The Green Energy and Green Economy Act, 2009 (the GEA) received royal assent on May 14, 2009. The GEA has yet to be proclaimed in force, but if passed, will establish an office, to be known as the Renewable Energy Facilitation Office (the Office), to be led by a renewable energy facilitator (the Facilitator). The objects of the Office will be to facilitate the development of renewable energy projects and to assist proponents of such projects with approval and procedural requirements at both federal and provincial levels of government. The Facilitator will assist in streamlining the approval process related to renewable energy projects, including assisting in obtaining the "renewable energy approval" that will be created by the GEA.

Draft Regulations

On June 9, 2009, the Ministries of Natural Resources and the Environment released the draft Approval and Permitting Requirements Document for Renewable Energy Projects, EBR Registry Number 010-6708 and the Proposed Content for the Renewable Energy Approval Regulation Under the Environmental Protection Act, EBR Registry Number 010-6516 (the Draft Requirements). Through the Draft Requirements, the Ministries will aim to administer their processes in a co-ordinated fashion with a view to integrating all provincial Ministry requirements for the review and approval of renewable energy projects, as will be required by the GEA. The focus of the Draft Requirements is to provide as much up-front clarity as possible on requirements, while ensuring environmental protection and public health and safety. The Draft Requirements identify the complete submission requirements to receive a renewable energy approval, including plans, studies, consultations and technology specific requirements such as setbacks, where applicable.

In addition to proposing new regulations under the GEA, the Draft Requirements propose the following amendments to certain existing regulations under the Environmental Assessment Act:

  • Ontario Regulation 116/01 (Electricity projects) – create an exemption for most renewable energy generation facilities, as defined in the Electricity Act, 1998, so that the Regulation and the Environmental Assessment Act will not apply to the establishment or change of these facilities going forward, subject to certain exceptions where environmental assessments will continue to be required.
  • Ontario Regulation 334/90 (General) – state that renewable energy generation facilities and renewable energy testing facilities carries out by the Crown, municipalities or public bodies be exempt from the Environmental Assessment Act.
  • Ontario Regulation 101/07 (Waste Management Projects) – create an exception for most renewable energy generation facilities, as defined in the Electricity Act, 1998, so that neither the Environmental Assessment Act or the regulation will apply to a renewable energy generation facility that is also a waste disposal site.

In certain cases, the Draft Requirements provide that where a renewable energy generation facility has already been authorized under the Environmental Assessment Act, the facility must comply with the construction, operation and retirement of their project as originally authorized and to comply with any documented commitments made to the public or government agencies.

The Draft Requirements also propose the following amendments:

  • Environmental Bill of Rights, 1993, Ontario Regulation 681/94 (Classification of Proposals for Instruments) – classify the renewable energy approval as a Class II instrument under the Act.
  • Environmental Bill of Rights, 1993, Ontario Regulation 73/94 (General) – specify that the leave to appeal provisions of the Act do not apply to a proposal to issue, amend or revoke a renewable energy approval.
  • Environmental Protection Act, Ontario Regulation 347/90 (General – Waste Management) – facilitate the immediate processing of biomass materials, if needed before being sent to a renewable energy generation facility and the use of biomass materials from processing agricultural products as green energy for purposes other than electricity generation, such as for energy in a manufacturing process.
  • The Draft Requirements have been posted for a 45 day public review and comment period beginning June 9, 2009 and closing on July 24, 2009. Comments received on the Draft Requirements will assist in shaping the final requirements, as well as any technical documents to be prepared by the Ministries and any other additional documents.

FIT Contract

Pursuant to the GEA, the Minister of Energy and Infrastructure (the Minister) may direct the Ontario Power Authority (the OPA) to develop a feed-in tariff program that is designed to procure energy from renewable energy sources. The OPA may also be directed to consult aboriginal peoples as well as members of local communities in the development and establishment of renewable energy projects. The GEA emphasizes the need to consult all interested and affected parties, as well as the potential for further development of renewable energy projects in a more transparent, cohesive and standard approach through the feed-in tariff program. This is further evidenced by the Minister being required to issue directions that set out the goals relating to domestic content to be achieved through the feed-in tariff program. The OPA released draft feed-in tariff (FIT) program rules dated March 13, 2009 to facilitate consultation with affected parties in order to develop a feed-in tariff program upon the enactment of the GEA. Amendments to the draft rules are expected in light of the industry consultations that have take place to date.

On June 8, 2009, the OPA released a draft of the FIT contract, which outline the development of the facility, financial, operating and other obligations of renewable energy suppliers looking to provide electricity under the OPA's FIT program. The draft contract and related documents have been informed by a broad spectrum of stakeholders involved in a series of technical consultations conducted by the OPA.

Comments and feedback on the FIT contract and associated documents are being welcomed until Friday, June 26, 2009 and must be provided through the OPA's FIT website. The OPA has indicated that the FIT program may launch during the summer of 2009.

A further analysis of the Draft Requirements and the FIT contract will be provided once the final form of the documents have been released. See also our Executive Briefing on the Green Energy and Green Economy Act, 2009 available at the following link: V7N06_20090604.en.html