Law Times

Law Times • November 22, 2010 FOCUS PAGE 11 Carbon capture among new regulations ROUNDUP BY JULIUS MELNITZER For Law Times FINANCING THE SOLAR REVOLUTION What the Ontario feed-in tar- iff program really means is that the province will be fi nancing the solar revolution through preferential pricing. "In other words, generat- ing solar power would not be economical but for the market subsidies provided by govern- ment," notes Dennis Mahony, head of Torys LLP's environ- mental, health, and safety prac- tice group. "But the thinking is that once the private sector en- gages, solar power will be more economical over time largely due to economies of scale, like what happened with fl at-screen televisions." A developing carbon mar- ket, of course, would also go a long way to making solar en- ergy economical. "Th e diffi culty is that we don't know whether that's go- ing to happen any time soon," Mahony says. "Passing appro- priate legislation is proving to be a diffi cult endeavour." TILTING AT WINDMILLS Ontario's Green Energy Act, passed in 2009, created new rules aimed at making it easier to develop wind farms without a plethora of red tape. But there's a signifi cant fl aw in the process, according to one lawyer. "Th e legislation contem- plates that anyone can appeal provincial approval of any wind project to the Environ- mental Review Tribunal," says Aaron Atcheson of Mill- er Th omson LLP's London, Ont., offi ce. "And they can do so whether their opposition is local or not." Th e new process allows project proponents to seek ap- proval from a centralized body instead of going to a plethora of local and provincial authori- ties. But the loophole in the law allows the anti-wind move- ment to challenge and drive up the costs of almost any project, Atcheson says. "Th ere ought to be a leave process to determine whether an appeal has any merit." Still, the single appeal pro- cess may be preferable to the many appellate options — in- cluding through proceedings at the Ontario Municipal Board and under the Environmen- tal Assessment Act — open to objectors under the previous regime. As it turns out, the Minis- try of the Environment takes the position that actual hear- ings will only take place if a project could do serious harm to human health or the envi- ronment. But then there are the cre- ative lawyers. Eric Gillespie of Toronto's Cunningham & Gillespie LLP has, for exam- ple, sought judicial review of provincial wind-farm rules on 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. LT1122 www.lawtimesnews.com LT0920 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 • tax • securities law and disclosure Co-authored by leading lawyers and academics from across North America 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 ORDER YOUR COPY TODAY Looseleaf • $320 • Subscription updates invoiced as issued (2/yr) P/C 0268030000 • ISSN 1920-695X behalf of a farmer objecting to a proposed development in Prince Edward County. Th e Divisional Court is expected to hear the case in January. While some lawyers think the application has little chance of success, the Canadian Wind En- ergy Association thought it was signifi cant enough to seek inter- vention, which was granted by Justice Katherine Swinton of the Ontario Superior Court. In her reasons, Swinton opined that the success of the application would mean that new wind-turbine construction in Ontario "will be eff ectively halted for an indeter- minate period of time." EMERGING PRACTICE AREA Even without solid regulations, climate change is becoming an increasingly important practice area for lawyers. "Th e law of climate change is no longer an esoteric sub- discipline of an environmental Dennis Mahony is editor of a new book on laws related to climate change in Canada. or energy law practice but al- ready an important part of the legal landscape for mainstream commercial lawyers, including tax, corporate fi nance, and se- curities lawyers," says Mahony of Torys. "And given the nature of the underlying issues and the global policy momentum that has been building for nearly 20 years, it is sure to become much more im- portant over time." As it turns out, Mahony put his money — or at least his non-billable hours — where his mouth was. He spent 18 months producing Th e Law of Climate Change in Canada, a 19-chapter, 1,100-page loose- leaf text published by Canada Law Book. He is the book's ed- itor and co-author of a number of chapters with a team of aca- demics and lawyers from across Canada and the United States. "At its core, the book puts the meat on the bones of the asser- tion that the legislative responses to the threat of climate change are already aff ecting the prac- tice of virtually every business law discipline in a material way," Mahony tells Law Times. ALBERTA REGULATES CARBON STORAGE Th e Alberta government has tabled legislation that would make it the fi rst Canadian prov- ince to comprehensively regu- late large-scale carbon-capture and storage projects. Bill 24 would make Alberta the owner of subsurface pore spaces to store carbon dioxide. Th e province would assume long- term liability for injected gas after project operators ensure they've contained it. Th ey would also pay into a fund for monitoring and remedying any underground car- bon dioxide storage sites. Alberta Energy Minister Ron Liepert said the legislation keeps the province on track to reduce greenhouse gas emissions. He also said the legislation will help double conventional oil recovery and thereby generate billions in revenue for the province. LT

• Cover
• Libel Ruling Appealed
• Double-dipping
• Focus On Environmental Law