Regulatory Remodelling: Revamping the Canadian Regime for the Regulation of Offshore Wind Energy

Regulatory Remodelling: Revamping the Canadian Regime for the Regulation of Offshore Wind Energy

June 22, 2021

Canada’s ambition to achieve net-zero emissions by 2050 will require speedy expansion of our renewable energy resources, including offshore wind. But, if we’re going to get there, we’ll need to improve our regulatory regimes.

Fortunately, we have allies from whom we can learn and a regional regulatory precedent that could be helpful.

Canada’s current regime is a patchwork of pre-existing and overlapping agencies and statutes modified and amended to respond primarily to the foreseen needs of offshore powerlines and submarine cable. When these agencies and processes were created, nobody contemplated that large-scale offshore wind would be necessary for Canada to meet environmental targets.

Other countries have moved more quickly to respond to the need for offshore wind energy.

In the United Kingdom, considered by many to be at the forefront of offshore wind, six governmental authorities are involved in the authorization process alone.

Developers in the UK are permitted to submit all materials to the Department of Trade and Industry’s Offshore Renewables Consents Unit (“ORCU”). While ORCU is marketed as a “one-stop shop” for the authorization of projects related to offshore wind, in practice ORCU merely acts as a liaison between developers and governmental agencies, providing little in the way of expediency.

The United Kingdom’s Energy Act 2004, 2004 c 20 permits the Secretary of State to designate “renewable energy zones” with respect to the exploitation of those areas for the production of energy from water or winds. While this Act provided the mechanism for approval of offshore wind locations, it did little to reduce approval timeframes.

In the United States, approximately 30 offshore wind projects are currently in the planning stages and two major farms are already operational — Rhode Island’s Block Island Wind Farm and Coastal Virginia Offshore Wind. To arrive at this point, the regulation of offshore wind in the United States has passed through numerous federal agencies, including the US Army Corps of Engineers, the Minerals Management Service, and the Department of the Interior.

In 2010, the US Bureau of Ocean Energy Management (“BOEM”) was formed and tasked with the leasing, permitting, monitoring, and regulating of offshore wind. Falling short of the “one-stop shop” envisioned by regulators and their critics in the United Kingdom, BOEM shares certain responsibilities with the Department of Energy’s Wind Energy Technologies Office (“WETO”), particularly with respect to the assessment and mitigation of environmental impacts. Working in concert, these two agencies have eliminated the need for broader agency involvement and have made possible the expeditious approval and deployment of offshore wind projects.

Taking cues from its predecessors and building on their models, Japan has enacted legislation establishing defined “Promotion Zones” designated for offshore renewable energy projects. In effect, Japan’s approach will result in pre-approved areas for which environmental assessments and other regulatory considerations have already been made.

Japan’s regime invites developers to compete for development rights in these pre-approved spaces, eliminating the need for lengthy case-by-case assessments. While this approach does not reduce the number of governmental agencies involved, it does dramatically decrease the frequency of their consultation.

Canada, like Japan, is in a position to simplify and streamline the regulation of offshore wind. The approach ultimately taken should reflect Canada’s unique circumstances while building on the learnings of others.

While Canada has been slow to update its regulatory regime for offshore wind, we have accumulated a wealth of experience in dealing with development of offshore petroleum through “one-window” regulation by the Canada-Nova Scotia Offshore Petroleum Board and its near identical provincial sibling Canada-Newfoundland and Labrador Offshore Petroleum Board.

Perhaps the next best step would be to expand the mandates of these two regulators, giving them jurisdiction over offshore wind, not simply offshore petroleum.

For further queries, contact Mohammad Ali Raza and David Reid, partners in the Business Group of Cox & Palmer’s Halifax Office. This article was written with contributions by Ryan Chute, an Articled Clerk at Cox & Palmer.


This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc.



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