Toronto: Three leading power generator associations in Ontario took common positions on the Green Energy Act in submissions made on March 26. Responding to an invitation for input through Ontario’s Environmental Bill of Rights registry, the Ontario Waterpower Association (OWA), the Canadian Wind Energy Association (CanWEA) and APPrO highlighted three immediate concerns:
1. Maintaining current approach to environmental assessments, rather than creating new risks of elevated reviews
2. Expand the scope of the new Renewable Energy Approval to include required approvals under the Ministry of Natural Resources
3. Make the new Renewable Energy Facilitator responsible for reporting annually on progress.
The submission made the following specific comments:
1. Maintain Ontario’s current prudent approach to environmental hearings
For many years in Ontario, environmental approval hearings have been recognized as an inefficient last resort, in part because of the experience in the late 1980s and early 1990s with seemingly endless environmental hearings that too often produced unsatisfactory results. While it is true that in rare cases, the time and expense of a hearing is necessary, reducing the frequency of hearings has been one of the principle thrusts of previous waves of government streamlining initiatives, particularly with respect to private sector energy development and environmental assessments. Currently the much more costly and time consuming Individual EA process (and the attendant hearing risk) is a remote possibility for most private sector energy projects because it is available only at the discretion of the Minister of the Environment, and that discretion has been exercised with caution.
… [T]he current process for third party appeals of approvals issued under the EPA and the OWRA provides a threshold process (through the Environmental Bill of Rights) designed to screen out proposed appeals that do not merit the time and expense of a full hearing – in short, a party must first demonstrate the basic merits of its case (through a leave-to-appeal application) before it will be granted a hearing. The Bill appears to trump that leave process entirely by providing a new third party appeal as a right, and in so doing eliminates the obvious benefits of a screening level review of the merits of each proposed appeal. As importantly, that third party right would not only apply to the subject matter that is now part of the OWRA and EPA approval process but also to the considerations that are currently assessed through the EA process (but will be incorporated into the new Renewable Energy Approval process). As a consequence, the proposed amendment would mean an automatic EA (plus) – type hearing for any third party that requests it. That in our submission is a dramatic step backward, and frankly ignores the hard-earned wisdom reflected in Ontario’s current cautionary approach to environmental hearings.
Recommended amendment:
It is recommended that the proposed new appeal right (schedule G, Environmental Protection Act, section 142.1) be amended to reflect the following approach:
“An interested person who has directly participated in the planning of the project … may, by written notice served upon the Director … request that the Director consider referring the renewable energy approval to a hearing before the Tribunal. The Director, at his/her discretion, may grant such a request in relation to a renewable energy approval only where the Director reasonably believes, based on evidence provided by the interested party, that the approval will cause serious and irreversible harm to plant life or animal life of provincial significance or human health or safety.”
2. Incorporate all relevant provincial approvals into the “Renewable Energy Approval” model
While it is apparent in the proposed legislation that the approvals required for a renewable energy project under the authority of the Ministry of Environment (MOE) are to be integrated, the same cannot be said for those under the legislative authority of the Ministry of Natural Resources (MNR). This exclusion (Schedule L, clause 6) is of particular relevance to waterpower projects that are, without exception, subject to the provisions of MNR’s legislation (Beds of Navigable Waters Act – vesting ownership of the beds and banks of navigable waterways and attendant riparian rights in the Crown; Public Lands Act, governing the disposition of rights to Crown resources; Lakes and Rivers Improvement Act, establishing the requirements for the location and works within waterways).
Consistent with the “one window” approach to enable renewable energy projects, and provided that the recommended appeal provisions are amended, as suggested above, MNR’s interests must be integrated into the proposed “renewable energy approval”.
Recommended amendment (MNR Act):
13.2 The Minister may require that that the proponent of a renewable energy project, as defined in section 1 of the Green Energy Act, 2009, provide to the Minister the information that the Minister considers necessary to inform the decision of the Director under Section 47.5 (1) of the Environmental Protection Act.
13.2 (1) The Minister shall issue a permit or approval under an Act for whose administration the Minister is responsible under the Executive Council Act within 180 days of the issuance of a renewable energy approval under the Environmental Protection Act.
3. Empower the Office of the Renewable Energy Facilitator
While the establishment of the Office of the Renewable Energy Facilitator (Section 10 (1) GEA) is welcomed, it is unclear how the office will hold to account the achievement of the province’s renewable energy objectives as presumed in the Act. Given the prospect that project-level decision making will reside outside the legislative authority of the Ministry of Energy and Infrastructure, it is imperative that this office have ultimate responsibility for reporting on progress. It is therefore strongly recommended that such requirements be added to the objects of the office.
Recommended amendment (GEA):
10 (2) 1. ‘To facilitate the expeditious development of renewable energy projects and to report annually to the Minister on the achievement of the renewable energy objectives of the Act, including the identification of impediments thereto.’