Law Times

PAGE 12 FOCUS November 23, 2009 • Law Times Green Energy Act takes decisions away from municipalities Government aims to streamline energy approvals O BY DARYL-LYNN CARLSON For Law Times ntario is making moves to implement long-awaited legisla- tion that will facilitate alterna- tive energy development. Th e province's Green En- ergy Act received royal assent last May, while provisions that will enable the government to put the rules into action got approval in September. Th e legislation aims to ex- pedite dozens of wind, solar, biomass, biogas, and other re- newable energy projects across the province. Lawyers who practise in the fi eld are generally pleased with the law, noting it could serve to streamline approvals beyond the purview of municipal rules. "Th ey've taken all renew- able energy projects out of the hands of municipalities by re- moving all of the planning re- quirements, whereas previously you might have needed to ac- quire approval" locally, says Paul Manning, a partner and environmental law specialist at Willms & Shier Environmen- tal Lawyers LLP in Toronto. In an overview of the legisla- tion posted on the fi rm's web site, he noted that "the prov- ince also established a one-stop Ontario renewable energy facilitation offi ce to get proj- ects off the ground faster, fi nalized its feed-in tariff program to ensure the long- term fi nancial stability of re- newable energy projects, and launched two funding pro- grams for First Nations and Métis communities interest- ed in developing and owning renewable energy facilities." He pointed out as well that the province has in- cluded signifi cant incentives for First Nations and Métis communities to benefi t from job creation and economic development opportunities. "Th e $250-million ab- original loan guarantee pro- gram will allow communities to assume equity participa- tion in renewable generation and transmission projects," he wrote in his article. "Th e program will provide loan guarantees for up to 75 per cent of an aboriginal cor- poration's equity in an eligible project," he continued. "In addition, the aborigi- nal energy partnerships program will create an aboriginal renew- able energy network and pro- vide funds for the development of community energy plans, feasibility studies, technical re- search, and business cases." Some government estimates peg the number of jobs that Launched by Ian Hanna, a private citizen from Prince Edward County, the action is seeking a judicial review of the Green Energy Act. Dr. Robert McMurtry, for- mer dean of medicine at the University of Western On- tario, has substantiated those claims. He has put the num- ber of people suff ering adverse health eff ects from industrial wind turbines at more than 100 in Ontario alone. Th at challenge prompts Dianne Saxe, a specialist in environmental law who has her own boutique practice in Toronto, to wonder whether the government will be able to meet its proposed time- lines for renewable projects. Saxe notes that under a The Green Energy Act should stream- line approvals of renewable energy projects by taking away municipal planning requirements, says Paul Manning. could result at 50,000. Yet Manning says there are still many kinks to work out regarding the legislation's per- ceived application. For instance, he says he met recently with a noise consultant who pointed out that there are "demonstrable adverse aff ects" from wind farms located any- where near a residential com- munity due to the exceptional- ly low frequency of the sounds they generate. Th ere has also been legal ac- tion launched over the adverse health eff ects of wind turbines. regulation approved in Sep- tember, complete applica- tions for renewable energy projects are to get expedited approvals. Th e new regula- tions include guidelines for wind projects along with consultation requirements. "Th e approvals branch has promised to make decisions on renewable energy projects with- in six months after a complete application is fi led," notes Saxe. Yet she acknowledges the provincial bid to streamline approvals is "incredibly ambi- tious" even though the govern- ment requires a "very detailed list [of] what they want to see in the application." Th e true test, however, will be whether any applications submitted in September get approval by March. But in the long term, lawyers expect it's only a matter of time before legislators or the courts work out the kinks in emerg- ing environmental legislation. "Th is stands to have an im- pact on all industries — manu- facturers, developers, and many other sectors," says David Young, a partner at Lang Michener LLP whose practice includes energy and environmental law. He notes lawyers at his fi rm have been working to educate clients about compliance with the law. "Soon we'll see that in Canada, all legislation related to the environment will put a limit on emissions and restric- tions on business, and clients from all across the spectrum will be impacted. "It will be a seismic shift in how clients do business." But he adds that while law- yers stand to gain work in ad- vising clients on the laws, the rationale having them in the fi rst place is a good one. "We've used so much of the environment for free, and it isn't free," says Young. "Th e environ- ment, in economic terms, is called a public good, but by def- inition a public good was never paid for unless it was quantifi ed through a government initia- tive. People just used it." Now, though, society has per- haps received a rude awakening. "Now we know that for the environment, there is a cost," he says. "We know there is a cli- mate cost to the world, a food production cost, and a cost to the health of individuals. Th at should say something." LT Energy Regulation in Ontario EARLY BIRD SPECIAL prices as low as $ based on standing order of 100 copies or more 53 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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Prices subject to change without notice, to applicable taxes and shipping & handling. LT1123 • the substantial revisions, repeals and additions made to the regulations under both Acts • the significant changes to the Market Rules made by the Independent Electricity System Operator • summaries of the major decisions made each year by the Ontario Energy Board on both the natural gas and electricity fronts, keeping you up to date This is a must-have resource for anyone in the energy sector who wants to successfully navigate through this complex regulatory landscape. 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• Cover
• Sponsorship Woes
• Biting Letters
• Focus On Environmental Law