Ontario will control the approval of green energy projects, but municipalities will retain the right to appeal, says Dennis Mahony in Law Times

Green Act May Prompt Flood of Litigation

March 02, 2009

A survey of legal opinion suggests that Ontario’s new Green Energy Act could spark litigation and political battles over provisions, and give Queen’s Park the power to "big foot" local governments over contentious renewable energy projects.

Some lawyers opine that the legislation will take citizens and municipal governments out of the approval process for wind turbines, solar energy installations and transmission lines. Others argue that the bill tabled last week will give opponents better access to appeals if the province approves the development of wind or solar farms near residential and farm areas.

The dispute centres on the McGuinty government’s 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. A notable example is a proposed wind farm for Lake Ontario, offshore from Toronto's Scarborough Bluffs.

Citizens and municipalities will still retain the right to appeal, but section 141.1 of the bill stipulates that appeal hearings can only occur "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 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 occur.

Read the full article here.

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