU to cite GHGenius as an unquestionable authority for propositions having to do with NGT and GHG emissions. 2. The government has endorsed the GHGenius model through adoption in a regulation. This is what engages the principle of coherence, which BCSEA- SCBC has ignored in its submission. To repeat from the FEU s previous submission, the principle of coherence says that it is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. This presumption is virtually
Page 2 impossible to rebut. 1 It is this principle that the FEU rely on for the assertion that GHGenius can be relied upon, and not, as BCSEA-SCBC suggest, that the model is unquestionable authority. 3. The principle of coherence requires the Commission to rely on GHGenius when considering British Columbia s energy objectives. To do otherwise would violate the principle of coherence. 4. BCSEA-SCBC say that the FEU s position is that the Commission should treat the GHGenius as a black box. This is not a fair or accurate characterization of the FEU s position. 5. What the FEU are saying is that it is reasonable for the Commission to accept the use of GHGenius, not because the FEU baldy assert that it is a valid model, but because the government has endorsed it. This engages a further principle of statutory interpretation, which is the principle of presumed knowledge and competence. This principle is described by Sullivan as follows: The legislature is presumed to know all that is necessary to produce rational and effective legislation. This presumption is very far-reaching. It credits the legislature with the vast body of knowledge referred to as legislative facts and with mastery of existing law, both common law and statute law, and the case law interpreting statutes. The legislature is also presumed to have knowledge of practical affairs. It understands commercial practices and the functioning of public institutions, for example, and is familiar with the problems its legislation is meant to address. In short, the legislature is presumed to know whatever facts are relevant to the conception and operation of its legislation. 2 [Emphasis added.] 6. The principle of presumed knowledge means that the Commission must assume that in endorsing the use of GHGenius, the legislature was aware of all facts relevant to the model. The Commission must not presume that government blindly accepted the model. On the contrary, the Commission must presume that by including GHGenius in legislation, government was aware of all facts relevant to its operation. 1 2 R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 223-225. R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 205.
Page 3 7. In short, the model is not blindly endorsed by government. Government is presumed to have understood the model by endorsing it. This is why it is reasonable for the Commission to rely on the model. Reply to BCOAPO Submissions 8. At para. 4 of its July 16 submissions, BCOAPO states: The FEU have restricted the information provided in their response dated July 14, 2014 to the specific minimum inputs necessary to obtain any emission output data. However, it is our understanding that GhGenius provides default values for numerous of its functions. These default values can be altered by the user. For the FEU to say that only jurisdictional information was input does not address the question of whether and what specific default inputs were used in the modeling. 9. The FEU addressed this issue in its submission at para. 11: Other than inputting very basic information, such as Regional Default (i.e. British Columbia ), there are no subjective determinations made by the FEU when they rely on GHGenius, such as the GWP value for methane. On the contrary, the model uses default values for items such as GWP. Reply Submissions on Scope Issue #2 Reply to BCSEA-SCBC Submissions 10. There is nothing circular about the FEU s submission in para. 36. What the FEU are saying in paragraph 36 is that the consideration of the applicable of British Columbia s energy objectives is in relation to the specific elements in section 44.1(2). The energy objectives are not a stand-alone consideration that is divorced from the items in section 44.1(2). GHG emissions from the FEU s own facilities are not a component of the LTRP and therefore cannot be considered under the guise of the energy objectives. 11. Scope Issue #2 is not evidently a live issue. In saying this, BCSEA-SCBC appear to suggest that the mere existence of a scope debate somehow demonstrates that an issue is within scope. There is no basis in law for this position.
Page 4 12. The lead by example point raised by BCSEA-SCBC does not speak in favour of anything regarding the scope of the LTRP. The scope of the LTRP is determined by the provisions of section 44.1. 13. In its final paragraph, BCSEA-SCBC specifically refers to fugitive venting and third party hits as falling within certain subsections of section 44.1(2). The operational nature of these matters is clear on their face. These matters do not fall within the scope of section 44.1. Reply to BCOAPO Submissions 14. At para. 9 of its submissions, BCOAPO cites certain provisions of section 44.1, and in the following paragraph states: In our submission, the use natural gas by the FEU and losses of natural gas from the FEU and upstream systems are included in all of the referenced provisions. The FEU are gas distributors. 15. BCOAPO does not explain how the FEU s GHG emissions from its own facilities has anything to do with the provisions cited. Scope Issue #2 is an operational issue not covered by section 44.1, and BCOAPO says nothing in its submission to suggest otherwise. Conclusion 16. The FEU respectfully submit that the Commission should determine that both issues are outside the scope of this proceeding. ALL OF WHICH IS RESPECTFULLY SUBMITTED. Yours truly, FASKEN MARTINEAU DuMOULIN LLP [original signed by] David Curtis /DC
Appendix 1 R. SULLIVAN, SULLIVAN ON THE CONSTRUCTION OF STATUTES, 5 TH EDITION (MARKHAM: LEXISNEXIS, 2008) PAGE 205
7 :, ~v t to F~ftn Ea~t~On by Ruth Sullivan Professor of Law University of Ottawa Fasken Martineau Duhpoulin LLP 2900-55a 9urrard Street Vancouver, B.C. V6C OA3 APR Z 6 ~ 011,. LexisNexis~
CIt. 7: Texitsal Aticzlvsis 205 Part 2 illustrates how these presumptions are used in textual analysis, including the standard Latin maxims noscitz:r a sociis (associated words), ejusdem getzeris (limited class) and expressio ttriius est excltisio alteriaas (implied exclusion). 'Fhe chapter ends with a note on collocation. PART 1. PRESUMPTIONS ABOUT HOW LEGISLATION IS DRAFTED PRESUMED KNOWLEDGE AND COMPETENCE Presumed knowledge. The legislature is presumed to know all that is necessary to produce rational and effective legislation. This presumption is very farreaching. It credits the legislature with the vast body of knowledge refereed to as legislative facts" and with mastery of existing law, both common law and statute law, and the case law interpreting statutes.9 The legislature is also presumed to have knowledge of practical affairs. [t understands commercial practices and the functioning of public institutions, for example, and is familiar with the problems its legislation is meant to address. In short, the legislature is presumed to know whatever facts ~~re relevant to the conception and operation of its legislation. The presumption of knowledge is not often discussed by the courts but is implicit in the interpretive rules and techniques on which they rely. For example, a mastery of language is presupposed by the ordinary meaning rule while knowledge of practical affairs is presupposed by purposive analysis and in some cases by consequential analysis. A knowledge of law is presupposed by the presumption that the legislature does not intend to change existing law or to violate international law. Logically, the substance of what the legislature is presumed to know must be knowledge that was available to it at the time the legislation was enacted. 'file legislature is not presumed to know the future. To detemune the mischief at which a statute was aimed, for example, the courts look to material conditions existing at the time of enactment. In practice, however, courts often assume, in the absence of evidence to the contr~uy, that the knowledge available to the interpreting court is the knowledge relied on by the enacting legislature. In Willick v. Wi(lick, [1994) S.C.1. No. 94, [1994] 3 S.C.R. 670 (S.C.C.), L'Heureux-Dube J. wrote, at 699: "An integral aspect of discovering Parliamentary intention is the precept that Parliament must be taken to be aware of the social and historical context in which it makes its intention known." See also A1cDinrntid Lr:mber Ltd. v. God's Lake First Nation; [2D06] S.C.7. ~ IS No. 58, [2006] 2 S.C.R. 846, at pares. 82-83 (S.C.CJ; Barrie Public Utilities v, Ca~Tactian Cable Televisio~z Assn., [2003] 5.C.J. No, 27, [2003] 1 S.C.R. 476, at pares. 25-26 (S.C.C.). In 27 F7 ~ 174 Q ~iehe c Inc v. Qu ebec (Re"~' 3 ie de.r n ennis d'nlconl )C, 19967 S.C.7. No. 112 [1996) 3 S.C.R. 919, at pare. 238 (S.C,C.), L'Heureux-Dube I. wrote: "It must be presumed that the Quebec legislature had lmowledge of all the relevant law." See also ATCO Gas and Pipelines Ltd. v. Alberta (E~tergy &Utilities Board), [2006] S.C.J. No. 4, [2006] 1 S.C.R. 140,. ~ ~ _ ~_.._,_~.._.,.~,. at para.59 (S.C.C.).