Three months after taking power, Ontario’s new government introduced legislation to restore the rights of local municipalities to control the development of new renewable energy projects (such as wind and solar generation) within their jurisdiction. When passed, the Green Energy Repeal Act, 2018 (Bill 34) will repeal the Green Energy Act, 2009 (Act) in its entirety and amend several other statutes including the Planning Act and the Environmental Protection Act. Bill 34 will not eliminate the renewable energy approval process under the Environmental Protection Act, but will significantly change the authority of the provincial government and municipalities to block the development of renewable energy projects.
NEW REFUSAL AUTHORITY
Provincial
Bill 34 will provide the provincial government with the authority to refuse approval of new renewable energy projects where there is no demonstrated need for the electricity generated by that project. This will be achieved by amendments to the Environmental Protection Act. These amendments will allow the province to make regulations that prohibit the issue or renewal of renewable energy approvals in certain circumstances that will be set out in future regulations. Bill 34 specifies that this may include circumstances in which the demand for the electricity that would be generated from the proposed renewable energy project has not been demonstrated in accordance with the regulations. The contents of such regulations have not yet been announced.
Municipal
Through amendments to the Planning Act, Bill 34 will also empower municipalities to prevent unwanted renewable energy project development in their jurisdiction. Currently, renewable energy projects are exempt from many aspects of the Planning Act, such as the application of policy statements, provincial plans, official plans, and zoning bylaws. Bill 34 removes these exemptions and further provides that there is no appeal to the Local Planning Act Tribunal (formerly, the Ontario Municipal Board) in respect of a refusal of an application to amend an official plan to authorize a renewable energy project or to amend a zoning bylaw to permit a renewable energy project.
REPEALS
Removal of Guiding Principles for Government Facilities
The Act currently provides that in constructing and operating government facilities, the provincial government must be guided by certain principles such as using renewable energy sources, ensuring energy and water efficient planning and design, making environmentally responsible investments, and transparent reporting of the facilities’ energy and water use and greenhouse gas emissions. These guiding principles will be repealed and of no further effect.
Cancellation of REFO
The Act provided for the establishment of the Renewable Energy Facilitation Office to facilitate the development of renewable energy projects. In accordance with the government’s stated intention to reduce renewable energy project development, these provisions of the Act will also be repealed and we expect that the Renewable Energy Facilitation Office will be closed.
RE-ENACTMENTS
Certain provisions of the current Act will continue, but these provisions will be moved into the Electricity Act, 1998, including:
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Those that allow the province to create regulations to designate goods, services and technologies for which certain use restrictions will not apply in order to promote energy conservation
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Those that allow the province to create regulations to designate renewable energy projects for which restrictions will not apply in order to promote the use of renewable energy and access to transmission and distribution system for renewable energy projects
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Those that allow the province to create regulations to require public agencies and other entities to prepare and submit an energy conservation and demand management plan and report their energy consumption and water use
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Those that restrict the sale or lease of appliance or products that do not meet prescribed efficiency standards
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Those that require energy providers to make energy data available in accordance with the regulations.
However, Bill 34 will also revoke all the current regulations under the Act. Without these regulations, many of the above re-enacted provisions are without substance. The province has not indicated whether the regulations will also be reinstated under the Electricity Act, 1998, but this remains a possibility.
