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Davis LLP Web Logs or "Blogs" are intended to provide general comments on developments in the law. They are not intended to be a comprehensive review nor are they intended to provide legal advice. Readers should not act on information in the blogs without seeking specific advice on the particular matter. Please contact a lawyer listed on the blog pages for additional details, or to discuss how blog information is relevant to a specific situation.

Climate Change Law Practice Group Blog

» May, 2010

Ontario's Chief Medical Officer concludes that wind farms do not cause adverse health effects

"According to the scientific evidence, there isn't any direct causal link between wind turbine noise and adverse health effects," concludes Dr. Arlene King, Ontario's Chief Medical Officer of Health, in a new report.

The report was based on a literature review of existing scientific evidence on the potential health impact of wind turbines. Its main conclusions are the following:

  • While some people living near wind turbines report symptoms such as dizziness, headaches, and sleep disturbance, the scientific evidence available to date does not demonstrate a direct causal link between wind turbine noise and adverse health effects.
  • The sound level from wind turbines at common residential setbacks is not sufficient to cause hearing impairment or other direct adverse health effects. However, some people might find it annoying. It has been suggested that annoyance may be a reaction to the characteristic "swishing" or fluctuating nature of wind turbine sound rather than to the intensity of sound.
  • Low frequency sound and infrasound from current generation upwind model turbines are well below the pressure sound levels at which known health effects occur. Further, there is no scientific evidence to date that vibration from low frequency wind turbine noise causes adverse health effects.
  • Community engagement at the outset of planning for wind turbines is important and may alleviate health concerns about wind farms.
  • Concerns about fairness and equity may also influence attitudes towards wind farms and allegations about effects on health. These factors deserve greater attention in future developments.

Similar conclusions drawn in an earlier study prepared for the American Wind Energy Association and Canadian Wind Energy Association. The authors of that study were somewhat more pithy than Dr. King, concluding that "annoyance is not a disease."

While helpful, the Chief Medical Officer's new report will likely not placate wind farm opponents in the province. We anticipate that the alleged health effects of wind turbines will remain at issue as developers seeking renewable energy approvals ("REAs") and may be asserted as grounds for appealing REAs before the Environmental Review Tribunal.

Record-setting decline in U.S. Carbon Dioxide Emissions: U.S. Energy Information Adminstration Report

At 7 percent or 405 million metric tons, the energy-related carbon dioxide emissions in the United States saw their largest percentage and absolute decline since the U.S. Energy Information Adminstration (EIA) began keeping a comprehensive record of annual energy data in 1949.

On May 5, the EIA, which is the independent statistical and analytical agency within the U.S. Department of Energy, released an analysis of the factors affecting this decline. EIA Administrator Richard Newell summarized as follows: "The large decline in emissions was driven by the economic downturn, combined with an ongoing trend toward a less energy-intensive economy and a decrease in the carbon-intensity of the energy supply,"

In addition to a decline in gross domestic product (GDP) in 2009 of 2.4 percent, the energy intensity of the economy (energy consumed per dollar of GDP) declined 2.4 percent and the carbon intensity of the energy supply (carbon dioxide per unit of energy consumed) declined by 2.3 percent. The latter two factors led to a decline in the overall carbon intensity of the economy (carbon dioxide per dollar of GDP) of over 4.5 percent between 2008 and 2009.

The EIA's complete analysis can be found here.

Conference Board of Canada releases report on impact of Climate-related technology investments in Canada

On May 5, the Conference Board of Canada released a report entitled The Economic and Employment Impacts of Climate-Related Technology Investments.

The report, produced for the Alberta-based Climate Change and Emissions Management Corporation (CCEMC), is based on a review of provincial climate action plans and programs, as well as core federal government climate technology investments. It demonstrates that in addition to helping to reduce greenhouse gas (GHG) emissions, climate-friendly technology investments can contribute to both economic and employment growth over the next five years. The study includes private and public technology investments made under government programs, which will total $11.8 billion over the period of 2010 to 2014 and then identifies the impact of these investments on gross domestic product (GDP) and employment.

The potential economic impact of such investments varies among the provinces, depending on how their economies are structured and the nature of the investments that each government has planned. With the largest overall expenditure, Alberta is expected to increase real GDP by almost $5 billion. In Ontario, about $2 billion will be added to real GDP. In addition, investments in climate-friendly technologies could generate even greater benefits - not captured in the Conference Board's analysis - through domestic and export sales.

Larger and more diverse economies can expect to obtain a greater economic impact per $100 million tranche of technology investment. For example, thanks to its diversified manufacturing base that can develop and produce a wide variety of technologies, Ontario will generate about $107 million in real GDP for every $100 million in expenditure, whereas Alberta is expected to achieve $70 million in additional real GDP for every $100 million invested, due to its higher dependence on out of province suppliers compared to Ontario. As for Manitoba and British Columbia, those provinces can expect more than $80 million in real GDP for every $100 million of investment.

Of note, Alberta and Ontario - the two provinces with the largest GHG emissions - are also the provinces with the highest levels of technology investment. Climate-friendly investments in Alberta, at $6.1 billion in current dollars over the 2010-2014 period, are expected to surpass all other provinces combined. Ontario is expected to spend nearly $2 billion, while Saskatchewan, Quebec and British Columbia are expected to spend more than $1 billion each over this period.

In employment terms, Alberta's technology investments are expected to create more than 50,000 person-years of employment, followed by Ontario (29,000 person-years), British Columbia (13,000 person-years) and Quebec (12,000 person-years). When compared against current employment levels, Alberta, Saskatchewan and British Columbia can expect the largest percentage increase from climate-friendly technology investments.

Len Coad, the Conference Board's Director, Energy, Environment and Technology Policy, Western Office stated that "Canada will require significant investment from both the private and public sectors to meet the aggressive GHG reduction targets being set out by governments [...]" He added: "Innovation will play a key role in achieving climate change goals. To achieve environmental and full economic benefits, governments need to properly support home-grown commercialization of technologies and help develop Canadian clean energy companies. Tapping into export markets for these new technologies would achieve even greater economic benefits."

A copy of the report can be obtained here.

BC tables Clean Energy Act

On April 28, the government of British Columbia announced the introduction of a new Clean Energy Act. According to the press release, the Clean Energy Act "sets the foundation for a new future of electricity self-sufficiency, job creation and reduced greenhouse gas emissions, powered by unprecedented investments in clean, renewable energy across the province." Like Ontario's Green Energy Act, the proposed legislation will substantially revamp BC's electricity sector, including BC Hydro and the BC Utilities Commission ("BCUC"), and introduce several new programs, including a Feed-in Tariff, to promote the development of clean energy in the province.

A full copy of Bill 17, which would enact the Clean Energy Act, is available here. Backgrounders and other information are available here. The remainder of this posting is based primarily on these materials. More in-depth analysis will follow.

The Clean Energy Act defines 16 energy objectives for BC:

  • to achieve electricity self-sufficiency;
  • to take demand-side measures and to conserve energy, including the objective of the authority reducing its expected increase in demand for electricity by the year 2020 by at least 66%;
  • to generate at least 93% of the electricity in British Columbia from clean or renewable resources and to build the infrastructure necessary to transmit that electricity;
  • to use and foster the development in British Columbia of innovative technologies that support energy conservation and efficiency and the use of clean or renewable resources;
  • to ensure the authority's ratepayers receive the benefits of the heritage assets and to ensure the benefits of the heritage contract under the BC Hydro Public Power Legacy and Heritage Contract Act continue to accrue to the authority's ratepayers;
  • to ensure the authority's rates remain among the most competitive of rates charged by public utilities in North America;
  • to reduce BC greenhouse gas emissions: (i) by 2012 and for each subsequent calendar year to at least 6% less than the level of those emissions in 2007; (ii) by 2016 and for each subsequent calendar year to at least 18% less than the level of those emissions in 2007; (iii) by 2020 and for each subsequent calendar year to at least 33% less than the level of those emissions in 2007; (iv) by 2050 and for each subsequent calendar year to at least 80% less than the level of those emissions in 2007; and (v) by such other amounts as determined under the Greenhouse Gas Reduction Targets Act;
  • to encourage the switching from one kind of energy source or use to another that decreases greenhouse gas emissions in British Columbia;
  • to encourage communities to reduce greenhouse gas emissions and use energy efficiently;
  • to reduce waste by encouraging the use of waste heat, biogas and biomass;
  • to encourage economic development and the creation and retention of jobs;
  • to foster the development of first nation and rural communities through the use and development of clean or renewable resources;
  • to maximize the value, including the incremental value of the resources being clean or renewable resources, of British Columbia's generation and transmission assets for the benefit of British Columbia;
  • to be a net exporter of electricity from clean or renewable resources with the intention of benefiting all British Columbians and reducing greenhouse gas emissions in regions in which British Columbia trades electricity while protecting the interests of persons who receive or may receive service in British Columbia;
  • to achieve British Columbia's energy objectives without the use of nuclear power;
  • to ensure the commission, under the Utilities Commission Act, continues to regulate the authority with respect to domestic rates but not with respect to expenditures for export, except as provided by this Act.

The following provides some additional detail about some of the key initiatives:

Clean and renewable power development

The Clean Energy Act will enable BC Hydro to re-price the existing Standard Offer Program to reflect the results of recent power calls, includes the option to increase the maximum project size above 10 MW, and allows for technologies to be specified.

The Act also sets the stage for a Feed-In Tariff program to foster the development of emerging technologies in renewable power production. The program will focus on supporting emerging technologies that can supply power from B.C.'s diverse renewable resources. The details of the program, that will be developed by the government and BC Hydro in consultation with industry, will be established through regulation. BC will no doubt look to Ontario's Feed-in Tariff program, which has been widely lauded as a world class program, for inspiration.

The Act also contemplates net metering, which would allow customers who generate less than 50 kilowatts from their own renewable sources could get credit on their bills for the power they generate.

Energy efficiency and conservation

BC Hydro and the government plan to implement a number of programs and reforms to promote conservation and efficiency, including:

  • new and increased programs and financial incentives for businesses, industry and individuals;
  • conservation rates to provide incentive to use less electricity and save more money; and
  • Amendments to building codes and product standards to increase the efficiency of buildings and consumer goods.

Heritage assets

The low-rate benefits that come from B.C.'s existing and future heritage assets will flow exclusively to British Columbians and will not be used to subsidize foreign power sales. The Clean Energy Act adds the following new and proposed projects to the list of protected heritage assets: the Waneta dam and generating facility, Site C, Mica Dam expansion, Revelstoke Dam expansion, and Northwest Transmission Line.

Stengthening BC Hydro

The government will strengthen BC Hydro to help deliver the Province's clean energy objectives. The Clean Energy Act will consolidate BC Hydro and BC Transmission Corporation to provide a single entity that will plan and deliver the clean energy required to meet British Columbia's growing demand for electricity while fostering job creation throughout the province and helping reduce greenhouse gas emissions.

The strengthened BC Hydro will be responsible for a number of initiatives under the Clean Energy Act, including:

  • preparing an Integrated Resource Plan that will consider B.C.'s electricity needs over the next 30 years and will be submitted for government approval within 18 months of the Act coming into force;
  • updating the terms for the Standing Offer Program an introducing a Feed-In Tariff program;
  • advancing the Northwest Transmission Line, continuing to plan for an extension of the clean electricity grid to northeast B.C., and establishing a new distribution extension policy to help connect rural and remote communities to BC Hydro's clean electricity grid;
  • delivering Power Smart programs to help reduce greenhouse gas emissions;

Modernizing the BCUC

The Clean Energy Act will reform the BCUC to ensure that the manner in which the BCUC oversees the electricity market is aligned with provincial energy objectives and the manner in which BC Hydro has been charged to implement those priorities.

The Act also exempts a number of "marquee" clean energy projects and programs from obtaining BCUC approval, including:

  • Northwest Transmission Line;
  • Mica units 5 and 6;
  • Revelstoke unit 6;
  • Site C;
  • Bioenergy Phase 2 Call for Power;
  • BC Hydro's Integrated Power Offer;
  • Clean Power Call;
  • Standing Offer Program;
  • Feed-in Tariff; and
  • BC Hydro's Smart Metering and Smart Grid program.

The BCUC will also be required to consider and be guided by the Integrated Resource Plan prepared by BC Hydro, once that Plan has been approved by the government.

Smart Meter deployment and Smart Grid upgrades

BC Hydro will replace all of BC Hydro's 1.8 million customer meters with digital, solid state, smart electricity meters. Equipped with two way communications capability, smart meters will enable in-home display of information and provide customers with more detailed information about their electricity use than a conventional electro-mechanical meter. Smart meter data will also help BC Hydro and local distribution companies plan infrastructure upgrades and implement conservation and efficiency incentive programs.

BC estimates that the cost of the Smart Metering Program and initial Smart Grid Program will be $930 million, but that the positive net present value of the initiatives will approach $500 million over the next 20 years.

Exporting clean energy

Under current policy, BC Hydro does not contract for long-term export power sales. Under the new Clean Energy Act, BC Hydro will be able to secure long-term export power agreements at market rates that make the best use of available clean energy. BC Hydro will fill those contractual energy needs with clean power calls that produce new power from renewable power projects in regions across B.C. BC Hydro will also use its grid management infrastructure and expertise to firm and shape power to ensure a reliable supply of power for export.

Stay tuned for developments.