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 MicroFIT Webinar - April 13, 2012

Here is the notice from the Ontario Power Authority:

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

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 13, 2012

Time: 10:00 – 11:00 a.m. (ET)
Web URL:  http://www.snwebcastcenter.com/event/?event_id=2732
Toll Free Number:  1-866-212-4491

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

We look forward to your participation in the session.

 
Ontario Power Authority

Ontario Government releases results of FIT Program Review

Here are some of the highlights from the review of the Feed-in-Tariff (FIT) Program published by the Ontario Government today:

Beginning this year, FIT prices should be conducted annually to reflect current costs - new prices would be set and published each November and will take effect on January 1st the following year;

The MOE's self-screening registry system, the Environmental Activity and Sector Registry (EASR), should be expanded to include small-scale solar (less than 500 kW) and bio-energy projects;

The commercial operation milestone for rooftop solar PV should be shortened from three years to 18 months in order to encourage timely project completion;

Set aside a minimum of 10 percent of remaining FIT contract capacity for local community and Aboriginal projects with greater than 50 per cent equity participation;

Enhance protection of agricultural lands by prohibiting solar ground-mount projects (over 10 kW) on prime agricultural land that contain class 1, 2 and 3 soils.  Expand protection to include organic and mixed soils and remove zoning exemptions;

Prohibit solar ground-mount projects (of any size) in residential areas and lands bordering residential areas.  Permit projects in commercial or industrial areas only when producing renewable energy is a secondary use;

For large FIT projects, require contract launch meetings with municipalities, proponents, project developers, government representatives, utilities and agencies to facilitate early discussion, share information and define expectations;

FIT program prices for wind and solar technologies should be reduced by more than 20 per cent for solar, depending on size, and approximately 15 per cent for wind.  Maintain current prices for water, biogas, biomass and landfill gas;

Rather than setting a price at the time of project application for small and large FIT projects, price should be set when the contract is offered;

Implement a limit of one microFIT contract per individual/farmer;

Following commercial operation, a portion of the FIT price should escalate with inflation over time (as measured by the Consumer Price Index (CPI)) to reflect ongoing operations and maintenance costs.

Here is the new proposed FIT price grid:

Read the full review at: FIT Two Year Review.

World's largest solar farm completed at Sarnia, Ontario

CBC News - Technology and Science - Enbridge completes Sarnia solar farm

Click on the link above to read the CBC News story about the completion of an 80 MW solar project at Sarnia, Ontario. Originally built as a 20 MW facility by First Solar Inc. under the Renewable Energy Standard Offer Program (RESOP) from the Ontario Power Authority (OPA), the operation was upgraded by Enbridge Inc. and will continue to be operated by First Solar. The farm consists of 1.3 million panels covering 950 acres. 

Under the new Feed-in Tariff (FIT) program that replaced RESOP, the OPA can no longer enter into contracts for energy generated by ground-mounted solar facilities greater than 100 kW in size that are located on Class 1 and 2 agricultural soils and specialty crop areas.  While larger projects are permitted on Class 3 soils, no more than 500 MW in total in Ontario are permitted.  The prohibition on use of farm land will remain in place until further regulations are prescribed under the Electricity Act, 1998.

OPA decides to pay $64.2 per kWh for ground-mounted solar power

Ontario Power Authority Finalizes Price for New Ground-mounted Solar Category


NEWS RELEASE

--------------------------------------------------------------------------------

Consultations Inform Fair Outcome

August 13, 2010, Toronto, ON – The Ontario Power Authority today announced that following a 30-day consultation period, it has finalized the price for the new microFIT ground-mounted solar price category at 64.2 cents per kilowatt-hour (kWh).

The finalized price reflects input received during the consultation period and incorporates a wider variation of cost inputs and project configurations, including higher operating and maintenance costs for ground-mounted tracking systems.

The price strikes the right balance between providing a reasonable rate of return to electricity generators and protecting ratepayers from higher than necessary electricity prices.

“The outcome of a constructive consultation process is that these changes provide fairness for those who have applied to the existing program and good value for clean energy,” said Minister of Energy and Infrastructure Brad Duguid. “The microFIT program will continue to be a sustainable program that encourages residents to participate in the growing clean energy economy.” “The microFIT program has been tremendously successful since it was launched in October 2009,” says Colin Andersen, Chief Executive Officer of the Ontario Power Authority. “With these changes, it has been made even stronger going forward.”

The new price category is effective immediately for eligible projects with applications submitted after noon on July 2, 2010, when a new price category was proposed. Eligible ground-mounted applications submitted prior to noon on July 2, 2010, will receive the original price of 80.2 cents/kWh whether or not they have received a contract or conditional offer. These applicants will also have until May 31, 2011, to install and request a connection for their projects before higher domestic content requirements are required. Ground-mounted solar microFIT contracts signed and conditional offers received before July 2 will continue to be eligible for the original price of 80.2 cents/kWh.

During the 30-day consultation period, the OPA held three web-enabled teleconferences with 1,665 participants and received 1,645 written submissions about the proposed price. Based on this input, the OPA is also making the following announcements:

To improve communication and increase transparency, the OPA is establishing a microFIT program advisory panel that will provide advice on program evolution, including the two-year review process. The panel will be made up of industry, academic and other stakeholder representatives.

Commercial aggregators (e.g., businesses that lease land or rooftops from individuals for multiple renewable energy projects) will no longer be allowed to participate in the microFIT program. This will ensure that the microFIT program is focused on its original purpose – encouraging homeowners, farmers, farm co-operatives, Aboriginal communities, small businesses and institutions such as schools, to own and develop small renewable projects.

The panel will make recommendations, on an expedited basis, about appropriate contracting provisions for aggregators to reflect the unique nature of commercial micro projects. This will help ensure that commercial aggregators can continue to participate in the clean energy economy but do so outside of the microFIT program structure.

To implement these changes announced today, new microFIT applications will be accepted beginning on Friday, August 20.

The OPA has received almost 19,000 microFIT applications since the program was launched less than a year ago. More than 6,100 conditional offers have been sent to applicants and almost 800 microFIT projects are now feeding clean energy into Ontario’s grid.

The OPA is working to respond quickly to microFIT applicants. Most ground-mounted applications that have been submitted will be processed by the end of September. Details on the timeline goals for offering conditional contracts are available on the microFIT website, microfit.powerauthority.on.ca.

The OPA will host a webinar on August 18 from 2 to 4 p.m. to answer questions about the finalized price, the advisory panel and other details. Information on how to participate can be found on the microFIT website.

The new microFIT program encourages the development of small-scale renewable energy projects (solar, wind, water, bioenergy) of 10 kilowatts or less from a diverse range of producers, including homeowners, farmers, schools, First Nations and small businesses. It is part of a broader Ontario feed-in tariff (FIT) program, the most comprehensive of its kind in North America.

The Ontario Power Authority is responsible for ensuring a reliable, sustainable supply of electricity for Ontario. Its four key areas of focus are: planning the power system for the long term, leading and co-ordinating conservation initiatives across the province, ensuring development of needed generation resources, and supporting the continued evolution of the electricity sector.

Media contacts:

Tim Butters
Ontario Power Authority
416-969-6307
Toll Free: 1-800-797-9604

Andrew Block
Office of the Honourable Brad Duguid
Minister of Energy and Infrastructure
416-327-6747

©2009 Ontario Power Authority