Renewable energy infrastructure projects are a top policy priority of the current Provincial government as both the political and economic climate suggest the early part of the 21st century will be the time government and industry reconsider the sustainability of existing energy infrastructure. Infrastructure projects which use wind, water, biomass, biogas and biofuel, solar energy, geothermal energy, and tidal forces for the production of energy may one day replace what are presently considered more conventional sources of energy. Renewable energy infrastructure projects, like all infrastructure projects, involve a number of legal considerations, from securing project financing through to managing labour relationships during post-construction management of the infrastructure asset. Acquiring the necessary land use approvals in order to begin construction is a key part of planning most infrastructure projects. Privately funded infrastructure development typically require municipal land use approvals through the land use planning process provided by the Planning Act. However, with the Green Energy and Green Economy Act, 2009 the Province has set in motion significant changes to the existing land use approval process for renewable energy infrastructure projects. Chief among these changes is removing from municipal jurisdiction the approval of renewable energy infrastructure projects in favour of a Provincial approval process.
The Green Energy and Green Economy Act, 2009 enacts the Green Energy Act, 2009 and amends the Planning Act. While these amendments have yet to come into force, they significantly change the applicability of the Planning Act to renewable energy infrastructure projects. "Renewable energy undertakings" will be defined in the Planning Act and means a "renewable energy generation facility, a renewable energy project, a renewable energy testing facility or a renewable energy testing project." The Green Energy and Green Economy Act, 2009 also incorporates into the Planning Act the meaning of the "renewable energy generation facility," "renewable energy project," "renewable energy testing facility" and "renewable energy testing project" as they are defined in the Green Energy Act, 2009.
Under the Green Energy Act, 2009, the lieutenant-governor-in-council has the broad authority to make regulations that remove barriers to and promote opportunities for the use of renewable energy. Based on a review of the amendments to the Planning Act, those "barriers" include the municipal government decision-making process; the Green Energy Act, 2009 effectively removes renewable energy developments from municipal jurisdiction with the intention of replacing the municipal approval process with a provincial approval process.
"Renewable energy undertakings" will no longer be subject to the following land use planning instruments:
- Provincial policies;
- Provincial plans, with the exception of the Niagara Escarpment Plan;
- Municipal official plans;
- By-laws and orders under Part V of the Planning Act, including demolition control by-laws, zoning by-laws, interim control by-laws, minor variances, and Minister’s zoning orders, and zoning by-laws under the City of Toronto Act, 2006; the site plan approval process under both the Planning Act and the City of Toronto Act, 2006.
In addition, "renewable energy undertakings" are now exempt from the subdivision control and part lot control provisions of the Planning Act. Lands outside a registered plan of subdivision or a part or block of lands within a registered plan of subdivision may now be acquired for the purpose of a "renewable energy generation facility" or a "renewable energy project" provided the acquiring party provides a declaration that the land will be used for the purpose of a "renewable energy generation facility" or "renewable energy project."
The extent to which the Green Energy and Green Economy Act, 2009 exempts "renewable energy undertakings" from the municipal approval process raises questions regarding two of purposes of the Planning Act, namely, to provide for a land use planning system led by provincial policy and to provide for a planning process that is fair, open, accessible, timely and efficient. For example, under the Planning Act, planning decisions at all levels of government must be consistent with provincial policy statements and conform with provincial plans. The Green Energy Act, 2009 includes no such requirement.
With respect to the public consultation process under the Planning Act, landowners looking to develop renewable energy undertakings may be pleased to hear their projects will be exempt from a local consultation process that often becomes mired in "NIMBY" politics. As to what the Provincial approval process will look like, time will only tell as the lieutenant-governor-in-council has yet to enact the necessary regulations. The Ministry of the Environment and the Ministry of Natural Resources have made available for public comment proposed content for renewable energy approval regulations and the former Ministry is contemplating requiring private landowners to consult with the public within a 1.5 kilometre radius of the proposed development, the applicable municipality, the Ministry of the Environment, and Aboriginal Peoples on behalf of the Crown. Therefore, the possibility for politics to affect the approval process remains.
These recent amendments are not the first time the Province has exempted energy projects from the reach of the Planning Act. As with most legislative amendments of this kind, there are trade-offs which proponents of renewable energy undertakings should be aware. By removing renewable energy undertakings from the reach of the Planning Act, the Province has withdrawn a proponent’s right to appeal a decision to refuse a development proposal to the Ontario Municipal Board on the basis of land-use planning grounds. Appeals are not entirely absent under the new regime. The Green Energy and Green Economy Act, 2009 also amends the Environmental Protection Act by providing a right to appeal to the Environmental Review Tribunal (ERT) in the event the Director refuses to issue a renewable energy approval. Third party rights of appeal have also been added to the Environmental Protection Act. On such appeals, the ERT must consider whether the renewable energy project under appeal will cause serious harm to human health or serious or irreversible harm to plant life, human life, or the natural environment.
Municipal councillors may be breathing a sigh of relief now that Provincial Ministries will be the approval authority for "renewable energy undertakings"; the political cost to having the authority to approve the location and site plans for renewable energy infrastructure perhaps outweighs the political benefits, even during a time when the political appetite for renewable energy is high. It remains to be seen whether private developers will breath a similar sigh of relief once the Province enacts the new approval process regulations for "renewable energy undertakings".