ONTARIO NEWS

By David Crocker and Zoë Thoms

Bill 150, The Green Energy and Green Economy Act, 2009 (“GEA”) proposes, among other things, to change significantly the process of obtaining environmental (and Planning Act) approvals for renewable energy projects. It leaves open the question of whether the steps presently required to obtain environmental approvals really result in environmental protection or merely represents a complicated, convoluted process which masks any tangible environmental impact. 

            Once implemented, the GEA will have a material impact on almost everyone in Ontario. The changes could substantially reshape the province’s energy infrastructure, create new opportunities for businesses and individuals and impose new costs on ratepayers. One significant change envisioned by the GEA is a streamlined approval process for renewable energy projects. Smitherman has promised “one window, one permit” for such projects. A new “Renewable Project Approval” is to be created in place of the requirement to obtain Certificates of Approval (“CoA”) under the Environmental Protection Act. As well, the government has signalled that qualifying projects will be exempt from environmental assessments.[iii] This new approach to renewable energy project approvals will considerably change the regulatory landscape for those working in the area. The government is banking on this streamlined approvals process contributing to an increase in renewable energy projects.

The Existing Provincial Approval Process

The GEA exempts qualifying renewable energy projects from the requirements of the EA Act.  The EA Act creates a planning/approval process which is an impediment to development in Ontario for a number of reasons. In the first place, a planning model was developed to implement the provisions of the EA Act which was virtually impossible for proponents to comply with because, among other things, it relied so heavily on the input of the public, particularly with respect to “process” rather than “substantive technical” issues. Proponents lost their attempts to have environmental assessments approved not because they were technically unsound, but because they had not sufficiently satisfied the planning process.

            The Environmental Protection Act requires a proponent of a project or an alteration to an existing facility to obtain CoA for facilities that release emissions to the atmosphere, discharge contaminants to ground and surface water, or store, transport, process or otherwise dispose of waste.[iv] Wind and solar farms, for example, may require a CoA for noise, while a biomass fuel project may require a CoA for air emissions and waste handling. CoA address the site specific considerations relevant to the proposed project, provide enforceable requirements that ensure the protection of human health and the natural environment, ensure compliance with legislation and policy guidelines, and address any other issues that fall within the mandate of the Ministry of Environment.

            Part of the CoA evaluation process includes an opportunity for public participation and consultation. With some exceptions, proposals are posted for 30 days with a project description on the Environmental Registry[v] for public review and comment.

            At present, the official plan and zoning bylaws of any host municipality of a renewable energy project also must be complied with, either through project development or project approvals such as official plan or zoning amendments. The Planning Act generally requires some public consultation for these land use applications. As well, municipalities also have to approve and issue any necessary building permits. These municipal powers can greatly impact the ability to get a project off the ground. For example, some municipalities have passed temporary moratoriums on wind farms or delayed wind farm projects while health and safety studies are conducted.

The New Renewable Energy Approvals Process

To streamline the provincial approvals process for renewable energy projects, the Ministry of Environment and the Ministry of Natural Resources plan to collaborate and co-ordinate their requirements and offer a service guarantee; projects are to be fully permitted within six months of applications being made, as noted below. Renewable energy projects would not be subject to requirements under the Planning Act or, in most cases, the EA Act. Further, a coordinated environmental registry posting process would be implemented.

            As well, a renewable energy facilitator located within the Ministry of Energy and Infrastructure will be established. This office will be the first point of contact for proponents, guiding them through the approvals process and raising awareness of federal requirements with the goal of making green energy projects move forward faster.[vi]

A renewable energy project will also be exempt from approval requirements under the Ontario Water Resources Act and Clean Water Act, 2006 and shielded from some of the discretionary powers under the Conservation Authorities Act. Minister Smitherman promises that a properly prepared application will be approved within six months.[vii] The actual substance of such an application will be described by regulation.

The GEA provides that the decision of the director to grant a Renewable Project Approval may be appealed to the Environmental Review Tribunal. The person requesting such a hearing, however, bears a heavy onus to demonstrate that carrying out the proposed project in accordance with the Renewable Project Approval will cause serious and irreversible harm to plant life, animal life, human health or safety or the natural environment.

   The new Renewable Energy Facilitation Office will be the “one window” for provincial assistance with renewable energy projects, with a mandate to facilitate project development, assist proponents in satisfying provincial requirements, and alert proponents to applicable federal requirements. Subject to rules about confidentiality and secrecy, the Renewable Energy Facilitator will be permitted to share information provided by project proponents among Ontario government ministries.

Conclusion

As lengthy and expensive as the traditional approval processes in Ontario have been, they were designed to be protective of the environment. The approval process, whether under the EA Act or the Environmental Protection Act or any of several other somewhat less important environmental statutes in Ontario has actively encouraged the participation of the interested public. The MOE has consciously made public participation one of the most important features of the approval process. In one fell swoop the GEA proposes to remake the approval process as it relates to renewable energy projects.

            The Ontario government’s sudden and drastic change in its approach to the approvals process is startling. What safeguards to environmental protection are being eliminated? Is our rush to encourage the proponents of renewable energy projects to build them in Ontario sacrificing real environmental protection, or were the approval processes described above a salve to the public which can be cast aside without any impact on the environment? There are real questions posed by the GEA.