Renewed potential: Regulation of offshore wind in Canada’s ocean playground
Long thought to be unreliable due to inconsistent output, renewable wind energy is now primed for growth in Atlantic Canada and Nova Scotia could play a leading role.
Advancements in energy storage, load smoothing/shaping, and electrical grid capacity have lessened concerns over energy shortfalls and grid overload stemming from discrete weather events. The result is a consistent and renewable energy alternative that increasingly seems competitive with its non-renewable rivals.
Given Nova Scotia’s accessible coastline and its proximity to potential export markets, even offshore wind energy (“Offshore Wind”) is attracting attention, but the regulatory regime will need work before Offshore Wind becomes a significant contributor.
While the Government of Canada has proposed Offshore Renewable Energy Regulations (the “Regulations”) designed to regulate safety and environmental matters for future offshore renewable energy projects (including Offshore Wind), current projects are regulated by a patchwork of existing regimes modified and amended to respond primarily to offshore powerlines and submarine cables. At present, the principal regulatory instrument for Offshore Wind is Part 5 of the Federal Canadian Energy Regulator Act, SC 2019, c 28, which has a limited focus primarily on project authorization.
By its nature, Offshore Wind projects invoke the authority of numerous Federal departments, including: Transport Canada, Fisheries and Oceans Canada, Environment and Climate Change Canada, and Public Services and Procurement Canada. Each of these departments possesses its own distinct regulatory instruments, all of which are similarly ill-suited for a sudden upsurge in Offshore Wind. For instance, the Federal Real Property and Federal Immovables Act, SC 1991, c 50, which provides for the disposition and use of Federal real property, contains no express provisions for the use of Federal seabeds in furtherance of Offshore Wind. While amendments are likely forthcoming, the current Federal legislative regime has not kept pace with Offshore Wind’s increasingly rapid development.
Upon coming ashore, Offshore Wind projects will trigger Provincial interests and further regulation. Canada has historically collaborated with provinces in the joint management and regulation of offshore energy resources (e.g., the Canada-Nova Scotia and Canada and Newfoundland and Labrador Offshore Petroleum Boards). However, the Government of Canada has, thus far, opted not to take this approach to the management and regulation of Offshore Wind. The proposed Regulations do not address this jurisdictional blind spot, all but ensuring projects will face an eventual legislative delay prior to commercial operation.
As Offshore Wind projects in Nova Scotia exit the research and demonstration phases, overlapping and competing Federal and Provincial regimes will need rationalization. A Federal-Provincial joint management framework for Offshore Wind should seek to replicate successful Canadian frameworks for offshore petroleum, enhanced by best practices learned from countries who have already adopted robust Offshore Wind regulatory regimes.
Nova Scotia must take a proactive approach to joint management to ensure that the Province is ready when project opportunities arise. Measures that can be undertaken now include lobbying the Federal Government to create a CNSOPB-style regulatory framework for Offshore Wind and undertaking the studies and background research necessary to create a clear and effective Provincial regulatory regime. Proponents of Offshore Wind in Atlantic Canada say it is no longer a question of if, but when, Offshore Wind will be technically and economically feasible.
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.