The Ministry of the Environment and Climate Change, or the Ministry of the Environment ("MOE") as it was known previously,6 is responsible for promoting clean and safe air, land, and water to ensure healthy communities, ecological protection and sustainable development for Ontarians.7 It is the primary regulator of renewable energy projects in Ontario, through the administration of Part V.0.1 of the Environmental Protection Act8 and its implementing regulation, the Renewable Energy Approval Regulation.9 When making decisions in respect of renewable energy, MOE is guided by the purpose of Part V.0.1 of the EPA which provides for the protection and conservation not only of the natural environment (i.e. air, land and water, and plant and animal life including human life), but also of the human environment, including the social, economic and cultural conditions that influence human and community life.10 MOE also administers a number of other statutes including the Clean Water Act, 2006, the Environmental Assessment Act, the Ontario Water Resources Act, the Environmental Bill of Rights, 1993 and the Safe Drinking Water Act, 2002.11
The Ministry of Natural Resources and Forestry, or the Ministry of Natural Resources ("MNR") as it was known previously,12 exercises stewardship over Ontario’s provincial parks, forests, fisheries, wildlife, mineral aggregates, petroleum resources and Crown land and waters.13 It has two main roles relating to renewable energy in Ontario. First, MNR is responsible for the management, sale and disposition of Crown land under the Public Lands Act.14 Second, MNR is responsible for reviewing the natural heritage component (birds, bats and fish) of REA applications before they are submitted to MOE. It also administers additional permits that may be required during the development of a renewable energy project, including permits to conduct geotechnical testing of the lakebed.
The Ministry of Energy, or the Ministry of Energy and Infrastructure ("MEI") as it was known previously,15 establishes energy policy and the legislative and regulatory framework in which regulated entities and electricity-sector participants must operate in order to develop the electricity generation, transmission and other energy-related facilities that help power the Ontario economy in a sustainable manner.16 MEI is responsible for publishing the Long-Term Energy Plan,17 which guides the policies for energy procurement and conservation in the province. MEI is responsible for the administration of the Green Energy Act,18 which established the Renewable Energy Facilitation Office ("REFO"), a "one-window access point" where proponents of renewable energy projects can obtain information and connect with the appropriate government and agency resources.19 Through REFO, the Ministry plays a coordinating role for specific renewable energy projects.
The Ministry of Tourism, Culture and Sport or the Ministry of Tourism and Culture ("MTC") as it was known previously, is responsible for reviewing the cultural heritage resources (archaeological resources and heritage resources) components of REA applications, before they are submitted to MOE.20
The Ontario Power Authority ("OPA"), was, prior to January 1, 2015, an independent non-share capital corporation21 established pursuant to the Electricity Restructuring Act, 2004. On January 1, 2015, amendments to the Electricity Act, 1998 came into force to provide for the amalgamation of the OPA and the Independent Electricity System Operator ("IESO"). The new entity was continued under the IESO name.22 The predecessor OPA was responsible for medium and long-term system planning, conservation, demand management and procurement of new generation through long-term power purchase agreements ("PPAs").23 It was also charged with developing integrated power system plans to manage and respond to the demand, supply and transmission goals identified by the Government of Ontario.24 The Electricity Act, 1998 provided that the predecessor OPA was not an agent of the Crown.25 Pursuant to 25.32 and 25.35 of the Electricity Act, 1998, the Minister of Energy has the power to issue directions to the OPA with respect to energy procurement programs. The OPA developed and the IESO continues to administer the FIT Program and is the creditworthy counterparty of FIT Contract holders.
Witness Statement of John Wilkinson: Mr. Wilkinson served as Member of Provincial Parliament in the Legislative Assembly of Ontario from October 2, 2003 to September 7, 2011. During his first term, Mr. Wilkinson acted as Parliamentary Assistant to the former Minister of the Environment Leona Dombrowsky. During his second term he served in the provincial Cabinet, first as Minister of Research and Innovation, then as Minister of Revenue, and finally as Minister of the Environment from August 18, 2010 to October 20, 2011. He made the decision to defer offshore wind development in the discharge of his duties as the Minister of the Environment.
Witness Statement of Marcia Wallace: Dr. Wallace is currently the Regional Director, Municipal Services Office – Central Ontario, at the Ministry of Municipal Affairs and Housing ("MMAH") of the Government of Ontario. Prior to this, she was Manager, Renewable Energy, in MOE’s Environmental Programs Division from November 2008 to July 2010. She then became the Director, Modernization of Approvals until October 2013 when she started her position at MMAH. She navigated MOE through the design, development and implementation of the GEGEA by coordinating and leading the development of a regulatory framework for the new Renewable Energy Program. Dr. Wallace has knowledge of the regulatory framework for the approval of renewable energy projects in Ontario and is familiar with work undertaken by MOE to develop the regulatory framework for offshore wind. She participated on behalf of MOE in the multi-ministry process of developing policy options for offshore wind in the months before the deferral.
Witness Statement of Doris Dumais: Ms. Dumais is MOE’s current Director, Modernization of Approvals, and has nearly three decades of experience in the areas of program delivery and program development for environmental permitting and approvals. She worked in MOE’s Operations Division as Director of the Approvals Program from December 2007 to September 2011, when she became Director of the new Environmental Approval Access and Service Integration Branch. Ms. Dumais led the team of technical specialists responsible for screening and reviewing applications for REAs, including the Directors who decide whether or not it is in the public interest to issue or refuse to issue a REA.
Witness Statement of Rosalyn Lawrence: Ms. Lawrence is the Assistant Deputy Minister of the Policy Division at MNR, which is responsible for all policy development related to natural resource management matters. She has general knowledge about the issuance of MNR permits and approvals related to renewable energy, including issues related to Crown land offshore wind development, and the development of a regulatory framework for offshore wind.
Witness Statement of Susan Lo: Ms. Susan ("Sue") Lo was the Assistant Deputy Minister of the Renewables and Energy Efficiency Division at MEI from June 2009 until February 2013. She was involved in the implementation of the GEGEA, including the FIT Program and the establishment of REFO. Ms. Lo was further involved in the development of the Government of Ontario’s 2010 Long-Term Energy Plan (the "2010 LTEP") and MEI’s policy discussions regarding options for moving forward with offshore wind development.
Witness Statement of Perry Cecchini : Prior to January 1, 2015, Mr. Cecchini was Manager RESOP/FIT in the Electricity Resources Contract Management group at the OPA; on January 1, 2015, the OPA was merged with the IESO, where Mr. Cecchini retains the same functional role in the Market and Resource Development division. Mr. Cecchini was involved in the administration of FIT contracts and, along with his team, remains responsible for ensuring that FIT Contract counterparties develop and operate renewable energy generation facilities in accordance with the terms of their particular FIT Contract.
Expert Report of URS : URS has provided an expert report assessing the environmental permitting and engineering feasibility of the Claimant’s Project. URS is a global engineering company with experience in complex and diverse engineering projects all over the globe, including renewable energy projects. URS is considered one of the world’s foremost engineering companies.
Expert Report of Berkeley Research Group: Mr. Chris Goncalves, of Berkeley Research Group ("BRG") has provided an expert report assessing the Claimant’s damages claim. He and his team are economics and valuation experts with experience assessing the value of renewable energy projects, and in assessing damages in international arbitration.
amended the Planning Act46 to exempt certain renewable energy projects from municipal plans, bylaws and orders related to land use and zoning;47
established REFO within MEI48 to act as a "one-window access point" responsible for connecting renewable energy stakeholders with the relevant government ministries and regulatory authorities;49
granted the Minister of Energy authority to direct the OPA to establish a feed-in tariff program designed to procure energy from renewable energy sources;50 and
established the REA process in order to "coordinate approvals from the Ministries of the Environment and Natural Resources into a streamlined process".51
increase capacity of renewable energy supply to ensure adequate generation and reduce emissions;
introduce a simpler method to procure and develop generating capacity from renewable sources of energy;
enable new green industries through new investment and job creation; and
provide incentives for investment in renewable energy technologies.57
be located in the Province of Ontario;
constitute a renewable generating facility, but not be an Existing Generating Facility at the time of the application (subject to exceptions for incremental projects);
connect to a distribution system, a host facility or the IESO-controlled grid; and
not have or have had a prior contract relating to the proposed facility64
nona-refundable application fee, based on Contract Capacity, of a maximum of $5,000;65
application security, based on the size of the project, to a maximum of $10,000/MW;66
an authorization letter authorizing the local distribution company and IESO to provide the OPA information relating to the applicant or project;67
connection details regarding the project, including contract capacity, renewable fuel(s), proposed connection point and other information such as name of feeder, transformer station or high-voltage circuit) or an indication that it intended to be enabler requested;68
evidence of site access (land ownership, land lease, option agreement, etc.) or evidence of having applied for site access where the proposed project was on provincial Crown land;69 and
a valid email address for the purposes of correspondence related to the FIT Program.70
June 9, 2009 REA Regulation Proposal Notice: The posting cautioned that the proposed regulation did not include the to-be-developed regulatory requirements specific to offshore, stating that "[t]he Ministry of the Environment and Ministry of Natural Resources are working together to develop future setbacks related to offshore wind energy facilities that will address natural heritage, coastal impacts, and noise emissions."240 It also stated that the future regulatory requirements would include noise requirements, and proposed that proponents would have to "submit a noise study that would take into account the unique noise conditions created by off-shore development."241
September 24, 2009 REA Regulation Decision Notice: This posting explicitly stated that "special rules" would apply to offshore wind projects and that "[t]he Ministry of the Environment and the Ministry of Natural Resources continue to work on a coordinated approach to off-shore wind facilities which would include province-wide minimum separation distance standards for noise."242
March 1, 2010 Technical Bulletins Policy Proposal Notice: This posting proposed draft technical bulletins that MOE had developed as potential guidance documents intended to assist proponents of renewable energy projects in interpreting the requirements of the REA Regulationand in preparing reports for their REA submission. It attached six draft technical bulletins, including one for wind turbine setbacks ("Draft Technical Bulletin Six").243 Draft Technical Bulletin Six noted that the REA Regulation did not yet specify minimum noise, property, or road setback distances for offshore wind turbines, but stated that setbacks would nonetheless play a significant role in the assessment under the offshore wind facility report.244
June 25, 2010 Offshore Wind Policy Proposal Notice: As described below, this posting contained MOE’s proposal for developing the regulatory framework for offshore wind and advised of a second posting that would be made for phase 2 of MNR’s Crown Land Renewable Energy Policy Review. In this posting, MOE acknowledged the need "to provide greater certainty and clarity on off-shore wind requirements."245 It also included a discussion paper which acknowledged the need to "introduce greater clarity" about Ontario’s offshore wind policy, and to more fully develop the approach and offshore wind specific-requirements, through future regulatory amendments, EBR postings and guidance documents.
Partner ministries are working together to provide greater certainty and clarity on off-shore wind requirements. The Ontario government is proposing an approach and is seeking input from interested members of the public, early in the process, to inform the work that will be completed to finalize the approach and the off-shore wind specific requirements under the REA regulation. This approach will also be supplemented by the outcome of research underway by the Ministry of the Environment, Ministry of Natural Resources (MNR), and Ministry of Tourism and Culture and will be the subject of subsequent Environmental Registry postings that will outline requirements for off-shore wind development as proposed amendments to O. Reg. 359/09 and the REA process.248
The body of scientific literature about ecological impacts of wind energy is still relatively young. Great Lakes region-specific research, particularly as it relates to offshore wind, is notably lacking. Additional research and studies are needed to direct how wind projects are planned, sited and operated in the region. Answers are needed to questions such as: What are acceptable levels of take for a species? What are appropriate buffers from important ecological areas? How is "ecologically‐defensible" determined?
The research needed to answer these questions will likely take years and possibly decades.274
[e]xisting Crown land applicants who apply to FIT during the launch period, and who are awarded contracts by the OPA, will be given the highest priority to the Crown land sites applied for. This means that these applications will take precedence over all others for this site, and will receive priority attention from MNR.348
This letter and the attached mapping information do not in any way constitute any commitment, obligation or approval of your project by the Government of Ontario. Should you decide to proceed with your application(s) it will be necessary for you to follow all processes outlined in any applicable policies, procedures or guidance material and to ensure that you adhere to all applicable federal and provincial legislation as well as relevant local municipal bylaws.352
Figure 4: The turbine layout for the Claimant’s Project, as of June 9, 2010393
[w]e are unclear about the criteria being considered [for offshore guidelines] and the nature of the constraints [the MOE] may impose on the existing project and related timelines […] MOE guidance is required so that an assessment can be made of how such guidelines might constrain our development area. Depending on the impact of new guidelines, Windstream may need to discuss with the MNR how Windstream could adapt the project layout into a more suitable configuration. Also affected would be the area of focus for our environmental field work. In order to allow us to accommodate any required changes within the timelines of the FIT Contract (especially in view of the fact that the 2010 summer field season is essentially at hand), we require immediate dialog […]
As noted above we urgently need input from MOE, MNR and other agencies regarding the type of field information that will be required to satisfy the REA process. Moreover, field work on Lake Ontario is constrained by wind, weather and seasons. If we do not obtain the necessary regulatory input, our 2010 field data collection program is at risk and could delay our project by an entire year. As noted above, the OPA FIT Contract requirements do not provide flexibility for that sort of delay.480
I made the deferral decision in the discharge of my duties as the Minister of the Environment and to protect human health and the environment. I believe that my decision in 2011, based on the information in front of me at that time, was both sound and fulfilled my obligations under the Oath of Office I took when sworn in as Minister as the Environment. I stand by it today.579
If Ontario allowed wind turbines to be erected on the Canadian side of the lake, we would not be excused from harm caused in U.S. waters. As Environment Minister, it was my responsibility to protect the environment in Ontario, but also not to jeopardize the water resources we share with the U.S. In my view, this was not only a legal but a moral responsibility.587
in light of the comments received in response to the two postings and in particular the identified need for further study, Ontario is not proceeding with any development of offshore windpower projects until the necessary scientific research is completed and an adequately informed policy framework can be developed.596
|Wind resource characterization||X|
|Erosion control/ coastal engineering||X|
|Technical standards and safety (load, build-up, drift & throw of ice)||X|
|Infrastructure and construction vessel needs||X|
|Spatial planning and socioeconomic interests||X|
|International transmission and grid interconnection||X|
|Technology Assessment (underwater cabling)||X|
|Decommissioning and Financial Assurance||X|
|Shoreline Heritage and Tourism||X|
|Marine archaeological resources||X|
Figure 5: Preliminary research agenda proposed in Ontario’s research plan.651
Figure 7: Short-term research topics under Ontario’s May 2012 research plan655
Figure 8: Medium-term research topics under Ontario’s May 2012 research plan656
Figure 9: Longer-term research topics under the May 2012 research plan.657
Impacts of electromagnetic fields and Wolfe Island study on fish biodiversity and distribution;666
a 2011 report on offshore wind power coastal engineering that investigates the scientific and technical issues associated with potential offshore wind power development on the Great Lakes;667
a 2011 coastal engineering workshop, which determined that further study on impacts of offshore wind projects to shoreline erosion was required;668
a 2011 report which investigates the potential effects of offshore wind power projects on fish and fish habitat in the Great Lakes, based on existing marine literature and knowledge of Great Lakes ecosystems;669
a 2011 report on background information and science considerations for fish and fish habitat relevant to offshore wind power projects on the Great lakes, which describes ways to prevent the negative effects from offshore wind energy production and to enhance the potential benefits from offshore wind energy production within a Great Lakes context;670
a 2012 biology master’s thesis entitled "Spatial and Temporal Activity of Migratory Bats at Landscape Features", which received MNR funding.671 Contrary to the Claimant’s assertion,672 this study is publicly available; and
MNR’s Renewable Energy Atlas, an interactive online tool that provides a publicly accessible GIS-based mapping tool identifying wind resources, allowing users to create and view maps of wind energy across the province.673 Contrary to the Claimant’s assertion,674 this tool has not been removed from the web and remains accessible to the public.
Each Party shall ensure, through regulatory control, administrative supervision or the application of other measures, that any state enterprise that it maintains or establishes acts in a manner that is not inconsistent with the Party’s obligations under Chapters 11 (Investment) and Fourteen (Financial Services) wherever such enterprises exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions or impose quotas, fees or other charges.
Chapter 15 provides a lex specialis regime in relation to the attribution of acts of monopolies and state enterprises, to the content of the obligations and the method of implementation.710
7. Articles 1102, 1103, and 1107 do not apply to:
(a) procurement by a Party or a state enterprise […]
In its ordinary or dictionary connotation, "procurement" refers to the act of obtaining, "as by effort, labor or purchase." To procure means "to get; to gain; to come into possession of." In the world of commerce and industry, "procurement" may be seen to refer ordinarily to the activity of obtaining by purchase goods, supplies, services and so forth.730