Bats in the Belfry, Part lV: Environmental Review Tribunal—Industrializing Rural Ontario

This is the fourth and final in the series that examines some of the members on the Environmental Review Tribunal (ERT). As noted in earlier articles the members of the ERT should be unbiased in order to qualify for their positions. We have previously examined two of the twelve members of the Tribunal who may have been appointed to the ERT with a bias and this article will look at two others. Those two are Maureen Carter-Whitney and Marcia Valiante who both were previously employed by the Canadian Institute for Environmental Law and Policy or CIELAP. According to an announcement on their website here CIELAP and CELA (Canadian Environmental Law Association) have merged with the Board Chairman blaming it partly on “a changed funding landscape”. The most recent annual report posted on the CIELAP site for the year ended June 30, 2010 showed meager income of only $ 185K with a big chunk coming from Friends of the Greenbelt, a McGuinty creation that has doled out almost $25 million over the past few years. With a staff of 6 at CIELAP the $185K wouldn’t go very far. As noted in a prior article CELA and CIELAP used to share premises so this simply puts them back together.

CIELAP strongly endorsed the Green Energy and Economy Act (GEA) but they did note and support the rights of objectors to appeal licences that the Ministry of the Environment (MoE) might issue on environmental grounds, with this caveat:

“However, anyone who applies for a hearing relating to an approval for a renewable energy project would be required to show that the project will cause serious and irreversible harm to plant life, animal life, human health or safety, or the natural environment. This is a very difficult test that may be nearly impossible to meet.”

CIELAP obviously believed that the government would take over local democratic rights and then abide by a commitment to honour the effects on the community through appeals as long as the appellant had strong evidence. Getting two of CIELAP’s former employees on the ERT means that those particular individuals may carry that bias into any of those appeals despite the need to have an “Aptitude for impartial adjudication” requirement that the Public Appointments Secretariat emphasizes.

One year after submission of their endorsement of the GEA, Maureen Carter-Whitney of CIELAP together with Ecojustice and CELA submitted a brief to the MoE expressing concern about how they were streamlining the approval process for “Certificates of Approval”. Their brief noted their concern by including issues that they felt raised “serious concerns about environmental equity considerations regarding the siting and operation of industrial facilities in the province.” In this writer’s opinion the endorsement of the GEA by CIELAP and the others failed to recognize the consequences of what would happen to rural Ontario though the licencing of those “industrial” wind turbine developments, or perhaps CIELAP and the others simply didn’t consider 400/500 foot industrial wind turbines as “industrial facilities”. Much like Ontario’s Auditor General noted in respect to the economics of the GEA; that no cost/benefit analysis occurred; it would appear that CIELAP and the other supporters from the environmental non-government organizations (ENGO) also failed to consider a cost/benefit analysis in respect to the environment.

The other former CIELAP employee, Marcia Valiante is now a Professor at the University of Windsor, Faculty of Law where she teaches courses in Canadian Environmental Law.  Ms Valiante left CIELAP many years ago but clings to her past as evident by a review of her biography and list of publications on the University of Windsor site.  Her bio includes a reference to how her research and publications include a range of issues on “environmental law” including “citizen access to environmental decision-making.

Ms. Valiante’s list of publications includes collaborative efforts with Gerry DeMarco (covered in Part III of this series), to produce “Opening the Door for Common Law Environmental Protection in Canada”, Bruce Lourie (see earlier articles) and Mark Winfield, (current Associate Professor at York University’s Faculty of Environmental Studies, former Program Director of Pembina and former Director of Research for CIELAP) with others to produce a book titled, “Canadian Environmental Policy and Politics”.  The writer’s opinion, based on Ms. Valiante’s position and her publications, make her an ideal candidate to interpret Ontario’s legislation dealing with matters associated with the environment but her past affiliations with avid proponents of “renewable energy” and the Green Energy Act make one wonder if some of those prior associations allows her to be unbiased in any of the rulings she is called on to adjudicate in respect to the ERT hearings.

Reviewing some of the ERT hearings it is noteworthy that dismissals occur in every appeal submitted in respect to industrial wind development. The dismissals are based on the rule of law and the regulations that apply. Those rules are applied rigorously by the likes of Muldoon, DeMarco, Carter-Whitney and Valiante.

To cite one example an appeal by a group of 21 individuals (appellants) in Chatham Kent against South Kent Wind LP was filed June 29, 2012 and the ERT served notice to those individuals that they must present certain information to the Tribunal by July 3, 2012. Specifically that information was:

“Clarification as to whether each person listed in the notice of appeal was appealing the REA, and contact information for each Appellant pursuant to Rule 29.(a), which requires the Appellant‟s name, address, telephone number, facsimile number and email address and the name and contact information of anyone representing the Appellant; 

Pursuant to Rule 29.(d), a description of how engaging in the renewable energy project in accordance with the REA will cause:
Serious harm to human health, or
Serious and irreversible harm to plant life, animal life or the natural environment;
 

Pursuant to Rule 29 (e), a statement of the issues and material facts relevant to the subject matter of the appeal that the Appellant intends to present at the main hearing;
Pursuant to Rule 29 (g), an indication of whether the Appellant will seek a stay of the REA; and
An affidavit of service confirming that the notice of appeal was served on the MOE and the Approval Holder pursuant to Rule 30.”

Needless to say the appellants were unable to present the information in the 3 to 4 days allotted but the Tribunal did grant them additional time extending the date to July 16, 2012 and more information was submitted.  In the end though the appeal was dismissed because the ERT Member, Maureen Carter-Whitney, ruled that the information did not satisfy the rules. Appeal dismissed!

The Chatham Kent group were fighting the joint venture, Pattern Energy/Samsung 230 MW (name plate capacity) that would see the erection of 124 industrial wind turbines with a height (including blades) of almost 500 feet. As a resident of Toronto I would note that we don’t have nearly that many buildings of that height in the city, yet here is Ms. Carter-Whitney dismissing the appeal after standing so adamantly behind the environmental aspects of “the siting and operation of industrial facilities in the province.” So the ERT simply bless this joint venture of two foreign owned companies who have come to Ontario, attracted by our subsidized prices, and industrialize rural Ontario because of the “rules”. Those two companies will earn revenue of about $76 million per year while promising to create 20 permanent jobs or $3.8 million per job per year.

The writer could cite many other examples but the foregoing makes the point that the GEA has made a mockery of Ontario’s democratic process and as noted in the above mentioned brief submitted by CIELAP, CELA and Ecojustion will cause “serious and irreversible harm to plant life, animal life, human health or safety, or the natural environment. This is a very difficult test that may be nearly impossible to meet.

The latter point has now become obvious and it is partly because the proponents of the above are now in the position to ensure that the “very difficult test that may be nearly impossible to meet.”, is impossible to meet.

It is time for Gord Miller, Ontario’s Environment Commissioner to recommend changes to the Acts governing the process of licencing industrial wind developments or there soon will be no bats in the belfry or anywhere in the province.

Parker Gallant,
October 20, 2012

The opinions expressed above are those of the writer.

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