Law Times

PAGE 10 But obstacles remain despite efforts to cut red tape FOCUS Green energy gets boost BY DARYL-LYNN CARLSON For Law Times O ntario's Ministry of the Environment has made regulatory changes in order to make it easier and more expeditious for green energy providers to receive government approval for their projects. Under regulations introduced last fall to accompany the prov- ince's Green Energy and Green Economy Act, Ontario's Liberal government has signaled its in- tention to modernize the ap- provals process to resolve chron- ic obstacles that have left many applications bogged down in red tape. Further regulatory amend- ments, prescribed last fall, include means to exempt alternative en- ergy applicants from environ- mental assessment requirements under the Environmental As- sessment Act. Th e idea is to consolidate proceedings under the Environmental Protection Act into a single renewable en- ergy approvals process and place limits on municipalities under the Planning Act to minimize their obligations within the pro- cess so projects can move for- ward more quickly. "Th e Liberal government, for quite some time, has been making noises that it's open for business," says David Crocker, a partner and environment law practitioner at Davis LLP in Toronto. Crocker, who practised as a Ministry of the Attorney Gen- eral representative for Ontario's Ministry of the Environment in the early 1980s, commends the act's introduction as a milestone that delivered a message that the province is indeed embracing the alternative energy sector. But he also says government red tape has been stymieing the very projects the legislation aims to facilitate. Despite moves to cut red tape, David Crocker says require- ments under the Environmental Assessment Act remain a con- cern. "I think the government sees the next step in modernizing the approval process, which has heretofore been a clear impedi- ment to business development in Ontario." Essentially, the amendments set out to fast-track projects that present less risk while streaming those that require a more thor- ough assessment into a compre- hensive review process. Th e amendments will also be the subject of public consul- tations beginning next month. Crocker, however, says the amendments don't resolve all of the impediments to innovators of alternative energy projects. "Th e downside to this is that I don't believe it addresses a signifi - cant and large hurdle that still re- mains under the Environmental Assessment Act," he says. "Th at's a big problem area that also needs to be addressed." As a result, he hopes the consultation process will yield constructive feedback on that subject. "My expectation or hope is that after the consultation pro- cess is concluded, the approval process will no longer be an im- pediment for sectors that need approvals for air emissions, waste management issues, and all other areas that need approv- als as well as the green energy sectors," he says. "Th ey have a long way to go, but hopefully this will con- tinue. In almost every other jurisdiction in North America, it is easier to get approvals, so I hope that this modernization program will take Ontario a long way towards having a more responsive approvals process." Nevertheless, he adds: "I still worry that the environmental approval process doesn't seem to be fully addressed here." Aaron Atcheson, a partner and environmental lawyer with Miller Th omson LLP in Lon- don, Ont., agrees the amend- ments don't resolve many of the challenges that are delaying green energy projects. "Th e more complicated or larger the project is, there are more requirements, so people will still be dealing with many of the same issues," he says. Atcheson was part of several The Law of Climate Change in Canada 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 & binder • $320 Releases invoiced separately (2/yr) P/C 0268030000 • ISSN 1920-695X groups that submitted recom- mendations to the province urg- ing for limitations on a munici- pality's power to delay a green energy project. Despite the changes, he says there are still av- enues for residents to object to a project even if it isn't located any- where near their community. "When there is a renewable energy approval granted, there's the ability for any resident of Ontario to appeal it," he says. "You don't need to be, for example, located within the community where the project has been proposed. Th e provi- sion allows for any resident in Ontario to appeal a project. So a wind farm in Chatham can be appealed by a resident in Ottawa under the legislation." An appeal of a renewable energy approval would come before the Environmental Re- view Tribunal and, of course, require the project developer to retain counsel to ensure proper representation, says Atcheson. While the threshold to suc- ceed on appeal is quite high, the criteria for initiating an appeal are not. As a result, Atcheson expects people will launch objec- tions simply because they can. Ultimately, he says the rules could render larger alternative energy projects incredibly ex- pensive to get through the ap- proval process. "I think, unfortunately, it's For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Mahony_Law of Climate Change (LT 1-2x4).indd 1 www.lawtimesnews.com LT0329 3/24/10 11:32:00 AM likely there will be people who will appeal, on a philosophical basis, every approval on every wind farm, and all of these de- velopers and project proponents are going to have to prepare for a full hearing on the facts," Atcheson says. "Th ere will prob- ably be a couple of people who will appeal every approval on every wind farm, for example. So it could render some of these projects uneconomical." LT March 29, 2010 • Law TiMes Editor: Dennis E. Mahony W ith contributions from a team of leading lawyers and academics from across Canada and the U.S.

• Cover
• Gearing Up
• Cutting Red Tape
• Focus On Energy/Environmental Law