First net-zero lawsuit won’t be the last

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by Terence Corcoran
in the Financial Post
June 24, 2022
In what is shaping up as the first major legal confrontation over government plans to shut down fossil fuel industries in Canada, Montreal-based Utica Resources this week filed a 114-page suit against the Quebec government demanding $18-billion in compensation.
Utica is one of several companies that invested tens of millions of dollars exploring for gas in the province. The discovery of massive shale gas resources offered industry and the province an opportunity to place Quebec among the top natural gas producers in the world.
That promising future was quashed last year, however, when Quebec Premier Francois Legault’s nationalist government pushed through legislation — Bill 21 — described as an act “to end petroleum exploration and production.” The act, the most brazen net-zero carbon prohibition in the world, was approved by the provincial legislature in April, much to the delight of green activists.
But now the fossil fuel companies who discovered the gas reserves are striking back. Utica is the first to put a dollar value on the compensation it is seeking: $18-billion. Other companies will also be filing suits for billions more, potentially setting the province up for massive cash liabilities as a result of its carbon-neutrality policies.
In a statement Wednesday, Utica CEO Mario Levesque said, “We will defend our rights so that this disguised expropriation, the public utility of which does not exist, is compensated at the fair value of our properties.” Levesque said an independent expert has concluded that “Utica’s properties would generate $67-billion in future profits (net value of recoverable resources in place), the equivalent of $18 billion in net present value using the discount rate of the Court.”
Another company with major gas reserves in the province, Calgary’s Questerre Energy, is also moving forward with legal action seeking multi-billion-dollar compensation. Michael Binnion, Questerre CEO, describes the Quebec shutdown of fossil fuels as worse than expropriation. “I call it confiscation,” he said in an interview. Statistically, he said, “half the Russian exports of gas to Germany could be replaced by our discovery in Quebec.” He said Questerre holds 21 trillion cubic feet (tcf) in resources. A rough rule is that each tcf is worth $1-billion for a total of $21-billion.
An unofficial English translation of the 114-page Utica lawsuit documents the role the government played in supporting the exploration activity. In 2019 the province’s energy department boasted about the potential. “Eventual production of hydrocarbons in Quebec would reduce imports and improve the balance of trade. This creation of wealth and jobs could be used to the benefit of Quebecers.”
Backed by activists, the province then abandoned the industry and converted to a full-bore net-zero carbon emissions program. The cost of that conversion could be high if the courts support the legal arguments of the industry. Utica describes the fossil fuel shutdown as a breach of Quebec’s charter of rights and civil code which requires compensation when property rights are violated.
The province’s energy minister, Jonatan Julien, said the government is prepared to offer $100-million as compensation, intended as a return of at least part of the exploration and development costs but making no provision for the value of the assets found. In accounting terms, the companies want fair market value for the fossil fuel assets they found, based on net present value calculations.
The political and economic argument could drive the legal case in favour of the corporations. Hypothetically, what happens five years from today when government policy changes and fossil fuel production is allowed? Having confiscated the assets via zero-cost expropriation, the government would then be in a position to reap hundreds of billions in financial reward that rightly belonged to the companies and their investors.
As Levesque put it: “For years, the Quebec government had invited us and others to invest in order to explore and extract Quebec’s oil and gas resources. We acted in good faith, found local and foreign investors and respected all of Quebec’s regulatory requirements. Then from one day to the next, the government changed its mind for political reasons and effectively expropriated our properties without proper prior compensation.”
Could the first net-zero lawsuit alter the future of net zero?