Canadian Energy Law : Lawyers & Attorneys for Environmental Energy Law

Alberta's Climate Change and Emissions Management Corp. (CCEMC) announced $15 million in new funding for biogas and biofuel projects. The projects include an anaerobic digester upgrade at a Slave Lake mill, a carbon-neutral biofuel plant near Vegreville designed to produce ethanol, cattle feed and biogas-derived electricity, and a biofuel pyrolysis plant near High Level that will produce bio-oil from sawmill residue.

CCEMC receives monies from Alberta's Climate Change and Emissions Management Fund (Fund), a creation of the Climate Change and Emissions Management Act. Under this Act, large-scale greenhouse gas emitters who fail to meet their emissions intensity reduction targets may elect to pay $15 per tonne of carbon dioxide equivalent in excess of their target into the Fund . To date, the Fund has provided $113 million to various fuel efficiency and alternative energy projects.

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In American Electric Power et al. v. Connecticut et al., six states, the city of New York and three private land trusts sought federal court orders to limit greenhouse gas emissions from power plants operated by private utilities and the Tennessee Valley Authority. The lawsuit was based in part on a federal common law claim of nuisance that argued that the emissions increased the risk to public health and infrastructure through the effects of climate change.

On June 20, 2011, the U.S. Supreme Court decided 8-0, with Justice Sotomayor recused, that the plaintiff's federal common law nuisance claims were displaced by the Clean Air Act, which grants authority to the U.S. Environmental Protection Agency to regulate greenhouse gas emissions.  However, the Supreme Court did not resolve the issue of whether the federal court has jurisdiction to hear greenhouse gas emissions lawsuits generally, or whether the Clean Air Act also preempts state court common law claims. As well, the Supreme Court declined to address the question of the causation of climate change.

The decision indicates that the Court will be reluctant to act in the place of regulators, especially for matters that already engage the government process.

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Patrick Duffy

Ian Hanna, an Ontario anti-wind crusader, has been denied permission to appeal an earlier court decision that dismissed his judicial review application. 

Hanna’s application challenged Ontario Regulation 359/09 that governs renewable energy approvals in Ontario. The Regulation requires a 550 meter distance between wind turbines and noise receptors such as residences.

Hanna argued that there was no scientific basis for the 550 setback. He challenged the regulation on the basis that the Minister of Energy had not followed the necessary process required by Environmental Bill of Rights (EBR). Section 11 of the EBR requires the Minister to consider the Statement of Environmental Values (SEV) when making decisions that might significantly effect the environment. In turn, the SEV requires the Ministry to “use a precautionary, science-based approach in its decision-making”. Hanna argued the Ministry had failed to meet that requirement when it determined the setback distance.

Hanna’s application went before the Ontario Divisional Court and was dismissed in March 2011. The court was satisfied that the Minister complied with the process required by the EBR and SEV. In support of this, the court cited public consultation and a science-based ministerial review using World Health Organization reports and acoustic engineering experts. 

Hanna vowed to fight on and sought leave to appeal the decision to the Ontario Court of Appeal, but on June 20 the court denied his application.

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In a letter released June 13, the Canadian - Newfoundland and Labrador Offshore Petroleum Board urged federal Environment Minister, Peter Kent, to appoint a federal panel to decide whether to approve an exploration well proposed by Halifax-based Corridor Resources Ltd.

Corridor Resources Ltd. holds the rights to develop in the Old Harry field, a thirty kilometre-long and twelve kilometre-wide area in the Gulf of St. Lawrence which straddles disputed territory between Quebec and Newfoundland, and may produce up to 2 billion barrels of oil and 5 trillion cubic feet of natural gas.

Quebec now has a moratorium on oil and gas exploration and development on its portion of Old Harry until the end of 2012. Quebec has expressed concerns that Newfoundland and Labrador may allow drilling in the Gulf and may undertake their own environmental assessment of offshore development in the area.

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On June 13, 2011, the California Air Resources Board (CARB) released a Supplement to its Functional Equivalent Document (FED) (the environmental review document for its cap-and-trade program). CARB was ordered by the San Francisco Superior Court to remedy deficiencies in the initial FED's analysis of alternatives to the cap-and-trade program proposed in the AB 32 Scoping Plan (for more information on this cap-and-trade program, please see our  previous blog post).

This ruling was initially a tentative one, but was finalized on May 20, 2011. For more information on the Court's determination, please see our earlier blog post

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Eric Bremermann -

The international renewable energy and general electricity generation community that gathered at Intersolar Europe from June 8 to 10 was abuzz digesting the news of the German parliament releasing its plan to have the country’s electricity generation fully withdraw from nuclear energy by 2022. I attended the Intersolar Europe and observed optimism among solar industry participants that Germany’s nuclear exit will bring new opportunities in the German solar market. That country’s solar market had begun to lag in recent times due to solar feed-in-tariffs being curtailed. However, as Germany today only relies on roughly twenty percent nuclear power, the German government’s announcement was primarily seen as producing significant new opportunities for development of substitute base load capacity, which is thought will have to come from utility scale offshore wind parks, as well as natural gas fired plants

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New York Attorney General, Eric T. Schneiderman, filed a complaint with the United States District Court against various federal agencies including the U.S. Army Corps of Engineers, Fish and Wildlife Service, National Park Service, Department of the Interior and Environmental Protection Agency.

The complaint seeks to compel the federal agencies to prepare a draft environmental impact statement in accordance with the National Environmental Policy Act of 1969, before adopting proposed Delaware River Basin Commission regulations that would authorize gas drilling in the Delaware Basin.

New York state's complaint argues that the potential risk of hydrofracking additives to the Delaware Basin must be fully evaluated before natural gas development is authorized.

Meanwhile, New York state's moratorium on horizontal hydrofracking is scheduled to expire on July 1, 2010. Draft regulations from the state's Department of Environmental Conservation are expected to be released later this month.

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Alberta Electric Systems Operator (AESO) forecasts the province will spend $13.5 billion in the next decade to keep pace with growth in electricity demand. Within 20 years, Alberta will require 13,000 megawatts of new generation capacity, with much of the growth fuelled by oilsands developments.

However, AESO reduced the province's planned expenditures by $1 billion compared to its 2009 draft budget by eliminating or reducing the scale of certain projects. In the latest forecast, $8.3 billion will be committed towards 50 regional projects serving 200 customer connections. The remaining $5.2 will be directed towards four transmission infrastructure projects outlined in The Electric Statutes Amendment Act, 2009.

As well, earlier plans for two North-to-South high voltage direct current lines between Edmonton and southern Alberta will be scaled down, leaving the option to build up as demand requires. 

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Andrew Sullivan -

Angela Merkel’s collation government has pledged to decommission all of Germany’s seventeen nuclear reactors by 2022. This historic announcement comes in the wake of a global reaction to the events in Fukushima, Japan. The crippled reactors have caused many governments to rethink their nuclear strategy.

Before the Fukushima disaster, resurgence in the popularity of nuclear energy had been characterized as “the nuclear renaissance”. The industry had finally recovered from the Chernobyl disaster, over quarter-century before. Around the world, nuclear energy appeared to be a viable solution in the effort to reduce greenhouse gas (GHG) emissions. Globally, 2010 saw fourteen new reactors under construction, compared with three in 2005. That number will assuredly fall this year as governments rein-in their enthusiasm for nuclear energy.

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A new directive by the Ministry of Energy to the Ontario Power Authority will give hope to FIT program applicants in the Bruce and West of London areas. The OPA was instructed on June 3, 2011 to issue contracts for large projects within the Bruce to Milton Transmission project as part of the province’s FIT program. As a result of this directive, over 1,000 MW of renewable energy contacts are to be offered - up to 750 MW in the Bruce transmission area and up to 300 MW in the West of London area.

These new FIT contracts are available to projects already on the FIT Priority Ranking list for the Bruce or West of London transmission areas. The OPA has granted a five business day window for proponents to change connection points (though the project location cannot change). The change of connection window begins on June 6 and closes June 10, 2011 at 5:00 pm.

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EUCI presents its 3rd annual conference on Ontario's Feed-in Tariff June 13 & 14 at the Conference Centre, University of Toronto. As the sponsor and conference chair, Stikeman Elliott is able to offer a 25% discount on conference passes.

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