Lexpert Special Editions

26 | Renewable Energy partner of Saxe Law Office, than since records began to be kept in 1850. And the rapid pace of climate change continues to highlight the role that non-greenhouse gas-emitting renewable energy (energy that comes from natural sources that are replenished, such as wind, sun, tides), can, and will, play in the energy mix. Worldwide predictions are that renewable energy will soon have its place in the sun; the International Energy Agency's World Energy Outlook 2012 report says "a steady increase in hydropower and the rapid expansion of wind and solar power has cemented the position of renewables as an indispensable part of the global energy by 2035, [with] renewables accounting for almost onethird of total energy output." Ontario is the province that "has certainly been most on the forefront of renewable power, with its Feed-in Tariff (FIT) Program," says Paul Harricks, partner and chair of the Energy, Infrastructure and Mining Industry Group at Gowling Lafleur Henderson LLP. But today, North America's first comprehensive guaranteed pricing structure for renewable electricity production "is in the waning days of the program." He says an oversupply of energy, alongside a fair amount of community resistance, particularly to wind, less so to solar, and a recent rul- ing from the World Trade Organization (WTO) is leading the province to revisit and revise the program. "The FIT program has historically featured domestic content requirements, but the WTO ruled in May that this is contrary to Canada's trade obligations," he says. "One of the corollaries of doing away with these requirements, and of the sharp reduction in the cost of many renewable technologies, like solar panels, is that we are not going to be able to pay as much for renewable power as we have under the FIT program to date. The FIT program was, to some degree at least, an economic development program." In the wind energy sector, a legal decision in July is likely to have a considerable impact going forward, says Aaron Atcheson, an energy lawyer and partner in the London, Ontario, office of Miller Thomson LLP and chair of the firm's National CleanTech Practice Group. Approval for the development of a wind farm project on Ostrander Point in Ontario's Prince Edward County was revoked, citing concern for the welfare of the rare Blanding's turtle. The decision, "whereby The Environmental Review Tribunal allowed the appeal of the Ostrander Point Project on grounds of serious and irreversible harm to the natural environment, and revoked the approval of this project by the director of the Ontario Ministry of the Environment, is creating a lot of uncertainty in the wind sector, in part because of the process," he says. Atcheson says people are aware of potential bird and bat issues and human issues. So a lot of time is spent making sure, for example, that wind farms are not disruptive to birds and bats, and abiding by the setbacks from homes to make sure there are not human effects. "But this renewable energy approval (REA) was revoked on the basis that the project is disruptive to turtle habitat, something that was not expected to be critical in the appeal." As he understands it, "Developers are going back now and looking at their projects with an eye to 'what other tertiary concerns should we be looking at as a potential problem for us if we are going through a full appeal?' While the developers of certain projects have been required to address issues relating to threatened and endangered species under the Endangered Species Act, that has not been a significant part of the REA submission. Although there have been a number of appeals of wind farms approvals, this is the first appeal that has succeeded, so it is a very important decision." So where are some of the growth areas for Canadian companies and their legal Lexpert®Ranked Lawyers Mondrow, Ian A. Gowling Lafleur Henderson LLP (416) 369-4670 ian.mondrow@ gowlings.com Mr. Mondrow practises natural gas and electricity regulation and policy law. He represents utilities, customers and energy services providers in rate, policy, facilities, licencing and compliance matters, in both wholesale and retail energy markets. Moore, J. Alexander Davies Ward Phillips & Vineberg LLP (416) 863-5570 amoore@dwpv.com Moores, Greg Stewart McKelvey (709) 570-5797 gmoores@ stewartmckelvey.com Mr. Moore practises corporate law with an emphasis on public company M&A, private equity transactions, proxy contests and contested transactions. He has experience advising on transactions in Ontario's electricity industry and on oil and gas M&A. Mr. Moores's litigation and arbitration practice embraces energy law, including oil and gas and electricity regulation, natural resources and environmental and construction law. His clients include oil and gas, engineering and construction companies. Nettleton, Gordon M. McCarthy Tétrault LLP (403) 260-3622 gnettleton@mccarthy.ca Mr. Nettleton's energy regulatory, Aboriginal, environmental and business law practice includes significant experience in the regulation of the oil and gas pipeline and electricity sectors. He appears before the NEB and provincial regulators. Neufeld, QC, Richard A. Dentons Canada LLP (403) 268-7023 richard.neufeld@ dentons.com Nixon, Christopher W. Stikeman Elliott LLP (403) 266-9017 cnixon@stikeman. com Mr. Neufeld focuses on environmental, regulatory and Aboriginal law. He advises on project approval and compliance matters relating to energy, mining and pipeline developments. He also represents project proponents before various tribunals. Mr. Nixon's practice focuses on M&A, corporate finance, JVs, and corporate/trust reorganizations and governance. Clients include oil and gas exploration and oilfield service corporation and investment dealers in Canada, the US and Asia.

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