White Pines Wind appeal decision:15-068 HIRSCH V. ONTARIO (MOECC)

The Ontario Environmental Review Tribunal released this decision partially granting an appeal of the Province's decision to approve the White Pines wind energy facility. The panel upheld the appeal because of the risk of serious and irreversible harm to the Little Brown Bat and Blanding’s Turtle. The White Pines wind facility, as proposed, consists of 29 wind turbines with a nameplate capacity of 59.45 megawatts (MW). The Project will be located within the ward of South Marysburgh and a small portion of Athol, Prince Edward County. The background details of the case before the Tribunal are provided below. The full decision can be accessed by clicking the links on this page.


[1]    On July 16, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (the “MOECC”), issued Renewable Energy Approval No. 2344-9R6RWR (the “REA”) to wpd White Pines Wind Incorporated (the “Approval Holder”) authorizing the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer stations, underground electrical cabling, distribution lines and associated infrastructure, to be located in Prince Edward County, Ontario (the “Project”).  The Project is located near the south shore of the County and bounded by Brummell Road and Bond Road to the North, Lighthall Road to the West, Gravelly Bay Road to the East, and Lake Ontario to the South (the “Project site”).

[2]    On July 29, 2015, John Hirsch filed a notice of appeal of the REA with the Environmental Review Tribunal (the “Tribunal”), pursuant to s. 142.1 of the Environmental Protection Act (the “EPA”), seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment.  On July 31, 2015, the Alliance to Protect Prince Edward County (“APPEC”) filed a notice of appeal with the Tribunal seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment and will cause serious harm to human health.  A third appeal, by the Prince Edward County South Shore Conservancy, was withdrawn and dismissed by the Tribunal in its Order dated September 30, 2015.

[3]    The Director’s decision to issue the REA approving the Project with 27 wind turbines did not include approval of two proposed wind turbines that were included in the Approval Holder’s application for the REA.  The Approval Holder appealed the Director’s decision, seeking: (1) an amendment to the REA to add the two refused wind turbines to increase the total to 29, and (2) an amendment to the REA to correct “apparent drafting errors” in Condition L1(3)(a) of the REA, which addresses avoidance measures for Blanding’s Turtle.  This appeal was given Tribunal Case No. 15-071.  On January 8, 2016, the Tribunal issued an Order dismissing the portion of that proceeding respecting the Director’s refusal to approve the two wind turbines and adjourned the hearing of the issue of the amendment of Condition L1(3)(a) of the REA until after the resolution of the appeals in this proceeding.  As a result, the Tribunal has not addressed the proposed amendment to the wording in Condition L1(3)(a) of the REA in this proceeding. 

[4]    The hearing in this proceeding commenced on November 2, 2015 and was held over 21 days in November and December 2015 in Wellington and Picton in Prince Edward County and at the Tribunal’s offices in Toronto, Ontario.  The Tribunal participated in a site visit with counsel for the parties on November 9, 2015.  Final written submissions were provided by the parties in January 2016. 

[5]    On January 15, 2016, the Tribunal issued an Order which addressed a number of motions and procedural rulings made in the course of the hearing.

[6]    The Tribunal is required by the EPA and Ontario Reg. 359/09, Renewable Energy Approvals under Part V.0.1 of the Act (“O. Reg. 359/09”) to dispose of the hearing within six months of the date of the filing of the notice of appeal.  The EPA provides in s. 145.2.1(6) that if the Tribunal fails to do so, the decision of the Director to issue the REA will be deemed to be confirmed.  In this case, the statutory deadline was January 29, 2016.  In its Order dated January 25, 2016, the Tribunal adjourned the proceeding, “stopping the clock”, for 32 days to February 26, 2016.   

Ert White Pines Decision

Download file (805 KB) pdf


FEB 26 2016
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