Does the Canadian Energy Regulator Act (CERA), which aims to regulate certain energy matters, have adequate regulations for environmental protection in the context of Offshore Wind Energy (OWE)?
CERA has multiple objectives and definitions that are relevant to the OWE projects. Safety, security, the protection of the environment in the construction, operation, and abandonment of renewable energy projects and power lines as well as fair, inclusive, transparent, and efficient decision-making processes are among the purposes of this Act. CERA also has a clear application to OWE projects that are in waters under federal jurisdiction. Offshore renewable energy projects include research or assessments related to the exploration or potential exploitation of OWE, any exploitation of OWE, and any storage of energy from OWE.
Under CERA, any work or activity related to OWE in offshore areas is prohibited unless authorization is obtained and an impact assessment is undergone. Issuing authorization requires that the authority under CERA consider multiple factors, including environmental effects and cumulative effects. The OWE projects regulated under CERA must undergo an impact assessment, which can be an integrated impact assessment subject to the satisfaction of requirements stated under both the Impact Assessment Act and CERA.
In addition, the Canada Offshore Renewable Energy Regulations (the Regulations) were proposed in February 2024 to operationalize CERA for offshore renewable energy projects and related power lines by setting requirements for operators to protect the environment. The Regulations require operators to notify the Regulator under CERA, investigate and report a reportable incidence, which includes “any adverse impact on the environment, the production of debris or the introduction into the environment of any substance or form of energy that is likely to hurt the environment, unless that adverse impact, production or introduction is authorized or explicitly anticipated in an application for authorization”. The Regulations also require operators to demonstrate that work or activities will be performed in a way that protects the environment and that all applicable laws will be complied with. In addition, work authorization is conditional upon the operator developing and implementing the environmental protection plan (EPP) before the authorized work or activities begin. EPP must contain procedures, practices, and resources to manage environmental hazards and protect the environment.
The Regulations, however, have some limitations, which should be considered. The Regulations do not provide a comprehensive regulatory framework for OWE because the Regulations under CERA are limited to requiring the operators to take action. They do not provide any specific environmental regulations, standards, or best practices for operators to comply with. In addition, no provision is set out on the consequences of non-compliance with the obligations under the Regulations. It can be understood from CERA that compliance with regulations (in general) is an ongoing condition for the operator under the given authorization under CERA. In case of non-compliance with a condition of the authorization, the Commission established under CERA may suspend or revoke the authorization. Nonetheless, it can be argued that neither CERA nor the Regulations contain adequate liability mechanisms for cases of operators’ non-compliance with the Regulations and obligations under the EPP, particularly after the work or activities begin. CERA only covers “liability for loss, damage, costs or expenses related to debris” and does not include compensation mechanisms for any other environmental loss or damage. These limitations must be carefully considered, and adequate regulatory and compensation mechanisms should be established for environmental protection.
Photo by Dan Cristian Pădureț
