OPA to begin accepting Small FIT applications on December 14, 2012

From the OPA:

This is to advise you that the Ontario Power Authority (OPA) will begin accepting Small FIT applications on December 14, 2012, for renewable energy projects with a proposed capacity of 10 to 500 kilowatts. The OPA will award up to 200 megawatts worth of contracts as a result of applications received during this upcoming Small FIT application window.

Please note that the FIT Rules, FIT Contract and other program documents are being revised as a result of the November 23, 2012, and December 11, 2012, directives. Before submitting your application, please carefully review the latest versions of the program documents (version 2.1) to ensure you understand how the FIT Program has changed. The program documents will be available on the FIT website on December 14, 2012.

Applications are welcome from both new and pre-existing applicants. Pre-existing FIT applicants with Small FIT projects (formerly CAE applicants) who wish to be considered under the updated FIT Program can maintain their original time stamp if they submit an eligible revised application. More information will be available at fit.powerauthority.on.ca on December 14, 2012.  The OPA will also be hosting a web-enabled teleconference on Tuesday, December 18, 2012, to review the revised FIT Program and answer questions from interested stakeholders.  Details on how to participate will be posted on the FIT website.

While it may sometimes seem unfair when rules are changed in the middle of a game...

... that is the nature of the game when one is dealing with goverment programs.

That was the statement made by the Ontario Divisional Court in a recent decision dismissing an application for judicial review of actions take (or not taken) by the Ontario Power Authority and the Ontario Minister of Energy in connection with green energy Feed-in-Tariff projects.  A long list of project proponents (118 in total) sought declarations from the Court that the OPA and the Minister "acted unreasonably in failing to process applications in accordance with" the OPA's own rules and that the Minister's new "Directions" in the FIT program are "unfair, discriminatory and ultra vires the enabling legislation".  The Applicants also sought an order requiring the OPA to process their existing FIT applications in accordance with the previous FIT Program Rules.

The complaint was that changes made to the FIT Program Rules were unfair to those project proponents who had already applied under the old rules - the new rules would apply to all outstanding project applications that had not already reached a certain point in the review/approval process.  Included with the new rules were lower prices to be paid for the electricity generated by FIT projects.

The Divisional Court found that the standard of review of the Minister's decision (in making and applying the new FIT rules) was reasonableness; the Court had to give considerable deference to the decision of the Minister.  In the end, the Court did not agree with the Applicants that the decisions in question were unreasonable.  In response to the argument made about legitimate expectations, the Court said:

Turning then to the ground of legitimate expectations, it is perhaps useful to begin with a definition of what the principle of legitimate expectations involves. The principle was set out in Canada (Attorney General) v. Mavi, 2011 SCC 30 (CanLII), [2011] 2 S.C.R. 504 where Binnie J. said, at para. 68:

Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty.

Once again, I find little to which the applicants can point that would constitute a representation that is “clear, unambiguous and unqualified”. The statements to which the applicants do refer that were made by Ministers Smitherman and Duguid do not, on their face, amount to representations that are unambiguous and unqualified. They are also not directed specifically to the applicants. Rather, they were statements of general application. In addition, the statements were clearly made in relation to the FIT Program itself and have to be read with, and understood in the context of, the detailed requirements and conditions of that program to which I have made reference above. Read in context, the applicants could not reasonably assert a legitimate expectation based on these statements that the criteria for the FIT Program or the process under it would not change.

The Court also disagreed with the Applicants that they had gained any vested rights through their involvement in the FIT program application process.  Likewise, the Court found that there was nothing to prevent the new FIT rules from having retroactive effect.  It was in the course of communicating this conclusion that the Court made its comment about changing the rules of the game mid-course.  As with tax laws, "no one has a vested right to continuance of the law as it stood in the past".  When planning one's affairs based on the current state of legis

Read the decision at: Skypower CL I LP et al. v. Minister of Energy (Ontario) et al.

OPA releases final FIT Program Documents

From the OPA: This is to advise you that the final FIT Program Rules, Contract and other program documents have now been posted on the FIT Program website. The Ontario Power Authority thanks all those who provided comments and submissions on the draft documents.  The application window for small FIT projects is anticipated to open on October 1, 2012, and remain open until November 30, 2012. If your FIT project is a small FIT project (typically 500 kW or smaller), then you must submit your electronic application form during the application window to be considered under the FIT 2.0 Program. The OPA anticipates awarding 200 MW of small FIT contracts. The OPA recommends that you review the final versions of the program documents carefully to ensure you understand how the FIT Program has changed. In addition, there have been several revisions made to the draft version of the Rules as a result of feedback received.  In order to retain their original time stamp, those who had previously submitted a small FIT project application must submit a revised electronic application form during the small FIT application window, followed by a hard copy submission within five business days. New small FIT project applications will also be accepted during this same window. All applications received during the window will be reviewed according to the new FIT Program Rules for compliance and for the prioritization of applications. Where projects have the same number of priority points, the time stamp will be used to determine the order in which projects will be tested for available transmission and distribution capacity. As indicated above, the OPA expects to award 200 MW of small FIT contracts under the first application window for small FIT projects. Once FIT contracts have been offered to successful applicants, any FIT applications that do not receive contracts will be terminated and their time stamp will be lost. Application Security will be returned. Pre-existing small FIT applications that are not resubmitted during the first application window for small FIT projects will also be terminated. In this case, the time stamp will be lost and the Application Fee will be returned. These projects can reapply with a new application within the next small FIT application window. The timing for the large FIT project application window will be communicated once details are finalized. The OPA has posted a list of questions and answers about the revised program, which can be found here. If you still have questions about this process after reading the OPA’s website, please contact the OPA’s customer service centre at 1-888-387-3403 or email FIT@powerauthority.on.ca.

New Ontario MicroFIT Program Rules released

From the Ontario Power Authority:

The final microFIT Program Rules, Contract and other program documents have now been posted on the microFIT website.

A key change from the draft to the final version of the microFIT Rules is on the timelines for the microFIT process. Applicants will be required to seek an Offer to Connect from their local distribution company (LDC) within 30 days of the OPA confirming that their application is complete.  This will be followed by a 90-day period during which the applicant must receive an Offer to Connect. This change is to provide sufficient time for LDCs to process Offer to Connect requests from microFIT applicants.

Existing microFIT applicants (those who applied on or after September 1, 2011) will be subject to the revised microFIT Program Rules and pricing and need to resubmit their applications by August 10, 2012. If they do so, they will maintain their original timestamp, and their application will be processed in the order in which they were originally received. New microFIT applicants will need to be patient, as their applications will not be processed until after all resubmitted applications from existing applicants have been processed.

The final FIT Rules and Contract will be posted shortly, and information on the small and large FIT application windows will be provided when details have been finalized.

Construction begins on controversial solar farm near Belmont, Ontario

Construction has now started on a controversial 448 acre solar farm located northwest of the Town of Belmont in Southwestern Ontario.  The farm will cover prime agricultural soils, but is not subject to the current restrictions on use of Class 1, 2 and 3 agricultural soils for large-scale solar projects.  The proponent, First Solar, obtained a contract from the Ontario Power Authority (OPA) under the former Renewable Energy Standard Offer Program (RESOP).  The new prohibition on use of prime agricultural land came into effect only with the new Feed-in Tariff (FIT) Program. 

While the project benefitted from the lack of protection for agricultural land under the old RESOP program, it also took advantage of the new changes to municipal authority brought in under the Green Energy Act.  Under the Green Energy Act legislation, municipalities have little or no ability to challenge the approval of renewable energy projects within their jurisdictions.

OPA FIT Program Webinar - April 17, 2012

Here is the notice from the OPA:

You are invited to participate in a webinar to learn more about the revised FIT Program. This session will focus solely on the revised FIT Program materials posted on the FIT website and will describe how you can provide feedback on the draft FIT rules, contract and standard definitions.

Below are the details about the session and how you can participate. For this session we will be taking web questions only. By logging onto the weblink, you will be able to view and listen to the presentation and submit your questions. 

Date: April 17, 2012

Time: 1:00 – 2:00 p.m. (ET)
Web URL: http://www.snwebcastcenter.com/event/?event_id=2739
Toll Free Number:  1-866-212-4491

An archive will be posted to the FIT website shortly after the session.

We look forward to your participation in the session.

 
Ontario Power Authority