Alberta's Ambitious Renewable Electricity Program: The Long-Awaited and Eagerly-Anticipated Details Unveiled

Allison Sears and Vincent Light - 

Almost a year after Alberta Premier Notley first announced her Climate Leadership Plan in bold but extraordinarily broad strokes, the details of how she hopes to achieve a target of 30% renewables on Alberta’s grid by 2030 are finally taking shape.

Coincident with the first reading of Bill 27 - Renewable Electricity Act in the Alberta Legislature, Environment Minister Shannon Phillips and Mr. Mike Law, the VP of Renewables Development and Sustainability at the Alberta Electric System Operator (AESO), each gave presentations at the Canadian Wind Energy Association (CanWEA) annual conference (auspiciously held in Calgary this year) revealing aspects of Alberta’s Renewable Electricity Program (REP). 

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Court finds municipality acted in bad faith, orders municipality to enter good faith negotiations with wind turbine developer

A recent Ontario Divisional Court decision, wpd Sumac Ridge Wind Inc. v. Kawartha Lakes (City), represents an important precedent for project developers who are facing opposition from municipalities. The court held that a municipality’s attempt to prevent the development of a provincially approved wind turbine project by passing a resolution that prevented its completion was both ultra vires and an act of “bad faith”. The resolution was accordingly quashed.

Background

Ontario’s Ministry of the Environment had granted wpd Sumac Ridge Wind Inc. a Renewable Energy Approval to construct five wind turbines within the City of Kawartha Lakes. In order for wpd to construct the turbines, the company needed to access and upgrade certain municipal roads. However, Kawartha Lakes was opposed to the project and, even though the Ministry had approved it, passed a resolution that said:  "… any request by Wpd … for use of … [the road in question] … to support [the] proposed wind turbine development [will] be refused…."  The resolution had the effect of preventing the project’s construction. In response, wpd brought an application for judicial review.

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Ostrander Point Wind Project Returns to the Environmental Review Tribunal

Paul Neville and James Wilson -

On April 20, 2015, the Court of Appeal for Ontario released its decision in Prince Edward County Field Naturalists v. Ostrander Point GP Inc. As previously reported (on appeal to the Divisional Court) the case concerns a decision of the Environmental Review Tribunal (Tribunal) to revoke a Renewable Energy Approval (REA) granted by the Ministry of the Environment (MOE) to Ostrander Point GP Inc. (Ostrander), permitting Ostrander to construct nine wind turbines (the Project) at Ostrander Point, about fifteen kilometres south of Picton, Ontario.

The Tribunal revoked the REA on the basis of submissions by the Prince Edward County Field of Naturalists (PECFN) that the Project would seriously and irreversibly harm a species of turtle called the Blanding’s turtle.

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Site C dam approved: troubled waters ahead?

Jonathan Drance and Rachel V. Hutton -

On December 16, 2014, the Province of BC made a Final Investment Decision to proceed with the development of Site C – an $8.335 billion dam project on the Peace River with the capacity to produce 1,100MW of electricity.

A Cheaper form of Clean EnergyThe Province’s analysis, released together with news of its FID, concludes that Site C will be a cost-effective alternative to help meet future electricity demands in BC and in particular, will be cheaper than developing gas-fired plants operated by BC Hydro, or any alternative projects by Independent Power Producers.

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OPA awards 500 new FIT 3 renewable energy contracts

P. Jason Kroft and Tamir Birk -

On July 30, the Ontario Power Authority (OPA) awarded 500 renewable energy contracts, representing 123.5 megawatts of power, under its Feed-in Tariff (FIT) program. According to the OPA, these contracts represent enough energy to power approximately 15,000 homes.

“The FIT contracts we are about to offer represent significant investment in Ontario and in our electricity system. They show that the transformation of our electricity system to be cleaner and more sustainable is well on its way,” said OPA CEO Colin Andersen.

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Canadian tax considerations for non-residents investors in Canadian renewable energy projects

Marie-Andrée Beaudry, Jean-Guillaume Shooner and Nathaniel Lacasse  -

Introduction

Non-resident investors continue to invest in Canadian renewable energies such as solar energy and, in particular, wind power. The following discussion highlights the principal tax incentives granted by the Canadian and Quebec governments. It also describes a tax efficient holding structure, which may, depending on the circumstances and place of residence of the non-resident investor, be put in place in order to minimize Canadian taxes on gains and income.

It should be noted that there are other ways for a non-resident investor to structure an investment. All options should be carefully reviewed in order to best achieve non-resident investors' tax objectives.

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Ontario Large Renewables Procurement Update

Matt Cameron & Karl Bjurstrom -

At the first day of Ontario’s 5th Feed-in-Tariff and Renewable Energy Forum on March 17th, 2014, Shawn Cronkwright, the Ontario Power Authority’s director of renewables procurement, presented capacity targets for large renewables by technology for the years 2014 and 2015:

 

Wind

Solar

Bioenergy

Hydro

2014

300 MW

140 MW

50 MW

50 MW

2015

300 MW

140 MW

50 MW

45 MW

In reviewing key feedback from municipal meetings, to avoid multiple developers simultaneously engaging in projects which may never proceed, it was suggested that community engagement be moved to the Request-for-Proposal (RFP) stage as opposed to the Request-for-Quote (RFQ) stage. As an alternative, feedback suggested that a municipal support resolution similar to the FIT program be applied and that developers be required to prepare community engagement plans. With respect to the RFP, feedback from municipal meetings suggested that decommissioning bonds be required to ensure municipalities not be left with costs at the end of a contract.

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Ostrander Point Wind Project gets Green Light from Ontario Divisional Court

Patrick Duffy and  David Spence -

On February 20, 2014 the Divisional Court released its decision in Ostrander Point GP Inc. v. Prince Edward County Field Naturalists. The case concerned three appeals from a decision of the Environmental Review Tribunal (Tribunal). The Tribunal’s decision addressed an appeal of the Ministry of the Environment’s (MOE) decision to grant a Renewable Energy Approval (REA) to Ostrander Point GP Inc. (Ostrander) to construct nine wind turbines (the Project) on a site known as Ostrander Point, about fifteen kilometres south of Picton, Ontario. The Tribunal allowed the appeal and decided to revoke the REA, agreeing with the Prince Edward County Field of Naturalists’ (PECFN) position that the Project would seriously and irreversibly harm a species of turtle called the Blanding’s turtle.

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2014 Energy M&A Trends in Canada

Glenn Cameron, Susan Hutton, Keith Miller, Cameron Anderson and Brandon Mewhort -

Whether measured by volume or aggregate value, 2013 was a weaker year for energy-related M&A than 2012, continuing a four-year decline in activity in the sector. There was a noteworthy lack of public company M&A in 2013 and nothing to match the marquee deals of 2012: PETRONAS’ $6B acquisition of Progress Energy or CNOOC Limited’s $20B acquisition of Nexen. In spite of that, 2013 still saw a significant number of large and complex transactions, including Suncor’s sale of its conventional natural gas properties for $1B to Centrica and Qatar Petroleum, Progress/PETRONAS’ $1.5B acquisition of Talisman Energy’s Farrell Creek and Cyprus properties and Exxon Mobil/Imperial Oil’s $750M acquisition of part of ConocoPhillips’ non-producing Clyden oil sands acreage.

Reasons for the decline in M&A activity in 2013 included the following:

  • Asian investors paused to digest what they bought after five years of significant investment in the Canadian energy sector, particularly in the oil sands.
     
  • Changes to Industry Canada’s State Owned Entity (SOE) guidelines announced in December 2012 under the Investment Canada Act, coupled with the failure of two transactions to pass “national security” reviews, have chilled foreign investment by SOEs.
     
  • Increased uncertainty about whether regulatory approvals would be obtained for pipelines and other projects needed to expand the capacity to transport Canadian crude oil and natural gas to the U.S. and to provide access to offshore markets contributed to investors’ concerns about the future prospects for Canadian production.

In addition to the absence of major acquisitions, 2013 also saw a decline in financing activity by oil and gas issuers. While a select few were able to raise the equity they required, many others could not – at least until Q4 when a spike in oil and gas-related capital markets activity occurred. The numbers of oil and gas issuers on the TSX and TSXV, the number of financings by those issuers and the aggregate equity capital raised to the end of Q3 of this past year were all significantly lower than over the same period in 2012.

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Court of appeal allows offshore wind claim to proceed on narrow grounds

Patrick Duffy and Khrystina McMillan -

In March of this year the Ontario Court of Appeal (ONCA) heard Trillium Power Wind Corporation’s (TPWC) appeal from the decision of the Superior Court of Ontario to strike its claim against the province of Ontario.

Earlier this week, the ONCA released its decision in Trillium Power Wind Corporation v Ontario (Ministry of Natural Resources).  TPWC is a Toronto-based developer interested in building offshore wind turbines in Lake Ontario. Its proposed wind power project was progressing under the regulatory structure and had achieved Applicant of Record status when, in February 2011, Ontario cancelled all offshore wind farm projects. In a news release, Ontario explained the projects were cancelled “while further scientific research [was] conducted.”

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Cancellation of BC power deals by BC Hydro: Cleaning house or policy shift?

Rachel V. Hutton -

The challenges of bringing smaller-scale energy projects to fruition are not in debate.  But the BC Government’s August 30 announcement that BC Hydro will cancel as many as 10 electricity purchase contracts (and defer up to nine more) is raising eyebrows in the BC energy sector. 
 
An optimistic take on this news is that the endangered projects are those least likely to prove viable.  If true, then this move by BC Hydro to jettison “dead weight” can be viewed as efficient, sensible, and potentially to the benefit of projects with hallmarks of feasibility:  credible management, sound financing/ownership and good prospects for overcoming environmental, First Nations and other approval hurdles.  Moreover, BC Energy and Mines Minister Bill Bennett confirmed that the 19 projects in question have not met their contractual obligations and none are yet in “serious construction mode”. 

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Hyperloop: the solar powered mass transit solution of the future?

P. Jason Kroft and Tamir Birk -

On August 12, 2013, Elon Musk, CEO of Tesla Motors and SpaceX, unveiled his much-anticipated preliminary design for a “Hyperloop” system that he hopes will revolutionize mass transit and significantly reduce transportation-related carbon emissions. As Mr. Musk explains, existing conventional modes of mass transit between cities consist of three main types, each with its own pro and con matrix:

  1. Rail – expensive, slow, often environmentally sound
     
  2. Road – inexpensive, slow, not environmentally sound
     
  3. Air – expensive, fast, not environmentally sound

Instead, Mr. Musk is proposing a new mode of transport that combines the benefits of rail, road, and air without any of their negative aspects. With its inspiration derived from pneumatic tubes used to send mail and packages within and between buildings, the Hyperloop would transport people and cargo between cities inside low-pressurized tubes travelling at speeds in excess of 1,000 kilometers per hour. The tubes would be elevated on columns and run between high traffic city pairs that are less than 1,500 kilometers apart. This would make travelling between cities like Los Angeles and San Francisco possible in about 30 minutes. Most notably, the Hyperloop system is emissions-free as it would draw 100% of its required energy from solar panels mounted across portions of the tube.

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Ontario Minister of Energy announces changes to FIT program rules; will comply with WTO ruling on domestic content

Christian Brands -

On May 30th, 2013, Ontario Energy Minister Bob Chiarelli announced the much anticipated changes the current Liberal government is making to Ontario’s Feed-in-Tariff (FIT) program. Speaking at CanSIA Solar Ontario Conference, Chiarelli confirmed that they will  replace the controversial approval process for Large FIT projects (+ 500KW) with a new competitive procurement process and provide municipalities with a greater role in locating projects in their communities.

In addition, the Minister announced OPA procurement targets for the next 4 years and the introduction of a roof top solar pilot program for unconstructed buildings.

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Feed-in Tariff Contract Update

On March 22, 2013, the Ontario Power Authority (OPA) posted an amendment to the Feed-in Tariff (FIT) Contract. Specifically, the OPA has amended Exhibit C of the FIT contract which deals with the domestic content requirements. In the new contract (version 2.1.1), Table 1, Activity #11 (On-Shore Wind Turbine Towers) has been amended to allow for a mutually exclusive option for wind tower raw materials. The new domestic content option reads as follows:
 

“All steel that was formed and shaped into steel tower sections, if any, was processed into steel plates in a steel mill in Ontario; and

All steel for rebar for concrete tower sections, if any, must have been rolled or extruded in a steel mill in Ontario. Aggregate materials used in concrete tower sections, if any, must be sourced and mixed in Ontario, and the Portland cement used in the concrete tower sections, if any, must have been manufactured in Ontario.

The foundation of a tower is not considered part of the tower for the purposes of this Designated Activity 11.”

A link to a comparison of the new contract to version 2.1 can be found here
 

Proposed amendments to the application of the Planning Act (Ontario) to renewable energy projects

Maggie Chien and Annie Pyke -

On February 20, 2013, Bill 2 (Restoring Powers to Municipalities Act, 2013) was introduced by the Opposition House Leader, Jim Wilson (Simcoe-Grey) and given First Reading. Bill 2 proposes to reverse the exemptions granted to renewable energy undertakings from the normal application of the Planning Act, including provincial policy statements, provincial plans, official plans, demolition control by-laws, zoning by-laws and developments permit regulations and by-laws.

There could be significant impacts from the proposed amendments should Bill 2 become law. Municipalities opposing renewable energy undertakings would have the authority to refuse the planning approvals of such undertakings through various planning instruments. Additionally, Bill 2 does not presently contain any transitioning provisions to account for undertakings currently going through the approvals process. Leasing arrangements would also be affected as Bill 2 would repeal the current Planning Act exemptions for leases greater than 21 years applicable to renewable energy undertakings. The increased uncertainty with respect to the approvals required for development and operation could also impact the availability of financing for renewable energy projects.

A similar private members’ bill, Bill 29 (An Act to amend the Planning Act with respect to renewable energy undertakings) was introduced in April 2010 but was not carried past First Reading due to a prorogation of the provincial legislature. Although private members’ bills do not often receive Third Reading and Royal Assent, we will be keeping a close eye on the development of Bill 2 going forward.

Appeal of Port Dover and Nanticoke Wind Project's approval rejected

Patrick Duffy and Kyle Lamothe -

The Environmental Review Tribunal (ERT) recently dismissed a renewable energy approval appeal concerning the Port Dover and Nanticoke Wind Project (Project). In Haldimand Wind Concerns v Director, Ministry of the Environment, the ERT found that the appellants did not show that the project will cause serious and irreversible harm to plant life, animal life or the natural environment. However, the ERT also recommended that the appropriate agencies conduct further research on the impact of wind farms on certain wildlife.

The appeal challenged the Minister of the Environment’s (MOE) approval of the planned 104.4 megawatt wind generation farm in the Counties of Norfolk and Haldimand. The MOE issued the Project’s Renewable Energy Approval (REA) on July 17, 2012.

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OPA Announces FIT Window

On December 14, 2012, the Ontario Power Authority (OPA) will begin accepting SmallFIT applications (for projects between 10 and 500kW). The OPA plans to award 200MW worth of contracts during this window, 100MW of which will be allocated to capacity set aside aboriginal and community participation projects. There has been no indication of how long this application window will be open.

The OPA is reminding applicants to carefully review the new FIT program documents that have been revised in accordance with the November 23, 2012 and December 11, 2012 directives from the Minister of Energy. More information and the revised FIT version 2.1 documents will be available by the OPA as of December 14, 2012, as well.

For interested stakeholders, the OPA will is hosting a web-conference on December 18, 2012 to review the revised FIT Program and answer questions. Further details on this web-conference will be posted on the FIT website.
 

Appeal of South Kent Wind Project's approval rejected

Patrick Duffy and Kyle Lamothe -

The Environmental Review Tribunal (ERT) recently issued its first major decision of a renewable energy approval appeal related to human health concerns since Erickson v Director, Ministry of Environment (see our post on that decision here). In Chatham-Kent Wind Action Inc v Director, Ministry of the Environment, the ERT found that there was no evidence before it that the South Kent Wind Project (Project) will, cause serious harm to human health.

The appeal challenged the Minister of the Environment’s (MOE) approval of the planned 270 megawatt wind generation farm in the Municipality of Chatham-Kent. The MOE issued the Project’s Renewable Energy Approval on June 15, 2012, which prompted Chatham-Kent Wind Action Inc. to launch the appeal. One individual was granted status to participate and another individual to make a presentation.

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Happy Holidays? Minister Bentley Announces Small FIT Window

At the CanSIA conference on December 4, 2012, Ontario’s Minister of Energy, Chris Bentley, announced the Ontario Power Authority (OPA) will start accepting applications for Small FIT on December 14, 2012. We understand that the window may be open for as little as thirty days. Additional details will be available on December 14, 2012. In preparation for the influx of applications, the OPA website will be shut down for maintenance on December 13, 2012 from 3:00pm until the opening of the application period.The positive news was welcomed by many in attendance but grumblings about vacation plans were heard soon afterward.

Minister of Energy issues directive to Ontario Power to continue FIT Program

Andrew Sullivan -

On November 23, 2012, the Minister of Energy (MOE) issued a directive to the Ontario Power Authority (OPA) to continue the Feed-in Tariff (FIT) and MicroFIT programs in furtherance of the directions issued on April 5 and July 11, 2012.

This latest directive follows the Land Use Working Group’s submission of recommendations regarding siting of ground-mounted solar projects on rural zoned lands with multiple primary uses and rural/agricultural zoned lands with abutting residential uses.

The following is a summary of the significant policies the MOE has directed the OPA to implement.

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Proposed Amendments to the Provincial Policy Statement affecting renewable energy

Vicky Simon -

The Provincial Policy Statement (PPS) sets out the Province’s policies respecting land use planning. The Planning Act requires that all planning-related decisions of municipal councils, planning boards, Ministries and ministry boards, commissions or agencies of the government, including the Ontario Municipal Board, be consistent with policy statements issued by the Province. Municipalities must use the PPS when developing and updating their Official Plans.

The current Policy Statement came into effect on March 1, 2005 and is required by legislation to be reviewed every five years to determine whether updating amendments are required. The Province commenced the required five-year review on March 1, 2010 and after extensive stakeholder consultation and input, released a draft amended version of the PPS this fall for stakeholder review and comments until November 23, 2012.

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Proposed regulation to expedite approvals process for ground mount solar in Ontario

Michael Nilevsky -

On September 8, 2010, the comment period closed for the new proposed regulations regarding adding Small Ground-Mounted Solar projects to the Environmental Activity and Sector Registry (EASR) system. The EASR system is being implemented by the Ministry of the Environment to allow businesses to register prescribed activities in the EASR system instead of seeking an Environmental Compliance Approval through the standard application and review process (i.e. the EPA’s Renewable Energy Approval Process). The new public, web-based EASR system is intended to speed up the approval process for activities that are “routine, well understood and have minimal environmental impacts.”

To date, three prescribed activities have been included in the EASR system: automotive refinishing facilities, heating systems and standby power systems. The government is now proposing to add three new activities to the registry system, one of the main ones being Ground-Mounted Solar projects. The proposed regulation would require ground-mounted solar facilities with a name plate capacity greater than 10 kW and less than or equal to 500 kW and with a maximum power output capacity less than or equal to 750 kVa (at each transformer) to register under the EASR system. In order to be able to register under EASR the facilities would also need to meet certain design requirements, including, but not limited to, ensuring that any noise generating equipment does not have a sound power level greater than 90 dBA and meeting minimum setback requirements for noise receptors. Finally, the proposed regulation aims to direct solar projects to properties currently or formerly zoned for agricultural, industrial, commercial or institutional use.

A full version of the proposed regulation may be found here.

 

Skypower judicial review dismissed

Andrew Sullivan -

On September 10, 2012, the Divisional Court released its decision dismissing SkyPower group of companies’ (Skypower) application for judicial review of Ontario’s new Feed-In-Tariff (FIT) rules.

Skypower sought a number of declarations concerning the Ontario Power Authority’s (OPA) and Ministry of Energy’s (MoE) decision not to process FIT applications submitted before April 5, 2012 (FIT 1 Applications) in accordance with FIT rules version 1.5.1 (FIT 1). Skypower had 66 applications submitted under FIT 1 awaiting review and a further 52 applications that had been screened by the OPA and not offered a contract. On April 6, 2012, upon a MoE directive, the OPA released new draft rules for FIT applications that were finalized on August 10, 2012 (FIT 2). The new FIT 2 rules applied to Skypower’s 118 applications (Existing Applications) that were submitted under FIT 1. Skypower argued that as a consequence of these changes, virtually all of its Existing Applications would be ineligible for a FIT contract. It contended this result was unfair and unreasonable.

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FIT 2.0 contract finalized

Matt Cameron -

Following the draft feed-in-tariff (FIT) contract released on April 5, 2012 (our commentary on the draft is available here), the Ontario Power Authority released the final form of the new FIT contract on August 10, 2012.  With this contract and the new rules released on the same day, Ontario has reformatted its FIT Program – FIT 2.0 – to give greater incentives to developments by or including aboriginal groups, community groups and education and health providers.

Applications for “small” FIT contracts, being projects which, subject to the voltage of their connection line, are under 500 kW, will be accepted between October 1, 2012 and November 30, 2012.  During that period, FIT applications made under the existing FIT Program framework may transition to the new FIT 2.0 regime.  For further discussion on the new FIT rules, see our blog post here.

Below is a summary of material points in the new contract:

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FIT 2.0 Program Documentation Released

The final version 2.0 of the FIT Rules, FIT Contract, and related project documentation have been posted to the OPA’s website.  The OPA has advised that it is expected that the small FIT application window will be open from October 1, 2012 until November 30, 2012 and that approximately 200 MW of small FIT contracts will be awarded under this first application window. See here for copies of the final FIT 2.0 documentation.

Renewable energy generator exempt from transmission licencing requirements

Glenn Zacher   -

In an interesting case that has been winding its way through the Ontario Energy Board (OEB), Grand Renewable Wind LP (GRWLP) ― which was formed for the purpose of owning and operating a 153 MW wind facility in Haldimand County ― was exempted from the obligation to obtain a transmitter’s licence for transmission connection facilities it intends to develop and operate to convey its wind generation and solar energy generated by a related company, Grand Renewable Solar LP (GRSLP).

In earlier section 81 and leave-to-construct proceedings (which we wrote about last December), Board Staff and other parties questioned GRWLP’s position that it was exempt from the obligation to obtain a transmission licence under Ontario Regulation 161/99 (O. Reg. 161/99), but the Board ruled that these were not the appropriate forums to decide the matter. However, in early May, the Board, on its own motion under sections 19(4) and 57 of the OEB Act, initiated proceedings to determine whether GRWLP was exempt.

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OPA FIT 2.0 program prescribed forms posted

The OPA has posted draft prescribed forms for FIT 2.0 on its website. The OPA notes that the forms are for reference only and may be revised. No opportunity for public comment has been provided.

In a review of the draft FIT 2.0 Prescribed Forms, the following items are of note:

  1. The OPA has issued a Municipal Council Support Resolution, as well as a Municipal Council Blanket Support Resolution. The blanket resolution enables a municipality to declare its support for all projects located anywhere within the municipality for a period of twelve months after its adoption by Council. The municipality can offer its support for all or select technologies in issuing a Municipal Council Blanket Support Resolution. Unlike the Aboriginal Support Resolution, which is a general declaration of support for the application and the project, each of the municipal council support resolutions are stated to have the sole purpose of enabling the applicant to achieve priority points.
     
  2. The prescribed forms of Zoning Opinion and Zoning Certificate for Non-Rooftop Solar Facility do not provide additional clarity on the OPA’s interpretation of the land use restrictions on ground-mount solar PV under the FIT 2.0 Rules.
     
  3. Despite the flexibility afforded in the definition of “Economic Interest” for ownership interests other than equity in a corporation or a partnership interest in a partnership and for indirect as well as direct interests, which the OPA may determine in its sole and absolute discretion to constitute an “Economic Interest”, the prescribed forms of Aboriginal Participation Project Declaration and Education or Health Participation Project Declaration are best designed to address direct ownership of securities and partnership interests or units.

The OPA has not yet released any of the prescribed forms relating to the FIT 2.0 Contract, other than the prescribed form for the Consent of Co-op Member & Property Owner Declaration for Community Participation Project Declaration, which is in a substantially similar form to that required under the FIT 2.0 Rules.

Federal Government announces reforms to the Federal Environmental Assessment Process

Patrick Duffy and Sean Gibson -

The federal government announced on April 17, 2012 its plan for “Responsible Resource Development” which contains a number of proposals to reform key aspects of the review process for federal environmental assessments.

Simplified and Set Timelines for Environmental Assessments

The government’s plan proposes to simplify the current structure of environmental assessments and replace it with two kinds of reviews: 1) a standard environmental assessment, or 2) a review panel. Though details on this proposal are currently lacking, it appears this reform is meant to allow appropriate projects to proceed in a more streamlined fashion through a standard environmental assessment.

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FIT 2.0 for lenders

Lewis T. Smith

The Ontario Power Authority issued draft FIT program rules, draft definitions and a draft FIT contract for stakeholder comment on April 5, 2012. Information on submitting comments on these "FIT 2.0" documents is available on the OPA's website. Comments are due by April 27, 2012. A ministerial directive to the OPA concerning the FIT program was issued the same day.

Lenders should be aware of some important differences in the terms of the current FIT program and the proposed FIT 2.0. As well, the changes to the program will affect the types of projects that are most likely to move forward and therefore the types of projects lenders will be asked to finance.

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FIT 2.0 draft contract released

Following the issuance of the Minister’s Directive to the Ontario Power Authority on April 5, the OPA released a draft of version 2.0 of the FIT contract, “FIT 2.0”.  The new FIT contract is intended to implement the recommendations made following the 2-year review of the program and is open for public comment until April 27, 2012.  See here for copies of the draft contract and for more information on how to provide feedback.

Some of the changes from the original FIT contract include:

Contract Changes

The OPA will no longer have any obligation to consent to reasonable changes in the facility features or specifications.  This may limit a supplier’s ability to change the connection point, feeder, transformer, site location, design or layout of the project after the application is made.

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FIT 2.0 draft rules released

Following the issuance of the Minister’s Directive to the Ontario Power Authority on April 5, the OPA released drafts of version 2.0 of the FIT Rules.  All interested parties are encouraged to review the proposed changes and submit comments. Comments will be accepted by the OPA until April 27, 2012.   See here for a copy of the draft FIT Rules and for more information on how to provide feedback.

The draft FIT Rules take a much more prescriptive approach to applications and application requirements, with multiple opportunities for the OPA to terminate applications at an early stage. A brief summary of certain proposed changes to the Rules follows.

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Ontario Ministry of Environment posts amendments to Renewable Energy Approval Regulation

Annie Pyke -

Following the release of the Government of Ontario’s two-year review of the Feed-in Tariff Program, the Ministry of the Environment has published proposed amendments to the Renewable Energy Approval Regulation and the Environmental Assessment Act. The amendments include changes to the heritage and archaeological assessment process, amendments to the determination of solar nameplate capacity to reflect energy lost through inverters, and guidance for dealing with project changes.

Specific changes of note include proposed amendments to the definitions of “noise receptor” and “odour receptor”, which would require a part of the renewable energy project to actually be constructed on a parcel of land in order for the exemption from the definition (and corresponding setbacks to apply); this is in contrast to the current definitions which require only that the land owner has entered into an agreement with the developer to permit development of their land. The proposed changes also include an amendment to the requirement that final letters from the Ministry of Natural Resources and Ministry of Tourism, Culture and Sport be made available prior to the public meeting. In response to feedback received from proponents that this requirement made it difficult to address concerns raised at final public meetings, these will now be required for a complete REA submission instead of prior to the final public meeting.

The proposed amendments are available for review and comment until May 17, 2012 on the Ontario Environmental Registry. All interested parties are encouraged to review and comment on the proposed amendments.

Federal Budget 2012: regulatory efficiency for the energy sector

Patrick Duffy and Daniel Suss -

Last Thursday, the federal government released Budget 2012. It contained a number of proposals to improve efficiency and predictability in the review and approval process for major resource development projects while shifting tax incentives and strengthening environmental protection and free trade.

One project, one review

The government plans to create a “one project, one review” policy in coordination with the provinces and territories for environmental assessments (EAs) and associated regulatory processes. Provincial EAs would substitute for federal EAs, and responsibility for review would be consolidated significantly from at present over 40 departments and agencies. Federal and provincial governments would also coordinate Aboriginal consultations and fully integrate them into project reviews.

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Ontario government releases feed-in tariff program review

Lanette Wilkinson -

The Province released its Two-Year Review Report summarizing the results of its FIT Program review.  The Report proposed the following material revisions to the FIT Program.

Commitment to 10,700 MW Original Target - The Long-Term Energy Plan target of procuring 10,700 MW of non-hydro renewable energy generation by 2015 will be maintained. At the end of 2013, the government will explore whether a higher target is required.

Prioritizing Projects - The time stamps of applications in the FIT Production Line will no longer solely establish the priority of contract award.   The Report proposes the introduction of a point system into the application review process to give priority to certain applicants

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Government of Ontario releases two-year FIT program review

The Government of Ontario today released their two-year review of the FIT Program. Recommendations include, among others, (i) the reduction of prices - for solar projects by more than 20% and for wind projects by approximately 15% (see new price table below); (ii) the creation of a point system to prioritize FIT Applications which have demonstrated community or Aboriginal participation and municipal support; and, (iii) reserving 10% of the remaining capacity for projects for those projects which have significant local or Aboriginal participation.

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Layperson evidence on alleged health effects limited

Patrick Duffy and Sean Gibson -

The Environmental Review Tribunal (ERT) has released a decision limiting the ability of laypersons to testify about health effects allegedly caused by proximity to wind turbines without providing medical records/expert opinions to substantiate their testimony.

The issue arose in an appeal to the ERT by the Middlesex-Lambton Wind Action Group of a Renewable Energy Approval (REA) issued to Zephyr Farms Limited for a wind farm under the Environmental Protection Act In its appeal, the Appellant alleged that the proposed wind farm would negatively affect the health of the surrounding community. In pre-hearing disclosure, the Appellant listed numerous witnesses aiming to testify that they had suffered negative health effects caused by living in the vicinity of wind turbines. The Appellants provided no corresponding medical reports to substantiate, further explain, or allow professional medical scrutiny against, these statements.

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Ontario amends property tax treatment of renewable energy installation

James Klein and Annie Pyke -

On January 4, 2012, Ontario amended O. Reg. 282/98 under the Assessment Act to provide new rules with respect to the assessment of property taxes on renewable energy installations. These amendments apply to facilities that generate electricity using solar energy, wind energy or anaerobic digestion of organic matter. The amendments differentiate between rooftop and ground solar installations, as well as between entities whose primary business is the generation, transmission or distribution of electricity (corporate power producers) and persons who are not ordinarily in the business of electricity generation (ancillary producers).

For rooftop solar installations the amendments provide that the assessment and tax classification of property will not change due to the addition of a renewable energy installation on the rooftop of a building. For ground-mounted installations, the property tax treatment will depend upon the size and location of the facility as well as who is conducting the generation.  Corporate power producers will be taxed at the industrial rate, regardless of the size of the facility. With respect to ancillary producers, no changes were made with respect to ancillary producers up to 10 kW. Ancillary producers of greater than 10 kW of solar or wind energy will be taxed at the surrounding land use rate for up to 500 kW and then at the industrial rate for the proportion over 500 kW. On-farm anaerobic digesters over 10 kW, which are operated by farmers, will be taxed at the surrounding land use rate regardless of size. These amendments took effect as of January 1, 2011.

Transmission line for renewable energy park approved

Patrick Duffy and Daniel Suss -

Grand Renewable Wind LP (GRW) has received approval from the Ontario Energy Board to construct a new transmission line and associated facilities for the Grand Renewable Energy Park (GREP) located in Haldimand County.  The Board’s approval is subject to GRW obtaining all other necessary approvals, including its Renewable Energy Approval for the GREP, and complying with certain mitigation measures.

GRW’s application was one of first leave to construct applications since the enactment of the Green Energy and Green Economy Act, 2009 and it raised novel issues that the Board has not considered before. Of particular interest in this case was a request from Haldimand County Hydro Incorporated (HCHI) for access to GRW’s transmission facilities so that HCHI could connect a new transformer station for its distribution system. GRW denied that it had an obligation to provide HCHI with access to its transmission facility.

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Ontario Private Member's Bill seeks to amend Green Energy Act

Annie Pyke -

A bill introduced by Todd Smith, MPP for Prince Edward – Hastings, proposes amendments to the Green Energy Act, 2009 (the Act) to allow municipalities to regulate green energy projects through by-laws. The bill, which has been titled the Local Municipality Democracy Act, 2011, would amend the sections of the Act which make by-laws inoperative with respect to designated green energy activities and would provide that by-laws respecting “…health, safety and well-being of persons or respecting public assets of the municipality…” would continue to apply to designated green energy activities. Currently, municipalities participate in the planning process for green energy activities through the Renewable Energy Approval process, which requires municipal and local authority consultation. The bill received its first reading on November 28, 2011 and is expected to receive its second reading on December 1st, 2011. While private members' bills rarely become law in a majority government, the fact that Ontario currently has a minority government may increase the chances of success for private members' bills. 

Ontario Government Announces FIT Review

On October 31, 2011, the Ontario Government announced its first review of the FIT program. The review, which will be led by Deputy Minister Fareed Amin, aims to tackle issues including price reduction, long-term sustainability, job creation, new technologies and local consultation.

Ontarians are invited to participate in the review during the consultation period from October 31, 2011 to December 14, 2011. The OPA will also be holding a webinar tomorrow, November 2, 2011 at 10 a.m. in order to provide additional information.

Any FIT contracts awarded subsequent to today’s announcement will be subject to the new rules and pricing schedule that result from the review. Existing contracts will not be affected. The OPA is offering to refund application fees for those who wish to withdraw their application as a result of today’s announcement.

Ontario Court ruling an important precedent for wind farm developers

Patrick Duffy -
 
Wind farm developers in Ontario are being threatened with litigation from neighbouring residents who claim property values are suffering because of the perceived health concerns associated with wind turbines.  These claims were recently the subject of an investigation undertaken by the CBC that reported homes near wind farms were selling for less and taking longer to sell than other homes.  The issue has also been raised before the province's Assessment Review Board by property owners seeking to lower their property tax assessments.
 
A recent ruling from the Ontario Court of Appeal in Ellen Smith v. Inco Limited will provide the province's wind developers with  stronger hand in fighting back against such claims.  The claimants in the Inco case alleged that their property values were reduced by nickel contamination that originated from Inco’s refinery in Port Colborne.  They succeeded at trial and Inco was held liable for the tort of nuisance and under strict liability imposed by the rule in Rylands v. Fletcher.   The ruling was notable as the refinery had adhered to the applicable environmental regulations during its operation and the level of nickel contamination did not present a threat to human health or otherwise impact the complainants' ability to use and enjoy their property.  Nonetheless, the trial judge held Inco liable for the loss of property value because the contamination led to a negative public perception about the contaminated land.

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Joint Review Panel recommends a search for alternatives to Lower Churchill Phase 1

A Joint Review Panel (“Panel“) composed of the federal Minister of Environment and Newfoundland and Labrador Minister of the Environment released a report recommending an assessment of alternatives to Phase I of the Lower Churchill hydroelectric project.

The proposed 3,074-MW Lower Churchill project would entail an 824-MW Muskrat Falls hydro plant built as Phase I, followed by a 2,250-MW Gull Island hydro plant. Both plants would be located on mainland Labrador with transmission lines connected to Newfoundland and to export markets.

The Panel did not agree that development of the Lower Churchill’s hydroelectric potential was a ‘need,’ and recommended that the project be compared to other alternatives to address the province’s future electricity and renewable energy demand. The Panel recommended an independent analysis determining the best way to meet domestic demand under a “no project” option, and to review the projected cash flow for the Muskrat Falls and Gull Island plants separately in the approval process.

Ministry of Finance proposes property tax amendments for renewables

The Ministry of Finance is proposing amendments to Ontario Regulation 282/98 that will alter the property tax treatment of certain renewable energy installations for the 2011 tax year. A summary of the proposed changes can be found in the table below.

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Ontario amends Samsung agreement

The Ontario government has announced the amendment of its green energy investment agreement with Samsung C&T Corporation and the Korea Electric Power Corporation (Samsung). The $7 billion dollar agreement is for the development of 2,500 megawatts worth of renewable energy generation (wind and solar) in addition to building four clean-technology manufacturing plants.

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OPA waives pre-NTP termination rights for FIT contracts

On August 2, 2011, the Ministry of Energy directed the OPA to allow Suppliers under Ontario’s Feed-In Tariff (FIT) program to obtain a waiver of the OPA’s termination rights contemplated in section 2.4(a) of the FIT Contract.

Obtaining a waiver of this termination right is meant to expedite issuance of a Notice to Proceed (NTP) by reducing contractual termination risk and allowing Suppliers to procure financing for equipment orders. 

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Highly anticipated ERT decision issued for Erickson v Director, Ministry of Environment

On July 18, 2011, The Environmental Review Tribunal (ERT) issued its highly anticipated decision in Erickson v Director, Ministry of Environment. The ERT found that the applicant in this case did not meet the burden of showing that the project will, more likely than not, cause serious harm to human health. However, the decision is by no means a conclusive endorsement of the safety of wind turbines.

The high-profile appeal alleged that Suncor’s Kent Breeze Wind Project (Project) posed negative human health risks as approved by the Minister of the Environment (MOE) under Ontario Regulation 359/09 (REA). Over 17 days between February 1 and May 26, 2011 the ERT heard testimony of leading experts from around the world on the potential health effects of wind turbines.

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U.S. wind player launches NAFTA challenge against Ontario's Green Energy Act and Feed-in Tariff Program

Dallas-based Mesa Power Group LLC ("Mesa") has filed a Notice of Intent with the Canadian federal government indicating that it will challenge Ontario's Green Energy Act ("GEA") and Feed-in Tariff Program ("FITP") for alleged violations of the North American Free Trade Agreement ("NAFTA").

Mesa had two proposed wind projects in the Bruce transmission region of Western Ontario which were not recipients of FITP Power Purchase Agreements ("PPA") with the Ontario Power Authority ("OPA").

In its Notice of Intent filing, Mesa claimed that changes made by OPA to the rules for awarding PPAs in the Bruce transmission region violated Article 1105 of NAFTA with respect to non-discriminatory treatment of investors of another NAFTA signatory.  Mesa also claimed, among other things, that the GEA contains "buy local" performance requirements that contravene Article 1106 of NAFTA.

Mesa stated that it expects to file a formal NAFTA Notice of Arbitration some time after October 3, 2011.

IESO approves new data obligations for renewable facilities

Andrew Sullivan -

Beginning November 1, 2011, many wind and solar PV generators will be required to submit real-time meteorological and output data to the IESO.

The market rule amendment is part of IESO plans for renewable integration. As part of this integration, the IESO is seeking to implement centralized forecasting. Instead of providing energy forecasts, renewable facilities will be required to submit real-time, site specific data (“dynamic data”) to the IESO that will be used to produce variable generation forecasts provided by a third-party.

The requirements will apply to all wind and solar facilities connected to the IESO-controlled grid in addition to embedded non-market participants with an installed capacity over 5MW.

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Bruce to Milton Line FIT contracts announced

Yesterday the Ontario Power Authority offered Feed-in Tariff contracts to 19 large scale on-shore wind projects and 6 ground-mount solar projects, totalling nearly 1,046 MW of new renewable energy projects. 750 MW of wind-based contracts were offered in the Bruce Area and the remaining 296 MW were offered in the West of London Area, 27.5 MW for ground-mount solar and 268.4 MW for on-shore wind.

The biggest winner of the contract offers is Boulevard Associates Canada, Inc., with 335 MW offered in the Bruce Area. International Power Canada, Inc. received offers for 198 MW in the West of London Area.

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BNamericas 5th Annual Andean Energy Summit

Calgary partner Stuart Olley will be speaking at the Andean Energy Summit  in Bogota on July 13 and 14. In its 5th year, the Andean Energy Summit will address the financial, regulatory, technological and operational challenges facing oil & gas, electric power and renewable energy operators in the Andes and Central America. For access to a 25% discount (tickets only) on attending the summit, please send an email to sstone@stikeman.com.

CCEMC announces $15 million in new biogas and biofuel funding

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.

Anti-wind turbine crusader's case comes to an end

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.

InterSolar Europe in Munich abuzz with German government announcing nuclear exit by 2022

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

OPA to offer an additional FIT contracts for Bruce or West of London transmission areas

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's Ontario feed-in tariff conference

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.

Energy Board denies First Nations Intervenor Status

Patrick Duffy -

In case with strong echoes of Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the Ontario Energy Board has recently denied a request from a group of twelve First Nations for intervenor status in a licensing application.

The application seeks licence amendments related to eight hydroelectric generating stations owned by AbitibiBowater. The amendments will facilitate the sale of the generating stations to Bluearth Renewables, which intends to take advantage of incentives for upgrades and expansions offered by the Ontario Power Authority's Hydroelectric Contract Initiative (HCI). The First Nations group requested intervenor status with the intention of exploring the adequacy of the Crown’s consultation efforts with respect to potential infringements of their Aboriginal rights. The group argued that the sale of these facilities to Bluearth would result in increased or expanded hydroelectric generation under the HCI, which would change water levels and flows and impact their ability to harvest wild rice.

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Ontario Energy Board grants Distribution System Code exemption for waterpower projects

Patrick Duffy

In an oral decision made on May 5, 2011 the Ontario Energy Board granted an application by Ontario Waterpower Association (OWA) for an exemption from sections 6.2.4.1(e) and 6.2.18 of the Distribution System Code (DSC) for hydroelectric projects with a nameplate capacity of between 1 and 10 MW that are located on provincial Crown or federally-regulated lands.

Section 6.2.4.1(e) of the DSC requires a distributor (in this case Hydro One) to remove an applicant's connection capacity allocation if the applicant has not signed a connection cost agreement (CCA) within 6 months of receiving the allocation.  The provision was introduced in the fall of 2009 to ensure that connection capacity was not tied up by projects that were not being pursued diligently. The Board found there was no evidence that the 28 hydroelectric projects at issue in the application were "laggards" and noted that such projects face unique challenges because of their site-specific nature and the extensive approval processes involved. Accordingly, the Board granted these waterpower projects an indefinite exemption to this requirement. 

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California passes ambitious renewable energy bill

On Tuesday, April 12, California Governor Jerry Brown signed into law Senate Bill 2X, which will require all electrical retailers to procure 33% of California’s electricity from renewable sources such as wind, solar and geothermal by December 31, 2020.

Prior to Senate Bill 2X, California had a 20-percent renewable energy requirement for investor-owned utilities and independent sellers. As well, several municipal utilities had adopted voluntary, non-binding renewable energy targets. Senate Bill 2X now widens the scope of minimum renewable energy content to publicly owned utilities. All load-serving entities must meet a 20% target by the end of 2013, and a 25% target by the end of 2016, before reaching the 33% goal by the end of 2020.

The California Public Utilities Commission (“PUC”) will approve renewable energy contracts, and provide exemptions to utilities if the price of energy, or the difficulty of moving renewable energy into the state’s grid, makes the costs of compliance too excessive.

Stikeman Elliott participates in German-Canadian solar conference

Lawyers Eric Bremermann and Matthew Cameron attended the 4th Annual Canadian German Solar PV Conference this past week hosted by the Canadian German Chamber of Industry and Commerce in Kitchener, Ontario.  The conference was attended by various developers, manufactures and service providers in the solar and renewable energy market with interests in Canada, Europe and the U.S.

Eric was a panelist in the opening plenary discussion on opportunities and challenges in the Canadian solar market.  The panel focused primarily on the Ontario Feed-In Tariff Program and considered the effect of Ontario’s Long Term Energy Plan (which forecasts having 10,700 MW of non-hydro renewable power in the supply mix, and 1.5% of the total energy supply from solar, by 2018) on solar power’s future in Ontario, the benefits and risks of the FIT Program’s domestic content regime and the tremendous opportunity for all industry stakeholders in the development of the projects offered FIT Contracts by the Ontario Power Authority to date.

Federal government to invest up to $64 million in alternative energy

The federal government has announced its commitment to provide $52 million to 16 alternative energy projects across Canada through Sustainable Development Technology Canada. The funding is part of a series of investments totalling nearly $64 million to support renewable and clean energy.

The projects include a $9.2 million investment in a wind farm development in Digby County, Nova Scotia, and a $2.79 million wind power storage demonstration project located near Regina.

OPA offers 40 new FIT contracts

This morning, the Ontario Power Authority announced contract offers for 40 large scale renewable energy projects under the Feed-In Tariff Program, representing over 872 megawatts of renewable power.

Although only four of the contracts offered are for on-shore wind projects, on-shore wind is the energy source for over 70% of the capacity offered.  Thirty-five solar projects (33 groundmount and two 500kW rooftop) represent over 29% of the capacity. A single water-power project of 500 kW makes up the balance. By region, 49% of the capacity is in the central region, 22% in the east and 28% in Niagara.

The announcement reflects the long anticipated results of the OPA’s transmission and distribution availability tests (so called TAT and DAT). Contract offers for smaller capacity allocation exempt(or CAE) projects are expected to follow over the coming weeks.

The list of contracts offered is available from the OPA FIT website.

Ontario halts offshore wind projects

The Ontario government announced on Friday that the province will not proceed with any proposed offshore wind projects until further scientific research is completed. The press release circulated mid-Friday afternoon noted that no renewable energy approvals for offshore projects have been issued to date, no new applications for offshore wind projects under the OPA’s FIT program will be accepted and current applications for such projects will be suspended.

To date only one off-shore wind project has been granted a FIT contract, although without the necessary renewable energy approval from the Ministry of Environment, the project will be unable to meet its obligations under such contract. Three additional off-shore wind projects are listed as awaiting connection tests under the FIT program; today’s announcement will see such applications suspended.

This announcement comes as the Ontario government is attempting to balance its commitment to renewable energy in the face of increasing public criticism of wind energy projects related to health and safety and environmental concerns.

FIT project developers breath a sigh of relief as OPA offers extension

In the face of increasing force majeure claims arising from delays related to obtaining renewable energy approvals and necessary connection approvals, the OPA announced yesterday that it will be offering one year extensions of the milestone date for commercial operation to all FIT counterparties who have not yet reached commercial operation. The one-year extension will not affect domestic content requirements, meaning that solar projects meeting the 50% domestic content level and wind projects meeting the 25% domestic content level will be permitted to be constructed throughout 2011. It is unclear how this extension will apply to capacity-allocation exemption projects, which had the applicable milestone date for commercial operation pushed out by four months last year.

The extensions will be implemented through FIT contract amendments, which will include a waiver by the supplier of certain force majeure rights. The OPA has indicated that it will be contacting FIT counterparties directly via email with the extension offer and further details on the associated amendment.

The announcement, along with a frequently asked questions summary, can be found on the OPA’s website.

United Kingdom to begin comprehensive review of Feed In Tariffs program

The government of the United Kingdom announced today that they are launching a review of their current Feed in Tariffs (FITs) program. This review comes less than a year after the launch of the FITs program and follows concerns that commercial-scale solar farms are accessing money that was meant to help homes, communities and small businesses generate their own electricity.  The FITs program is restricted to projects of 5 MWs or less and was intended to encourage small scale installations with price tariffs for projects as small as 1.5kW.  Into its first year, already more than 21,000 installations have been registered under the FITs program, with the majority being domestic solar photovoltaic installations. The total installations under the FIT program have a combined capacity of 76.66MW. 

The review is also part of the UK government's commitment to reduce the costs of FITs in 2014-2015 by 10%. Initially, FITs was scheduled for a review to commence in 2012 but the concern over large-scale solar farms and the need to give industry added certainty to invest prompted the government to begin the review early.  The review is expected to be completed by the end of the year and tariffs are expected to remain unchanged until April 2012. Click here for more information on the review and the FITs program.

The UK government's response is similar in principal to that of the Ontario Power Authority's announcement last week for commercial aggregators under the microFIT program. Governments appear to be increasingly aware of the commercial incentives to small-scale renewable generation projects when done in large numbers and are attempting to create programs that balance the overall goals of a Feed in Tariff system with commercial realities.

Commercial Aggregators given second chance under the microFIT Program

On February 1, 2011, the OPA released much anticipated draft rules and a proposed contract for commercial aggregators under the microFIT program (available to 10 kW or less projects).  This group of renewable energy generators, being businesses that lease land or rooftops from individuals for multiple small renewable energy generation projects, has been shut out of the FIT/microFIT program since last fall, when the OPA announced size and applicant restrictions in both the FIT and microFIT rules. 

The proposed C-FIT program includes more commercial terms, including secured lender provisions similar to those under the FIT program, than those available to microFIT generators.  The proposed contract remains simplistic and does not include all standard commercial terms, including assignment and change of control provisions, but is still viewed as many as being critical in making such projects financeable.  Interestingly, the OPA has restricted its own assignment right – limited to entities that have a credit rating not lower than that of the OPA at the time of such assignment.  This provision is an attempt to address lenders’ concerns regarding the strength of the payment covenant following an assignment of these contracts.  This proposal would make the C-FIT contract more onerous than the FIT contract in terms of the OPA’s assignment rights.

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Ontario amends Renewable Energy Approvals regulation

The Ontario government has published amendments to the Renewable Energy Approvals Regulation (O. Reg. 359/09) that will take effect on January 1, 2011.  We reported on an earlier version of the proposed amendment in an October blog posting.

The most significant changes in the amended regulation concern noise receptors and setback requirements for wind faculties. As a result of the amendments, the term “overnight accommodation” in the definition of noise receptors will be replaced with a definition of “dwelling” based on the definition in the Building Code. The definition of “dwelling” was also modified by replacing the words “intended to be used” with “capable of being used”.These changes appear to set a higher threshold for what structures qualify as a dwelling.

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Ontario's long term energy supply plan

Lanette Wilkinson

In 2006, the Minister of Energy directed the Ontario Power Authority (the OPA) to develop an Integrated Power System Plan (the IPSP) that focused on creating a sustainable energy supply in the Province over the next twenty years. In 2007, an IPSP was introduced to the Ontario Energy Board (the OEB), but the hearings were subsequently suspended. On November 23, 2010, the Province released a long-term energy supply plan (the Plan) that is intended to address developments in technology, the uptake of renewable energy arising out of the Province’s feed-in tariff program (the FIT Program), and shifts in demographics and the economy since the release of the IPSP in 2007. A proposed supply mix directive based on the Plan has been posted on the Environmental Registry for a forty-five day comment period ending January 7, 2011, after which time the directive will be finalized and issued to the OPA. The OPA is to develop an IPSP to be submitted to the OEB for review. Once finalized, the IPSP will constitute the new system plan for the next 20 years and will be updated every three years as required by regulation. The Plan contemplates the following:

Eliminating Coal by 2014

The Province remains committed to eliminating coal generation by shutting down two units in Nanticoke in 2011 and converting Thunder Bay Generating Station and Atikokan Generating Station to respectively use natural gas and biomass by 2013. The Province is also considering accelerating the closure of the remaining six units of coal-fired generation (at Nantioke and Lambton) and converting these units to natural gas.

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Japan, US and the EU Face-Off against Ontario's Renewable Energy Program at the WTO

Ashley M. Weber

The debate over Ontario’s feed-in-tariff Program (the FIT Program)was elevated to a new level in September, when Japan launched a dispute settlement proceeding against Canada at the World Trade Organization (WTO). On September 16, 2010, Japan filed a request for consultation with the WTO Dispute Settlement Body (DSB) regarding Canada’s measures relating to the domestic content requirements in the Ontario FIT Program. Less than two weeks later, the US and the EU followed suit and requested to be joined in the consultations. In its submission to the WTO, the EU argued that “[the] renewable energy generation sector is of key interest for the EU importers, exporters and investors" The US stated that, as a major innovator of renewable energy and related technologies, and as a primary source of Canadian imports of products used in the production of renewable energy, it has “substantial trade interests in these consultations.”While these requests for consultation represent the first of many steps in the WTO settlement dispute process, it nonetheless signals a desire by the challenging parties to push back on Canada’s domestic content requirements that they feel are having a negative impact on the export of their renewable energy products into Canada. 

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Canadian tax considerations for windpower and solar power projects

John Lorito

The following is a brief summary of the main Canadian federal income tax considerations applicable to windpower and solar power projects in Canada and, in particular, the accelerated capital cost allowance rates for qualifying depreciable property and the Canadian renewable conservation expense regime. 

Accelerated Capital Cost Allowance Rate

“Capital cost allowance” (CCA) is essentially depreciation for Canadian federal income tax purposes. CCA deductions are discretionary and are taken on a declining balance, class-by-class basis. For example, if the capital cost of depreciable property of a particular class is $100 and the CCA rate for the class is 30%, CCA to a maximum of $30 may be claimed in respect of the property in the first year (subject to the half-year rule discussed below). If $20 of CCA is claimed, this amount is deducted from the capital cost to arrive at the “undepreciated capital cost” (UCC) and the 30% rate is applied to this amount to determine the maximum deduction in the following year (in this example, $24). The cost of newly acquired property of the same class is added to the UCC and proceeds from the sale of property in the class (up to the original cost of the property) is deducted from the UCC. If the UCC is negative at the end of a year, the negative amount (known as recapture) is included in computing income in that year.

CCA classes 43.1 and 43.2 of the regulations (the Regulations) under the Income Tax Act (the Act) provide enhanced CCA rates for various renewable asset properties. Certain assets of a qualifying wind energy conversion system or photovoltaic system that are included in class 43.1 will be entitled to an accelerated CCA rate of 30% per year. Such assets that are acquired after February 22, 2005 and before 2020 and that would otherwise be included in Class 43.1 are included in class 43.2, which has a CCA rate of 50%. 

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FIT Program Update: Updated Timeline

On October 18, 2010, the OPA released an updated timeline for the FIT Program indicating that Transmission Availability Tests and Distribution Availability Tests would commence on October 18, 2010 for non-capacity exempt project applications submitted between December 1, 2009 and June 4, 2010.  The results of such tests are intended to be released in late November 2010.  The existing timeline which was released on June 1, 2010 contemplated that the results of the tests would be released in early July 2010. 
 
Non-capacity allocation exempt applications submitted after June 4, 2010 will be reviewed following the completion of the upcoming Economic Connection Test.  The OPA intends to post an update on the timing of the Economic Connection Test.
 
Applications for capacity allocation exempt projects are reviewed and offered contracts on an ongoing basis.  Contract offers for applications submitted after June 4, 2010 are expected to begin in late October 2010.

All new solar PV FIT projects to meet 60% domestic content requirement under the FIT program

On October 8, 2010, the Ontario Power Authority announced an amendment to its Feed-in-Tariff (FIT) rules that restricts solar PV capacity allocation exempt (CAE) projects (generally those with a capacity between 10 - 500 kW AC) from electing a December 31, 2010 Milestone Commercial Operation Date.  Prior to this amendment, section 6.4 of the FIT rules permitted generators with solar PV and wind CAE projects to elect a 2010 (for solar PV) and a 2011 (for wind) milestone date in order to qualify for the lower domestic content requirements under the FIT rules, being 50% for solar PV and 25% for wind.  All solar PV projects, including CAE projects, that submit FIT applications after October 8, 2010 will be required to meet the 60% domestic content requirements under the FIT rules.  The OPA has stated that this amendment is necessary in light of the time required to complete the FIT application review, project development process steps and FIT contract requirements, all of which is expected to take at least six months.
 
Wind CAE projects may continue to elect a December 31, 2011 Milestone COD in order to qualify for the 25% domestic content requirement applicable to such projects. 
 

Stikeman Elliott's Green Energy Act Seminar

On October 13th, Jason Chee-Aloy of Power Advisory LLC, and Jim Harbell and Glenn Zacher of Stikeman Elliott, held a seminar on the current state of Ontario's Green Energy Act and the investment opportunities available in the province.

The seminar was entitled The Green Energy Act - Part 2: Smart Investing in Ontario.

This seminar was a follow-up to the February seminar Green Energy Act: From Planning to Implementation.


Ontario Ministry of Environment posts draft amendments to the Renewable Energy Approvals Regulation

The Ontario Ministry of the Environment has posted a draft amend to the Renewable Energy Approvals Regulation (O. Reg. 359/09) to provide clarity with respect to the regulatory requirements that proposed renewable energy projects must satisfy.  The proposal notice and a draft of the regulation can viewed on the Environmental Registry.
 
Perhaps the most notable amendments include changes to the definition of noise receptors and clarification of the noise receptor setback prohibitions for wind facilities. Uncertainty over the proper interpretation of the current requirements has been a concern of the developers of these facilities.   Other changes of note include stronger requirements for mandatory consultations with the public, Aboriginal communities, municipalities and the Niagara Escarpment Commission, and changes to the assessment of protected properties, protected properties, archaeological and heritage resources, and natural heritage assessment and water assessment.

U.S. and EU join Japanese WTO complaint

As previously reported, Japan has commenced a complaint before the World Trade Organization regarding Ontario’s green strategy.  Japan alleges that Ontario’s plan to give a preference to local suppliers of green technology constitutes an illegal subsidy under WTO rules.

The United States and the European Union have now filed notices with the World Trade Organization that they intend to join in Japan’s complaint.  

Ontario’s Energy Minister, Brad Duguid, continues to state that “Our position is that Ontario's Green Energy Act is consistent with Canada's international trade obligations under the WTO.” 

CEAA invites public comment on draft Memoranda of Understanding on substitution

As we previously reported, on July 12, 2010, broad amendments to the Canadian Environmental Assessment Act (the “Act”) were passed as part of Bill C-9, also known as the Jobs and Economic Growth Act.

Included in the amendments were provisions for the Canadian Environmental Assessment Agency (“CEAA”) to assume responsibility for performing comprehensive studies of major projects, except where the projects are regulated by the National Energy Board (“NEB”) and Canadian Nuclear Safety Commission (“CNSC”).

For pipeline and power line projects within the jurisdiction of the NEB and nuclear facilities within the jurisdiction of the CNSC, the CEAA will use Section 43 of the Act to allow the environmental assessment (“EA”)review procedures of the NEB and CNSC to substitute for the EA review that would normally be conducted by a CEAA Panel.

The CEAA has released separate draft Memoranda of Understanding (“MOU”) between the CEAA and the NEB, and between the CEAA and the CNSC, to outline the processes whereby the NEB and CNSC can request the Minister of the Environment to allow the NEB and CNSC to perform their own public hearings and licensing reviews. 

The NEB and CNSC will create their own Panels to conduct the EA comprehensive studies. The Panels will be composed of persons who are unbiased and free from any conflict of interest relative to the major project, and who have knowledge or experience relevant to the anticipated environmental effects of the major project.

On completion of the assessment, the NEB and CNSC will submit reports to the Minister of Environment setting out the Panels’ conclusions and findings, including recommendations related to any mitigation measures and follow-up programs that should be implemented with respect to the major project, and a summary of the comments received from the public and Aboriginal peoples.

Public comments on the draft MOUs will be accepted by the CEAA until October 20, 2010. Visit the CEAA website for more information.

Instructions on FIT NTP

On September 15th, 2010, the Ontario Power Authority released instructions on applying for Notice to Proceed ("NTP") under the Feed-In Tariff Program (the "FIT Program"). The NTP is used to provide confirmation to begin building a project under the FIT Program. The OPA  will issue an NTP when it is reasonably confident that a Project has (i) secured proper financing; (ii) completed all necessary Impact Assessments; (iii) received any applicable environmental and site plan approvals; and (iv) there is sufficient evidence that the Project will be capable of meeting any Domestic Content Level requirements.

Injunction against Saskatchewan windfarm lifted

The Moosomin World-Spectator reports that the Saskatchewan Court of Queen's Bench has now lifted its injunction against construction of a windfarm near Moosomin.

The original injunction was issued ex parte on August 25th and was in place for six days.  After a hearing of the matter on September 1 with all parties represented, the injunction was lifted and construction of the windfarm resumed the following day.  

Costs have reportedly been awarded to the windfarm owner.  Counsel has estimated that the cost of construction delays is approximately $74,000 per day. 

Japan commences WTO challenge of Ontario clean energy subsidies

The Financial Post reports that Japan plans to file a complaint related to Ontario's program of providing subsidies tied to the manufacture of solar generating equipment in Ontario.

The Japanese complaint alleges that the Ontario FIT program, which guarantees long-term pricing for solar electricity generated from equipment containing a certain minimum domestic content, violates Canada's WTO obligations.

The FIT program guarantees pricing for ground-mounted solar installations, provided that installations have a minimum domestic content of 40% (if commercial operation is achieved in 2010) or 60% (if the commercial operation is achieved after 2010). 

Wind power coming to the New Jersey shore

The state of New Jersey recently passed the Offshore Wind Economic Development Act (the “OWEDA”) that will require New Jersey’s electricity providers to purchase a certain minimum percentage of their total electricity supply from wind operations in the state’s coastal waters.

The New Jersey Board of Public Utilities (the “BPU“) will have the authority to determine the minimum percentage that utilities must purchase from offshore wind, and will issue offshore-wind renewable energy certificates (“OREC”s) to operators. The minimum percentage will be based on the projected total of the ORECs issued during the first twenty years of all the offshore wind projects’ commercial start dates.

If there are insufficient ORECs available in the market to meet the minimum percentage, the utilities will be required to make a “proportional offshore wind-alternative compliant payment.”

The minimum percentage determined by the BPU must support an offshore wind market of at least 1,100 megawatts, which is enough power for 300,000 homes in this state of 8.7 million people. The OWEDA also authorizes the New Jersey Economic Development Authority to provide tax credits of up to $100 million for offshore wind projects.

The BPU is developing the regulations to establish the OREC program, which will be unveiled in early 2011.

Court issues injunction against Saskatchewan windfarm

The Saskatchewan Leader-Post is reporting that a Saskatchewan court has issued an interim injunction temporarily stopping construction of a windfarm near Moosomin.

The $60 million, 25 MW Red Lily windfarm, owned by Algonquin Power and Gaia Energy, was to have come into service late in 2010 or early in 2011.

The project was to have been constructed with minimum setbacks of 550 metres from residences.  Landowners are seeking to have turbines at least 2000 metres from residences.

The interim injunction stops "all construction-related activity".  Further arguments on the injunction application will be heard on September 7. 

OPA posts finalized pricing for ground-mounted solar PV microFIT projects and updates to the FIT Program

Over the last week, the OPA has posted the following amendments and updates to the FIT Program to its website:

  • Price category for ground-mounted solar PV microFIT projects finalized

On August 13, 2010, the OPA announced that it finalized the 64.2 cents per kWh price category for ground-mounted solar PV microFIT projects.  The revised price applies to all microFIT ground-mounted solar applications submitted after 12 p.m. on July 2, 2010.  In addition to changes to the contract price, the OPA has announced that:

(1) commercial aggregators that lease land or rooftops from individuals for multiple renewable energy projects will no longer be able to participate in the microFIT program;

(2) the OPA will be setting up a microFIT advisory panel to provide advice on the evolution of the microFIT program; and

(3) the advisory panel will be charged with making recommendations regarding the appropriate contract provisions that should apply to aggregators (outside the microFIT program).

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2010 budget streamlines federal environmental assessments

On July 13, 2010 the Canadian Senate passed Bill C-9, An Act to implement certain provisions of the budget tabled in Parliament on March 4, 2010 and other measures. Included in the omnibus 2010 Budget Bill were changes to the federal environmental assessment review process under the Canadian Environmental Assessment Act.

The major changes to environmental assessments included in Bill C-9 are:

This last change has been the subject of significant debate – critics have charged that the giving the Minister the power to determine the scope of projects will gut the assessment process, while advocates have suggested that the power will be used to restrict assessments to areas of federal jurisdiction and eliminate overlap with existing provincial assessments.

Addressing critics’ concerns about the changes, Environment Minister Jim Prentice has stated:

I am a strong believer in the environmental assessment process. Improving a project’s design to prevent environmental harm before construction is both prudent and cost-effective

It is clear to me that the federal environmental assessment process has not worked as well as it needs to and requires fixing. It is prone to delay. These delays have caused difficulties in harmonization with the provinces that have not benefited the environment and have harmed the economy… These amendments are about getting the federal house in order…

A more efficient and timely process is good for the economy. Strengthening the role of the Minister of the Environment and the Canadian Environmental Assessment Agency will be good for the environment.”

The Canadian Environmental Assessment Act is scheduled to undergo a statutory Five-Year Parliamentary Review in the fall.

Renewable Energy - A Hot Topic in the Heat of the Summer

Today’s Globe and Mail featured two articles profiling the renewable energy market in Ontario and internationally today – Ontario’s rate cut for solar power a blow to green energy.  See also the OPA’s Rationale for New Ground-Mount FIT Price Category

Quality Wind Project receives Environmental Assessment Certificate

 Edmonton’s Capital Power announced this week that the British Columbia Environmental Assessment Office had granted an Environmental Assessment Certificate under the B.C. Environmental Assessment Act for its proposed Quality Wind Project, to be located northeast of Tumbler Ridge, B.C.

The $455 million project will consist of 79 wind turbines to be manufactured by Vestas and have a capacity of 142 MW. 

Capital Power expects to commence construction later this year and have the project fully operational by 2012.  An electricity purchase agreement was signed with BC Hydro in April, 2012.

Canadian Chamber of Commerce publishes report on energy prosperity

The Canadian Chamber of Commerce published a report this week on the Canadian energy sector, entitled “Powering up Canadian Prosperity:  Growing the Energy Sector Value Chain.

The report recognized the energy sector as a competitive advantage for Canada, and discussed ways that the Canadian energy industry can continue to be sustainably developed, primarily through a focus on growth in value-added areas such as renewable energy and bitumen upgrading.

The report’s recommendations included:

  • The federal government should expand access to accelerated capital cost allowances for value-added energy projects such as advanced manufacturing, carbon capture and storage, and upgrading and refining
  • All levels of government should work towards harmonization of regulation and environmental assessments
  • All levels of government should continue to provide financing and incentives for research, development and commercialization of new energy technologies
  • Invest should continue in smart electricity infrastructure and the improvement of east-west linkages across Canada
  • Governments should encourage the development of energy-sector clusters with adequate infrastructure
  • A cross-Canada agreement to recognize credentials for skilled workers should be developed
  • Governments should consider the entire energy sector value chain when developing policies, including an overall national energy strategy

New Brunswick signs letter of intent to build Canada's first light-water reactor

The Province of New Brunswick, New Brunswick Power and the France-based multinational, AREVA, have signed a Letter of Intent to develop a “clean energy park” that would feature one of AREVA’s mid-size reactors: the 1,100 megawatt ATMEA1 plant, or the 1,250 megawatt KERENA plant.  As well, the “clean energy park” would include renewable energy generation facilities, such as biomass and solar.

If constructed, the ATMEA1 or KERENA plant would be Canada’s first light-water nuclear reactor.  At present, all of Canada’s utility generating nuclear plants use the heavy water CANDU technology developed and marketed by Atomic Energy of Canada Limited.

This project would be North America’s third “clean energy park” built by AREVA.  New Brunswick Power intends to use the power generated domestically, and to export the power to the Maritime region and New England.

The announcement has been met with some controversy, particularly as it may have an effect on AECL's ongoing sale process.  

Ontario MNR approves revised onshore windpower policy and procedure

On July 5, 2010 the Ontario Ministry of Natural Resources has approved revisions to its Onshore Windpower Development on Crown Land policy and procedure.

The revisions apply to all onshore Crown land windpower applicants and are part of the MNR’s broader review of Ontario’s Crown land release process applicable to renewable energy projects begun in September 2009.

The aim of the new revisions for onshore wind projects is to eliminate duplication with renewable energy approval processes, provide procedural clarity to applicants currently within the site release process and to align with Ontario’s Green Energy initiative. Revised policy and procedure for offshore windpower projects will follow the government’s broader decision on draft rules regulating off-shore wind turbines proposed by the Ministry of the Environment. The window for new renewable energy applications for Crown land will remain closed until the completion of the phased review.

U.S. Department of Energy conditionally commits $1.85 billion to the solar industry

The U.S. Department of Energy recently made conditional commitments to provide $1.85 billion in loan guarantees to two firms in the solar industry.  

Abengoa Solar Inc., a Spanish-based company with offices in Denver, Colorado, received a conditional $1.45 billion loan guarantee to finance, construct and start-up the Solana Generating Station, a 280-megawatt concentrating solar power plant to be located seventy miles southwest of Phoenix, Arizona. 

The DOE also made a conditional commitment to Abound Solar, of Fort Collins, Colorado, for a $400 million, seven-year loan guarantee to expand Abound Solar’s capacity to manufacture thin-film cadmium telluride photovoltaic cells.

Funds for the Loan Guarantees come from the DOE’s Title 17 Innovative Technology Loan Guarantee Program, a creation of the U.S. Energy Policy Act of 2005.  Through the American Recovery and Reinvestment Act of 2009, the Loan Guarantee Program received an additional $6 billion specifically to fund renewable energy and electric power transmission projects,  

To participate in the Program, the DOE periodically issues technology-specific solicitations to the public.  Once a solicitation is issued, project sponsors have a defined amount of time to respond before the solicitation date closes.

The Loan Guarantees are structured as a series of loans distributed on a milestone-basis, whereby the sponsor must meet certain objectives to release funds during the duration of the project.  The Loan Guarantee involves a comprehensive application process that may include independent engineering reports and site visits.   

OPA posts updated FIT contract and rules

The Ontario Power Authority posted Version 1.3.1 of the FIT Contract, FIT Rules, and Standard Definitions on July 2, 2010. A summary of changes of the changes to the FIT Contract, FIT Rules, and Standard Definitions can be found on the OPA's website.  The Ontario Power Authority has also posted a revised Price Schedule to reflect the proposed new pricing for ground-mounted solar PV projects and an updated Program Overview.

Senate releases report on Canada's energy future

On June 29, the Senate released a 75 page interim report on Canada’s energy future. 

The report, entitled “Attention Canada: Preparing for Our Energy Future” is based on nine months of testimony collected by the Senate’s Standing Committee on Energy, the Environment and Natural Resources.The Committee heard from witnesses from the energy sector, think tanks, and other stakeholders. 

In the interim report, the Committee looked at the country’s major energy issues, including the potential for reduction of greenhouse gas emissions through a national carbon tax. The report states that the majority of witnesses appearing before the Committee presented a carbon tax as the most efficient way of reducing emissions. 

The committee found near unanimity among witnesses –from the petroleum industry to environmental organizations –that supported pricing carbon as the most efficient way to reduce emissions. Given the choice, most witnesses favoured carbon taxes over cap-and-trade but both are market-based approaches for pricing carbon and both can be levied at different stages along the fossil fuel supply chain.

Generally, witnesses stated that a carbon tax would be more economically efficient and less complex to administer than a cap-and-trade system. For either method, it was stressed that carbon pricing should be applied broadly and uniformly throughout the economy and across Canada.

The report reviews the debate surrounding carbon capture and storage (CCS). The Committee heard from some witnesses who were advocates of CCS technology and its ability to decrease emissions on a large scale, and from other witnesses who argued that the effectiveness of CCS is unknown and that the technology remains costly. 

The report further addressed the future of fossil fuels, and the prospects of nuclear and other renewable energy sources.

The Committee is currently asking all Canadians to contribute to its final report on Canada’s energy strategy, which is set to be released in June 2011.

OPA proposes new pricing for ground-mounted solar PV projects

Lanette Wilkinson

On July 2, 2010, the Ontario Power Authority proposed a new pricing category of 58.8 cents per kilowatt-hour for ground-mounted solar PV projects under its microFIT Program

The new price category will apply to new applicants or those applicants who have submitted an application, but have not yet received a contract or conditional contract offer. Applicants who have already executed a contract or have received a conditional contract offer from the OPA will continue to be eligible for the original price of 80.2 cents per kilowatt-hour.

The OPA will be hosting webinars on July 6 and July 8 to provide additional information on the update and will be accepting written comments on the proposal until August 3, 2010.

Ontario releases draft rules for offshore wind turbines

Alison Forbes

The Ontario Ministry of the Environment  (the “MOE”) released draft rules clarifying the regulation of off-shore wind turbines on June 25, 2010 under the Renewable Energy Approvals regulation under the Environmental Protection Act.

The draft rules, as well as a discussion paper, are available for review and public comment until August 14, 2010 on the Environmental Registry.

The proposal includes a five kilometre “shoreline exclusion zone” for all off-shore wind facilities. Areas within five kilometres from the shoreline of the Great Lakes, other inland lakes and major islands would not be considered for off-shore wind turbines. The exclusion zone is intended to create separation between wind facilities and drinking water intakes and near shore activities and to ensure acceptable noise levels. Additional exclusion zones are proposed to ensure that shipping on the Great Lakes is not affected.

Under the proposed rules, off-shore facilities will also be subjected to a “stringent and comprehensive application process,” including meeting requirements that minimize negative impacts to threatened species and their habitat, assessing and addressing any potential negative environmental effects, noise assessments and public consultation requirements, among other things.

These draft rules have been released in the middle of the Ministry of Natural Resources review of Ontario’s Crown land release process applicable to renewable energy projects. Begun in September 2009, the first phase focused on procedural elements, like ensuring clarity between site release and other provincial approval processes, while the second phase focuses on longer-term policy direction for renewable energy developments on Crown land. Results from the first phase are now available for comment on the Environmental Registry and results from the second phase are expected in 2010.

G-20 declaration deals with energy matters

At the recently concluded G-20 summit, world leaders confirmed their ongoing commitment to phasing out subsidies for inefficient fossil fuels.

This commitment, which originated at the 2009 Pittsburgh G-20 Summit, is designed to combat wasteful consumption and greenhouse gas emissions. 

At the request of the G-20, a special report on energy subsidies was prepared by the International Energy Agency (IEA), the OECD, OPEC and the World Bank. 

Leaders at the Summit “note[d] [the report] with appreciation” and further demonstrated their support by calling on Finance and Energy officials to develop timeframes and strategies for phasing out the subsidies. Nevertheless, the Declaration acknowledged that certain countries remain dependent on fossil fuels. Consequently, the G-20 promised that plans to phase out subsidies would be tailored to every country’s specific needs.

The Declaration also addressed the ongoing oil spill in the Gulf of Mexico. Leaders of the G-20 agreed that countries must begin sharing best practices with each other to protect the marine environment and to prevent future offshore drilling accidents. The Declaration, however, does not outline any specific steps that the G-20 will take to achieve this greater level of cooperation.

National Research Council announces biofuel from algae pilot project

Lewis Smith

On June 4, 2010, the National Research Council announced a pilot project to develop a 50,000 litre cultivation plant to study the production of biofuels from algae. The plant is to be constructed at the NRC’s Marine Research Station in Ketch Harbour, Nova Scotia, where researchers have been growing algae for more than 50 years. The NRC’s algal biofuel initiative is notable for its use of local algae strains. These are expected to be easier to grow, since they are already adapted to the environment, and their use avoids the risks of unintended releases of foreign strains of algae.

Approximately $5 million was provided for the project by the Canadian federal government. The NRC is working on the development of algal biofuels with the United States Department of Energy, the National Renewable Energy Laboratory in Colorado and Sandia National Laboratories in New Mexico, as well as a Canadian private sector partner Carbon2Algae Solutions Inc. Carbon2Algae’s longer-term plan is to produce biofuels using algal bioreactors fed in part by carbon dioxide generated by emitters such as the Albertan oil sands and coal-fired electrical generating stations. 

Australia maintains renewable energy target

Australia will stay committed to its goal of generating 20% of the nation’s energy from renewable resources, despite proposed amendments to legislation. 

The country’s Renewable Energy Target Scheme (RET) will consist of two parts: support for households using solar panels and solar hot water systems, and the development of wind farms, commercial solar and geothermal projects. Australia expects that the second part of the plan will help the country reach its renewable energy target by 2020.

Other amendments to Australia’s renewable energy laws include increasing the country’s target in the years 2012-13 with subsequent modifications. Regulatory powers will also be granted for the adjustment of solar panel credits and for reviewing the price of renewable energy certificates. 

Climate Change Minister Penny Wong has noted that the legislation and its amendments are “imperative for the ongoing growth of the renewables sector.” 

The amended legislation is expected to come into effect on January 1, 2011.

PG&E finances residential solar installations

PG&E Corporation has established a $100 million tax-equity fund to finance residential solar installations by SunRun, a start-up company that leases photovoltaic arrays to homeowners.

The fund promises to support solar installations for 3500 homes.  Homeowners in various states, including California, Arizona, and New Jersey, can now sign a power purchase agreement with SunRun that fixes the cost for monthly electricity payments for as many as eighteen years; in exchange, SunRun installs, owns, and maintains the solar systems.

The infusion of tax equity has greatly encouraged the growth of the solar lease market.

Although PG&E’s fund is the largest to date, other companies like US Bancorp have also created tax-equity funds for solar installer companies.

PG&E’s fund represents another step forward for tax equity vehicles in the area of renewable energy. 

Alaska adopts renewable energy and energy efficiency measures

On June 16, 2010, Alaska adopted a new law that sets a target of generating half of the state’s electricity from renewable sources.   The new legislation – formerly known as House Bill 306 – does not contain details on how Alaska will achieve this goal.  Nevertheless, the state expects that hydroelectric projects will help the state realize its target by 2025.  The legislation marks the highest goal for renewable power amongst any of the US states, beating out California and Hawaii, which have set its targets at 33% and 40%, respectively. 

Alaska also passedSenate Bill 220 into law, which provides a $250 million financing scheme for energy efficiency projects.  The scheme, run by the Alaska Housing and Financing Corporation, will supply funds for improving public structures, such as schools, government buildings, and the University of Alaska.   State buildings will first be evaluated for energy efficiency.  Alaska will then begin improvement projects starting with the most inefficient structures.  These projects will be scheduled for completion by 2020.  Finally, the new legislation establishes an Emerging Energy Technology Fund.  This fund offers grants for technological projects that are predicted to be commercially viable within five years.

Metering discrepancy first major snag in the roll-out of FIT and microFIT projects

Alison Forbes

As of the end of May, project developers who had previously installed and connected in-series renewable generation projects under the FIT and microFIT programs still do not know the future of their projects.  While the current official position of the Ontario Power Authority (OPA) is that it will continue to work with the necessary regulatory bodies, including the Ontario Energy Board (OEB) and Measurement Canada, and local distribution companies (LDCs) to address systems already connected, the OEB has now directed all LDCs to stop connecting facilities using in-series meters and the OPA FIT and microFIT rules have been amended to prohibit behind-the-meter, in-series facilities.

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BC introduces Clean Energy Act

Jonathan S. Drance and Phil G. Griffin

In the most recent Throne Speech the Provincial Government of British Columbia announced a policy to transform the province into a "Clean Energy Powerhouse" and to become a global leader in managing and responding to climate change.

On April 28, 2010 the Provincial Government introduced the Clean Energy Act in the legislature. The Act is designed to achieve three primary policy objectives. The first objective is to achieve electricity self-sufficiency for BC by 2016, while maintaining low electricity rates for BC consumers. The second objective is to harness BC's clean power potential to create jobs in all regions of the province. The third objective is to strengthen environmental stewardship and reduce greenhouse-gas emissions.

To meet those objectives, the Clean Energy Act provides a new regulatory framework for long-term energy planning, an enhanced commitment to renewable electricity generation, and measures to promote electricity efficiency and conservation. More specifically, the Act provides for the following:

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Canada releases details of renewable fuel regulations

Ruth Elnekave

On April 10, 2010, the Government of Canada published details of previously announced renewable fuel regulations under the Canadian Environmental Protection Act, 1999. The proposed regulations are aimed at fulfilling two commitments under the Government's Renewable Fuels Strategy: the reduction of greenhouse gas (GHG) emissions from liquid petroleum fuels and encouraging increased demand for renewable fuels in Canada. The proposed regulations target "primary suppliers" (i.e. producers and importers of gasoline, diesel fuel or heating distillate oil), imposing an annual average 5% renewable content in gasoline starting in September 2010, and a 2% renewable content in diesel fuel and heating oil by 2011. When the 2% requirement comes into force depends on the results of technical feasibility testing for renewable diesel fuel under a range of Canadian conditions.

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OPA Issues hundreds of FIT Contracts

Alison Forbes

Although many kinks and details in the Ontario Power Authority (OPA) Feed-in-Tariff (FIT) program continue to be ironed out, more than six hundred developers of renewable energy generation facilities have been awarded FIT contracts since early March, representing approximately 2600 MW in generation capacity. The impressive uptake of the program seems to have come as a surprise to both the OPA and the provincial government, although the economics of developing renewable-energy generation projects under the FIT program was no secret among developers.

Capacity allocation exempt facilities

The OPA announced the first tranche of FIT contracts on March 10 - more than five hundred FIT contracts were offered to developers of projects with a generation capacity of less than 500 kWs. These "Capacity Allocation Exempt" (CAE) facilities represent a total of 112 MWs of generation capacity and are largely comprised of rooftop solar projects. CAE facilities are not required to provide initial application security upon the submission of an application under the FIT program, and are exempt from the OPA's distribution and transmission capacity testing. Although the OPA had originally intended to offer contracts to CAE project applications immediately after applications had been deemed complete, no further CAE facility FIT contracts will be offered until June, at the earliest.

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Renewable power continues to energize project development in Ontario

Alison Forbes and Jim Harbell

As the dust finally settles from the 60-day initial launch period in the Fall of 2009 under the Ontario Power Authority (OPA) Feed-in Tariff (FIT) program, many project developers, renewable energy generation equipment manufacturers, investors, lenders and governmental agencies are quickly realizing that Ontario's renewable energy market is experiencing explosive growth. This article briefly reviews some of the most recent developments.

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Clarifications and updates to the OPA FIT Program

Alison Forbes

Since its release of the Feed-In Tariff (FIT) program on September 30, 2009, the Ontario Power Authority (OPA) has faced both commendation and criticism. Throughout the Launch Period, ending November 30, 2009, the OPA has released several clarifications and amendments to the initial FIT program. The following is a summary of the key announcements made throughout the past two months and some of the issues that remain outstanding.

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OPA's FIT program kicks off and REA regulations come into force

Jim Harbell and Alison Forbes

As Ontarians turned off their air conditioners earlier this month, the Ontario Power Authority (OPA) opened the gates to the widely anticipated Feed-In-Tariff (FIT) Standard Offer Contract Program. The FIT program was officially launched on October 1, 2009, finally allowing renewable-energy project developers to put the FIT framework to the test. The OPA has stated it intends to respond to project developers within sixty days of receiving a complete application, although the anticipated high number of applicants may cause delays to the expected execution of FIT contracts.

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OPA releases new FIT Program rules

Annie Pyke

On July 10, 2009, the Ontario Power Authority (OPA) released updated rules (Program Rules) for the Feed-In Tariff Program (FIT Program). The purpose of the FIT Program is to promote the development of renewable energy sources within the province of Ontario through the creation of a standardized application and approval process for renewable electric generation. The FIT Program is an important element of the Green Energy and Green Economy Act (GEA). The following briefly highlights the basic FIT structure and significant revisions to the Program Rules.

The basic eligibility requirements for the FIT Program are that the facility must: (i) be a new or incremental generating facility; (ii) be located in Ontario; and (iii) generate electricity from one or more of: wind, solar (photovoltaic), landfill gas, waterpower, biogas, or renewable biomass. A new requirement is that applicants must also provide evidence of the necessary title and access rights to construct the project (the "Access Rights," as defined in the Program Rules), which is more detailed than the previous requirement of "Demonstrated Location Access." The Program Rules also move the requirement that applicants give evidence of resource assessment/planning and Renewable Energy Approval from the application stage to the FIT Contract stage.

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Ontario MoE releases proposed minimum setback requirements for wind energy

On June 9, 2009, the Ontario Ministry of the Environment released the "Proposed Content for the Renewable Energy Approval Regulation under the Environmental Protection Act" (the Proposal). The intent of the Proposal is to standardize requirements applicable to developers of renewable energy projects across the province. One such proposed requirement would oblige developers to locate renewable energy projects at a minimum setback distance from "receptors", such as dwellings, to ensure that noise levels do not exceed a certain threshold at any receptor.

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OEB proposes cost-recovery changes to spur renewable infrastructure investment

Glenn Zacher

The Ontario Energy Board (OEB) continues to rapidly introduce changes intended to facilitate implementation of the Green Energy and the Green Economy Act (GEGEA). In May 2009, it issued a notice to amend the Distribution System Code to enhance the generation connection process, proposing measures aimed at removing the backlog of generation projects in the current queue. Earlier this month, the OEB issued a further notice to amend the Distribution System Code in order to reduce the costs that renewable generators pay to connect to the distribution system (this follows on similar proposed amendments to the Transmission System Code). Most recently, on June 10, 2009, OEB staff issued a discussion paper aimed at facilitating investment in distribution and transmission infrastructure by dramatically changing current cost recovery treatment.

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Ontario's energy renaissance continued: Green Energy Act passed

Jeffrey Elliott and Andy Gibbons

On May 14, 2009, Ontario's Bill 150, the Green Energy and Green Economy Act, 2009 (GEA) was passed by the Ontario Legislature. Modeled, in part, after successful programs in Europe, the GEA is intended to provide the catalyst for the development of the green economy in Ontario, improve the environment, implement Ontario's commitment to climate change initiatives and create a culture of energy conservation. To accomplish this, the GEA amends 15 other statutes - including the Planning Act, Electricity Act, 1998 and Ontario Energy Board Act, 1998.

To re-cap our February update when we first reported on Bill 150, some of the key components of the GEA include the following.

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Québec introduces bill aimed at reducing greenhouse gas emissions

Will require certain emitters to report emissions and will set emission caps using a 1990 baseline

Alix d'Anglejan-Chatillon and Jason Streicher

On May 12, 2009, Québec's Minister of Sustainable Development, Environment and Parks introduced a bill (Bill 42) to amend Quebec's Environmental Quality Act and Other Legislative Provisions in Relation to Climate Change to Québec's National Assembly. Bill 42 aims at reducing greenhouse gas (GHG) emissions. Bill 42 proposes a cap-and-trade system which distances itself from the currently proposed Federal system and which is more in line with what the new Obama administration has suggested may be adopted in the United States.

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Ontario's energy renaissance: Part 2 Green Energy Act proposed

James Harbell, Glenn Zacher, Jason Kroft, Jeffrey Elliottand Alison Forbes.

With a bold step towards a renewable and sustainable energy future, the McGuinty government introduced Bill 150 to enact the Green Energy Act, 2009 (GEA) on February 23, 2009.  It is the next significant step on a dramatic change to Ontario's energy economy.  Following the announced closure of Ontario's coal plants, the GEA hits the "sweet spot", (as labelled by the Premier), as it is intended to provide the catalyst for the development of 50,000 new green economy jobs, improve Ontario's environment, implement Ontario's ongoing commitment to climate change initiatives and create a culture of energy conservation.

Deputy Premier and Energy and Infrastructure Minister George Smitherman describes the renaissance of Ontario's energy industry as having "two equally important thrusts".  The first is to "bring renewable energy projects to life" and the second is to create a "culture of conservation".  Underlying both thrusts is the desire to create a "sustainable green employment for Ontarians" as a direct response to the world's economic crisis.

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California continues to lead the way on facilitating renewable energy development

Glenn Zacher

As Ontario's Minister of Energy and Infrastructure, George Smitherman, moves forward with plans to develop a "green energy act", he may be looking south to California governor, Arnold Schwarzenegger, for inspiration.   On November 17, 2008, Governor Schwarzenegger signed Executive Order S 14-08, thereby giving effect to California's ambitious Renewable Portfolio Standard (RPS) goal of supplying 33% of retail load from renewable energy sources by 2020.  To facilitate the development of the substantial new wind, solar and other renewable resources that will be required to meet this threshold, S-14-08 provides for a major streamlining of California's existing regulatory approvals and permitting processes.  Building on authority earlier given to the California Energy Commission (CEC) to designate necessary transmission corridors to access and deliver new renewable energy, S-14-08 provides for enhanced coordination and collaboration between the CEC and other state and federal agencies (the California Department of Fish and Game, the US Bureau of Land Management, and the US Fish and Wildlife Service).  This coordination and collaboration is intended to create a one-stop process for approving and permitting renewable-energy projects, reduce approval and permitting timelines by 50% and create a best-management-practices manual to be used by RPS project proponents.

OEB proposes new cost treatment for transmission necessary to enable renewable resource development

Glenn Zacher

On October 30, 2008, the Ontario Energy Board (OEB) issued a Notice of Proposal recommending amendments to the Transmission System Code (TSC).

The proposed amendments would recognize a new category of transmission facilities - "enabler facilities" - that are necessary to meet government policy aimed at facilitating increased renewable resource development. Similar to views expressed by regulators in California and Texas, the OEB acknowledged that the TSC's current customer-pays treatment for "connection facilities" would inhibit development of new renewable resources, many of which are small in size, will operate intermittently and are located significant distances from the transmission grid.

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Developments in geothermal energy

Jamie Klein

Amid the search for new clean-energy sources, there has been a renewed interest in geothermal energy production in Canada. There are two types of energy systems that can be obtained from the earth's heat: Heat Exchange Systems and Steam Turbine Energy Generation Systems. 

Heat Exchange Systems use temperatures found in the earth or below water to cool or heat air and water for buildings. In the typical system, a heat pump will extract heat from underneath the ground to provide heat in the winter months, and in the summer, the pump is reversed in order to provide air conditioning by moving hot air out of the building and down into the ground. There are currently more than 30,000 geothermal heat exchange installations in Canada that are used for residential, commercial, institutional and industrial applications.

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Three provinces explore tidal energy projects

Rob Assal

Relative to other forms of alternative energy, tidal energy developments in Canada are still in their infancy. However, there has recently been significant interest in this area, and tidal projects are currently under consideration in three provinces: British Columbia, Nova Scotia and New Brunswick.

Although  offshore lands for tidal project development are generally secured through long-term leases of Crown land, each of the above-referenced provinces has implemented project proposal and assessment procedures that must be followed by proponents prior to commencement of land lease discussions. In addition, while Crown land leases are typically governed by provincial legislation, the terms and procedures for leasing off-shore lands are found in provincial energy policies.

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Ontario's incentives attract solar power projects

Jim Harbell

In Ontario, enthusiasm for  solar PV projects has recently been growing. While solar panels in individual residences and commercial establishments have been in place for many years, Ontario is now moving in the direction of large-scale commercial applications. This trend is assisted by Ontario's Standard Offer Program, run by the Ontario Power Authority, which encourages solar PV projects of up to 10 MW.  Solar PV is being encouraged because it is abundant and renewable, environmentally friendly; it emits no carbon dioxide and potentially displaces other energy sources that do, thereby reducing global greenhouse gases.

Once a concern, the efficiency of solar PV systems has increased with advances in the field to 20% or more. They are an excellent source for distributed energy as they can be rural, remote and portable.

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Mandated "renewable fuel" content spurs ethanol demand and production

Rajah Lehal

A federal mandate was announced in 2006, under which fuel producers and importers would be required to have an average annual renewable fuel content of 5% of the volume of gasoline they produce or import, commencing in 2010. "Renewable fuel" is a broad term that encompasses a range of fuels made from renewable resources such as agricultural crops and other organic matter. For example, a renewable fuel such as ethanol contains 35% oxygen, which, when blended with conventional gasoline, results in a more complete fuel combustion and reduces harmful emissions. A proposed draft Federal regulation regarding this mandate is expected in the fall of 2008.

Various provinces including Ontario, Quebec, Saskatchewan and Manitoba have either enacted or drafted legislation that will require a minimum ethanol content for fuel producers. For example, regulation 535/05, a new regulation enacted in 2007 in Ontario, requires an average of 5% ethanol content in gasoline, a standard which is projected to take 200,000 vehicles off the road. Ontario is planning to administer this with a credit-trading system under which wholesalers using more than 5% would acquire credits that they can sell to companies that choose to blend less than 5%. Responding to the demand for ethanol, the Integrated Grain Processors Co-operative is building a $140 million ethanol facility in Aylmer, Ontario, and Husky Oil is constructing a second ethanol plant in Minnedosa, Manitoba that is scheduled for completion in late 2007.

Standard offer program for small renewable energy projects

Andrés Durán

In our October 2005 Energy Law Update we advised you that the Federal government had allocated $97 million over five years, and a total of $886 million over fifteen years, to stimulate the development of renewable energy, such as small hydro, wind, biomass and landfill gas. The Update also noted that provincial governments were developing renewable energy programs, with the Ontario government setting a target of 2,700 megawatts of electrical power to come from new renewable energy sources by the year 2010.

As part of this initiative, the Ontario Power Authority (OPA) and Ontario Energy Board (OEB) have designed a standard offer program (RESOP) for small renewable energy generation programs, and the name of the game (according to the OPA) is to simplify eligibility requirements and contracting and to offer standard pricing in an effort to eliminate barriers that prevent small renewable energy projects from succeeding.

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NIMBYism, low frequency noise and wind energy development

Aaron Atcheson

The movement known as NIMBY(Not In My Backyard)-ism is taking its toll on Canadian renewable energy projects, particularly on wind farm developments. The latest of the bogeymen used to stop or slow down these projects is the spectre of serious health effects arising from low frequency noise produced by turbines.

NIMBYism is certainly not a new phenomenon, but rather has been a consistent theme within environmental movements since their inception. To a certain extent, renewable energy projects have been supported by the larger environmental movement, keeping NIMBYism at bay. However, unresolved questions about the potential health effects of low frequency noise (LFN) associated with modern wind turbines have become the latest fodder for the NIMBY movement.

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New Nuclear?

Glenn Zacher

Premier McGuinty chose the recent Ontario Energy Association conference to offer the government's most definitive pronouncement yet on new nuclear. While the pronouncement itself is significant, perhaps more telling is the manner in which it was conveyed. The Premier did not say the government was deciding whether to build new nuclear plants. Rather, he said: "We are prepared to go ahead with economical, safe, new nuclear if that is recommended by the [Ontario Power Authority]. We will act on the best, unvarnished advice on what we need to do to ensure Ontarians always have access to safe, clean, reliable, affordable electricity."

By purporting to put the ball in the OPA's court, Premier McGuinty highlighted the issue that continues to bedevil Ontario's fledgling electricity market -the unpredictability of government involvement.

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