Green act may prompt flood of litigation

OTTAWA - Ontario’s new green energy act could spark a flood of litigation and political battles over provisions giving Queen’s Park the power to “big foot” local governments over contentious renewable energy projects, a survey of legal opinion suggests.

On one side, some lawyers recognize the legislation will take citizens and municipal governments out of the picture when it comes to approvals for wind turbines, solar energy installations, and transmission lines.

Lawyers on the other side argue the bill tabled last week will actually give opponents better access to appeals if the province approves “wind farms” or sprawling solar panels near their neighbourhoods or farms.

The dispute centres on the McGuinty government’s dramatic proposal to exempt approved renewable energy projects from municipal planning and zoning bylaws.

The measure is intended to eliminate “nimbyism” - the not-in-my-backyard local resistance that has delayed or prevented wind turbine and solar projects in communities around the province.
One of the most notable is a proposed wind farm for Lake Ontario offshore from the Scarborough Bluffs in Toronto.

The act amends the province’s Planning Act to specifically state an official municipal plan “does not affect a renewable energy generation facility or renewable energy project.”

Sarah Powell, a partner in the environmental group at Davies Ward Phillips & Vineberg LLP, says the
political warnings from Premier Dalton McGuinty and Energy and Infrastructure Minister George Smitherman was dramatic during the lead up to publication of the proposed law.

“The premier was very outspoken, as was the minister; language I hadn’t really heard before from either one of them, essentially saying municipalities wouldn’t be permitted, I think the words he used were ‘to stand in the way of the greater public interest,’” Powell tells Law Times.

“Their power is being removed from them and it’s being uploaded to the provinces,” she says. “Those amendments to the Planning Act are really significant. Essentially, the land-use bylaws, the official plans, will cease to apply to renewable energy projects.”

Powell adds that stringent grounds for appealing provincial approval for the projects under the new green energy act and the new provincial power to arbitrarily establish criteria such as minimum distances from housing, roads, and other local infrastructure are at the root of claims the bill is “undemocratic.”

Richard King, an environmental and energy lawyer at Ogilvy Renault LLP, says the province put its foot down on local concerns that delayed projects until now, particularly in cases where opposition centered around aesthetic preferences or commercial considerations such as property values.

“In a sense, the province has always been the final say on provincial planning, but this has basically laid down the law and said, ‘You know what, we as a province are going to do everything we can to establish or facilitate renewable energy projects; we’re not going to subject developers of those projects to the myriad of whims and wishes of municipalities,’” King says in an interview.

“I expect there will be some municipalities that will say, ‘How horrible this is to upload this responsibility that really was ours, we are local governments, this is a local issue,’” King adds. “I expect there will be others that say, ‘You know what, thank God that it’s out of my hair.’”

Powell says the biggest battles could take place over the limited grounds of appeal citizens or municipal authorities would have if they want to block or control the placement of large wind farms, solar panels, or transmission lines.

The bill’s s.141.1 says appeal hearings can only take place “on the grounds that engaging in the renewable energy project in accordance with the renewable energy approval will cause serious and irreversible harm to plant life, animal life, human health, or safety of the natural environment.”

Dennis Mahony, head of the Torys LLP environmental, health, and safety group, argues that while the grounds appear restrictive, an appeal hearing is guaranteed. The existing environmental process that has a leave-to-appeal process before opponents can get a hearing at the province’s environmental review panel.

He notes the initial notice of request for an appeal could be a short brief, including little detail before the hearings take place. Sleep deprivation and its resulting impact on human health could be cited.

George Vegh, an energy specialist at McCarthy Tétrault LLP, points out the provincial government already has the power to exempt energy projects from local control under the Planning Act, but it has been reluctant to use it for political reasons.

“They had the power to exempt projects, but that might have looked too heavy-handed as opposed to taking a more proactive approach,” he says.

Municipalities that engage the provincial government in a legal battle over the arbitrary meddling won’t have many legs to stand on.
“They are completely under the control of the provinces,” says Queen’s University professor Thomas Courchesne.

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