“Activists” shut down Middlesex ERT hearing

An update on the Adelaide appeal at the Environmental Review Tribunal, held in London this morning, from the London Free Press.

London hearing on health effects of wind turbines shut down due to activists 36

By Debora Van Brenk, The London Free Press

It was a turbulent beginning to a hearing about the impact of turbines on human and environmental health, as the adjudicator shut down the process after only a few minutes.
As two protesters refused to turn off their video equipment, hearing chairperson Dirk VanderBent warned they must comply or he would have to adjourn the hearing.
They didn’t; he did.
At issue are 37 turbines wind energy giant NextEra Canada plans to build in Adelaide-Metcalfe, west of Strathroy.
The Environmental Review Tribunal, VanderBent said, is to hear and adjudicate whether the Adelaide wind farm would cause serious harm to human health or serious, irreversible harm to the environment.
Anti-wind activist Esther Wrightman was set to argue that the turbines would pose unacceptable health risks and should be scrapped.
Sitting in the gallery were about 30 other wind opponents, many of them holding signs.
As the hearing at the Middlesex County buidling started Tuesday morning, Wrightman asked that cameras be allowed in the room to accommodate a person with a learning disability.
That was denied, except for VanderBent’s opening statement, after which he asked that all cameras be turned off.
One person continued to record with her iPad and another with her camera.
Exasperated, VanderBent adjourned until the afternoon.
Marcelle Brooks, who continued recording with her iPad until lawyers for NextEra and the provincial Environment Ministry had left the room, said she has no plans to comply. “The people in Ontario have a right to see what goes on in these tribunals…People need to see.”
Her frustration escalated as she learned that several of the witnesses she had planned to call — including Skype (video phone via the Internet) testimony from an Australian doctor and a property appraiser from Chicago — would not be allowed as witnesses.
With nine of her 11 witnesses barred from testifying, or whose testimony would be severely restricted, “It’s dead. This hearing is dead,” she said as she pondered her next steps.

Environmental Review Tribunal: Paul Muldoon revisited

A year ago, Parker Gallant wrote this on the Environmental Review Tribunal and had several questions about the impartiality of some Tribunal members. He takes a special look at Paul Muldoon, the environmental lawyer, who is vice-chair at the Adelaide appeal, being heard in London this morning.
  We reprint this excerpt:

Examining the Environmental Review Tribunal (ERT), adjudicator of licences under appeal, issued by the Minister of the Environment (MoE), is an interesting exercise. One of the criteria for application as a member of the ERT is: “Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal; Aptitude for impartial adjudication”.

A focus on that latter qualification means Ontarians should expect [it] is the pinnacle of member qualifications, because the “tribunal”, is a quasi court, set to administer justice as defined under the Act which it adjudicates. Looking at members of the ERT one notes that four of its members have the “experience” but one could question whether those four have the “aptitude for impartial adjudication.”

Appointments to the ERT are made by the Premier or the Minister and follow “a recruitment and review process managed by the Public Appointments Secretariat” (PAS). All appointees are required to sign a “Conflict of Interest Disclosure Statement” which asks the question: “Have you been involved in any issue or controversy in the past, or that may be subject to public review in the future, in which the government may have an interest?”

One would assume that extensive lobbying of the government in the past on energy related matters would have automatically generated a “yes” to the foregoing question, and may have rendered the applicant inappropriate. At least one (and possibly four) of those now sitting on the ERT may have answered that question with a “yes” but that yes didn’t generate a rejection.

The first is Paul Muldoon, Vice Chair of the ERT. In his prior position as Executive Director with the Canadian Environmental Law Association (CELA) Mr. Muldoon had occasion to lobby the current Liberal government. In fact Mr. Muldoon on November 4, 2003 sent Premier McGuinty a letter claiming CELA were one of the founders of the Campaign for Nuclear Phase-out and that CELA supported renewable energy: “Energy efficiency programs and renewable energy are cheap, clean, and safe ways to secure Canada’s energy future”. The letter finished with the words; “We look forward to working with your government on appropriate energy solutions for Ontario.”
CELA get the bulk of its funding (73% or $1.2 million) from “Legal Aid Ontario”, according to their March 31, 2011 annual report, with a big chunk of the balance (17% or $295,000) from grants. Two of the latter came from the Trillium Foundation who report they granted CELA $502,200 between 2007 and 2009. CELA list other funders including the Canadian Environmental Network, Environmental Defence, CAW and several others.

CELA team up with other environmental groups such as Ecojustice (formerly Sierra Legal Defence Fund and Jerry DeMarco’s [another ERT member] former employer), Environmental Defence, Sierra Club, etc. to push their “renewable energy” views to the Ontario Provincial government (as recently as June 6, 2012). CELA claim their organization is a “Legal Aid Clinic”.

The “legal aid clinic” aspect is interesting as the writer is aware that CELA was approached a few years ago for legal help by a small conservation group, concerned that industrial wind turbines on the shores of Lake Erie would harm migratory birds. That group never even received a response. CELA tout objectives in their 2011 annual report including this one; “to prevent harm to human and ecosystem health through application of precautionary measures” but apparently they tend to pick and choose those health and ecosystem issues when it suits their purpose. One such example appears to be the Sierra Club (revenue reported to the CRA Charities by the two “foundations” that comprise the Sierra Club were in excess of $2 million) who they name as a client in the annual report. This is a blatant example of our tax dollars (legal aid and government grants) being used to fund a charity’s legal actions so taxpayers effectively pay twice for those activities. …

So Paul Muldoon, whose past involved both controversy and issues, bound to be subject to public review, applied for a position on the ERT. Mr. Muldoon was presumably blessed by PAS, appointed by the Minister of the Environment, Laurel Broten, and is gainfully employed as Vice Chair of the ERT. In my personal opinion, I have difficulty believing that Mr. Muldoon does not continue to harbour some of that green religion in his position and would be personally concerned of bias in any ruling(s) he might hand out and indeed if he has the “aptitude for impartial adjudication”?

Interpretation of the law or the regulations governing our lives is judged through the eyes of the adjudicator who pays close attention to those presenting the best and most relevant “case law.” The MoE with an unlimited budget are in a much better position to do research than the poor appellant. While the “appellant” can certainly appeal the ERT’s decision or order he/she must be prepared with a pile of cash to support the process and possibly pay for the court costs. The ability to pay is an attribute the MoE is not concerned with as they use our tax dollars to fight anyone appealing an ERT decision.

It’s not a difficult conclusion to realize the odds of winning an appeal favour the MoE, without even stacking the Board with individuals that may be inclined to have a bias or, to some extent, may have actually played a role in creating the legislation/regulations that they now adjudicate.

The opinions expressed are those of Parker Gallant and not necessarily Wind Concerns Ontario.

Lawyers ask: what is going on with Ontario’s FIT?

On August 16, 2013, Ontario’s Minister of Energy, Bob Chiarelli, issued a Directive to the Ontario Power Authority (OPA) to make changes to the Feed-In-Tariff (FIT) program. This Directive builds on a previous Directive issued June 12, 2013 that made significant changes to the FIT program. (See: Ontario Minister of Energy Issues New Directive on the Feed-in Tariff Program).
The most important changes that stem from this most recent Directive are the modifications to the domestic content requirements for renewable energy projects under the FIT program.
As discussed below, the helpful clarity provided by the latest Ministerial Directive on the domestic content changes contrasts somewhat with the lack of clarity developing with regard to both the Ontario Renewable Energy Approvals (REA) process and the re-creation of a Large FIT program.
Changes to the Domestic Content Requirements
On May 24, 2013 the World Trade Organization (WTO) issued a ruling from two WTO disputes which determined that Ontario’s domestic content requirements violated Canada’s trade obligations. (See: The WTO Decision – What it Means for Ontario FIT 1.0 and 2.0 Projects).
In response to this ruling, the Minister of Energy has now directed the OPA to take an interim step towards compliance by reducing the domestic content requirements for new FIT procurements. All new FIT contracts will require that facilities achieve domestic content levels lower than previous contracts. The new domestic content levels are as follows:

  • On-shore wind facilities are required to maintain a minimum domestic content of 20%
  • Solar photovoltaic (PV) facilities utilizing crystalline silicon are required to maintain a minimum domestic content of 22%
  • Solar PV facilities utilizing thin-film PV technology are required to maintain a minimum domestic content of 28%
  • Solar PV facilities utilizing concentrated PV technology are required to maintain a minimum domestic content of 19%

These new content levels will apply to the Fall 2013 procurement window for Small FIT, microFIT, pilot solar projects on unconstructed buildings and unused capacity carried over from the Small FIT that closed on January 18, 2013.
The Future of Domestic Content
The Ministerial Directive indicates that the new domestic content levels shall remain in effect until further direction is given by the Minister. This Directive is an indication that the provincial government is prepared to respond to the WTO ruling and demonstrates a willingness to begin a transition to the elimination of the domestic content rules. It remains unseen if further reductions or an all out removal of the domestic content rules will be implemented by the Ministry of Energy.
The OPA has reviewed and updated the FIT and microFIT price schedule that it offers to renewable energy generators. Prices have been declining for both wind and solar contracts since the original FIT prices were set. In the most recent price schedule change effective August 26, 2013, prices have declined significantly for solar contracts with reductions ranging from 25.8% to 39% from previous levels. All wind project prices remain unchanged at 11.5 cents per kilowatt. These prices will apply to any new contracts that are issued until a new price schedule takes effect on January 1, 2014. The OPA has justified the price decreases as reflecting both the changes in upfront costs to develop a renewable energy project, and shifts in the ongoing operation and maintenance costs for projects.
FIT/microFIT Price Schedule Changes
Click here to view table.
Large FIT: New Competitive Procurement Process
The Large FIT program (more than 500 kilowatts) is being removed from the FIT program and being replaced with a new competitive EOI/RFP type procurement process which will require developers to consider input from stakeholders, municipalities and Aboriginal communities to assist in identifying suitable locations and siting requirements.
The OPA is currently in a consultation process with stakeholders to receive feedback regarding the proposed competitive bidding process. This new process is currently under development by the OPA, however, there is no set timeline regarding when the RFP process is to be implemented. The OPA will be providing the Minister with interim recommendations by September 1, 2013 and additional engagement activities are expected in fall 2013.
The OPA will continue to procure renewable energy capacity through the microFIT program (10 kilowatts or less). The new microFIT application window is expected to open shortly for the remainder of 2013, which has a procurement target of 30 megawatts.  Following this, the next application window will begin in 2014, with a procurement target of 50 megawatts.
In the interim, though little noticed by the media, Ontario has managed to reach a cost-effective accommodation with the numerous grid-capacity constrained microFIT projects which were unable to connect to the Hydro One grid for technical reasons.
Small FIT
The OPA will continue to procure renewable energy capacity through the Small FIT program (500 kilowatts or less), but will now include a priority system whereby municipalities and public sector entities will be provided with incentives such as priority points during the application process.
The upcoming application window for Small FIT projects is expected sometime in the fall of 2013, which has a procurement target of 70 megawatts. The new Directive states that beginning in 2014, the OPA will prepare annual schedules of planned Small FIT application windows which will be published in January of each year.
REA Changes for Large Projects
In contrast to the recent details on FIT domestic content and pricing, there are now two sources of uncertainty for proponents of large renewable energy projects.
The first uncertainty arises from a process initiated pursuant to the June Directive.  This Directive tasked the OPA with developing a new procurement process for large renewable energy projects that “takes into account local needs and considerations before contracts are offered”. This task resulted in the OPA hosting an August 7th webinar, conducting meetings during the week of August 12th, and soliciting comments up to August 21st.  These dates are input to the OPA providing the Minister with recommendations by September 1st.  The only outcome offered publicly on this process is that it is “expected” that additional “engagement activities” will occur this fall.
But the OPA process is not the only uncertainty facing REA proponents.  On July 3rd, the Ontario Environmental Review Tribunal released the landmark decision regarding the proposed Ostrander Point wind development, revoking the Director’s REA (See: An Ontario First, Tribunal Revokes Wind Farm Approval).  On August 1st, both the REA applicant and the REA Director at the Ministry of the Environment issued notices of appeal to Ontario’s Divisional Court to have the Tribunal decision set aside and the REA confirmed.  The central issue in the appeal is regulatory authority over endangered species: how does the authority of the Tribunal under the REA statutory appeal co-exist with the authority of the Minister of Natural Resources to issue permits under the Endangered Species Act, 2007? Right now, proponents facing endangered species issues are subject to a two-part process whereby an ESA permit is necessary but not sufficient to address such issues.

NextEra: all set to bully another Ontario community?

NextEra is heading into a confrontation with another municipality after it has constructed a staging area for its turbine projects in southwestern Ontario in Ashfield-Colborne-Wawanosh (ACW) Township without bothering to check whether the site was properly zoned for this use.
   Borea Construction, a contractor working for NextEra has arranged with the owner of the former gravel pit site in ACW for this purpose.  The township thought that the company was working for K2 the wind turbine project currently under appeal at an ERT so did not attempt to stop the project but when they found it was another wind company, they advised the company that a zoning change was required to use the site for storing wind turbine parts. 
   A zoning change requires public notification and a public meeting which is set for September 17.  Unfortunately work on the site is almost complete and the turbine parts are scheduled to start arriving on September 16.  Undeterred by a municipal planning requirement, NextEra’s contractor is asking the township for temporary permission to place the turbine parts at the site.
  The municipal staff has drafted a report recommending that the Council not approve this request with the recommendation supported by the municipal solicitor setting the stage for a confrontation with NextEra.  The site is zoned for gravel extraction with part of it zoned Natural Environment due to its position on the edge of a river that flows into Lake Huron about five miles to the west.  Neither of these zoning types allow for the storage of turbine parts.  Work completed to date, which includes installation of a new perimeter fence, leveling the farm-sized site and installing security lighting, is consistent with gravel extraction activities so the municipality has not been able to stop the work.
  From a municipal planning perspective, there are a lot of reasons why an application to change zoning should be turned down.  The entrance to the site is at the top of a blind hill. The use will involve use of large trucks turning into and out of the site onto a narrow road with limited visibility.  The road to the site is not designed for a high volume of truck traffic as it is a narrow township road paved using tar and chip.  A county road is located about 1 mile to the east but to reach it, trucks would have to pass through the village of Dungannon where commercial buildings on the corner limit the turning radius onto the road.
   Run-off from a site of this size will be a major issue but there did not seem to be any provision in the work done to date for storm water management systems.  Run off from a construction site could also include contaminants which need to be kept out of the adjacent river which is known for sport fishing both near this site and where it reaches Lake Huron at Port Albert.  Addressing the run-off would require a substantial reworking of the site elevations and creation of large areas to store run-off.
   The matter comes before ACW Council on Tuesday night.  At the same meeting, the local anti-wind group is booked as a delegation to recommend that the Council adopt the Fire Prevention by-law initiated by Grey Highlands.  As the Township has had experience with a turbine fire, it is expected that the Council will be receptive to this initiative.
   The prospects for NextEra look bleaker.  Allowing the use to proceed on a temporary basis would raise all sorts of legal issues for the municipality.  Even the zoning decision will not be speedy.  Even if it is approved, there is a 20-day appeal period during which anyone who attended the meeting can appeal the decision to the Ontario Municipal Board for a fee of $125.  Any approval would also likely include conditions to address storm water management and improving visibility at the entrance point to the road, if not improving the whole road from Highway 21.
   Looks like this could be a costly mistake for NextEra.  The municipality cannot be sued but I would not want to be their contractor as this could delay construction on a number of projects unless they can arrange for an alternate staging area very quickly.
   The work has generated another highly trained Green Energy Job for the Liberals as there is already a security guard posted on the empty site.  He looked very bored sitting on the steps of the office when I snapped the picture.
   The meeting is on Tuesday September 3 at the Township office at 82133 Council Line, RR5, Goderich beginning at 7:30 pm
Ashfield-Colborne-Wawanosh resident