Law Times

PAGE 12 FOCUS March 28, 2011 • Law TiMes Ontario releases guide for renewable energy O BY ROBERT TODD Law Times ntario has introduced a new guide to assist ap- plicants for renewable energy projects, but concerns are being raised about its inability to lend certainty to an approval process that leaves some propo- nents feeling left out in the dark. Henry Krupa, counsel at McMillan LLP, notes it should be considered a positive devel- opment whenever a government puts its policies in writing as the province has with the Natural Heritage Assessment Guide. Th e former director of legal ser- vices for Ontario's environment and energy ministries notes the government is always chal- lenged to balance a wide range of interests, and private-sector lawyers are perhaps too quick to poke holes in policies. Having said that, Krupa believes the guide "seems to have been elevated to something more than a guide. It seems to have been elevated to almost a regula- tion" in terms of its importance. Th e guide aims to address OntariO Lawyer's PhOne BOOk 2011 Your most complete directorY of ontario lawYers, law firms, judges and courts with more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in ontario. subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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According to information posted on the prov- ince's online environmental reg- istry, the guide off ers technical guidance for applicants in the following ways: • It provides a standardized approach to the assessment and evaluation of natural heritage features for renew- able energy projects. • It outlines the Ministry of Natural Resources' procedures for completing assessments. • It provides information on mitigation approaches. • It uses an existing approach based on the ministry's natural heritage reference manual. While Krupa applauds the government's intentions with the guide, he has some administrative concerns with how it operates. He points out that the Ministry of the Environment renewable energy program director's deci- sions are susceptible to appeals, and the ministry must abide by specifi ed regulatory timelines. Th at structure creates impor- CANADA LAW BOOK® tant certainty for the private sec- tor. But the Ministry of Natural Resources' guide departs from that goal, he suggests. "You get into the heritage as- sessment guide here and you're put into potentially the most OLPB - 1-4 page 3X.indd 1 3/9/11 3:47:23 PM The guide 'seems to have been elevated to almost a regula- tion,' says Henry Krupa. overworked part of any ministry, which is the local offi ce," Krupa says. "Th ere are so many demands upon the people in the fi eld, and it's the local offi ce that basically reviews the submissions for the evaluation of signifi cance, the heritage assessments. It reviews all of the materials, including the environmental impact as- sessment, and has to make its determination. And there aren't any guidelines, and to the best of my knowledge, timelines, to turn that all around." Meanwhile, the guide also includes a section covering envi- ronmental impact assessments. Krupa points out the public con- sultation process increasingly af- fects appraisals handled under the Environmental Assessment Act, yet the guide doesn't men- tion the need for proceedings to be subject to public input before submission to the ministry. Krupa reluctantly assumes that local offi ces will know which requirements they should attach to individual proposals in their communities but he's uncom- fortable with that approach. "I look at natural justice and, THE LAW OF CLIMATE CHANGE IN CANADA Editor: Dennis E. Mahony With contributions from a team of leading lawyers and academics from across Canada and the U.S. AN ESSENTIAL TEXT FOR THOSE DEVELOPING EXPERTISE IN CLIMATE CHANGE LAW This is the first and only resource to provide an in-depth description and analysis of the complex and ever expanding array of domestic and international laws and initiatives addressing climate change in Canada. Containing comprehensive coverage of provincial and federal legislation and policy developments from across Canada, The Law of Climate Change in Canada also describes in detail some of the many emerging climate change law sub-disciplines, including: • • • carbon finance litigation real property Co-authored by leading lawyers and academics from across North America Looseleaf • $320 • Subscription updates invoiced as issued (1-2/yr) P/C 0268030000 • ISSN 1920-695X The editor, Dennis Mahony, is widely regarded as a leading expert in this complex and emerging new field. He has recruited an exceptional group of lawyers and academics from across Canada and the US to ensure unrivalled subject matter breadth and depth. Stay on top of the latest legal developments and manage emerging issues • • tax securities law and disclosure if you are the proponent, you'd like to know what is being said, what arguments are being made, and what you could do better," he says. "Th ere doesn't seem to be that middle ground in this." To illustrate his point, Krupa off ers the example of a propo- nent that must complete a full environmental impact assess- ment. Such an applicant will compile a natural heritage assess- ment and evaluations of signifi - cance before submitting a fi nal- ized document. At that point, the application "disappears into a bureaucracy," Krupa notes. "You don't know what's going to come out. You have no oppor- tunity to respond to it, you have no opportunity to tweak your en- vironmental assessment." For Th omas Timmins, a part- canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT0117 www.lawtimesnews.com ner at Gowling Lafl eur Hender- son LLP, environmental approv- als have come a long way in the past decade. Like Krupa, he also views the guide as a generally pos- itive development, albeit one that comes with certain downsides. "Ten years ago, when we were speaking to the Ontario govern- ment, it was like we were speak- ing Greek," says Timmins. "Now the ministries are responding."

• Cover
• Evidence Tossed
• Duty To Consult
• Focus On Energy Law/Environmental Law