Green Energy Act Amendments

Ontario Bar Association members from the Environmental, Municipal, Aboriginal and Natural Resource sections put in more than 100 hours on short notice, to prepare and present detailed comments on Bill 150, the Green Energy and Green Economy Act. This Act will transform how electricity in Ontario is generated and used, and also what it will cost. As reported previously, our submission to the Legislative Committee on General Government was very well received, and resulted in numerous amendments. Some readers have asked for details on how the amendments responded to our recommendations. As we aim to please, here they are:

We recommended:

1. Provide how land-use and common law conflicts with approved renewable energy projects should be resolved; don’t leave this to the courts. Government response: New structure for consultation with municipalities and with other interested ministries. Broader grounds for appeal, including serious harm to human health. Funding and assistance for community groups. Funding for municipal participation. More regulations on siting. No express consideration of common law rights such as nuisance.
2. Provide how constitutional objections will be managed, including those relating to aboriginal claims. Minister to give directions to OPA on participation of aboriginal peoples. The fundamental issue has been left to the courts.
3. Temporary structures to collect information should be exempt from municipal controls such as zoning. Done. See new definition of “renewable energy testing facility” and section 4 of the Green Energy Act.
4. Reconsider adopting the definition of “environment” from the Environmental Assessment Act. No response.
5. Specify what changes to a renewable energy project require an amendment to the approval. To be addressed later.
6. Incorporate other provincial approvals relevant to small hydro projects, after a phase in period. Can be done by regulation.
7. Include the proposed service guarantee in the Act. Don’t permit the MOE to start and stop the clock, except for constitutional objections and the provincial interest. Not addressed in the Bill. However, MOE Approvals advises that they have already been instructed: once the clock starts, they can’t stop it.
8. Include transitional provisions for projects already in, or through, the approvals pipeline. Done. See 62.0.2 (7), the regulation making authority under the EPA, and other provisions called “transition”.
9. Clarify who will own the environmental attributes that will be generated by renewable energy projects. They are thinking about it.
10. Explain the objectives to be achieved by the proposed differential feed in tariffs. To be addressed by ministerial directives to the OPA – see new 25.35 (2) of the Electricity Act Monitor and report periodically on whether these objectives are being achieved. Done. See 27.2 (5.1) the Ontario energy Board act
11. Establish clear rules to prevent abuse of preferential tariffs, such as the community rate. Ditto
12. Consider a low income energy rate assistance program. Done. See section 1 of schedule D.
13. Ensure there is sufficient transmission / distribution capacity. Addressed to a limited extent. Transmission capacity directly related to a particular renewable generation project will be included in the renewable energy approval. Transmission/distribution cost recovery added to section 78 (3.0.5) of the Ontario energy Board act. Municipalities to be compensated for facilitating distribution. Construction of local transmission has already been facilitated by the electricity regulation. Major transmission lines still require individual EA and have been very difficult to permit for the last 30 years.
14. Give the Environmental Commissioner better access to the Facilitator’s information. Tell the public about hazards to the environment, human health or safety that would be exempt from confidentiality under the Freedom of Information Act. Done.

A companion submission from the Law Society of Upper Canada was also successful. LSUC objected to the Bill failure to make specific provision for solicitor client privilege in the sections on the powers of inspectors. This issue was resolved by dropping the “powers of inspectors” section of Bill 150. MOE inspectors already have all the powers they need under the Environmental Protection Act and other statutes.

This far-reaching Bill will shortly receive third reading, and draft regulations are expected to be released soon.

PS,  Obviously, many of these amendments responded to comments from other stakeholders as well as the OBA.