Get Ready for Green

February 2016

AgriLaw: January 2010

Ontario’s Green Energy and Green Economy Act (GEA) is intended to promote a significant increase in renewable energy generation across Ontario.  From large new hydro electric plants in the north to wind turbines, solar farms and municipal landfill and farm biogas derived electricity in the south, the green energy generated by these projects will require connection to Ontario’s electricity transmission grid for distribution throughout the province.

In anticipation of the high demand by these projects for renewable connections, in a letter dated September 21, 2009, the province has directed Ontario Hydro to immediately proceed with the planning, development and implementation of some 20 new and expansion transmission projects throughout the province from Kenora to Thunder Bay, Barrie to the GTA, London to Sarnia, London to Hamilton, Goderich, Ottawa and other areas.  As a result, the farmlands which will be impacted by new green energy developments will be not only the farmlands upon which these generation projects may be located but also the lands across which these new transmission facilities will be constructed.

Whether new transmission facilities are constructed in new or expanded transmission corridors, farmers need to be concerned about the impact of these facilities on their agricultural operations and resulting costs and liabilities.  The routing and location of these facilities can significantly interfere with cultivation and cropping patterns, spraying, irrigation and harvesting giving rise to  increased costs and decreased productivity.  Construction of these facilities may also cause compaction and drainage problems with related opportunity costs and production losses.  The resulting variations in crop maturity and quality may eliminate potential production of higher value and speciality crops.  In addition, these transmission facilities may restrict the location or increase the cost of new or expanded intensive agriculture facilities.

What can farmers do to limit the impact of these new transmission facilities and ensure that they receive fair compensation for the use of their land, the disturbance to their farm operations and the increased costs and production losses which they may anticipate?  All of the transmission projects identified by the province for immediate development will require both MOE regulatory approvals and leave to construct from the Ontario Energy Board.  Depending upon the size and extent of the project, the project may require individual environmental assessment under the Environmental Assessment Act or may qualify for a more summary screening or class environmental assessment approval process.  In either case, affected landowners must be consulted by Hydro One with respect to identification and mitigation of the impacts of these projects.  To the extent that these concerns are not adequately addressed in the environmental assessment process, landowners may request that the Minister refer the project for hearing before the Environmental Review Tribunal.  Both to participate in the environmental assessment process and, if necessary, to take unresolved concerns to the Environmental Review Tribunal and the Ontario Energy Board, impacted landowners will need to join together to both demonstrate the significance of their concerns and to generate the resources necessary to participate in the public hearing processes.  However, a substantial portion of the costs of these proceedings may be recoverable either under cost awards from these tribunals or as a part of negotiated settlements.

Forewarned is forearmed!  Green energy is coming – are you ready?

Author

Paul practises mainly in the areas of environmental law, energy law, and commercial litigation. He is author of "Civil Procedure in Practice" and a regular contributor of articles to various journals. Paul is certified by the Law Society as a Specialist in Civil Litigation. More →