Environmental hearings on DWP limited to serious health risks

The Environmental Review Tribunal (ERT) will consider only whether the Dufferin Wind Power project and its transmission line pose serious risks to human, animal and plant health or would cause irreversible damage to the environment, among similar considerations, the preliminary hearing was told Monday.
The actual hearing is set for Aug. 20 in Grace Tipling Hall, Shelburne. There’ll be a few familiar faces participating along with several lawyers of note who’ll be acting for some parties to the hearing.
Toronto lawyer Eric Gillespie is representing Dennis Sanford of Melancthon in opposition to the project. Mr. Gillespie gained turbine recognition in Chatham-Kent proceedings a couple of years ago, and is currently waging a multi-million-dollar battle over turbine leases near Stayner, among other actions.

Joan Lever, also an opponent of turbines since the development of Melancthon Phase 1, is representing herself as a participant. In a somewhat lengthy and impassioned presentation

A Niagara Escarpment Commission manager appeared Monday to lodge an objection to the proximity of the wind farm to the escarpment. In part, the NEC’s opposition is to visual impact.
Amongst the heavy hitters, DWP is represented by Toronto’s Torys LLP, and Conserve Our Rural Environment (CORE) by the Toronto office of Davis LLP.
Davis lawyer Laura Bisset made representations for Dr. Crysdale of Mulmur whose property adjoins that of the most northerly farm within the DWP area at issue. She didn’t outline the doctor’s credentials but said his concerns are for human health.

Read the entire article at the Orangeville Citizen

Longer setback requirements in Germany

A new post on the German Energy Blog notes a number of German states with more stringent setback requirements than Ontario’s.
The latest being 1 km.

On 12 July 2013 representatives of the Saxon State Ministries of Economics and of the Interior signed a joint “Decree on Minimum Distances between Residential Housing and Priority Areas and Other Areas Suitable for Wind Power”. The decree essentially stipulates a general minimum distance of 1,000 metres between residential housing and wind power plants, a press release issued by the State of Saxony says.

This would help to “reduce conflicts between immissions and adverse affects on the landscape on the on hand and the need for a moderate and sensitive expansion of wind power”, the statement says.

Judging from the press release (the decree is not available yet), the minimum distance seems to refer mainly to immission control law and seems stricter than in other German states. The Bavarian wind power decree points out that the Federal Immissions Control Act does not stipulate a minimum distance, pointing out that below a distance of 800 metres an expert opinion on the noise caused by the wind power plant (Lärmschutzgutachten) would have to be submitted. The wind power decree of the State of Baden-Württemberg states that regional planning authorities should observe a minimum distance of 700 metres from areas in which housing can not only be permitted by way of exception when designating priority zones for wind power.

The State of Saxony also informed that it plans to submit an amendment of the Federal Building Code (Baugesetzbuch) together with the State of Bavaria that would allow the federal states to set minimum standards to residential housing depending on the height of the wind power plant.

The entire article may be read at the German Energy Blog

Wind-power projects as harmful as cancelled gas plants, critic contends

OTTAWA —The same process that led to Ontario’s “gas plant fiasco” is being used for wind-generation projects with disastrous results, says the head of a group concerned about a proposed wind farm in rural southern Ottawa.
“The gas plants got all the attention, but the wind-power projects are more widespread — and causing real problems for communities in terms of health problems, social disruption, lost property value and harm to the natural environment,” wrote Jane Wilson in a submission to the Ontario Power Generation and the Independent Energy System Operator as part of a “dialogue” about the way the province locates large power projects.
The consultation process stemmed from the political controversy around the location, and cancellation, of planned gas plants in southern Ontario. The Liberal government’s handling of the costly gas plant issue is the subject of an inquiry and a criminal investigation.
Ottawa Wind Concerns, which Wilson heads (in addition to Wind Concerns Ontario) wants a new system for planning and siting all large energy projects, including wind, that gives local communities more control.

Continue reading at the Ottawa Citizen

Ontario Energy Ministry or the Freedom of NO Information

For some time the interest in the release of the Ontario Electricity Finance Corporation’s (OEFC) annual report has been on the minds of many of Ontario’s ratepayers. The OEFC’s year-end is March 31st and in line with the annual budget an audit of the OEFC is a requirement of the Electricity Act 1998 (Act). According to part” 81. (1)” of the Act; “The Financial Corporation shall, within 90 days after the end of every fiscal year, submit to the Minister of Finance an annual report on its affairs during that fiscal year, signed by the chair of its board of directors. 1998, c. 15, Sched. A, s. 81 (1).”

By this date (mid July 2013) the public should have had acess to the March 31, 2012 and March 31, 2013 annual report but we don’t. Now if one delves further into the Act we note that: “The Minister of Finance shall submit the annual report to the Lieutenant Governor in Council and shall then table the report in the Assembly. 1998, c. 15, Sched. A, s. 81 (3).” Insofar as the March 31, 2012 annual report is concerned the Minister responsible would have been our now retired and private sector employed former Finance Minister, Dwight Duncan and for the March 31, 2013 report it would have been the current Finance Minister, Charles Sousa. Needless to say neither of the past and current Finance Ministers have, as suggested in the act, submitted “the annual report to the Lieutenant Governor in Council” nor have they followed up by “then table[ing] the report in the Assembly.”

With the foregoing in mind I submitted a request to the “Freedom of Information Coordinator” of the Ministry of Energy, on June 24, 2013 in which I asked for the copy of the annual report for the year-end March 31, 2012 for OEFC. As the letter preceded (by 6 days) the “90 days” applicable to the 2013 annual report I thought that the FOI request would carry more weight.

As it turned out my request was forwarded to the FOI Coordinator at the Finance Ministry Office and I received a phone call on July 9th alerting me to that fact. During my conversation with that individual I was offered a choice of future actions; the first was that they could return my cheque for the $5.00 and I would get no information or they would cash my cheque and send a letter that would tell me that under “Section 22” of the Ontario FOI Act they would respond that: “(b) the head believes on reasonable grounds that the record or the information contained in the record will be published by an institution within ninety days after the request is made or within such further period of time as may be necessary for printing or translating the material for the purpose of printing it. R.S.O. 1990, c. F.31, s. 22.”
I opted for the latter and then checked Hansard to determine the next “Legislative sitting” which has been scheduled for September 13, 2013 or 81 days after the date of my letter. Presumably the hope of the FOI officer responding to my letter is that Finance Minister Sousa will in fact table the March 31, 2012 OEFC annual report to the Lieutenant Governor before Sunday September 22, 2012.

While I appreciate that bureaucrats, no matter their political stripes are concerned about their job I find it appalling that the new Wynne Liberal Government who claim to want a “conversation” do not wish to table these annual statements from OEFC that annually bill 4.5 million Ontario ratepayers for approximately $1 billion. Two full years have passed and the take on the “stranded debt” from the ratepayers of the province is about $2 billion and we have had no accounting.

It begs the question where has our money gone and why are they keeping it a secret?

Parker Gallant, 

July 18, 2013

Prince Edward County and their Super Turtles: Renewable Energy Approval overturned

The headline in the Belleville Intelligencer of July 5, 2013 read “Turtles win wind battle”!

Apparently turtles (particularly those of the “Blandings” variety) not only outrace rabbits but they can sway power over lawyers in quasi-judicial positions as the results of the Environmental Review Tribunal (ERT) for the Ostrander Point Wind Energy LP recently disclosed. Despite over 40 days of hearings with numerous witnesses called on behalf of the Prince Edward County Field Naturalists (PECFN) and the Alliance to Protect Prince Edward County (APPEC) it was the Blandings turtle that was the hero to the numerous Prince Edward County residents who opposed the erection of 9 industrial wind turbines at the Ontario Ministry of Natural Resources owned land known as Ostrander Point.

The costs, measured as; harm to humans that might be affected by industrial wind turbines or the rare alvar vegetation didn’t play into the decision by the two ERT panel members! As it turned out it was the slow moving endangered Blandings turtle that swayed them to make the first ever ruling against the Ministry that handed out the REA. A huge win, after numerous losses that places the “Blandings” turtle on a pedestal akin to a war hero or an Olympic gold medalist in the 100 meter dash.

The win by this slow moving reptile didn’t come cheaply as the efforts by both PECFN and APPEC to raise the funds necessary to sponsor their appeal are measured in the hundreds of thousands of dollars and the appeal to complete their fundraising activities continue, as both try valiantly to close the gap to ensure that Eric Gillespie and his legal team’s costs are covered.

The other side; Gilead Power was represented by the legal team of one of Canada’s biggest law firms; McCarthy Tetrault and supported by the taxpayer financed legal team from the Ministry. Attending the hearings usually saw a minimum of two lawyers from both McCarthy Tetrault and two from the Ministry. On several days the McCarthy Tetrault group would number three so the costs to the REA holder were considerably more. Having personally had experience in dealing with some of the big “Bay Street” law firms, this writer would estimate that Gilead were on the hook for a mimimum of $1,000 per hour for at least 8 hours in each of those 40 or so days. The focus of the Gilead counsel was principally in attempting to make the PECFN and APPEC experts and common folk (those testifying about health issues caused by wind turbine noise) look bad. They didn’t and the ERT panel generally found all of the PECFN and APPEC witnesses very credible. In the end however, the hero was the Blandings turtle who came through and won the race.

The cost to the taxpayers over the 40 days was nominal as a percentage of the Ministry budget, but as a casual observer I was distracted each day I attended the hearing in Demorestville, by the fact that the lawyers for the Ministry arrived in their “hybrid” cars with the Ministry logo on the side and by the large SUV that the Gilead people would sometimes arrive in. Were the “hybrids” meant to sway the tribunal members proving that the Ministry lawyers were truly “green”? I never saw the cars that the McCarthy Tetrault people drove but there was always at least one BMW parked near the community centre which may have been their mode of transport.

Putting aside the mode of transport, it is interesting to speculate on the cost of legal fees that Gilead will be stuck with. Those fees will be tax deductible by Gilead whereas the legal fees paid for by APPEC and PECFN were all donated after tax dollars made by locals and many others throughout the province who saw the Ostrander Point project as the “line in the sand” for industrial wind turbine developments and supported the efforts of APPEC and PECFN by donating their hard earned money.

Examining the probable cost to Gilead and their partners (including OPSEU as a part owner), this writer’s estimated cost of their defence of the appeal was that it was close to the $1 million mark, considering; three lawyers attended the hearing for many days, the travel time to Demorestville, preparation time, research, expert witnesses, etc. The cost of the taxpayer paid legal team, was probably in the $100,000 range and for the tribunal members a similar cost would probably apply.

In total the overall cost of the tribunal hearing was in all likelihood, in the $1.5/$2 million range whereas the cost, had the REA been denied; would have been zero (0). Whatever possessed the MNR and the Environment Ministry to allow this to proceed is way beyond the scope or ability of this writer to either determine or comprehend, but, perhaps the reasoning might be found in a deleted e-mail. Anything beyond that would be pure speculation on the part of this writer.

The lesson, from the results of the foregoing is that no one on this planet should discount the value of a life, even those of an endangered reptile, and those who should give that lesson considerable thought are the bureaucrats entrusted to protect those lives. The dollar costs described above to the potentially injured parties would never have occurred without the Ontario Power Authority first granting the contract for the marginal electricity that the 22.5 megawatts may have provided. Power that would present itself to the grid 80% of the time when it is not needed. [refer: Fraser Report; Environmental and Economic Consequences of Ontario’s Green Energy Act] Why the OPA granted the contract to Gilead in the first place is unknown and why Gilead were granted an REA is another unknown. If and when, a judicial enquiry is ever held in respect to the GEA, the reasons behind those approvals and the many others, in my opinion, may well open some eyes on how the regulatory system was one sided while attempting to give the appearance that the appellants had rights.

The Green Energy and Economy Act is truly the rabid (not rabbit) act that is working to destroy what has taken Ontarians decades to achieve!  We should all be thankful that Ostrander Point has been blessed with the Blandings turtle who, so far, is the only real winner.

Parker Gallant,
July 11, 2013

Green Energy Act Lawsuits / Minister plans to tweak Long-Term Energy Plan

Green Energy Act Lawsuits 

Minister plans to tweak Long-Term Energy Plan.

Over the past days, weeks, months and years much has been written about the Green Energy and Green Economy Act (Act) and how it has driven up Ontario’s cost of electricity, caused property values to fall, created health problems and also destroyed nature. The evidence has continued to mount that the Act has also created dissension in rural communities and caused neighbours to sue neighbours for leasing land to wind developers.

While those “neighbour against neighbour” lawsuits work their way through our judicial system, lurking in the background are other actions that potentially make the “gas plant” moves look cheap. The Province is being sued on several fronts as is the Federal Government! The latter is being sued under the North American Free Trade Agreement (NAFTA) due to provisions in the Act related to the requirement for local content, whereas the Province is being sued through the Provincial Courts for actions caused by their offshore wind “moratorium” and their rejigging of onshore contracts.

The largest lawsuit ($2.25 billion) against the Province was brought by Trillium Wind Power in respect to an offshore wind development for which it didn’t even have a contract with the Ontario Power Authority (OPA) but held a, “Applicant of Record” letter from the Ministry of Natural Resources (MNR). While an Ontario Court has struck down that lawsuit the company is reportedly appealing it.

In an article in the Toronto Star on February 15, 2013 the issue of the, on again, off again, moratorium on wind development in the Great Lakes is explored and it would appear that no early resolution is in sight on whether the moratorium will or will not be lifted. Studies completed by the MNR on offshore wind are not conclusive! As has been the case for the Liberals planning since first elected; they announce their policy and wait for the fallout! Logic suggests studies should be completed before a policy is developed but that appears to run counter to Liberal strategy.

Another lawsuit comes from Mesa Power Group LLC, on a NAFTA action which reportedly seeks $775 million. Mesa is T. Boone Picken’s renewable energy group which had three projects high on the list of future contracts before the OPA rejigged it. Picken’s Mesa rushed to Ontario with his “GE” pre-ordered turbines, perhaps hoping to unload them after he shelved his big Texas wind development. He used Leader Resources of Kincardine, Ontario, as his Canadian arm (American Wind Alliance) to gain traction under the GEA. Mesa’s action claims favourtism was granted to Samsung under the contract that George Smitherman, former Minister of Energy, reputedly negotiated. How this one will play out is an unknown but it is before the United Nations Commission on International Trade Law (UNCITRAL) and Canada is required to defend this action on behalf of the Province.

Have those lawsuits and NAFTA challenges resulted in the need to rework the Long-Term Energy Plan?  Robert Hornung, President of CanWEA (Canadian Wind Energy Association) would appear to think so and was reported (TorStar article) as saying: “the province is reviewing (writer’s emphasis) its long term energy plan this year, and hopes off-shore wind farms can be part of the review.”

A contact with Energy Minister Bob Chiarelli’s office about a month after the Hornung quote however got this response from an Energy Ministry spokesperson;

“You noted in your email that Mr. Hornung of CanWEA indicated in a newspaper article that “the province is reviewing its long term energy plan this year”. At this point the Ministry of Energy has not indicated to the public any intent to undertake a review of the Long Term Energy Plan.” 

Following this e-mail, Minister Chiarelli was on CFRA radio (Ottawa) April 11th and during the interview he made the statement that the “Long Term Energy Plan” will be reviewed this year. Again, on April 16, 2013 Minister Chiarelli at the “Power Conference” in Toronto, was the keynote speaker, and repeated that the Long Term Energy Plan; prepared by the Ministry of Energy; when Brad Duguid held the Minister’s position; was going to be reviewed.  It makes one wonder who’s in charge of the electricity sector—the Minister or CanWEA!

While details on the above legal actions can be found though an internet search, the best information available is in respect to Windstream Energy LLC who actually had a contract from the OPA to erect a 300 MW project in Lake Ontario called; Windstream Wolfe Island Shoals Inc. (WWIS). The moratorium on offshore wind scuttled those plans for Windstream and the result is their action filed under Articles 1116, 1117 and 1120 of NAFTA.  The arbitration filing (late January, 2013) with the Government of Canada; by Windstream’s counsel contains information related to the WWIS project that reflects on; how the project came about, who is behind it, the anticipated revenue stream, etc. The filing contains history surrounding the creation of the Act and bits of press releases and quotations that dominated Queen’s Park hyperbola at that time. Here is a taste of what is found in the filing:

“Government of Ontario representatives stated repeatedly that a primary purpose of the Green Energy Act was to create certainty for investors to invest in renewable power in Ontario and thereby create jobs — more than 50,000 new jobs between 2009 and 2012. Ontario’s Minister of Energy and Infrastructure George Smitherman, speaking on February 20, 2009 to the Toronto Board of Trade, stated that the Green Energy Act,
… will make the province the destination of choice for green power developers, and incent proponents large and small to develop projects by offering an attractive price for renewable energy AND the certainty that creates an attractive investment climate.

Certainty that we will purchase the power at a fair price.
Certainty that we will get the power connected to the grid.
Certainty that government will issue permits in a timely way.”

In this document you discover that the party (Ian Baines) responsible for bringing us the TransAlta Wolfe Island wind development “leads the activities of Windstream and its investments in Ontario,”. The Wolfe Island wind development with 197.6 MW of nameplate capacity has the reputation of having the 2nd highest kill rate of birds and bats (per MW of installed capacity) in North America but recent testimony by a qualified ornithology expert at the Environmental Review Tribunal on Ostrander Point ranks it higher. The testimony heard by the ERT was that “had the carcass search area for Wolfe Island been the same as the wind development with the # 1 ranking Wolfe Island would have surpassed it by a considerable margin.”

Now that is some testimonial both to Mr. Baines and the Act!

Further on in the NAFTA filed document, the authors claim that the WWIS project would have generated “approximately CDN $5.1 billion in revenue.” over the 20 year FIT Contract Period ($255 million per annum). When the OPA signed the contract the FIT rate for off shore wind was $190 per megawatt hour (MWh), inferring the 300 MW of nameplate capacity was expected to generate 1,342,000 MWh. Now if you calculate what 300 MW would produce at say, 100% of capacity the result would be about 2.6 million MWh so the claim proposes that this wind development would have consistently produced at the rate of about 51% of its capacity. It would appear that Mr. Baines was shooting for another record but the document notes that proper “wind testing” was never carried out so the 51% (of capacity) required to produce the $5.1 billion dollars in revenue was never verified or may not be even close to actual output if erected. It is also not clear that there is any built in allowance for maintenance, and the penchant of wind turbines to age quicker then claimed.

The damage claim against the taxpayers of Canada submitted by the Bay Street law firm are for; “at least CDN$475,230,000, including for lost profits and other damages incurred as a result of the moratorium and related measures”.  While the document claims the investment that was to be made was $1.5 billion it is not clear how much Windstream had incurred by way of sunk costs and it will be interesting to see if the UNCITRAL arbitration goes all the way to covering those “lost profits” but as a Canadian taxpayer one would hope it turns out to be a fraction of their claim.

So in summary; those three (3) law suits alone total $3.5 billion dollars or about three times the estimated cost of the gas plant moves.

No matter what the settlement by the Province or the Federal government for any or all of these lawsuits we should expect a press release from the Ontario Ministry of Energy’s office (assuming the Liberals remain in power) saying something akin to; “it will only cost the ______ (fill in blank with ratepayer or taxpayer) of Ontario____ (fill in blank) millions to settle”.  Those settlement amounts will be added to our electricity bills or our Provincial debt (or our Federal debt) and the value to the ratepayer/taxpayers will be nothing.

In the event Minister Chiarelli tweaks the FIT program to allow offshore wind it will perhaps make one of those NAFTA lawsuits disappear however the effect will be to increase electricity prices on the backs of all of Ontario’s ratepayers to satisfy the frivolous Liberal concepts of how Ontarians should generate and pay for electricity.

Even if all of the lawsuits disappear, history will confirm it was simply another part of the boondoggle on the Ontario taxpayers or ratepayers the Liberal Energy portfolio achieved!

Parker Gallant
April 26, 2013

WIND CONCERNS ONTARIO PRESENTATION TO THE ENVIRONMENTAL REVIEW TRIBUNAL

WIND CONCERNS ONTARIO
PRESENTATION TO THE ENVIRONMENTAL REVIEW TRIBUNAL

Date: March 18, 2013

Reference: ERT Case Nos. 13-002/13-003

We wish to thank the Tribunal for the opportunity to present our views on the issuing of the REA Number 7681-8UAKR7 to Ostrander Point GP Inc. as a general partner for and on behalf of Ostrander Point Wind Energy LP.

As noted in our submissions, we have focused our support on the appeal launched by the Prince Edward County Field Naturalists (PECFN) and in particular on the potential harm to various species of bats as described in the “Ostrander Point Wind Energy Park Acoustic Bat Monitoring Report.”

We note the aforementioned report identified eight (8) species of bats regularly known to occur in Ontario, all of which have a range that overlaps the “Study Area.”

Seven of these species were also identified in a “review” completed by scientists Kunz, Arnett, Erickson et al and published by the Ecological Society of America.1 The review is titled “Ecological impacts of wind energy development on bats, questions, research needs, and hypotheses” and raises concerns about the large number of bat fatalities at industrial wind facilities and made this poignant observation:

The unexpectedly large number of migratory tree bats being killed by wind turbines and the projected cumulative fatalities in the Mid-Atlantic Highlands should be a wake-up call for those who promote wind energy as being “green” or environmentally friendly.


The review of 14 pages includes several graphs containing data associated with the bat fatalities as gathered by leading experts throughout the US, and notes several hypotheses that may be the ultimate cause of those fatalities. I quote from the document:

Some migratory species are known to seek the nearest available trees as daylight approaches (Cryan and Brown in press), and thus could mistake large monopoles for roost trees (Ahlén 2003; Hensen 2004). Tree-roosting bats, in particular, often seek refuge in tall trees (Pierson 1998; Kunz and Lumsden 2003; Barclay and Kurta 2007). As wind turbines continue to increase in height, bats that migrate or forage at higher altitudes may be at increased risk (Barclay et al. 2007).

and

Are bats attracted to sites that provide rich foraging habitats? Modifications of landscapes during installation of wind energy facilities, including the construction of roads and power-line corridors, and removal of trees to create clearings (usually 0.5–2.0 ha) around each turbine site may create favorable conditions for the aerial insects upon which most insectivorous bats feed (Grindal and Brigham 1998; Hensen 2004). Thus, bats that migrate, commute, or forage along linear landscapes (Limpens and Kapteyn 1991; Verboom and Spoelstra 1999; Hensen 2004; Menzel et al. 2005) may be at increased risk of encountering and being killed by wind turbines.

and

Are bats attracted to the sounds produced by wind turbines? Some bat species are known to orient toward distant audible sounds (Buchler and Childs 1981), so it is possible that they are attracted to the swishing sounds produced by the rotating blades. Alternatively, bats may become acoustically disoriented upon encountering these structures during migration or feeding.

and

Bats may also be attracted to the ultrasonic noise produced by turbines (Schmidt and Jermann 1986). Observations using thermal infrared imaging of flight activity of bats at wind energy facilities suggest that they do fly (and feed) in close proximity to wind turbines (Ahlén 2003; Horn et al. 2007; Figure 3).

and

Wind turbines are also known to produce complex electromagnetic fields in the vicinity of nacelles. Given that some bats have receptors that are sensitive to magnetic fields (Buchler and Wasilewski 1985; Holland et al. 2006), interference with perception in these receptors may increase the risk of being killed by rotating turbine blades.

and

Bats flying in the vicinity of turbines may also become trapped in blade-tip vortices (Figure 4) and experience rapid decompression due to changes in atmospheric pressure as the turbine blades rotate downward. Some bats killed at wind turbines have shown no sign of external injury, but evidence of internal tissue damage is consistent with decompression (Dürr and Bach 2004; Hensen 2004).

and

Interestingly, the highest bat fatalities occur on nights when wind speed is low (< 6 m s–1), which is when aerial insects are most active (Ahlén 2003; Fiedler 2004; Hensen 2004; Arnett 2005).

The latter text leads us to the “Reply Witness Statement of Erin Cotnam,” dated March 1, 2013 delivered to the appellants PECFN and APPEC and participant Wind Concerns Ontario by Ms. Davis, counsel for the Ministry of the Environment on the first day of the commencement of the ERT hearing, and to the “Acoustic Bat Monitoring Report” prepared by Stantec for Gilead Power Corporation of Peterborough, Ontario.

The Reply Witness Statement of Erin Cotnam responded to the WCO written presentation among others; we will focus only on the comments related to WCO which were contained in Cotnam’s points 2 through 6. Erin Cotnam responded as follows: Point 2 referred to WCO’s question about conflicting information on the equipment identified in the Renewable Energy Application, specifically that both Enercon and GE turbines are specified, though the equipment types are not the same.

In Point 3, Ms. Cotnam says: “The acoustic monitoring of bats completed by Stantec was not a necessary component of the Natural Heritage Assessment. It was completed under the earlier environmental assessment process.”

Point 4 of Ms. Cotnam’s “Statement” continues: “Under the Natural Heritage Assessment, significant wildlife habitat is not assessed or determined on specifications for wind power generating equipment.

On the latter point Ms. Cotnam is correct, as a review of the “Natural Heritage Assessment Guide” indicates that equipment means nothing in respect to the need to explain, as an example, the different kill rates of birds and bats from a 50-kW wind turbine with a 19.2-meter (63 feet) rotor diameter versus a GE xl 2.5MW wind turbine with a 103-meter (337 feet) rotor diameter.

What the MNR “guidelines” effectively do, then, is suggest that a blade sweep that covers approximately 4,500 square feet will harm/kill/harass the same number of birds and bats as a blade sweep that covers more than 126,000 square feet.
We question this assertion and the logic behind it.

Returning to the remaining text of Ms. Cotnam’s “Witness Statement” we note that point 4 continues with the following:

An applicant is required to complete a site investigation within 120M of project location, including wind turbines. A site investigation was completed for the Site, which involved an Ecological Land Classification assessment to determine if the Site would support bat habitat and a search for potential roost trees and hibernacula. No candidate bat habitat (maternity roosts or hibernacula) were identified. Therefore an Evaluation of Significance was not required.

Once again Cotnam’s statement is correct as she refers to the 25-page MNR document dated July 2011, “Bats and Bat Habitats: Guidelines for Wind Power Projects” with reference to page 6, Section 2.2. The presumed assumption by the authors of this “Guideline” is that 120 meters (393 feet) is more than sufficient to locate a bat roost; this is based on the questionable assumption that bats will not fly further from the roost to feed than 120 meters.

However, the fact is that even the little brown bat (one of the eight species identified in the aforementioned Ostrander Point Wind Energy Acoustic Bat Monitoring Report) may travel several kilometers between day roosts and feeding sites, as noted by the University of Michigan, among others.

Further, the MNR guidelines also fail to recognize that three (3) of the bat species (hoary bat, silver-haired bat, and red bat) identified in the monitoring report prepared by Stantec, migrate in the Spring and Fall, and as noted above in the material quoted from the Ecological Society of America, will seek “large monopoles” as roosts as daylight approaches. In fact, migrating bats are known to travel distances as great as 500 km,2so to imagine they wouldn’t travel more than 120 meters to find food is not realistic.

We also note that the Stantec-prepared monitoring report does not include any monitoring during the “spring” migration period as it relates to bats. The MNR Guidelines document states that, “In Ontario, the post-construction monitoring season for bats is based on bat activity patterns, covering spring activity through fall swarming and migration, and is consistent with the post-construction monitoring season for birds; thus monitoring occurs from May 1 to October 31.”
The Ministry of Natural Resources’ own fact sheet on bats in Ontario notes that bats hibernate from September to April, thus May is a critical month for monitoring bat activity.3
Indeed, the first draft report on bat monitoring in the subject area prepared by Stantec in 20094 says that, “Based on a site sensitivity rating of Level 3 (High), a pre-construction monitoring program was designed that consisted of: Radar monitoring in May, August, September and October; and, Acoustic surveys at three stations within the Study Area in July, August and September.”
However, in the final draft report released in January 2010, Stantec states, “Based on a site sensitivity rating of Level 3 (High), a pre-construction monitoring program was designed and approved by the MNR that consisted of acoustic monitoring at four stations within the Study Area in July, August and September.” In other words, in the final draft report on bat activity, the month of May was omitted.

WCO also notes that under circumstances where a “local conservation authority” exists the process for the issuance of an REA requires the input of that “local conservation authority” when it involves “wetlands” or alteration in and in the case of Prince Edward County the local authority is the Quinte Conservation Authority. The MNR guidelines describe the local input requirement as follows:

1.4.1 Conservation Authority Permissions
Renewable energy projects may require permission from the local conservation authority (where one exists). Through conservation authorities’ Development, Interference and Alteration Regulations, under Section 28 of the Conservation Authorities Act, conservation authorities are empowered to regulate development and activities in or adjacent to wetlands, river or stream valleys, watercourses, Great Lakes and large inland lakes shorelines and hazardous lands.”

WCO’s contact with the Quite Region Conservation Authority confirmed that they were contacted in 2008 by “Gilead” and responded that as Ostrander Point was “crown land” and protected; Gilead would need to confer with the Provincial authorities. The spokesperson for the Authority advised us that the Province has not sought input nor consulted with the local Quinte Region Conservation Authority nor has it been contacted as a courtesy by the Ministry of Natural Resources or the Environment Ministry to offer their views on the issuance of the REA.

Related to the foregoing the Stantec “Bat Monitoring Report” prepared for Gilead contained the following;

Permanent wetlands, in the form of deciduous swamp and open marsh, occur along the southeastern boundary of the Study Area.

and the Natural Heritage Assessment Guide for Renewable Energy Projects has this embedded in its 100 pages:

2.0 NATURAL FEATURES AND PROHIBITIONS ON DEVELOPMENT
Development prohibitions are outlined in Part V, Sections 37, 38, 41, 42, and 43 of the REA Regulation4
Tables 2, 3, and 4 detail natural features protected under the REA Regulation and their specific
development prohibitions, as well as the development prohibitions which apply to provincial parks and conservation reserves. When two or more natural features overlap, the greater development prohibition applies.

Applicants may seek an exception from the prohibitions, in order to develop within significant or
provincially significant natural features (with the exception of provincially significant southern wetlands and provincially significant coastal wetlands) and within their setbacks, provided an EIS is prepared in accordance with procedures established by MNR (Section 7).”

It would appear that despite the fact that the MNR has very strictguidelines that apply to wetlands; in the case of the REA issued to Gilead/Ostrander those guidelines (in respect to “Crown” lands), their importance is ignored or waived despite objections by interested parties.

Also included in the Natural Heritage Assessment Guidelines was the following:

5.7 Areas of Natural and Scientific Interest
Under the REA Regulation, Areas of Natural and Scientific Interest (ANSIs) are defined as areas which have values related to protection, scientific study or education. ANSIs are areas of land and water containing natural landscapes or features identified by MNR as life science and/or earth science sites (or both) depending on natural heritage values.”

As noted in the Environmental Registry; “Ostrander Point has also been designated a Candidate Area of Natural and Scientific Interest by the Ministry of Natural Resources.”

The granting of the REA by the MNR is in contravention of Section 38 of the Environmental Protection Act in respect to the two issues highlighted immediately above and should be immediately rescinded.

Conclusion

To summarize, we believe that the fact that the Ministry of Natural Resources “Guidelines” document fails to differentiate between the size of structures and the distance from the project location where bat roosts are concerned, is a problem. To ignore the characteristics of the structures proposed is the same as suggesting that the number of birds that will collide with a 50-storey building is the same as the number that would collide with a five-storey building.

The results of the bat monitoring for Ostrander Point also assume that bats in search of food will not travel beyond 120 meters of their roosting site.

We submit this is not logical.

We are also concerned with the discrepancy in the timing of the bat monitoring studies, which was done with the approval of the MNR but which seems contradictory to the MNR’s own information on bat activity.

The omissions and assumptions in the guidelines make it appear as if the Ministry’s guidelines as applied to wind power generation facilities are not meant to protect bats and birds but instead were written to ensure that a Renewable Energy Approval would be issued by the Ministry, and not be challenged on these issues.

We would like to emphasize again the critical importance of bats to the natural environment as a natural means to control insect populations.

We hope that the Tribunal will consider these facts and recognize that to the people of Ontario, the Green Energy and Green Economy Act was not intended to desecrate the natural environment including wildlife. The Ministry’s own policy on the development of Crown lands for onshore wind power states that development must be done in a way that “contributes to the environmental, social and economic well being of the Province.”5

We believe that we have shown several omissions that could indicate the Ministry of Natural Resources “Guidelines” are insufficient to support the intent of the Green Energy Act, and the Ministry’s own policies on the appropriate use of Crown land, particularly in the case of Ostrander Point.
We repeat:
  • “equipment” and structures associated with wind power generation projects should be considered as a factor in the killing/harming and harassment of nature regardless of the presence or absence of information to this effect in the Guidelines; and,
  • that reasonable care relating to normal and proven bat and bird movements and activities must be taken to ensure that Crown land is being properly used in a way that conserves the natural environment, as is the intent of relevant legislation, as is expected by the citizens of Ontario.
Additionally, the Renewable Energy Approval granted by the MNR to Ostrander Point GP Inc. is in direct contravention of Section 38 of the Environmental Protection Act.

Wind Concerns Ontario recommends again that the Tribunal reverse this MNR Renewable Energy Approval, for the reasons we have stated today, and in our earlier submission.

Parker Gallant, Vice-President
Wind Concerns Ontario

WIND CONCERNS ONTARIO
PO BOX 11059
105 GUILDWOOD PARKWAY
SCARBOROUGH ON M1E 1N0

1 Kunz TH, Arnett EB, Erickson WP et al. Front Ecol Environ 2007; 5(6); 315-324. Published by the Ecological Society of America.
2 McGuire, 2012, page 4. Available at: http://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1605&context=etd
3 Ministry of Natural Resources, 2008. Bat Hibernation and Hibernacula. Available at: http://www.mnr.gov.on.ca/stdprodconsume/groups/lr/@mnr/@fw/documents/document/269068.pdf
5 Ministry of Natural Resources, 2010. Policy PL4.10.04, Section 2.3

Huh? Weird! Strange! Ostrander Wind Granted REA from Ministry of Natural Resources!

There it was in black and white; the Renewable Energy Approval (REA) was granted by the Ministry of Natural Resources on December 20, 2012. The autograph at the bottom indicates Vic Schroter, P. Eng., Director 47.5, Environmental Protection Act, signed off on the REA to Ostrander Point GP Inc., as general partner for and on behalf of Ostrander Point Wind Energy LP.  With the stroke of his pen Mr. Schroter, recently promoted from the position of Senior Noise Engineer, was unable to hear the noise from the 1500 people who choose to contact the Ministry with most objecting to the project. A plebiscite held in South Marysburg (where the turbines will be located) with an eligible voter turnout of 62% overwhelming (90.2%) voted against the project; but the “noise engineer” apparently was wearing earmuffs!  The ability to kill, harm and harass birds, bats, blanding turtles, whip-poor-wills, flora, fauna was granted by a bureaucrat with a title that depicted someone operating to “protect” our environment but instead choosing to allow it to be decimated.

The Ostrander Wind Energy Park is a “nothing” in respect to the Liberal plans to inundate the Ontario countryside with these giant wind turbines that cause health problems, kill birds and bats and destroy nature and produce power when we seldom need it.  Ostrander is a mere 22.5 MW project with nine 2.5 MW rated turbines. Those turbines will stand 525 feet tall and have blades with a sweep of 390 feet while they generate power.  If they operate as all the other wind turbines do they will produce enough power to provide electricity to 20,500 homes for 29 % of the time those homes will need it-just don’t switch on the lights for the other 71 % of the time. The approximately 57,000 megawatt hours (MWh) they will produce in a full year was about half of what Ontario exported over the recent weekend. On Saturday and Sunday (January 19/20, 2013) Ontario exported over 90,000 MWh which was surplus to our needs so exactly why do we need these 22.5 MW is the question in everyone’s mind; and why place them in this sensitive nature area?

The approval granted by an individual within the Ministry of the Environment whose title with the words; “Environmental Protection Act” simply signed off on the approval to erect these turbines in a extremely sensitive “environmental” area of the county, an area globally known for it’s importance as an IBA (important bird area) and that is a mecca for naturalists due to its position on a migratory pathway as well as being a home to species at risk. This home to nature is shortly to be under attack, not from hunters or foragers but from a Government approved industrial wind developer. Those of us throughout the province who admire and want to protect nature stand in disbelief at the carnage that will unfold and that is a result of the Green Energy and Economy Act (GEA) passed by the GTA centric Liberal Party.

If there was ever a “line in the sand” in respect to an REA from the Ministry of Natural Resources, thousands, perhaps millions of Ontarians felt that Ostrander would be it! Instead, those opposed to the project must of necessity and common sense line up to fight the granting of the approval in front of a environment review tribunal who have yet to overturn a single previously approved REA.

Those in the County of Prince Edward who oppose this are shaking their heads in disbelief as are million of Ontarians throughout the Province.

Our politicians now have a good reason to repeal the GEA!

Parker Gallant,
January 22, 2013

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.

McGuinty’s Folly: Messing with the Energy Sector

In the wake of Premier McGuinty’s announcement that he was resigning as leader of the Ontario Liberal Party the platitudes and the admonitory comments have flowed. Lost in the fray is the harm that his energy policies have cost both Ontarians and the rest of Canada.

An article out of the International Centre for Trade and Sustainable Development (ICTSD) confirms that the upcoming World Trade Organization (WTO) ruling on the feed-in tariff (FIT) program’s requirement, for Ontario content, looks set to become fact. That ruling, against Canada, will impact not only Ontario but all of Canada. If the ruling is against Canada by the WTO, Japan and the EU will no doubt seek fines and if levied these will be a burden on all taxpayers not just those in Ontario. What this means for the Ontario’s Liberal Party may be significant as the blame will clearly be laid at their feet. This is particularly true when related to the Samsung contract for 2500 MW of renewable energy which carries the caveat that they create jobs (1,300) and buy a percentage of Ontario manufactured product for their investments in the wind (2,000 MW) and solar (500 MW) projects.

The Liberals have been insistent that the Green Energy and Economy Act (GEA) has created 20,000 jobs (50,000 by December 31, 2012 promised) and brought tens of billions ($7 billion from Samsung alone) in investments into the province. Perhaps the rhetoric should have been toned down as any fines imposed by the WTO or NAFTA (see below) may reflect that rhetoric, whereas, in truth, the GEA has been anything but the wonderful job creating machine the Liberals touted.

Canada is also being challenged under NAFTA by none other then oil baron T. Boone Pickens who has launched a $775 million challenge under NAFTA rules. Mr. Picken’s MESA Power Group of Texas has claimed discrimination in the process of handing out those FIT contracts and there may well be something to that; as they were shut out of the process and blame it on, “the abuse of power and process, and undue political influence in the regulations of renewable power in Ontario,”. That political influence has become more evident recently based on the gas plant moves!

So, while the gas plant moves from Oakville and Mississauga to Bath and Lambton may have been the deciding factor in McGuinty stepping down, his energy legacy, pursued by previous Energy Ministers; Dwight Duncan, George Smitherman and Brad Duguid would likely have caused his demise in the not too distant future.

For decades to come Ontario households receiving their monthly electricity bills will cringe and automatically think of the McGuinty folly.

Parker Gallant,

October 16, 2012
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