Opponents of the Heartland transmission line took their fight with the proposed transmission line to the Alberta Court of Appeal Tuesday.
St. Albert lawyer Keith Wilson argued on behalf of Sturgeon County Coun. Karen Shaw and her family, who own land near the end of the proposed electricity transmission line.
Tuesday's hearing was the first part of a two-part process toward bringing the case to the appeal court. Before the appeal court hears a case, a single justice decides if the case has issues that are worth dealing with in front of the three-judge panel.
Justice R.L. Berger reserved his decision after hearing arguments from Wilson, along with lawyers representing Epcor, AltaLink and the Alberta Utilities Commission (AUC).
He will likely decide within the next month whether the issue should go before the full court.
Wilson argued the appeal court had to hear the case for two main reasons: the AUC was wrong when it failed to consider social and economic impacts of the project, and there was political interference in the process.
The commission approved a routing of the Heartland line last fall after several weeks of hearings earlier in the year. Government legislation, the Alberta Electric Statues Amendment Act, commonly called Bill 50, designated the line as critical infrastructure. That meant, unlike in previous cases, the AUC was limited to consider only the routing and not whether the line itself actually fulfilled a need.
Wilson argued that the commission took that direction from government too far, however, and while the legislation prohibited them from looking at need, they still could have examined whether the line was in the best interests of Albertans from a socio-economic level.
"The commission has a legal duty to weigh the benefits of the project itself."
Wilson pointed out that the legislation initially prohibited the commission from looking at need and public interest, but that the words public interest were specifically removed from the bill.
"The legislation has shown by its use of language that need and public interest are something different."
The Heartland power line was the first time the AUC used this new process looking only at routing and Wilson argued the appeal court should look at the case for that reason as well. He said the commission was interpreting the new rules for the first time and with other power line projects on the horizon the appeal court should look at that interpretation.
Peter Feldberg, a lawyer representing AltaLink argued that power lines have always been decided as a two-part decision, first establishing the line was needed, then establishing where it would go.
"All that happened and what the legislature intended is to remove the assessment of need from the [independent system operator.]"
He said the change moved need and public interest to become a government decision.
Feldberg that the legislation made a distinction between need and public interest only because there might be a public interest consideration in the routing of the line that they otherwise would not be able to consider.
Kim Wakefield, a lawyer representing EPCOR argued that when the AUC interpreted Bill 50 and looked at the new legislation, it paid attention to similar cases and issues that the appeal court had already dealt with.
"The AUC has already been guided substantially by the court of appeal," he said. "It has interpreted the legislation in what I submit is the only way it reasonably can."
Political interference
Days before the AUC was set to announce its decision on the Heartland line's route last fall, energy minister Ted Morton announced he had asked the commission to suspend the process on it and two other proposed power lines, while the government studied the issue further.
The Heartland line had already completed a hearing process and the applicants were only waiting the commission's final decision, but the commission hadn't even started hearings on the other two.
Premier Alison Redford corrected Morton within hours and said the process for the Heartland line should go ahead as planned and only hearings on the other lines should stop. The AUC agreed to both requests, but took an extra week to release the Heartland decision.
Wilson argued the fact the AUC moved at the premier's will over the issue shows that it is not an independent body and that it is reacting to government demands.
"It was like a puppet on a string, you could see the strings move," he said.
Wilson said with Redford having stated publicly she believed the Heartland line should be built the AUC's impartiality has to be questioned.
"Our clients have a right to a fair hearing in front of an impartial decision maker."
Feldberg pointed out Morton's letter made it clear the government was only making a request, not a demand.
"It is not a direction in the slightest, it is a request," he said. "There is no direction, no coercion; there is nothing but notice of what the government is going to do."
Feldberg said with the millions of dollars and countless hours invested in the hearing process, it made no sense for the AUC to plunge forward if the government was going to change gears.
"It made good administrative sense to say hold on."
Jim Law, a spokesman for the commission, said the delay in releasing the Heartland decision came because they stopped the work when they first got the government's request.
He said to make the initial deadline on the Heartland decision they initially planned to hold off, but no longer saw the need.
