“This is not over”: update from appellants in Charter challenge

Ontario's communities in court vs their own government, and industry
Ontario’s communities in court vs their own government, and industry–it’s evolving

It seems like the judicial landscape in the fight to protect homes and communities from the invasion of unwanted (and frankly, unnecessary) wind power projects is characterized by defeat after defeat.

This is not true.

In fact, the fight against utility-scale wind power developments is evolving. The community group Safe Wind Energy for All Residents (SWEAR) has produced an update for its supporters (of whom WCO is one) following the recent Drennan et al decision. Well worth a read.

Find the document here: Letter to SWEAR Supporters – February 24, 2015

Manvers appeal dismissed

Image result for City of Kawartha Lakes

Tribunal rules in favour of wind farm

February 19,  Peterborough Examiner

A bid by an area group to stop the construction of a wind turbine facility southwest of Peterborough has failed.

Ontario’s Environmental Review Tribunal ruled Thursday that the appeal by Manvers Wind Concerns and Cham Shan Temple to stop the planned wind farm would not go forward.

In a 207-page written ruling, the tribunal stated that concerns raised about the facility were not enough to stop its development.

“In summary, the tribunal finds that the evidence does not demonstrate that the project will cause serious and irreversible harm to plant life, animal life or the natural environment of the traditional lands of the First Nations participants,” the ruling states, rejecting the complainants’ arguments.

Sumac Ridge Wind Inc. was granted a licence to operates a Class 4 wind facility at 801 Ballyduff Rd., Pontypool in 2012. The project is to have five turbines, with access roads, cabling and a switching station.

The appeal was filed in 2013.

Wind developer ‘pleased’

“We’re obviously pleased with the decision from the ERT,” stated Ian MacRae, president of wpd Canada, the company behind the project. “Sumac Ridge has gone through months of review and scrutiny, both through the Ministry of Environment approval process and the ERT appeal.”

The tribunal heard evidence at hearings in Pontypool, Curve Lake and Toronto on several days over the past few months – Nov. 17-20 and 24, Dec. 2-5, 9-12 and 19, and Jan. 5 and 23.

Other participants in the process included Cransley Home Farm Ltd., Hiawatha First Nation, Curve Lake First Nation, the City of Kawartha Lakes and the Save the Oak Ridges Moraine Coalition.

These opponents to the plan claimed the project would cause harm to human health, plants, animals and the environment.

Diane Chen of Cham Shan Temple told the tribunal that the wind farm would affect the under-construction temple on Ski Hill Rd. The Buddhist temple is intended to be a major tourism draw for the region once constructed, but the wind farm would lead to distraction as visitors try to meditate, she said.

The tribunal also heard from other experts who talked about the impact of the facility on groundwater and natural wildlife habitats. However, the tribunal rejected those concerns.

Testimony ‘sincere’

“While raising an important concern that the “balance of life” would be disrupted, the participants did not provide any specifics about how this would occur because of the project,” the ruling states. “Their testimony was sincere and heartfelt, but it does not constitute evidence demonstrating that the project will cause the harm they allege.”

MacRae said the project, which is expected to generate 26,497,200 kWh, will now go ahead.

Niagara Region Wind farm appeal: evidence shows damage to at-risk species and protected areas

The Monarch Butterfly: laws to protect it don't seem to apply to wind power development
The Monarch Butterfly: laws to protect it don’t seem to apply to wind power development

Loretta Shields, a member of Mothers Against Wind Turbines, presented at the appeal of the approval of the Niagara Region Wind Corporation wind power generation project yesterday, and outlined the many negative impacts on species at-risk, and environments such as woodlands that are supposed to be protected under Ontario legislation.

“There are so many issues,” Shields tells Wind Concerns Ontario. “For example, there is no evidence to show that winter raptor transects were conducted within the interior of the woodlands.  Sixty-two permits are required by the Niagara Peninsula Conservation Authority.  These are still pending.   There are 20 industrial wind turbines proposed in Blanding’s turtle habitat in Lowbanks, all on private property.  There are many properties within this habitat where ‘alternative investigations’ i.e., ‘roadside surveys’ were allowed.  The MNR is allowing this to proceed.”

Shields had prepared a 32-slide PowerPoint presentation for the Environmental Review Tribunal, detailing sections of Ontario legislation that ought to be applied to protect the environment and wildlife, but are being overlooked or ignored in order to allow the power development to proceed.

Shields also told WCO she was grateful to learn about the “many birds and raptors” in the project area during her investigations and audit of the wind power developer’s application documents: “a silver lining” to this event, she said.

Details on the hearing dates may be found here.

Shields’ PowerPoint presentation may be found here: Powerpoint for NRWC Appeal Jan 26

More details on what happened at the hearing may be found in this excellent report from Mothers Against Wind Turbines here with information on how to donate to this legal action .

IESO large renewable power procurement: meeting industry needs

Earlier this week, the Independent Electricity System Operator or IESO (now a blend of IESO and the former Ontario Power Authority or OPA) hosted a webinar on the new Large Renewable Procurement RFP process.

Manager of renewable procurement Adam Butterfield said in beginning to review comments from the public comment period that the IESO’s goal is to produce a “robust product that meets industry needs.”

There was no mention of community, municipal or citizen input to the comment process.

McCarthy-Tetrault, often seen opposite community groups appealing wind power project approvals as the lawyer for the wind power developers, has provided this analysis of the LRP process so far, and a summary of the webinar.

IESO Discusses Feedback and Timeline of Large Renewable Energy Procurement I

By Christopher Perez and Seán O’Neill on

Christopher Perez
Seán O'Neill

Yesterday, the Independent Electricity System Operator (IESO) held an ‘industry dialogue’ meeting in Toronto, during which it discussed the feedback and comments it received on the draft contract and request for proposals (RFP) for the Large Renewable Procurement I (LRP).  The IESO shared some of the ‘key issues/common themes’ that it received during the comment period and also revealed that, due to the large number of comments received and to administrative issues related to the recent IESO/OPA merger (see our prior post), the timeline for releasing the final documentation for the LRP would be postponed for at least one month until February.

During the LRP comment period, we had shared our ‘top ten’ issues with the draft documents (which can be found here).  Some of these were echoed by the industry and, along with some other issues, were highlighted by the IESO at the meeting, including:

–       Connection Availability Information – commenters requested more information regarding connection availability in order to make informed project decisions.  The IESO commented that they are developing a process to convey such information to applicants shortly.

–       Public Community Meetings – commenters noted that requiring 2 meetings in each affected community was too onerous; many suggested that only 1 community meeting should be required.

–       Adjacent Landowner Agreements – commenters noted that the 100% threshold was too onerous.  While there is no consensus on what threshold would be appropriate, the IESO stated that they are considering different options.  One of the attendees of the meeting suggested that, instead of requiring agreement from all landowners adjacent to the parcel of real property on which the project is located, the requirement could be revised to only require agreement from landowners whose property is within a certain distance from the actual project structures (and thereby focus the requirement on the most proximate neighboring landowners).  The IESO is taking the comment under advisement.

–       Permitted Purposes / Non-collusion Requirements – commenters requested clarity regarding what communications were prohibited.  Further, commenters requested that the restrictions accommodate partnerships between applicants and joint community meetings.  The IESO noted that the relevant definitions would likely be evolving and that it was not their intent to stifle community involvement.

–       Site Access Option Agreements – commenters suggested that the required length of option agreements to acquire necessary real estate could be shortened to 1-2 years following submission of the application, rather than until commercial operation.

–       Termination for Convenience – commenters objected to this and noted concerns as to whether equity or debt financiers would accept such risks given the divergence from previous OPA contracts, and recommending that any voluntary termination right of the IESO be limited to the pre-construction period.

–       Permitted Site Amendments – commenters raised concern over the sole and absolute discretion of the IESO on these matters.

–       REA Appeals as Force Majeure – commenters suggested that REA appeals should be considered force majeure.

–       Key Development Milestones – commenters noted that financial close does not necessarily occur prior to the commencement of construction and suggested that these milestones be revised to reflect that possibility.

The IESO noted that its presented list was not a comprehensive list of all comments that were received or that are being considered, but only the ‘high volume’ comments that multiple commenters made.  They further clarified that the items discussed were merely under consideration by the IESO, and that no decision had yet been made as to whether such comments would be accepted or whether any other accommodating changes would be made.

Read more here.

Community appealing wind farm asks for stay to look at Health Canada study

Appellants in the Suncor Cedar Point wind power project appeal are asking for a stay of proceedings until experts can examine the “raw data” from the Health Canada Wind Turbine Noise and Health study. Note: “raw data,” not the summary made available thus far, in the absence of actual data, a full report, or published article.

The hearing will take place Thursday December 18 in the Camlachie Community Centre at 10 a.m. Support is welcome.

To donate to the legal fund for the WAIT-PW action, please click here to go to their website.

Wind farm site not identified as wetland by consultant:Manvers/Sumac Ridge ERT

wpd Canada introduced their first witness, David Stephenson on Friday; he indicated that all setbacks from wetlands and water courses were adequate and within the rules stipulated under the REA.
Appellants lawyer Eric Gillespie reviewed Mr. Stephenson’s credentials  as a Senior Biologist with Natural Resources Solutions from 1998 to the present. He also noted that the consulting firm’s website shows he owns the firm. Mr. Stephenson failed to mention this in his CV for the purpose of this Tribunal, instead stipulating that he had no financial interest in the outcome of these proceedings. Mr. Gillespie’s questions resulted in Mr. Stephenson’s admission that he has a personal financial interest in all wind projects as his firm does  post construction monitoring work.
Eric Gillespie then queried Mr. Stephenson on what actual biology surveys he did himself. The answer was: none.
After revealing inconsistencies in Mr. Stephensons’ witness statement, Mr. Gillespiemoved on to the issue of wetlands, which is critical to this project. Mr. Stephenson was unable to produce field notes of his company’s work on the site in his witness statement; however, Mr. Gillespie happened to have some. The field notes show recordings of plant life commonly found in wetland areas; as a result, Mr. Stephenson was forced to admit  that Red Osier Dogwood and Spotted Jewel Weed are wetland indicators under the Provincial classification & evaluation system. He further admitted that he failed to report these species as wetland species in their reports .
The hearings resume Tuesday at 3 PM in Curve Lake, and Thursday in Pontypool at 10 AM when Kawartha Lakes Councillor Heather Stauble will testify.

Health Canada data shows Ontario wind farm regulations not adequate

Ontario wind turbine setback regulations: not supported by science
Ontario wind turbine setback regulations: not supported by science

Detailed data in Health Canada study contradicts Ontario government claim 550-metre  wind turbine setback is safe

The results of a Health Canada study released November 6 show that Ontario is not protecting the health of residents living near wind turbines, and that longer setbacks between the wind turbines and homes are required.

Health Canada’s summary of its Wind Turbine Noise and Health study results included the fact that responses to the study’s questionnaire show participants reporting experiencing distress or annoyance when wind turbine noise was at 35 decibels/dBA.   Current Ontario regulations are based on the World Health Organization Night Noise limit of 40 dBA but that limit was designed solely for traffic and airport noise.

The results of the Health Canada study confirm that wind turbine noise was different than road and airport noise, with issues beginning at 35 dBA.   The study also reported that the number of people experiencing disturbance or high annoyance from wind turbine noise was statistically related to several , self-reported health effects such as changes in blood pressure, migraines, tinnitus, dizziness, and perceived stress.

Health Canada had wind turbine noise levels estimated for 1,232 participants in the study, based on their distance from the nearest wind turbine.  These data have been released as part of a Freedom of Information request and provide an independent basis to evaluate the setbacks from wind turbines required to protect nearby residents from noises above the 35 dBA level identified in the Health Canada study.

Other jurisdictions including New Zealand and the State of South Australia already use the 35 dBA standard for wind turbine noise, particularly in rural areas.

To protect residents from wind turbine noise over 35 dBA, the noise modelling developed for Health Canada indicates that the setback between turbines and homes should be a minimum of 1,300 metres, not the current 550 metres used in Ontario. The Health Canada report specifically contradicts the Ontario Chief Medical Officer of Health report, released in 2010; 40 dBA is not, therefore, an appropriate noise threshold for wind turbines.

Clearly, more research is needed to establish more appropriate guidelines and regulation.

Validation of what Ontario citizens have been saying to judicial tribunals

“These results validate what the people of rural and small town Ontario have been telling the government, the courts, and the Environmental Review Tribunal for years,” said Wind Concerns Ontario president Jane Wilson. “The Ontario regulations are not based on science, and are not adequate to protect health.”

As Health Canada is the source of these findings, it is expected that these results can be used to show that the current Ontario standard is not sufficient to protect human health. This will be a critical factor in citizen appeals of wind power project approvals, before the Ontario Environmental Review Tribunal (ERT).  The Health Canada study is an independent study that validates residents concerns about Ontario’s setback requirements.

The results from Health Canada related to setbacks are likely conservative in nature, Wind Concerns Ontario says: the questions on study participants’ experiences with wind turbine noise were related to experience in the 30 days previous to answering the questionnaire, but, as the survey was delivered in summer, this tactic avoided the problem of the seasonal nature of wind turbine noise. Wind turbine noise tends to be stronger in the fall and spring months, when the weather is windier in Ontario.

Wind Concerns Ontario today called on the federal Health Minister to act on the findings of her department, and issue appropriate interim national guidelines for wind turbines to reflect concerns raised by the study.

Industry had a role in developing regulations

Included in the Wind Concerns Ontario report on how wind turbines are sited, is reference to a letter written to the Ontario government in 2009 by the president of the wind power lobby organization, the Canadian Wind Energy Association, which suggests that industry played a key role in determining Ontario’s setback regulations. Stricter guidelines would have prevented the majority of wind power generation projects proposed at that time, the letter states.

Read the Wind Concerns Ontario analysis and report here:EvaluatingOntarioRegulationsforSitingTurbinesFINAL

Contact us at windconcerns@gmail.com

Ontario Ministry of Environment “blind” says lawyer Falconer

Lawyers Asha James and Julian Falconer, centre, surrounded by surrounded by the client families and supporters
Lawyers Asha James and Julian Falconer, centre, surrounded by surrounded by the client families and supporters [Photo: Wind Concerns Ontario]
The hearing of an appeal against the approval of three Ontario wind power generation projects has concluded in Ontario Divisional Court in London.

Human rights lawyer Julian Falconer was the main lawyer for the families and community groups appealing the power projects, and presented the judicial panel with a number of issues this week, including the question as to whether Ontario’s Environmental Review Tribunal, in hearing appeals as part of the approval process for wind projects, was in fact upholding the intent of the law, which is to protect the health of Ontario’s citizens.

An interesting development was the fact that the judges themselves asked questions of the government lawyers with regard to the nature of citizens’ warnings about health and safety issues. One pointed question concerned the recently released summary of the results of Health Canada’s wind turbine noise and health study. The judge asked, if the study design was such that no conclusions can be made about an association between turbine noise and adverse health effects, why should the study be used to show that there are NOT?

Falconer’s theme throughout the hearing was that Ontario’s citizens are not well served by the current approval and appeals process, and there is no justice afforded to families who will be, and those who are, affected by the wind power generating projects.

In closing, Falconer said of the Ministry of the Environment, “There is none so blind as those that will not see.”

The appeal was to reverse the approval of and stay construction of the K2, Armow, and St Columban wind power projects.

 

Ontario: insult to injury over the environment

The Ontario government published a news release today in which it claimed it is helping communities “restore” the environment, and also that complaints to its “Spills Line” are being responded to and resolved.

This is a cruel joke for those Ontario communities watching the destruction of the landscape, the altering of waterways and killing of wildlife for the sake of highly invasive wind power generation facilities. Ontario residents are told that if they have a concern about excessive noise they are to call the Ministry of the Environment Spills Line. Those who do, are less than satisfied with the response. The reports from the community on the noise from turbines is NOT included in the Ministry’s annual report on calls made to the Spills Line. There is no transparency or accountability—this has been made clear in various Environmental Review Tribunals, where Environment staff have actually testified that if the computer modelling supplied by the power developer says it “isn’t possible” for a turbine to make noise above a certain level, then they don’t even check the complaint.

Worse, the legislation has been written in such a way that noise complaints will never result in government action.

Here is the news release:

Helping Communities Restore and Protect the Environment

Ontario Supporting Community-based Environmental Projects

Ontario is using penalties collected from environmental violations to fund 12 community projects to restore and protect the environment.

Projects include restoring river banks by planting native trees and plants, protecting ecosystems from invasive species and undertaking environmental health assessments.

The Ontario Community Environment Fund supports environmental improvement projects in the watershed where a violation happened. Environmental penalties are issued to industries that have spilled a contaminant into the environment or that did not comply with regulatory requirements.

Protecting our watersheds is good for the environment and good for the economy and is a key part of the government’s economic plan to invest in people, create jobs, build modern infrastructure and support a dynamic and innovative business climate.

Quick Facts

  • Applications are now being accepted for the next round of Ontario Community Environment Fund grants. Applications for funding will be accepted until November 5, 2014.
  • In 2013, $113,781.20 was collected and added to the Ontario Community Environment Fund.
  • Eligible groups can apply for more than $161,208 available across 15 communities where penalties were collected.

Quotes

Glen R. Murray

“The Ontario Community Environment Fund invests in communities. It builds capacity for our schools, municipalities, conservation authorities, First Nations and Métis communities to take action to improve the environment in areas where a spill or violation has happened.”

Glen R. Murray

Minister of the Environment and Climate Change

Contact the Ministry here.

Reports may be filed with the Ill Wind Reporting website here.

Road construction Manitoulin Island (courtesy Ray Beaudry)
Road construction Manitoulin Island (courtesy Ray Beaudry)

Stay of wind farm construction hearing in London: people vs profits

Supporters gather at the London Court House yesterday
Supporters gather at the London Court House yesterday

The legal proceeding held September 22 in London, Ontario to hear arguments for and against a stay of construction for the K2 Wind and St. Columban wind projects ended in late afternoon.

According to documents filed earlier this month, the “Appellants seek a stay of theconstruction of the St. Columban Energy LP WindProject and the K2 Wind Project, pursuant to Rule 63.02 of the Rules of Civil Procedure, s. 106 of the Courts of Justice Act 2 and s. 24(1) of the Canadian Charter of Rights and Freedoms 3 restraining the Respondents St. Columban Energy LP (“St. Columban”), and K2 Wind Ontario Inc., K2 Wind Ontario Limited Partnership (“K2 Wind”) from all construction-related activities until the resolution of the appeals.”

The courtroom was packed with supporters and media.

Lawyer for the Drennan and Dixon families, human rights specialist Julian Falconer, laid out the arguments for the stay of construction, concluding that this was a situation of people vs. profits, where the big money interests of the wind developers had taken precedence over assurances that people’s health and other rights would not be affected.

The hearing adjourned at approximately 5 p.m.; the judge promised she would do her best to render a decision on the matter quickly.

The appeal hearings begin in November.

For more information on the legal action, and for a link to donate toward covering legal fees, please go to the website for Safe Wind Energy for Everyone (SWEAR).