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Speedy Passage for Green Energy Act Amendments Address Concerns and Clarify Intent
June, 2009
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This article is in reference to: Bill 150 |
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By Paul Manning and Juli Abouchar
Ontario’s Green Energy and Green Economy Act, 2009, passed third reading in the provincial legislature in mid-May, just 80 days after it was first tabled. The final version contains some amendments, perhaps most notably including a pullback on the originally proposed mandatory disclosure of energy efficiency when prescribed properties were offered for sale and/or lease.
Instead, the Act now stipulates that residential purchasers will have the right to obtain “such information, reports or ratings as are prescribed, relating to energy consumption and efficiency” before the seller can accept the offer. The purchaser may waive this right in writing.
Another amendment responds to concerns raised by potential opponents of wind generation facilities. The Act now stipulates that it “be administered in a manner that promotes community consultation.” (See Energy Briefs, page 10)
The final version of the Act also facilitates the creation of a low-income energy assistance rate programs with the direction to the Ontario Energy Board (OEB) “to promote electricity conservation and demand management in a manner consistent with the policies of the Government of Ontario, including having regard to the consumer’s economic circumstances.”
Other amendments include:
• The inspection, enforcement and penalty provisions have been excised, while provisions have been completely rewritten pertaining to the confidentiality of information supplied by a proponent to the Renewable Energy Facilitation Office.
• Renewable energy testing facilities and testing projects have been exempted from zoning and other local controls so that proponents won’t be delayed in collecting the background or baseline data needed to assess a project’s viability and support an application.
• The only acceptable grounds on which a person can challenge the approval of a renewable energy project (under s.142(1) of the Environmental Protection Act) are that the project will cause either “serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment.” The onus of proof lies with the person who requests the hearing.
• The OEB’s objectives are also amended to include the promotion of the conservation of electricity and demand management, the facilitation of investments to implement a smart grid, and the promotion of the use and generation of electricity from renewable energy sources.
• To facilitate the preparation of an annual report on the status of various energy efficiency and conservation activities, the Environmental Commissioner has been empowered to compel the OEB, the Ontario Power Authority (OPA), generators, transmitters or distributors, and other prescribed persons to prepare and submit “a report containing such information as is specified by the Commissioner.”
• The Building Code Act, 1992 has been amended to clarify that standards for both energy and water conservation may be established, and that any energy conservation standards be reviewed every five years.
• Bill 150 exempted renewable energy generation facilities and projects from a number of instruments under the Planning Act. That list has been amended to include policy statements and provincial plans (with certain exceptions), official plans, demolition control by-laws, zoning by-laws and orders under Part V (with a transitional exception for existing agreements), development permit regulations and by-laws, bylaws under ss.113 or 114 of the City of Toronto Act, 2006, and orders under s.17 of the Ontario Planning and Development Act, 1994. Planning, siting and buffer zones can now be dealt with through regulations under the Green Energy Act.
• The Green Energy Act permits the Minister of Energy and Infrastructure to direct the OPA to develop a feed-in tariff (FIT) program for the procurement of green energy capacity. Amendments to Bill 150 require the Minister to include directions on domestic content of the FIT program.
The OPA is currently consulting on a draft proposed feed-in tariff program that would encourage the development of renewable energy options. These rules would replace the current Renewable Energy Supply III RFP process for procuring green energy capacity in Ontario.
Paul Manning and Juli Abouchar are partners with Willms &Shier Environmental Lawyers LLP. For more information, see the web site at www.willmsshier.com. See Canadian Property Management, April 2009, for a summary of other aspects of the Green Energy Act.
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