New rules could add delay to wind energy projects

CANADA: Wind energy developers in Ontario can expect to shoulder added cost and delays under a new approvals process that opens their permits to challenge whether or not local opposition exists, says a lawyer who represents the industry.

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When the Ontario government launched its feed-in tariff last year, it also introduced a new centralised permitting procedure meant to streamline a system where developers had to work their way through a patchwork of overlapping provincial and municipal requirements.

The new rules also, however, allow anyone in Ontario to launch an appeal against any approval by taking their case to the province's quasi-judicial environmental review tribunal.

"The problem here is that the threshold to get into this appeal process is so low. It is so much lower than in other jurisdictions that it allows people in downtown Toronto or Ottawa or wherever to fire off appeals on projects that are on the other side of the province," says Aaron Atcheson, who chairs the national clean-tech practice group at law firm Millar Thomson.

Given Ontario's vocal and well-organised anti-wind lobby, Atcheson expects to see a rash of appeals filed against projects. Although he believes the industry will be successful in fighting them, it will still require companies to hire lawyers and prepare cases before the tribunal.

What the province's environment ministry has not considered in setting the new rules, he says, are the extra costs and delays the industry will face, which it will then have to explain to lenders and equity providers.

Atcheson says the province could have limited the impact by restricting wind farm appeals to those specifically affected by the facility, an approach the US state of Massachusetts, for example, is considering. The rules could also contain a test that forces opponents to provide some minimum level of evidence before an appeal can move forward, he adds.

Dianne Saxe, an environmental lawyer in Toronto, says she "would be very surprised" if any major wind project in Ontario goes unchallenged, at least initially. But after the tribunal begins to hand down rulings, "and once we get a couple of strong precedents on the key issues, everybody will have a pretty good idea of where they stand", she says. At that point, appeals may drop off or move through the tribunal more quickly.

Appeal system

In order to stop a project, opponents will have to demonstrate either serious harm to human health or serious and irreversible harm to the natural environment. "It is going to be a lot easier to launch an appeal than to win an appeal," says Saxe.

Kate Jordan, spokeswoman for Ontario's environment ministry, says the new rules actually streamline the multiple appeals processes developers were subject to under the old system. It also requires the tribunal to make a decision within six months. That timeframe gives the industry a much better chance of having decisions made quicker than might otherwise be the case, says Saxe.

Unlike Atcheson, Saxe does not believe limiting the right to appeal to those directly affected by a project is an option. Ontario, which has large, sparsely populated and undeveloped regions, decided back in the 1970s that every resident should be allowed to act to protect the natural environment. "If only people who live in an area can protect it, then most of the province would not be protected," explains Saxe. "It was a very deliberate policy decision that was made for what I think are correct reasons a long time ago."

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