On September 28, 2012, the ERT released its decision dismissing the Summerhaven REA appeal.  The appeal focused on allegations of serious and irreversible harm to plant life, animal life or the natural environment.  The argument that one bird or bat mortality will always constitute such harm was rejected.  Instead, the ERT acknowledged that it is anticipated that wind energy projects can be approved notwithstanding that some mortalities will occur.  Ultimately, the appeal was dismissed because the appellant’s evidence was insufficient to meet its onus.

Summerhaven was only the second of eight REA appeals filed to date, to proceed through a full hearing.  The Kent Breeze appeal was the first to be dismissed due to insufficient evidence.  Three others were withdrawn after the ERT required disclosure of medical records and expert evidence to support allegations of serious harm to human health.  Three additional appeals continue to proceed.

The ERT also released reasons for decision on motions in the South Kent and Grand Renewable Energy Park(“GREP”) appeals on September 28, 2012.  In South Kent, the ERT reiterated the requirement that  allegations of harm to health be supported by medical documents.  In GREP, the ERT rejected an appellant’s adjournment request after it had failed to make timely and reasonable efforts to disclose the medical information to which its request was tied.

Albert is an Associate whose practice involves all aspects of Renewable Energy and Environmental Law. He joined Foglers in 2010 after 10 years with Ontario’s Ministry of the Environment. He is a graduate of York University’s joint MES/LLB program and also has a B.Sc. in Biology from York.  He can be reached at aengel@foglers.com or 416-864-7602.

Image by Kevin Wood, modified and used under CC BY-NC 2.0

In the current Ontario legislative committee review of the Aggregate Resources Act (G-361), a key issue is the appropriate regulatory standards for approving new aggregate sites.

As is well known, current provincial regulation of aggregate resources has been bound up in a conflict of interest within the Ministry of Natural Resources (MNR).   MNR is somehow supposed to be, concurrently, the advocate for aggregate (within and across governments), the regulator of aggregate (for producers), and the protector of ecological features and species against aggregate extraction (for the public interest).

To assess how the MNR has balanced these conflicting responsibilities, it is useful to look beyond aggregate standards and consider the provincial standards for other resource activities.  Today, the newest standards may be found in green energy production, so one can compare the existing standards for aggregate reports to the standards for reports required of green energy producers under the renewable energy approval (REA) approval regime.

A single large wind turbine triggers a project description report, a detailed design and operations and site plan report, at least four and up to five additional detailed reports to the Ministry of the Environment, an environmental effects monitoring plan and at least three and up to four detailed natural heritage reports to the MNR, and up to three detailed reports to the Ministry of Tourism, Culture and Sport on heritage and archaeology.  In short, a minimum of ten detailed reports and site plans and a maximum of up to fifteen such plans and reports.  Further, the reports are required to address on-site and off-site impacts for cultural heritage and a 2km zone of impacts for noise, and advised to use a 1km zone of impacts for natural heritage.

By contrast, the largest below water quarry triggers a summary report, a site plan, at least one and up to two hydrogeological reports, at least one and up to two natural heritage reports, up to three cultural heritage reports limited to archaeology, and, where triggered, one noise report and one blast design report.  In short, a minimum of a site plan and three reports, and a maximum of eleven plans and reports.   Notably, detailed reporting standards exist for only a small number of these reports.  Also notably, the trigger and zone of impacts for such reports is on-site impacts only for cultural heritage impacts, 120m for natural heritage impacts, and 500m from the quarry for noise and blasting.

What is the basis for this kind of discrepancy in provincial standards?  No one familiar with both kinds of facilities can contend that aggregate facilities involve fewer impacts, shorter-term impacts, or less intense impacts than green energy facilities such as wind turbines.   To the contrary, aggregate extraction can be and often is a source of broad, individual and layered impacts on the natural and social environment, including impacts that have no counterpart for wind turbines, such as long-term impacts on air quality and permanent impacts on resources like groundwater.

Consistency in provincial standards is desirable.  One clear benchmark of consistency would be to require that aggregate natural heritage reports hit the natural heritage standards and impact zones of an REA.  A second obvious match-up is to ensure that quarry noise reports cover at least the same 2km study zone and impact standards as a wind turbine.  Thirdly, having regard to other aggregate impacts on the environment that do not exist for wind turbines, particularly impacts on water resources and air quality, any proposed aggregate site should be subject to equally rigorous standards for its other impacts commensurate with its various zones of impacts, including haul route zones of impact.

At this point, by virtue of the 2005 Provincial Policy Statement, municipalities are restricted in how rigorously they may regulate new aggregate sites in their official plans.  This makes it imperative that the Province lead the way in ensuring common minimum standards across its approval regimes.

It is fine for the aggregate industry and the Province to advocate for the importance of aggregate; however, surely no one believes that green energy is the source of more profound impacts on the environment than aggregate extraction.   The provincial review of aggregate makes it timely to establish a level playing field in assessing and controlling negative impacts.

<a href=”http://naturalenvirolaw.ca/wp-content/uploads/2012/01/RVN-webblurb-e1326894493650.jpg”><img title=”RVN webblurb” src=”http://naturalenvirolaw.ca/wp-content/uploads/2012/01/RVN-webblurb-1024×410.jpg” alt=”" width=”614″ height=”246″ /></a>

Image by Peggy Shanks, used under Creative Commons Licensing

On July 9, 2012, the Environmental Review Tribunal (ERT) released reasons for its decisions on several motions brought in the Summerhaven Renewable Energy Approval (REA) hearing. The Summerhaven REA hearing is dealing with two appeals of an REA issued on March 16, 2012 for a 58 turbine wind facility with a total name plate capacity of 131.04 MW.

The ERT’s decision contains the following important guidance for future REA appeals:

1) The ERT confirmed its finding in Middlesex-Lambton Wind Action Group Inc. v. Ontario (Director, Ministry of the Environment), that medical documents related to health claims made by proposed lay witnesses are relevant in an REA appeal where appellants allege health effects;

2) The ERT confirmed that any harm that may be caused by exceedances of the sound emission limits in an REA is irrelevant to an REA appeal because in its consideration of whether a project as approved “will cause” serious harm, the ERT must assume that the project will be operating within the sound emission level limits set out in the REA;

3) The ERT declined to order blanket confidentiality over all medical records disclosed in an REA appeal, opting instead to weigh the relevant interests in disclosure versus confidentiality on a document by document basis; and

4) The ERT confirmed its conclusion in Erickson v. Ontario (Director, Ministry of the Environment), that evidence respecting other wind turbine projects may be relevant in an REA appeal only if the evidence is used as an input into evidence concerning the predicted effects of the project under appeal.

On July 26, 2012, the ERT released reasons for its decision of June 8, 2012 to dismiss a motion by an REA appellant to adjourn the Conestogo REA hearing until the Summerhaven REA hearing is concluded. The appellant in both hearings was represented by the same lawyer and proposed to call the same witnesses in both hearings. As such the appellant in the Conestogo REA hearing argued that depending on the ERT’s findings in the Summerhaven REA, the Conestogo REA may be unnecessary and unnecessarily expose its proposed witnesses to “Litigation Stress Syndrome“. The ERT found that the importance of the statutory scheme in expediting REA appeals and the prejudice that may be suffered by refusing to adjourn are the key factors to be balanced. The ERT balanced these factors and ultimately determined that it would not be consistent with the public interest in an expedited process to grant the adjournment.

Albert is an Associate whose practice involves all aspects of Renewable Energy and Environmental Law. He joined Foglers in 2010 after 10 years with Ontario’s Ministry of the Environment. He is a graduate of York University’s joint MES/LLB program and also has a B.Sc. in Biology from York.  He can be reached at aengel@foglers.com or 416-864-7602.

Tim Hudak released the first of what apparently will be several white papers called “Paths to Prosperity”.  His first, on affordable energy, purports to “tackle the issues of job creation and a growing debt by promoting affordable energy policies.”

Recommendations include:

• Affirm nuclear as the key source of Ontario’s basic energy supply
• Cancel the non-competitive Feed-In Tariff (FIT) Program
• Subject future wind and solar projects to local approval

The two page paper can be read here.

Earlier this month, Scott Vaughan, the Commissioner of the Environment and Sustainable Development released his 2012 Spring Report. This report covers The Kyoto Implementation Act, Meeting Canada’s 2020 Climate Change Commitments and Federal Contaminated Sites and their Impacts.

All chapters of the report as table at the House of Commons can be read here.

“SNCF 27757 in Perpignan” by Martin Addison used under Creative Commons Licensing
Commuter trains in France were electrified starting in the early 1970′s. Their trains operate at the highest speed in conventional train service in the world.

On May 3rd, Davenport MPP Jonah Schein tabled an act amending the Metrolinx Act, 2006 by adding:

“Passenger railway to airport

5.1 The Corporation shall ensure that any passenger railway system established between downtown Toronto and Toronto Pearson International Airport is not powered by diesel fuel.”

Short and sweet – follow the debates, which will certainly be more lengthy, here.

Petroglyph, on Flickr” href=”http://www.flickr.com/photos/28113115@N00/199101601/”>

 The Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”) announced its most recent risk assessment of 35 Canadian wildlife species at the conclusion of their yearly meeting this May. Their press release states: “Once again, habitat loss emerged as the most common threat to Canadian wildlife, underscoring that all species, not just our own, need a healthy home in order to thrive.”

You can read about the assessment meeting results here.

Now that there has been some time to digest the proposal for a new CEAA, introduced as part of the Budget Bill C-38, it is appropriate to consider what it does not do. The most important failing of this proposed reform of federal EA is its failure to provide a precise standard of what constitutes a “significant adverse environmental effect” (SAEE).

Much has been made of issues with federal EAs duplicating provincial EAs and federal hearings taking too much time, but both of these concerns arise directly from the failure of the existing CEAA to provide any precision on SAEEs. The draft Bill setting out new CEAA continues this problem by demanding that every decision on every federal EA address whether a project is likely to cause a “significant adverse environmental effect”, but fails to provide any legal definition to this term. Nor does the draft Bill create any regulatory obligation on any federal department or agency to define what constitutes an SAEE for their areas of regulatory interest. Instead, every EA of every project will simply invent its own standards.

The lack of any standards on this key test is the reason why federal EA can take a long time. Under the present CEAA, a proponent does a self-assessment and, invariably, reaches the conclusion that none of the effects are significant. Then, every federal agency with an interest in the project reviews the proponent’s conclusions and determines whether it agrees with them. Somewhere along the way, others may also provide input on this topic. These “others” include provincial governments, First Nations, municipalities, and the public. Needless to say, this kind of process is incredibly inefficient.

After tens of thousands of assessments, it should be possible to say what kinds of effects on federal interests like fish, migratory birds, and endangered species are significant. Nevertheless, there is no such guidance. There has been extensive media attention in recent weeks to the example of a proposed mine affecting Fish Lake in British Columbia as a reason why federal EA is essential. There, a provincial EA reached the conclusion that the project was acceptable, but then the federal Department of Fisheries concluded that the project’s impacts were unacceptable. But why later? Why should any EA proceed in a vacuum on what is a significant effect?

It is said that a key rationale for environmental assessment is the principle of “Look before you leap”. That is essential. However, right now proponents do not know what to look for. The new and old CEAA regimes both make EA like a high jump competition where each applicant for approval is required to start running down a track towards the high jump posts with no idea where the bar is. Equally, under the new and old CEAAs, others like the public get to watch an applicant run down the track with no idea where the bar is.

The present reforms have the effect of defining, with more precision than ever before, that a every federal EA should have a time limit. The draft Bill says that an applicant’s run down the track will last a maximum of two years. But there is still no bar visible at the beginning or end of the process.

There are several ways to fix this problem. First, Parliament could amend the draft Bill to impose a duty on each federal agency with expertise relevant to federal EA to finalize specific standards on what constitutes an SAEE for effects within its expertise. Alternatively, Parliament could amend the draft Bill to demand that the Minister of the Environment or cabinet have the power and duty to pass regulations that define specific SAEEs. A third option is for Parliament to amend the draft Bill to expand the powers and duties of the CEA Agency and demand in section 106, for example, that this Agency provide such standards across the range of federal interests.

The Parliamentary process over the draft Bill is a clear opportunity to demand that there be SAEE guidance available in advance that is very specific. Then everyone knows from the outset what bar needs to be cleared. If a project meets the bar for such an effect, it passes. If a project cannot meet the bar, if fails. In some cases, the significance of some effects will be uncertain at the outset. Then the job of federal EA is to focus on those kinds of effects and deal with them.

If the new CEAA provided this reform to EA, proponents would know in advance what clears the bar and could then make every effort to design their projects to clear the bar.
Real reform to federal EA would fix the present uncertainty and thereby also speed up the process. EA focused on time limits but not substantive standards is hollow: it is all appearance with no core.

“Air Quality Alert for Today“, image by Gary Brown, used under Creative Commons Licensing.

In April, the US Environmental Protection Agency reported the release of “NEPAssist” as a:

“…part of an initiative developed by the White House Council on Environmental Quality (CEQ) to modernize and reinvigorate federal agency implementation of the National Environmental Policy Act through innovation, public participation and transparency. NEPAssist draws information from publicly available federal, state, and local datasets, allowing NEPA practitioners, stakeholders and the public to view information about environmental conditions within the area of a proposed project quickly and easily at early stages of project development. ‘NEPAssist helps users identify the possible impacts of federal projects on local environments and communities,’said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. ‘By making tools like NEPAssist available to the public, EPA is helping citizens to be involved in environmental decisions that affect their community.”

Another interesting use of the mapping tool which wasn’t mentioned by the EPA is the ability to see the non-attainment areas for any U.S. air quality control region that has posted its information online. Non-achievement of standards for ozone, lead, PM10 and PM2.5 can all be applied as layers to the maps.

Compare this tool with Canada’s current National Pollutant Release Inventory (NPRI) mapping tool, which is not dynamic and is only current to 2010.

You can experiment with NEPAssist here, and read the press release here.

As of April 30, 2012, new industrial buildings are required to comply with Toronto’s Green Roof By-Law, joining ranks with residential, commercial and institutional buildings that have been subject to Toronto’s green roof by-law requirements since January 31, 2010.

Green Roofs have a specific meaning under the Green Roof By-Law, indicated as: “An extension of an above grade roof, built on top of a human-made structure, that allows vegetation to grow in a growing medium and which is designed, constructed and maintained in accordance with the Toronto Green Roof Construction Standard.” While the Toronto Green Roof Construction Standards sets out the minimum requirements for the construction and maintenance of green roofs; the Green Roof By-Law also requires that the Ontario Building Code requirements be met. The application for a permit to construct a green roof must be made to the Chief Building Official on prescribed forms.

By-Law Requirements

The Green Roof coverage requirements are increased in accordance with larger building gross floor areas. The application of a green roof coverage area is triggered by a size threshold of 2,000 square metres in the Green Roof By-Law. A height threshold is also apparent for residential buildings, as the requirements for green roof coverage area do not apply to residential buildings with a height less than or equal to the greater of six storeys or 20 metres. The chart below, reproduced directly from the Green Roof By-Law, provides the green roof coverage requirements for the different building sizes (double-click to enlarge image):

Benefits of Green Roofs

Green roofs are credited by the City of Toronto for:
• Reducing stormwater runoff that affects quality of local water resources which supply drinking water, are used for swimming, and serve as fish and wildlife habitat
• Reducing energy consumption
• Reducing the urban heat island effect and associated cooling costs
• Beautifying the City
• Creating of greater natural green space
• Providing opportunities for local food production
The above benefits have yet to be calculated on a City-wide basis.

Exemptions for Compliance

Exemptions to comply with the green roof by-law requirements are permitted subject to a cash trade off. Appropriately termed “cash in lieu of construction of green roof”, where variances are approved by the Chief Planner or exemptions are approved by City Council, the applicant shall pay for the reduced area of green coverage based on the average actual cost of construction of a green roof, which at the time of passing the by-law in 2009, was deemed to be $200.00/m2.

For more information on this topic, please go to the Toronto Green Roof webpage.

Yadira is an associate in Fogler Rubinoff’s Environmental law department. She joined the firm as a summer student in 2009, and articled with the firm in 2010-2011. Her practice is focused on advice and litigation relating to environmental approvals, including approvals regarding renewable energy, resource extraction and land use. She can be contacted at yflores@foglers.com