Nation Rise project will create noise, health problems: WCO president to Tribunal

(C) ONTARIO FARMER

July 31, 2018

Report by Tom van Dusen

Finch, Ontario — Sitting demurely and speaking quietly, on July 24 the volunteer president of Wind Concerns Ontario blasted the provincial government approach to monitoring industrial wind turbines, accusing it of ignoring complaints about noise, health and other issues, or deferring them with no subsequent action.

Jane Wilson made  her comments while presenting as a witness during an Environmental Review Tribunal hearing into the Nation Rise wind power project planned for Stormont County. The hearing is scheduled to continue through August 2.

Currently engaged in the approval process, the project is sponsored by EDP Renewables Canada and calls for installation of some 33 turbines in North Stormont farm country delivering a total of 100 megawatts of power that, opponents observe, the province doesn’t need.

Headed by local resident Margaret Benke, opponents were hopeful the new Doug Ford government would cancel Nation Rise just as it did the White Pines wind project in Prince Edward County. But that didn’t happen and opponents’ legal fees and other expenses are up to $20,000. Benke noted that, with Ford in place, Nation Rise isn’t likely to proceed and yet opposing residents are still on the hook for costs.

Government not enforcing the law

A registered nurse, Wilson said Wind Concerns represents a coalition of more than 30 community groups across Ontario.

She emphasized that the Ministry of the Environment and Climate Change–renamed Environment, Conservation and Parks — has pledged to protect the environment and human health from any turbine side effects.

She cited former Environment Minister Glen Murray congratulating his officials for responding quickly to complaints and enforcing the law. However, Wilson’s review of incident reports obtained through Access to Information indicated the ministry doesn’t respond to all complaints and “does not, therefore, enforce the law.”

No answer to that

Total number of incident reports filed with the ministry between 2006 and 2016 was 4,574, Wilson told Maureen Cartier-Whitney, chair of the one-person panel. Records showed that in more than 50 per cent of formal complaints, there was no ministry response. Another 30 per cent were deferred. “In fact, only one percent received priority response.”

While he asked for some clarification, Paul McCulloch of the ministry’s Legal Services Branch, didn’t dispute Wilson’s basic facts. Representing EDP, lawyer . Grant Worden also offered no challenges to Wilson.

The repetitive nature of various complaints suggests, Wilson continue, that wind power developers are failing to live up to the terms of their approvals by allowing conditions triggering adverse effects including on health, to continue.

“Documented health effects include headache, sleep deprivation, annoyance, and ringing or pressure sensation in the head and ears. Most disturbing was the fact that these health effects were reported many times, and also among children.”

Wilson indicated that 39 per cent of 2006-2016 incident reports referred explicitly to sleep disturbance which is generally blamed for a myriad of diseases and disorders.

“Given the thousands of unresolved noise complaints in Ontario, and given Health Canada results of adverse health effects at distances of 550 metres to 1 km, it is reasonable to question whether the Nation Rise power project will not also engender community reports of excessive noise and adverse effects.”

contact@windconcernsontario.ca

To help support the appeal, which is bringing forward issues never presented to the ERT before, please send a cheque to Concerned Citizens of North Stormont, c/o Wind Concerns Ontario, PO Box 509, 250 Wellington main Street, Wellington ON  K0K 3L0

 

Nation Rise project: significant concerns over health, environmental damage

 

Wind farm contracts can be cancelled: legal opinion

Companies without a Notice To Proceed or who have not reached key milestones “have reason to be concerned”

July 6, 2018

In a just released review of the energy landscape in Ontario under the new Ford government, Mike Richmond, wind power contract specialist with law firm McMillan LLP, says the contracts between government and wind power developers can be cancelled in certain situations.

Wind Concerns Ontario has long maintained this to be true, even recommending to the Wynne government that an effective way to reduce electricity bills for Ontario consumers — or at least, not have them go higher — was to cancel the $1.3B of new wind power contracts and to cancel any others where significant milestones have not been met.

Mr. Richmond’s legal opinion and review is here.

The government will be directing IESO to exercise termination rights

An excerpt:

Developers, lenders, construction firms, installers, landlords and other clients with interests in contracts for projects which have not yet been granted Notice to Proceed (NTP) by the Independent Electricity System Operator (IESO) (or acceptance of Key Development Milestones for Large Renewable Procurement (LRP I) projects) have reason to be concerned.

While the [PC election] platform was not long on detail, it was absolutely clear that where pre-construction contracts contain provisions allowing the IESO to terminate at or prior to NTP or other equivalent milestones, before expensive capital equipment has been delivered and installed, the Government will be directing the IESO to exercise those termination rights.

Anticipating such a directive, the IESO had already begun holding back on the issuance of NTP approvals for Feed-In Tariff (FIT) projects prior to the June 29 swearing-in, instead electing to issue NTP Deferral Notices. By doing so, the IESO is able to limit its liability for the eventual termination of those projects to the “Pre-Construction Liability Limit”, which is set at:

  • $400,000 plus $2.00/kW for wind, biogas or biomass facilities;
  • $250,000 plus $10.00/kW for solar facilities; or
  • $500,000 plus $20.00/kW for waterpower facilities.

These figures only represent liability caps. To be eligible even for these amounts, developers will have to be able to demonstrate that they incurred, after being awarded a FIT Contract, “soft” costs up to these amount for items such as environmental approvals, EPC and financing contract negotiations, land rights, resource assessments, connection cost deposits, equipment deposits and permitting. Costs spent on generating equipment (other than reasonable non-refundable deposits), and amounts representing lost profits, are not eligible.

Some questions remain:

Given the stated election platform, and the fact these contracts were a key campaign issue, why then did the Wynne government issue a Renewable Energy Approval to Portugal-based EDPR  for its unneeded 100-MW “Nation Rise” wind project just days before the writ was drawn up for the June election, and why did the IESO toss its termination rights overboard on the WPD “White Pines” project, during the active election campaign?

What pressures were brought to bear on the former government by the power developers?

And why are taxpayers now being forced to pay for the new government’s defence of a bad decision made by the Wynne government, in the Nation Rise appeal?

contact@windconcernsontario.ca

 

North Stormont group asks Premier Ford to halt wind power project, legal action

Nation Rise project not needed; community group says cancel it now, save millions

Expensive legal action will cost taxpayers more for unnecessary power project, community group says

OTTAWA  July 3, 2018— The citizens’ group opposing the 100-megawatt “Nation Rise” wind power project asked Premier Doug Ford and his new government today to state its intention to cancel the project’s contract, and halt legal action related to its approval.

The power project, to be located just south of Ottawa, received Renewable Energy Approval just days before the writ for Ontario’s June election was drawn up.

The community filed an appeal of the approval, based on environment and health concerns, which is set to begin Thursday July 5 with a hearing in Finch, Ontario.

Given the new government’s campaign pledge to end contracts for projects which do not have final approval, however, the legal action is a waste of time and taxpayer money, says Margarent Benke, spokesperson for  the Concerned Citizens of North Stormont.

Ministry of the Environment employees and lawyers must travel from Toronto and mount a defence of the approval, Benke says, which makes no sense if the government plans to cancel the unnecessary power project.

“We made an urgent request today for action on the Nation Rise project. It will cost the people of Ontario a base price of $500 million over 20 years, and add to our electricity bills,” says Benke. “The Environmental Review Tribunal Hearing will represent even more cost to the government and to the people of Ontario, and more financial and emotional strain to the people of North Stormont.”
 
The power project would expose citizens near Finch, Crysler and Berwick to environmental noise from huge, 3.2-megawatt wind turbines; most of the turbines would also be located on an area designated as a “highly vulnerable aquifer.”
Ontario currently has a surplus of electrical power; wind power projects produce power out-of-phase with demand, and Ontario’s Auditor General has criticized the contracts for their above market rates. Auditor General Bonnie Lysyk has said Ontario electricity customers overpaid for renewable power by $9.2 billion.
Contact: info@concernedcitizensofnorthstormont.ca
contact@windconcernsontario.ca 
 

IESO stuns with final approval of contested wind farm

Hundreds marched in Picton on October 15th. Clearly a critical issue in the election campaign–so why did the IESO issue final approval during the election? (Photo Wind Concerns Ontario]

June 26, 2018

Community members in Prince Edward County were shocked to learn this past weekend that Ontario’s Independent Electricity System Operator (IESO) had granted the final approval required for the “White Pines” wind power project.

The IESO apparently gave the project final Notice To Proceed. Projects without a Notice To Proceed or NTP can still be cancelled.

Worse, the NTP was given apparently on May 11, which was four days after the writ for the 2018 election was drawn up.

It is accepted practice that in the immediate election period, certainly after the writ has been released, the sitting government does not make major announcements or take important decisions.

Especially on a subject like the White Pines power project which is involved in two separate legal actions currently, and was certainly a major issue in the local election campaign.

It is also arguable whether the Renewable Energy Approval for the 100-megawatt “Nation Rise” wind power project, announced days before the writ, is acceptable.

Certainly, there are questions to be asked about influence on the IESO and the Ministry of the Environment and Climate Change to take these actions when they must have known they were outside accepted practice.

contact@windconcernsontario.ca

 

Ontario Environment Minister served with summons on violation of the Environmental Protection Act

“We had no choice” : Wind Concerns Ontario on taking legal action regarding wind turbine noise reports

NEWS RELEASE

Citizens’ group charges Environment Minister with violation of Environmental Protection Act

May 1, 2018, Toronto, 10:00 EDT – The president of Wind Concerns Ontario (WCO), a volunteer-led coalition of 30 community groups and many Ontario families, has filed a private prosecution against the Honourable Chris Ballard, Minister of the Environment and Climate Change (MOECC), for violating Ontario’s Environmental Protection Act (EPA).

Private prosecutions are important tools in empowering private citizens to hold those persons in power to account.

The EPA prohibits anyone from permitting the “discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect.” Adverse effects listed in the EPA include “an adverse effect on the health of any person,” “harm or material discomfort to any person” and “loss of enjoyment of normal use of property.” (Section 14 subsections 1 and 2)

“We don’t take this step lightly,” says Jane Wilson, WCO President and a Registered Nurse, “but with the MOECC not responding to thousands of reports of excessive noise from wind turbines, which is affecting sleep and health for Ontario families, we had no choice. These are examples of adverse effects that Minister Ballard should not be permitting to continue.”

WCO recently received MOECC documents under a Freedom of Information request that showed thousands of unresolved reports of noise, many with staff notes about sleep disturbance and health impacts. Between 2006 and 2016, there were more than 4,500 recorded reports, 35% of which contained staff notes about adverse health effects; between 2015-2016, the MOECC response rate to the reports of excessive noise was less than 7%.

“Citizens report going without sleep for days, weeks, even months,” said Wilson. “Sleep disturbance is linked to other health problems such as high blood pressure and diabetes. Mr. Ballard, as steward of environmental protection in Ontario, is responsible for allowing this environmental noise pollution to continue.”

On April 30, 2018, Mr. Ballard was served with a summons to appear before the court on May 17, 2018.

CONTACT: Jane Wilson  president@windconcernsontario.ca

www.windconcernsontario.ca

 

Excerpts from Ontario resident wind turbine noise reports:

“You have done nothing to help myself or my family. How many times [do we have to complain] before the MOECC will do something?”

“Another week has passed with no response from you. It has been terrible here off and on the past week …continue to be unable to get a good night’s sleep.”

“When will you reopen our file and help us?”

“We just want to sleep…”

“After a week of east wind and no sleep in our house this has become intolerable … it is up to you to address this”

 

Read Wind Concerns Ontario’s reports on the MOECC pollution Incident Reports here.

The 2017 report on noise complaints 2006-2014 NoiseResponseReport-FINAL-May1

The 2018 report on noise complaints 2015-2016 Second Report Noise Complaints February 2018-FINAL

 

Legal foundation for a private prosecution

Ontario Private Prosecution

 

#MOECC

Quebec court: municipalities must protect citizens’ water

A municipality fighting back against a corporation has won its defence of a lawsuit, and its rights to defend citizens’ water has been upheld. The Precautionary Principle must be applied. This case will be important to Chatham-Kent area residents whose wells have failed during wind turbine construction activity.

March 1

Gastem continued Restigouche Southeast for $ 1 million to have adopted a regulation prohibiting drilling within 2 km of the sources of drinking water.

Oil and gas developer Gastem sued municipality Ristigouche-Partie-Sud-Est for $ 1 million for adopting a regulation prohibiting all drilling within 2 km of its drinking water sources. Photo: Radio-Canada

From ICI Radio Canada

Restigouche-South-East: Gastem dismissed

 

The Superior Court dismissed the motion of Gastem, which sued the Municipality of Ristigouche-Partie-Sud-Est for $ 1 million.

A text by Joane Bérubé with the collaboration of Sylvie Aubut and Ariane Perron-Langlois

The oil and gas exploration company claimed that the municipal by-law protecting drinking water had forced it to stop its exploration activities in the area.

In her decision, Justice Nicole Tremblay states that the by-law “is the result of serious work” and that “Restigouche must ensure the protection of watercourses in accordance with government rules”.

The judge ordered Gastem to pay Restigouche-Partie-Sud-Est $ 154,000 within 30 days of the decision.

The company will also have to pay $ 10,000 for part of the costs incurred by the Municipality to defend itself. The trial took place in September in New Carlisle, Gaspésie.

A relieved municipality

Restigouche-Part-Southeast welcomes with relief the decision of the court. For four years, the small municipality of 157 inhabitants tried to raise funds to finance his defense against Gastem. The Restigouche Solidarity campaign raised more than $ 340,000.

“Today, we raise our glass of drinking water to the health of Quebec’s water and to all those who supported us! “Said the mayor of Restigouche-Part-South-East, François Boulay.

According to Mayor Boulay, the bill for the expenses incurred by the Municipality amounts to $ 370,000.

The money that Gastem has to pay will be welcome. Should Gastem waive its recourse rights, the surpluses will be transferred to another case for drinking water in Quebec, says Mayor Boulay.

The Municipality, however, prefers to wait to hear Gastem’s decision on his right of appeal before disposing of it.

François Boulay, Mayor of Ristigouche-Partie-Sud-Est.

François Boulay, Mayor of Ristigouche-Partie-Sud-Est Photo: Radio-Canada

The case was very important for other municipalities, since it involved their power to legislate to protect drinking water. The judgment also contains several references to the duty of municipalities to protect the environment and the duty to subscribe to the precautionary principle.

Gastem’s reaction

Raymond Savoie, president of Gastem, says he is disappointed with the judgment. “We read the document, we try to understand; for the moment we are there, “says Savoie, who refuses for the moment to comment on the decision.

Mr. Savoie does not rule out the possibility that the company can appeal the decision, but prefers to wait for a more detailed analysis of the judgment.

In the region, Sylvain Roy, MNA for Bonaventure, is pleased with the verdict.

Impacts on other municipalities?

The deputy Roy believes that this is a “great victory for democracy and territorial sovereignty”. Mr. Roy hopes the decision will serve as case law for similar cases.

The lawyer of the Municipality, Jean-François Girard, is not surprised at the amounts that will pay Gastem in Restigouche-Part-Southeast. “We had,” he said, “very carefully pleaded the abusive nature of the appeal and the fact that it was up to Gastem to reimburse us for these costs. ”

The fact that the court recognizes this element of law is also very important, according to Mr. Girard. “It will force companies who want to sue municipalities to think twice if it is not legally sound,” he says.

For the lawyer, the victory is indeed that of a small municipality struggling with a pursuit that had no other purpose than to be punitive. “You have to think about it, there are 84 taxpayers in Restigouche! Says Girard.

The latter also sees the victory of the municipal world. “This judgment,” he adds, “recognizes the role of municipalities and the fact that municipalities can take up the cause according to the interest of their citizens, interest in the health and well-being of their population. . ”

Mayor Boulay also believes that the judgment brings very important elements on the municipal competences in environmental matters.

The president of the Quebec Federation of Municipalities (FQM), Jacques Demers, also welcomes the fact that the judgment reaffirms the municipal powers and their duty to intervene in the protection of the environment. “However, we must not forget that these powers must be exercised in compliance with the legislative framework in force,” says Demers.

Community group fights back on wind farm court decision

A Prince Edward County community group seeking a Judicial Review of decisions made by government to push forward an unwanted and unneeded wind power project has had all motions dismissed by an Ottawa court. They’re not stopping …

Sign in Dutton Dunwich: a judge says opposition to huge wind power projects is not seen outside Prince Edward County in Ontario

February 13, 2018

The County Coalition for Safe Appropriate Green Energy (CCSAGE-Naturally Green Inc.) last year filed for a Judicial Review of decisions behind the White Pines power project in Prince Edward County, and on the relationship between government and wind power developers.

Here is the latest news, from John Hirsch, CCSAGE director.

Status of CCSAGE Judicial Review Application

As readers may recall, CCSAGE filed motions at the Superior Court in Ottawa last June 14 and 15 regarding their Judicial Review Application.  The motions sought to protect CCSAGE from costs, and to compel the government agencies to produce the records of their decisions regarding the approval of wpd White Pines and the transmission lines. A motion was filed by OEB regarding their removal from the case.

In his decision on these Motions, issued on January 9, 2018, Justice Labrosse essentially denied all of CCSAGE’s requests but did allow OEB to be removed from the case.

CCSAGE has studied Justice Labrosse’s decisions and found them to contain numerous errors and misunderstandings.

Consequently, CCSAGE is appealing all the negative decisions to the Divisional court. The appeal is in the form of a “Notice of Motion to Vary”.

CCSAGE believes their arguments are sound and that the Judicial Review application is more important than ever. 

Read the documents here:

Divisional Court decision 15-2162: https://www.canlii.org/en/on/onscdc/doc/2016/2016onsc8147/2016onsc8147.html?autocompleteStr=15-2162&autocompletePos=1

(Editor’s note: for some reason the decision posted on CanLii is truncated at paragraph 53. Read the whole document here: https://gallery.mailchimp.com/d95b2b359d6e0c1d4df0bb8f7/files/c7d16b85-9dfb-49a0-b9eb-e80db4b5cc0c/Labrosse.pdf)

“Motion to Vary” CCSAGE: https://gallery.mailchimp.com/d95b2b359d6e0c1d4df0bb8f7/files/a7b8629c-5aa7-44bc-b979-ac80570f9f5f/Motion_to_Vary.pdf

No ‘significant opposition’?

Of special interest to Wind Concerns Ontario members, Ontario’s rural residents, and rural communities is the statement by Mr. Justice Marc Labrosse that the motion to have the case proceed as a matter of “general interest” was denied because — you won’t believe this — “It appears that the GEA and REA process have taken their place in this province without significant opposition throughout rural Ontario. I am left to infer that this is a local issue in Prince Edward County and that it is not of general importance.”

A “local issue”? The facts are:

  • almost every single wind power project in Ontario since 2009 (and some before that) faced an appeal by members of the ‘host” community
  • 116 Ontario municipalities, or about one-quarter of the total, have passed resolutions at Council demanding a return of the local land-use planning powers that were stripped by the Green Energy Act
  • More than 90 Ontario municipalities have officially designated themselves “unwilling hosts” to wind power projects
  • Several municipalities have engaged in legal battles with the government and wind power developers to retain rights under the Municipal Act, in order to protect their citizens
  • Several academic articles appearing in peer-reviewed journals (Stewart Fast et al, 2016) have noted the Ontario government’s failure to respond to community concerns over wind power projects
  • Wind Concerns Ontario is a coalition with about 30 member community groups and hundreds of individual and family members, that has been active since 2009

This decision, and the various machinations of the parties involved, can be seen in no other way but an attempt to see that once again, justice is denied to Ontario’s rural citizens.

Wind Concerns Ontario

Chaos on Amherst Island

Road closures on February 7: concerns about safety and violations of road use agreements [Photo: Brian Little]

February 9, 2018

Of course, one expects there to be a certain amount of upset when a community is in the midst of construction, especially such a huge project as the (unwanted, unneeded) wind power project on Amherst Island.

But residents there are deeply concerned over unscheduled road closures, road blockages and more. On Tuesday, a resident reports, roads were closed so that people could not leave their properties at all—questions were raised about access by emergency vehicles, should they have been needed.

In a recent report by Global News, residents state that unscheduled road closures have meant missed ferry trips to the mainland, but there is more. The local mayor says the wind power developer is actually out of compliance with agreements and contract conditions.

Loyalist Township Mayor Bill Lowry says he’s exhausted and frustrated that promises that were made to the municipality have been broken. He says residents are voicing their concerns to council but their patience is running out.

“How long do we have to take this, how long does the island have to take this? It’s been far too long, we’ve been three months of being out of compliance,” Lowry, told Global News.

“I’m in communication last week and this week with the IESO, which is the Independent Electricity System Operations, which are basically responsible for the construction of these energy projects. I’m so frustrated with the province in the fact that they don’t have a ministry that’s coming to our aid.”

In a statement to CKWS News, Windlectric Inc. says in part, “there is an agreed upon Operations Plan that sets out how to best build the project in a way that is minimally disruptive for area residents. Our goal is for all aspects of the project to run smoothly.”

Where is the Ministry of the Environment and Climate Change? Where is the IESO? Where is the Ontario Ministry of Labour?

Where are the government assurances of a better, safe environment for the people of Amherst Island?

 

#MOECC #IESO

 

Public has “no right” to know what’s in wind power contracts: IESO lawyer

Citizens packed a courtroom in Belleville Monday: too bad they were unaware they have no rights [Photo: Wind Concerns Ontario]
January 31, 2018

 

There were so many people attending the hearing at the Ontario Superior Court in Belleville Monday that there was a half-hour delay in the proceedings so a larger courtroom could be found.

That was just the beginning of the changes that day, as the Alliance to Protect Prince Edward County (APPEC) took on the Independent Electricity System Operator (IESO) over its awarding a new contract to Germany-based wind power developer wpd Canada and the White Pines project. The power project was diminished from 29 to 27 then nine turbines in various citizens’ appeals, and it was thought since the power developer had not only missed all its milestones stipulated in the contract it also now failed to meet the 75% of power required, the contract might be null and void.

That’s where things changed.

The public has “no right” to know what’s in multi-billion-dollar contracts that are the result of public policy. Not in Ontario. Not where “wind is green, wind is good” and citizens’ voices don’t matter, nor do communities, or democracy. No: instead, the IESO simply cut the developer a new contract. And the public? You have “no right” to know anything.

Our favourite quote of the day came from APPEC lawyer Eric Gillespie who said, “The contract [for White Pines] was made public, but some pretty important changes weren’t.”

Here is a formal report by APPEC.

APPEC Report on

APPEC v. IESO and WPD

Belleville Superior Court

January 29, 2018

Mr. Justice Kershman presided over the hearing of final submissions at the Belleville Courthouse.  The turn-out was excellent with Mayor Quaiff, Councillor Ferguson, Wind Concerns Ontario President Jane Wilson and about 75 County residents attending.  In fact, the Court Clerk was forced to find a larger courtroom to accommodate the crowd.

APPEC Final Submissions

Eric Gillespie began by pointing out that this case raises broader public policy issues of access of information from the IESO.  On June 12, 2017 APPEC contacted the IESO for information about the status of WPD’s FIT contract.  The IESO indicated in its reply that it could not disclose this information, citing confidentiality.  Mr. Gillespie argued that this information should have been disclosed for the following reasons: (1) the IESO describes the FIT program as a standardized, open and fair process; (2) APPEC and Ontario communities are affected by the FIT Program; and (3) the information APPEC was seeking, and the IESO withheld, could not have been confidential at all as it was ultimately disclosed to the Court in November 2017.

Mr. Gillespie clarified that contrary to what the IESO contends, this is not about how to interpret clauses in the FIT contract.  The clauses are negligent misrepresentation, in that APPEC was led to believe that the generation capacity of the White Pines project could not go below 75% of the generation contracted for in 2010, when the FIT contract was signed.  The central issue for APPEC is that information that became known to the IESO was not made publicly available.  The IESO had a choice, when it became clear that WPD could not meet the 75% condition in the contract.  It could have said that things had changed, that WPD’s FIT contract would need to be amended, that WPD was in default of contractual milestone dates, etc.  Mr. Gillespie noted that it’s what the IESO and WPD did with their choices that has brought us here today.  WPD’s first public announcement that it was proceeding with the 9-turbine project was September 21, 2017.  The IESO informed Councillor Ferguson that it had agreed to amend the FIT contract on October 12, 2017.  APPEC only obtained the information it had sought in June when the IESO disclosed it to the Court on November 30.

IESO and WPD Closing Submissions and APPEC’s Reply

Alan Mark, IESO’s legal counsel, criticized APPEC’s “assumption” that it has some right to insert itself into the contractual relationship between the IESO and WPD.   Mr. Mark stated that any rights are owed exclusively to WPD, the IESO’s contractual partner; there’s nothing in the statutory framework that gives APPEC “the right to anything”. Mr. Mark went on to suggest that a contract is just a statement at a point in time with no guarantee that it won’t change in the future and members of the public don’t need to know about that either.   Mr. Mark added that “with all respect to APPEC, APPEC is just made up of members of the public that feel strongly about wind power projects.”

Mr. Mark indicated that the IESO has made no representations to APPEC at any time, so it could not have made a negligent representation. When Judge Kershman asked whether APPEC’s allegation is that the IESO made a representation in 2010 that the Project would not be able to proceed if the project’s generation capacity fell below 75%, Mr. Mark responded that this isn’t the case APPEC is making.

Mr. Mark noted a statement in the Skypower Decision that the FIT contract is a bilateral commercial contract between two parties. Mr. Gillespie noted that in the same Skypower Decision, Judge Nordheimer rejects this characterization of the FIT program, and says that the suggestion that this is a commercial nature entirely and not a matter of public policy is fictional.

Mr. Mark said that APPEC had all the information it needed and ignored this information at its peril.  In reply, Mr. Gillespie asked why APPEC would base its ERT appeal rights on a complete unknown, i.e., would the IESO amend the FIT contract, or not?

Patrick Duffy, legal counsel for WPD, also took up the argument that APPEC had no right to insert itself into the contract between the IESO and WPD. Mr. Gillespie replied that if that was so, then why did the IESO make FIT contracts available on its website for public viewing in the first place?  Mr. Duffy stated that the terms “open” and “transparent” only apply to FIT Program Applicants, not to members of the public to which Mr. Gillespie replied that we still have not been told what there was about the information APPEC sought that was privileged.  Mr. Duffy noted that  FIPPA (Freedom of Information and Privacy Act) is the law that applies to disclosure.  However, Judge Kershnan reminded Mr. Duffy that Mr. Gillespie had already noted in his submissions how long the FIPPA process takes.  Mr. Gillespie also noted that there was nothing in any of the other Party’s materials about FIPPA.

Mr. Gillespie concluded by noting the right of County residents to natural justice and procedural fairness. The IESO has not told the whole story to the community that will be affected by the White Pines wind project.

Justice Kershnan thanked the Parties and stated that he would reserve his decision. The hearing was adjourned at about 5:30 p.m.

***

To learn more, or to donate to APPEC’s legal fees, please visit their website here: https://appec.wordpress.com/

Unnecessary hardship: community groups speak out on legal action vs MOECC

Citizens’ groups head to court over MOECC failure to protect safety, health

January 29, 2018

Following the announcement last Thursday that four citizens’ groups* in Ontario are taking legal action against the Ontario Ministry of the Environment and Climate Change (MOECC) over the noise from planned wind power projects, the groups involved have issued statements relative to each of their own local situations.

“We’re not taking this step lightly,” commented Bonnie Rowe, spokesperson for Dutton Dunwich Opponents of Wind Turbines, the applicant in this suit. “We estimate that these five proposed wind power projects will be out of compliance with noise levels as soon as they go online. In the Dutton Dunwich case, the majority of the proposed turbines, as well as the transformer, will likely produce noise over the MOECC maximum allowable levels. That is just unacceptable, especially to the many citizens living nearby, who will be forced to endure that noise.”

 “The Concerned Citizens of North Stormont are in complete support of this legal challenge,” said spokesperson Margaret Benke. “Protection of the health and safety for more than 1,200 local residents is our main concern. We feel that the MOECC must be held to account.”

Julie Leroux, spokesperson for Save the Nation, says “By allowing the construction of the Eastern Fields project and using only outdated noise regulations, the MOECC would deny protection of health and wellbeing for hundreds of local residents, for the next 20 years. We strongly feel that this is unacceptable.”

“Based on what information the public has been provided so far, it appears most of the turbines [in the Otter Creek project] will be out of compliance” said Wallaceburg Area Wind Concerns spokesperson, Violet Towell. “We believe many Wallaceburg and area citizens will suffer unnecessary hardship if this project is allowed to continue, and we fully endorse this judicial review.”

For more information on the legal action, contact lawyer Eric Gillespie at 416-436-7473 (phone/text)

 

See a news report from the CBC here.

 

* The four community groups launching this legal action are members of the Wind Concerns Ontario coalition