![Global rules on foreign direct investment](https://www.nortonrosefulbright.com/-/media/images/nrf/nrfweb/knowledge/publications/us_24355_legal-update--fdi-alert.jpeg?w=265&revision=a5124a65-abf9-40e4-8e96-9df39ffdb212&revision=5250068427347387904&hash=96B456347C3246E5649838DF281C5F5D)
Publication
Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
Canada | Publication | February 20, 2024
On February 16, Environment and Climate Change Canada (ECCC) released its “What We Heard” Report1 summarizing public comment on the Clean Electricity Regulations (CER)2 and seeking additional feedback on possible amendments. The report suggests that some of the most controversial and difficult aspects of the CER will be walked back, but details will only appear in the final regulation.
As described in our previous update,3 last summer’s draft CER proposed prohibiting fossil fuel generating units (including natural gas-fired units) 25MW or greater from emitting carbon dioxide in excess of 30 tonnes CO2/GWh if connected and exporting to the (NERC) grid. In most cases, the emissions intensity cap would apply to the later of January 1, 2035, or January 1 of the calendar year following the unit’s “end of prescribed life” (EOPL, defined as 20 years after the commissioning date).
A wide range of parties criticized the CER. Notably, each of Alberta and Saskatchewan invoked its new autonomy legislation for the first time in response.4
The report notes meetings in each of Alberta, Saskatchewan, Ontario, Nova Scotia, and New Brunswick with government and impacted entities (generators, utilities, NGOs, Indigenous organizations, etc. – the electricity grids in these provinces depend in material part on hydrocarbon-based generation). The report also cites bilateral meetings with more than 75 other organizations, public webinars, approximately 600 unique written submissions, and several stock letter-writing campaigns.
At a high level, the changes ECCC is considering include:
ECCC is accepting feedback on these changes until March 15, 2024, with the final version of the CER expected to follow later this year.
On their face, these changes respond to the most serious operational challenges identified with the CER, but move away from a general emissions prohibition and towards a more nuanced regulatory regime, akin to frameworks that some provinces have already put in place. It remains to be seen if this effort will forestall or exacerbate the threatened constitutional challenges.
Canada Gazette, Part I, Volume 157, Number 33: Clean Electricity Regulations, (19 August 2023), online: <https://www.gazette.gc.ca/rp-pr/p1/2023/2023-08-19/html/reg1-eng.html>.
Matthew Keen, Michael Manhas and Emma Russell, “Federal government releases draft Clean Electricity Regulations,” (10 August 2023), online: <https://www.nortonrosefulbright.com/en-ca/knowledge/publications/40962bd7/federal-government-releases-draft-clean-electricity-regulations>.
Alberta, Legislative Assembly, Hansard, 31st Leg, 1st Sess, No 13 (27 November 2023) at 356-357; Jeremy Simes, “Provincial government uses Sask. First Act for 1st time to review federal electricity regulations,” CBC News, (28 November 2023), online <https://www.cbc.ca/news/canada/saskatchewan/saskatchewan-first-act-clean-electricity-regulations-1.7042841>.
Report, pp. 7-9.
Publication
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
Publication
Artificial intelligence (AI) raises many intellectual property (IP) issues.
Publication
We are delighted to announce that Al Hounsell, Director of Strategic Innovation & Legal Design based in our Toronto office, has been named 'Innovative Leader of the Year' at the International Legal Technology Association (ILTA) Awards.
Subscribe and stay up to date with the latest legal news, information and events . . .
© Norton Rose Fulbright LLP 2023