Renewable Energy Approvals & Appeals for Wind & Solar Projects in Ontario

RENEWABLE ENERGY APPROVAL PROCESS

In order to successfully develop wind power and ground-mount solar power generation facilities in Ontario, proponents must obtain a Renewable Energy Approval (REA) from the Ministry of the Environment (“MOE”) as required by Ontario Regulation 359/09 made under the Environmental Protection Act. The steps required to obtain a Renewable Energy Approval are outlined in the following diagram:

Complete REA submissions are required in order for applications to be accepted. Once an application is considered complete and has been accepted (this is supposed to take up to 30 days but has taken more than 210 days in some cases) (the “Application Completeness Review Period”), the clock starts ticking on the 6 month service guarantee to reach a decision in respect of the REA application. It should be noted that while the MOE has implemented a 6 month service guarantee, a number of REA applications have taken much longer to process. Generally, REAs for wind power generation facilities take longer to process than REAs for ground-mounted solar projects, which often take less than 6 months to process. By delaying the Application Completeness Review Period by many months in certain instances, the MOE has managed to find a mechanism with which it is still able to meet its 6 month service guarantee.

Further information can be found in the MOE’s presentation on the Renewable Energy Approval Process.

 

APPEAL PROCESS TO THE ENVIRONMENTAL REVIEW TRIBUNAL

The REA process contains a third-party hearing mechanism. That means that upon the MOE issuing a REA, any resident in Ontario (including a corporation) may appeal the REA to the Environmental Review Tribunal (“ERT”) and require a hearing with respect to the decision. The hearing process must be initiated within 15 days of the MOE’s decision to issue the REA. Pursuant to Section 142.1 of the Environmental Protection Act, there are only two grounds which may be considered on appeal and the burden of proof lies with the appellant. The appellant must demonstrate that the approved project will either:

  1. Cause serious harm to human health; or
  2. Cause serious and irreversible harm to plant life, animal life or the natural environment.

The ERT usually has six months to issue a decision once the appeal has been filed. If either of the above grounds is not established, the decision to approve the REA must be confirmed.

The appeal process is an expedited process. The party bringing the appeal should be ready for a preliminary hearing within four weeks of the start of the appeal and ready to proceed with a full hearing after a further four weeks.

The ERT’s decisions can be further appealed within 30 days. Appeals on any matter other than a question of law must be made in writing to the Minister of the Environment. The Minister of the Environment will then confirm, alter, or revoke the decision of the ERT. An appeal with respect to a question of law may be made to the Ontario Divisional Court in accordance with the Ontario Rules of Civil Procedure.

More information on the appeal process can be found in the ERT publication: A Guide to Appeals by Members of the Public regarding Renewable Energy Approvals under section 142.1 of the Environmental Protection Act.

EXAMPLES OF APPEALS TO THE ENVIRONMENTAL REVIEW TRIBUNAL

The following chart outlines some of the appeals that have been heard by the ERT.


 

Type of Renewable Fuel

Description of the Appeal

Wind

Name of Case: Hanna v. Ontario (Attorney General)

Issues: Challenge to the Renewable Energy Approvals Regulation, specifically whether the minimum setback requirements for wind turbines were inadequate.

Date of Decision of ERT on Appeal: January 24, 2011 (Decision by the Superior Court, Divisional Court)

Decision: The Superior Court dismissed the application, finding that there had been a full public consultation period and that there was a review of science-based evidence. Further, minimum setbacks in a particular decision can be challenged before the ERT; therefore, those concerned have an alternative remedy.

 

Application dismissed.

Wind

Size of the Project: 8 Wind Turbines x 2.5 MW each = 20 megawatt (MW) Project

Name of Case: Erickson v. Ontario (Director, Ministry of the Environment)

Issues: Harm to human health.

Wind turbines – unsafe exposure to low frequency noise, shadow flicker and interference with sleep.

Date of Initial Decision: November 10, 2010

Date of Decision of ERT on Appeal: July 18, 2011

Decision: ERT concluded that there are “some risks and uncertainties associated with wind turbines that merit further research.” ERT could not conclude that the Kent Breeze Wind Farm would however harm human health or the environment.

 

Appeal dismissed.

Wind

Size of the Project: 4 Wind Turbines x 2.5 MW each = 10 MW Project

Name of Case: Middlesex-Lambton Wind Action Group Inc. v. Director, Ministry of the Environment

Issues: Harm to human health.

Health effects on surrounding community due to proximity of the wind turbines.

Date of Initial Decision: October 31, 2011

Date of Decision of ERT on Motion to Dismiss and Motion to Scope Evidence: December 16, 2011 and February 6, 2012

Decision: On Motion to Dismiss and Motion to Scope Evidence, the ERT limited the ability of a non-expert to testify on the health effects of wind turbines. The ERT cannot simply accept the evidence of a layperson that they suffer a certain medical condition and the cause for the condition. Such testimony would need to be heard from a qualified practitioner or medical expert.

The ERT also refused to grant an adjournment as the Appellant knew about the time constraints imposed by REA in relation to appeals and all experts and medical records needed to be provided within the prescribed time period.

 

Motion Dismissed.

 

The appeal was later withdrawn in March 2012, six days prior to the start of the hearing, when the MOE submitted about 170 questions about medical, real estate and other records the MOE wanted answered by 23 witnesses. Appellant withdrew the appeal due to inability to gather all the required information before the hearing date.

Wind

Size of the Project: 58 Wind Turbines = 131.04 MW Project

Name of Case: Monture v. Director, Ministry of the Environment (Monture 1)

Issues: Aboriginal Treaty Rights – REA would affect hunting and fishing rights and would harm birds, wildlife, trees and agricultural land.

Date of Initial Decision: March 16, 2012

Date of Decision of ERT on Appeal: September 28, 2012

Decision: The ERT could not expend its jurisdiction to include aboriginal claims and consultation issues. The ERT could only rule on whether a project would cause serious harm to human health or to the environment. The issues on appeal were too general to prove that this project would result in serious harm to animal life, plant life or the natural environment. A mere possibility of harm did not meet the legal test.

 

Appeal dismissed.

Wind

Size of the Project: 270 MW Project

Name of Case: Chatham-Kent Wind Action Inc. v. Director, Ministry of the Environment

Issues: Harm to human health caused by a proposed 270 MW wind generation farm.

Challenge to the test because of the difficulty in demonstrating harm to emotional and mental health.

Date of Initial Decision: June 15, 2012

Date of Decision of ERT on Appeal: December 5, 2012

Decision: The ERT dismissed the challenge and found that there is no evidence to find that the project will adversely affect human health. The ERT required evidence of the impact of the project and that there is a direct impact on human health.

 

Appeal dismissed.

Wind

Size of the Project: 148.6 MW Project

Name of Case: Monture v. Director, Ministry of the Environment (Monture 2)

Issues: Aboriginal Treaty Rights

Date of Initial Decision: June 15, 2012

Date of Decision of ERT on Appeal: December 24, 2012

Decision: The ERT dismissed the appeal but in rendering its decision did recommend changes of terms with regards to natural heritage pre-construction and post-construction monitoring, reporting and reviewing results, Community Liaison Committee, and consultation with aboriginal communities.

 

Appeal dismissed.

Wind

Size of the Project: 104.4 MW Project

Name of Case: Haldimand Wind Concerns v Director, Ministry of the Environment

Issues: Irreparable harm to plant life, animal life or the natural environment.

The assessment conducted by REA holder was inadequate for the planned 104.4 megawatt wind generation farm.

Date of Initial Decision: July 17, 2012

Date of Decision of ERT on Appeal: January 31, 2013

Decision: The ERT found that the appellants did not show that the project would result in serious and irreversible harm to plant life, animal life or the natural environment. The ERT stated that an appeal is insufficient without evidence to demonstrate the impact of the project.

 

However, the ERT did make the recommendation that further research should be conducted on the impact of wind farms on certain wildlife. The ERT recommended that REA be amended to require more data collection.

 

Appeal dismissed.

 

CONCLUSION

It is difficult to assess whether public interest groups such as Wind Concerns Ontario have turned their sole focus and energy to appealing the REAs for larger scale commercial wind projects. The 2012 REA appeal in Chatham-Kent Wind Action Inc. v. Director suggests that even smaller scale wind power generation projects remain the target of wind action groups in Ontario. At the same time, there have not been any noteworthy REA appeals reported by the ERT pertaining to ground-mounted solar projects.

The above overview demonstrates the difficulty associated with developing wind power generation projects in Ontario. Both the REA process as well as the appeal process can be very time consuming and expensive. The consulting and legal fees alone can reach several hundreds of thousands of dollars. To date, the ERT has refused to rule that wind projects will either cause serious harm to human health or cause serious and irreversible harm to plant life, animal life or the natural environment. However, a shift is evident in ERT’s decisions/recommendations. The ERT has begun to make recommendations that further information should be collected and tracked on the impact of the wind farms. As stated in the above chart, in Haldimand Wind Concerns v. Director, Ministry of the Environment the ERT has even gone so far as to recommend that the REA be amended to require further data collection, which signals that the ERT may be headed in a different direction in the future.

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Sven Walker is a Partner at Dale & Lessmann LLP, a Toronto, Ontario, Canada-based full service law firm specializing in renewable energy law and in particular solar, wind, hydro and biogas energy law. Sven is a legal counsel to a number of industry equipment and technology manufacturers, suppliers and installers, as well as investors, developers, purchasers, contractors, consultants and financing entities. To speak with Sven, please call 416-369-7848 or email him at swalker@dalelessmann.com.

 

Prepared with the assistance of Mariana Fonar, Student-at-Law at Dale & Lessmann LLP.