Review of ERT Remedy decision on the WPD White Pines Project

On Wednesday, April 26, the Environmental Review Tribunal finally issued their decision on the Remedy phase of the hearing into the WPD 27 turbine project proposed for the south shore of the County. The decision on remedy comes after last year’s finding of serious and irreversible harm to Little Brown Bats and Blanding’s turtles in the main hearing of the Hirsch and APPEC appeals.

Skipping to the conclusion, the Tribunal was not satisfied that WPD’s proposals to prevent harm to Blanding’s turtles would not cause further harm to the delicate ecosystems of the south shore. Consequently, the Tribunal, acting in its capacity to modify the original decision of the MOECC, removed approval of 18 turbines from the Renewable Energy Approval (REA).

With only 9 turbines left in the REA, there is no way for WPD to meet their obligation to produce at least 75% of the electricity they had been contracted for without making major changes to the project (much larger turbines perhaps) that would require a whole new REA process.

As we cautiously celebrate this victory in the remedy phase, it must be remembered that WPD will have 30 days to file an appeal to the Divisional court on a matter of law. It is important to note that this right of appeal covers the entire hearing process over the last 19 months, not just the Remedy portion.

Summary of the Decision

The Tribunal considered 2 mitigation plans presented by WPD intended to prevent harm to Little Brown Bats and Blanding’s turtles.

With respect to the bats, the Tribunal was satisfied that the WPD plan would, on a balance of probabilities, provide an adequate reduction of the potential to kill bats by curtailing the start-up of turbines in low wind conditions. The Tribunal directed that the REA be modified to include the curtailment plan.

Regarding Blanding’s turtles, the Tribunal found that the “novel”, (their term), or preposterous, (our term), plan to reconstruct and then remove many kilometers of County roads to accommodate the movement of heavy trucks had not been tested in the real world and posed unknown potential danger to the ecology of the project lands.

The Tribunal’s view is summarized in this quote from their decision:

“The proposal will require more significant and different construction activities than was indicated at the main hearing on the merits phase in this proceeding. This is particularly true for the tertiary road segments, which will require widening by 2.7 m, excavation, installation of geogrid and 500 millimeters (“mm”) of gravel, followed by removal activities and restoration of native vegetation. These segments and several of the intersections to be restored occur in areas of prime Blanding’s turtle habitat, including some segments adjacent to wetlands. In its June 2016 Order, the Tribunal ruled that, in determining an appropriate remedy, it would consider the issues of the effectiveness of proposed remedial measures and the impacts and implications of those measures, including the potential for unanticipated and unstudied impacts. However, evidence was not presented to the Tribunal regarding the potential environmental impacts of the proposed measures, nor was there evidence presented that the MOECC and/or the MNRF have reviewed the potential environmental impacts of the NRSI Plan.”

Importantly, the Tribunal agreed with the appellants that the precautionary principle and an ecosystem approach must be used in considering all the ramifications of the proposed mitigation plan.
The Tribunal stated: “In determining an appropriate remedy, the Tribunal finds that application of the precautionary principle is appropriate in order to fulfill the EPA’s purpose of “protection and conservation” and determine which remedy is in the public interest.”

“In addition, the Tribunal finds that implementing novel, unstudied and unproven construction, removal and restoration activities in Blanding’s turtle habitat is not consistent with the precautionary principle or an ecosystem approach.” 

Conclusion

While we are encouraged by the favourable result in the WPD Remedy hearing, CCSAGE will be continuing its efforts for the judicial review of the Green Energy Act, whether the WPD decision is appealed, or WPD walks away. The goal of this JR is to protect the County and other areas of rural Ontario from future inappropriate placement of industrial turbine plants, and restoration of planning power to the Municipalities.

As such, we encourage membership in CCSAGE which helps us show the court that there is significant interest in this pioneering effort.

Memberships can be purchased at https://ccsage.wordpress.com
or by mail:   Anne Dumbrille, 538 Morrison Point Road,  Milford,  ON  K0K 2P0