The Green Energy Act has begun to kick start a new era for renewable energy in Ontario.
Entrepreneurs and community groups that have banded together to form their own companies, have been building renewable energy projects in Ontario since 2003, when the Ontario Power Authority (OPA) began paying premium prices for renewable electricity. Since 2003, the Ministry of the Environment (MOE) has approved construction of approximately 91 renewable energy projects, including 45 wind, six solar, 23 bio-energy, and 17 water projects – about 15 a year. On top of the traditional large-scale hydro-electric plants, Ontario now has approximately 1,275 mega watts of renewable electricity generation.
Approvals for two major new solar farms were issued in December. Many other projects, however, were stalled.
Now that the Green Energy Act is in force, the pace is picking up. One key promise of the act was to fast-track and simplify renewable energy project approvals.The act therefore established a new system of more-or-less one-window approvals for renewable energy projects, called "renewable energy approvals" (REA), to be issued by the MOE renewable energy projects which hold REAs will be exempt from all municipal controls, such as official plans, zoning bylaws, site control bylaws, etc.
The GEA also set up a new system of premium prices for generators of renewable energy. The new system is called a Feed in Tariff (FIT), and is designed to ensure that generators make a profit for 20 years. As a result, the OPA received more than 1,000 applications last fall from applicants wanting to generate 8,000 MW of renewable power. The majority of projects were wind (79%), with 16% solar and 5% other (such as biogas, biomass, water). Applicants will learn soon which projects have been accepted, depending on when they applied and how much capacity is available on their local electrical grid. The first round of FIT contracts should produce 2,500MW of electricity, along with over $5-billion in spending in the design, construction, and installation of the projects.
In addition, Samsung has contracted to build 500MW a year for five years.
As soon as the contracts are awarded, the Ministry of the Environment is expecting 500 to 800 renewable energy approval applications. In preparation, an approvals team has been assembled. Amid extensive internal consultations and 150 pre-submission meetings, the necessary forms are being released; technical guidance documents will be published soon.
The MOE hopes to issue the first REA by March 31, to a project that was already well underway when the new act came into force. Many other REAs should roll out over the next year or two.
REAs for major projects, like large wind, solar, or biogas, will involve an elaborate process of consultation with the public, with municipalities, with other regulators, and with First Nations. At a minimum, the public will have two public meetings and an opportunity to review all necessary studies in draft, all before the application can be filed with the MOE. The MOE has promised to decide all applications within six months, one way or the other.
Public resentment
That rapid change in rules is bitterly resented by some. About 40 municipalities have already passed resolutions opposing large wind projects on their territory, even though (or perhaps because) they know those resolutions have no legal effect.
Some lawyers argue that municipalities still have power to block unpopular wind turbines. They point to broad municipal powers to regulate a "nuisance," to the greater deference municipalities now receive from the courts, and to the absence of anything in the act about the law of nuisance.
That notable omission was contrary to the advice of the Ontario Bar Association, and could create problems for renewable energy proponents.
But the province could block all such municipal efforts with regulations under s. 5 of the act, comparable to the regulation now used to protect certain clotheslines from private and municipal controls.
Meanwhile, the Ministry of the Environment continues to roll out new rules and proposals for other details of our renewable energy future, such as:
– the numerous approvals issues associated with transmission;
– the fees to be paid for renewable energy approval applications; and
– much more detail on the requirements for offshore wind.
Very small wind and rooftop solar projects will not need REAs, and can be built almost anywhere; all they need is a building permit. Nearly1,200 of those "microfit" projects have been proposed, mostly by homeowners, farmers, churches, and small businesses. In total, those projects would generate around 8.6MW of electricity – enough for 1,000 homes.
Seven hundred of those projects have already received contract offers from the OPA, and should be built soon.
This article is by environmental law specialist Dianne Saxe, one of the top 25 environmental lawyers in the world.
