WPD contentious Fairview wind power project approved at 11th hour

Ontario was hours away from a court hearing when it granted approval for the Fairview wind power project
Ontario was hours away from a court hearing when it granted approval for the Fairview wind power project

The Ministry of the Environment and Climate Change yesterday announced the approval of the Fairview Wind “Farm” in Clearview Township, Simcoe County (EBR 012-0614). The power developer is WPD Canada, a division of the WPD group, headquartered in Germany.

The Fairview project was hours away from a hearing as a result of a writ of mandamus, in which a request is made of the court to order a government body to perform a duty. In this case, WPD wanted the government to issue an approval of the project, which it had not done. The FIT or Feed In Tariff contract had actually expired in December, but the writ was filed earlier in 2015.

WPD threatened legal action in the case of the White Pines project in Prince Edward County, where approval took many years due a number of environmental issues associated with the power project.

The Fairview power project was the subject of a consultants’ report which concluded that the wind power project would pose a danger to aviation safety, and would have a negative impact on the economy locally. The power project would only serve “narrow private interests,” the consultants wrote.

The power project was also the subject of private litigation several years ago, when local property owners tried to sue for loss of property value and nuisance. The court found that there was some substance to their concerns, and that property values might have already been affected simply by announcement of the proposed project,  but in any event, ruled that the property owners could not properly sue until the project was actually approved.

That would be now.

Insiders say that the government had expressed concerns about the Fairview project which is why approval had been delayed. Has the government “blinked” against the power wind industry and actually thrown this fight to the public to deal with via appeal to the Environmental Review Tribunal, and the courts?

Ontario’s energy management policy reveals itself to be more convoluted and bizarre, every day.

Simcoe-Grey MPP Jim Wilson was quick to comment on the danger to public safety posed by the Fairview power project.

At present, only the North Kent I and Henvey Inlet projects remain without approval. For the list please see the project tracking document by Alliance to Protect Prince Edward County (APPEC) executive member Orville Walsh here: REA Status Update Feb 11 2016

Wind power developer sues Ontario over contentious project

The Thunder Bay area project was opposed by the Fort William First Nation and the community

Another beautiful Ontario location: perfect for power machines, right?
The Nor’Wester Escarpment–Another beautiful Ontario location: perfect for power machines, right?

Wind farm dead, but law suit alive

Chronicle-Herald, February 10, 2016

BY CARL CLUTCHEY NORTH SHORE BUREAU chroniclejournal.com

The Toronto energy company that proposed to build an ill-fated wind farm on the Nor’Westers escarpment is proceeding with a $50-million lawsuit against the Ontario government, despite having dropped an appeal of a provincial decision against the project.

“Upon careful consideration, we have decided to not appear before (Ontario’s) Environmental Review Tribunal, and instead pursue a remedy at the Ontario Superior Court of Justice,” Horizon Wind spokeswoman Nhung Nguyen said Tuesday in an email.

Horizon withdrew its appeal to the tribunal on Jan. 25. The appeal had been launched last fall, after the Ministry of Environment said the proposed 16-turbine wind farm south of Thunder Bay couldn’t go ahead over lingering concerns over potential impacts on moose habitat.

In its lawsuit against the ministry, Horizon claims the province committed “negligent misrepresentations and misfeasance of public duty.”

None of the allegations in the suit’s 33-page statement of claim have been proven in court.

The lawsuit alleges that the ministry was “unlawfully influenced by the Ontario cabinet and the premier’s office” when it delayed the issuing of the project’s approval. …

Read the full story here.

Endangered wildlife key to citizen fight against Amherst Island wind power

Power developer says no turtles on Amherst Island; turtle experts and residents say there are.
Power developer says no turtles on Amherst Island; turtle experts and residents say there are.

Power developer claims no turtles were seen in its environmental assessment; experts and 30 citizens to testify with logs of turtle observations

The Whig-Standard, January 28, 2016

Elliot Ferguson

STELLA — Approximately 30 residents of Amherst Island will get to testify before the Environmental Review Tribunal about the presence of endangered Blanding’s turtles on the island.

In a conference call Wednesday, the tribunal rejected an attempt from lawyers for Windlectric Inc. to have the witness statements excluded from the proceedings.

Instead, the residents are to be presented during three days of hearings on the island next week.

Algonquin Power’s subsidiary Windlectric Inc. is proposing to build about 26 wind turbines on the island. The company’s lawyers had argued that the citizens’ statements about seeing Blanding’s turtles on the island had been falsified and photographs of the turtles were staged.

“It is important for us and we are happy that the tribunal recognized that, in fairness, that if Windlectric is allowed, through their expert, to say that people on the island are lying to oppose the project, well, we’re really, really happy that the tribunal recognized the fairness, or unfairness of that procedure,” said Michele Le Lay, spokesperson for the Association to Protect Amherst Island.

In a 2013 species at risk report prepared for Windlectric, Stantec Consulting Ltd. stated there are no Blanding’s turtles on Amherst Island.

“Over the course of all field surveys, no observations of either Blanding’s turtle or eastern musk turtle were made,” the report stated.

The opposing sides are to talk by telephone on Thursday to decide how the 30 residents could testify in three days of hearings in a manner that is fair to both sides.

Evidence that Blanding’s turtles live on the island could be critical to the project’s opponents.

 

Read the full story by Elliot Ferguson here.

Endangered turtle sighting testimony to be allowed in Amherst Island appeal

Spotted! (and by a lot of people) Endangered Blandings turtle
Spotted! (and by a lot of people) Endangered Blandings turtle

In spite of a move by the proponents’ lawyer to block testimony by expert witnesses called by the appellant, the Association to Protect Amherst Island, and further to disallow testimony of 30 residents of Amherst Island who have logged sightings of the endangered Blandings turtle, the Tribunal ruled today that the witness testimony would be heard.

The hearings in this matter have already begun, with a site tour on Monday and proceedings yesterday; the appeal will now likely take longer than the four days originally allowed.

The tribunal ruling is an important step in that allows actual residents of the affected community to be heard during the appeal.

For more information on the wind power project and Amherst Island, check the APAI website here: http://protectamherst.yolasite.com/

Amherst Island appeal resumes

Amherst Island is a favoured spot for owls, and other birds
Amherst Island is a favoured spot for owls, and other birds

Community alleges wind power project will harm environment and wildlife, and impact residents’ health

Kingston Whig-Standard, January 25, 2016

by Elliot Ferguson

STELLA — After more than a month-long hiatus, the Environmental Review Tribunal’s hearing into the Amherst Island wind energy project resumed Monday.

The tribunal began three days of hearings in Stella this week and included a tour of 16 points around the island.

Read the story here

West Lincoln council asked to collect noise data for huge wind farm

Groups ask council to collect noise data

[Photo: Amanda Moore]

Niagara This Week, January 13, 2016

By Amanda Moore

WEST LINCOLN — With some of the largest industrial wind turbines in North America rising from the rural West Lincoln landscape, two citizens groups are asking the local government to begin monitoring noise.

“We want the township to appreciate the scope of the risk we are about to run with one of the largest wind projects in North America next to such a densely-populated area,” said Mike Jankowski, chair of the West Lincoln Glanbrook Wind Action Group (WLGWAG), which made a joint presentation to West Lincoln’s planning, building and environmental committee Monday with Mothers Against Wind Turbines (MAWT). “There are some risks that aren’t mitigated and we require the township to start collecting data both before and during the turbines.”

Jankowski, who said he has personally experienced health effects related to the HAF Wind Energy project already in operation in West Lincoln, said it’s a matter of when, not if, those living near the Niagara Region Wind Farm currently under development will experience adverse health effects. The groups say the noise data will help establish a clear picture of what residents are dealing with.

“This data can be used for a number of things,” explained Jankowski. “First and foremost, it can be used to aid in a response if necessary. To indicate what people are being subject to.”

What began as a mild ringing in the ear turned into dizziness and decreased mental capacity for Jankowski. His teenage daughter has also suffered debilitating migraines with stroke-like symptoms. The problems have been ongoing for the past year and a half.

WLGWAG and MAWT came before committee with several asks Monday, the main of which was for a commitment from the municipality that it will protect the community.

“The township should act immediately to manage risks by collecting measurement data about noise emissions in our community,” Jankowski said. “We need to monitor full range noise on an ongoing basis to provide an understanding of what people are subject to in their homes.”

The groups are requesting the township immediately look into ways of establishing and collecting noise data, to establish an advisory committee to hear turbine-related concerns and that it presses the government to purchase more sound measuring devices.

Coun. Joanne Chechalk, vice chair of the planning committee, said she was all for collecting noise information but wanted to take the request one step further.

“My concern is that if we do all of this, we monitor all … the municipality can’t do anything, as we all know,” said Chechalk. “There is no mechanism, nothing to say or do. It’s akin to drinking water. After Walkerton happened, we now have policies in place and councils have been trained. So now when water levels are unsafe they are declared that way and we have boil water advisories. There is nothing for wind turbines. If this says that we get to 40 or 60 decibels, what do we do?”

On top of asking for a staff report addressing the concerns of the citizens groups, Chechalk asked that the township request the province to develop and implement a process to handle events where wind facilities exceed the 40 decibel regulation outlined in the Green Energy Act. She also requested the township begin working with opposition critics and establish a province-wide advisory committee, which would pool representatives from municipal governments across Ontario who are dealing with the same issues.

“If it’s a concern, I’m looking for the province to give us a stiff remedy,” said Chechalk. “What happens if it exceeds the levels? Is it safe for humans, for chickens or whoever is in the proximate? We need to know.”

A staff report is expected at the Feb. 8 planning committee meeting which will  outline next steps the township can take.

The groups also encouraged committee to follow on the heels of other municipalities in the province that seek a stall on projects until important questions are answered.

MAWT, specifically, has concerns with numerous changes to the NRWF project currently under development. The Township of Wainfleet has sent a letter to Ontario’s minister of energy questioning why there was no public process on major changes to the project. Both groups pressed West Lincoln committee to send correspondence to that same effect to the province.

“The township should press for answers,” said Jankowski.

Read more here.

Ontario moves to silence citizen participation in electricity issues

Ontario Energy Minister Bob Chiarelli put forward Bill 112, which would eliminate an essential layer of independent oversight of provincial energy policy, writes Brady Yauch. {Photo Toronto Star Richard J. Brennan]
Ontario Energy Minister Bob Chiarelli put forward Bill 112, which would eliminate an essential layer of independent oversight of provincial energy policy, writes Brady Yauch. {Photo Toronto Star Richard J. Brennan]

Toronto Star, January 4, 2016

By: Brady Yauch Published on Mon Jan 04 2016

Ontario’s desire for total control over all aspects of the electricity sector is nearly fulfilled.

The push to eliminate dissent and independent review of the province’s energy monopolies has been a decade in the making. Since 2004, many of the province’s largest and most expensive policies were implemented with little to no oversight — at great cost to ratepayers, as the Auditor General forcefully highlighted in her recent annual report.

But Queen’s Park is set to fully take over all decision-making regarding the province’s energy monopolies by solidifying its control over the province’s energy regulator, the Ontario Energy Board (OEB), with the recent passing of Bill 112. In doing so, Ontario is shutting down the last arena of independent public review of the billions of dollars being spent by the province and its many publicly owned utilities.

The legislation, “Strengthening Consumer Protection and Electricity System Oversight Act,” would deny independent intervenors the funds needed to hire the lawyers and experts needed at these hearings, effectively blocking their participation.

Prior to this legislation, any individual ratepayer or organization representing ratepayers — ranging from big, industrial groups to cottage associations or low-income organizations — could apply for funding and act as an intervenor in any rate application. The government would instead replace the independent intervenors with a new government-appointed consumer representative.

In other jurisdictions where this has occurred, the direct cost of this new bureaucracy has been far more expensive than the cost of reimbursing intervenors for their lawyers and consultants. The indirect costs of losing the ability to hold the utility monopolies to account by forcing them to justify their proposed rate increases before the OEB could be much greater still.

One study found that intervenors have been highly successful at paring back the monopolies’ rate requests, their lawyers and consultants costing ratepayers just 2 cents annually while helping to reduce rate increases by $28 per customer. Other studies found that intervenors account for 1 per cent or less of overall regulatory costs, which themselves are a small amount of total electricity costs borne by ratepayers.

Replacing these groups with a government-appointed consumer representative charged with questioning government-owned monopolies eliminates the last remaining voice of independent review of proposals by public monopolies to spend billions of dollars on capital projects.

The province’s new legislation also ensures that any new transmission line can be deemed a “priority project” by the ministry of energy and automatically approved by the OEB. In the past, the OEB would analyze such projects to determine whether they were necessary or cost-effective. Furthermore, the province is considering more legislation that will exempt all government-directed energy plans or projects to be exempt from the Environmental Assessment Act.

The province’s previous moves to sidestep independent review have been costly for ratepayers. The smart meter rollout — which cost ratepayers $2 billion and counting and still isn’t fully functional — was done without any review from the OEB or other regulators. Billions of dollars in contracts have been — and continue to be — given to renewable energy and natural gas generators without any review by the OEB or intervenors. And the long-term energy plans developed by the province’s own energy planning experts — the Ontario Power Authority (OPA) — were never implemented and, instead, were replaced with plans written by the ministry of energy that were, again, never fully reviewed at the OEB and were later criticized by the Auditor General as overly expensive.

More recently, the province collapsed the OPA into another energy agency, the Independent Electricity System Operator (IESO), which is in charge of operating the province’s wholesale electricity market, ensuring that even more political control is embedded in ever more parts of the electricity sector. There is no longer anything “independent” about the Independent Electricity System Operator.

In the end, the OEB and the intervenors were the last voice of criticism that wasn’t on the payroll of the province. By replacing them with a government-led consumer advocate, the province will control every step of decision-making on electricity policy and spending, those pesky checks and balances eliminated at last.

Brady Yauch is an economist and Executive Director of the Consumer Policy Institute (CPI). He has acted as an intervenor at the OEB.

Final evidence presented in White Pines appeal

Blandings turtle: clearly at risk
Blandings turtle: clearly at risk

Report on Environmental Review Tribunal Hearing on White Pines Wind Project‏‎

December 15

On Day 21 the Environmental Review Tribunal (ERT) heard the last witness in the appeal of the White Pines wind project.

APPEC tried to call three Reply Witnesses: Dr. Shawn Smallwood, an expert in avian wildlife behaviour and conservation; Robert McEwen, P. Eng., a structural engineer; and Kari Gunson, a road ecologist. Mr. McEwen and Ms. Gunson were intended to respond to WPD’s witness Shawn Taylor, who had done a survey of municipal roads on the day before he testified. Eric Gillespie, counsel for APPEC, asked the Tribunal either to disallow the new evidence collected at the eleventh hour or to allow APPEC an opportunity to respond. Mr. Gillespie argued that each party should have an equal opportunity to reply to the full submission of the other. 

Both MOECC counsel Andrew Weretelnyck and WPD counsel Patrick Duffy objected to the admissibility of Mr. McEwen and Mrs. Gunson as Reply Witnesses. The Tribunal agreed with their submissions and found that of the three witnesses only Dr. Smallwood’s evidence was proper reply.

Dr. Smallwood told the ERT he disagreed with WPD witness Dr. Strickland that pre-construction bat surveys have no value. He directed the Tribunal to graphs showing a plausible correlation between pre-construction bat activity and post-construction bat mortality. He noted that when more data is added the more the relationship is strengthened. This suggests there is value in doing pre-construction surveys to estimate bat fatality rates.  

Dr. Smallwood also noted that avoidance is not the same as displacement. While avoidance on a large scale will equal displacement, it might just as well involve manoeuvres to evade turbine blades, wind turbines, or an entire wind project. Repeated avoidance that leads to habitat loss is displacement. 

Today was the last day for evidence. The ERT will next hear submissions of the parties as follows:

Appellant Written Submissions – January 5, 2016
Respondent Written Submissions – January 15
Reply Written Submissions – January 19
Oral Submissions – January 20 in Prince Edward County 

ERT co-chair Marcia Valiante noted that this schedule leaves insufficient time for the Tribunal to meet the regulatory six-month deadline. As a result the Tribunal found that stopping the clock on the proceedings is required. Following the oral submissions the ERT will adjourn for four weeks and issue a decision on February 19, 2016. 

 –Paula Peel

Alliance to Protect Prince Edward County

Google Earth good enough for research by White Pines environmental consultants

What? We don't show up on Google Earth? [Photo: Prince Edward Point Bird Observatory]
What? We don’t show up on Google Earth? [Photo: Prince Edward Point Bird Observatory]

Wind power developer wildlife consultant never visited Prince Edward County, used Google Earth to inspect the site, and dismisses “Important Bird Area” designation (that’s for bird-watchers, he says in testimony)

Report on Environmental Review Tribunal Hearing on White Pines Wind Project

December 11 

On Day 20 the Environmental Review Tribunal (ERT) on the White Pines wind project heard APPEC witness Rick James and an expert witness for developer WPD, Dr. Dale Strickland.

Mr. James, qualified previously as an acoustician, presented new evidence in reply to Denton Miller, witness for the Ministry of Environment and Climate Change (MOECC).  Following new ministry guidelines and omitting disallowed wind turbines T7 and T11, he calculated that 13 “points of receptions” (i.e., homes) would suffer noise above 40 dBA.

Both MOECC counsel Andrew Weretelnyck and WPD counsel James Wilson questioned Rick James on 40 dBA as a measure of serious harm.  James said the MOECC had set this compliance limit and the World Health Organization (WHO) had found health effects, specifically annoyance and sleep disturbance, start at 40 dBA.

In re-examination APPEC counsel Eric Gillespie confirmed with James that WHO had reported noise complaints during nighttime begin at 35 dBA.

Dale Strickland, Ph.D., founder and president of Western EcoSystems Technology, a Wyoming consulting firm with business and government clients, has published over 150 scientific papers and technical reports during a 40-year career.  The Tribunal qualified him as “a zoologist with expertise in ecological research and wildlife management, including assessing the impacts of wind turbines on wildlife.”

WPD counsel Patrick Duffy asked Dr. Strickland about the appropriate scientific measure for serious and irreversible harm.   He said it is based on the overall genetic and demographic status of a species’ population.

According to Dr. Strickland, the White Pines surveys of birds and bats are “adequate,” conform to established methods and published guidance, and are similar to those for other wind projects.  Bats would not be high in number without the presence of hibernacula.  Acoustical surveys are not necessary because they record bats at ground level and the results do not correlate with bat deaths at wind turbine rotor level.

Dr. Strickland also said the effects on habitat would be minimal.  Loss from access roads and other construction is relatively small, and displacement from habitat would not be significant because of the project size.

Regarding collisions, Dr. Strickland predicted 5-15 bird deaths annually per turbine, the same as at other North American sites.  He defended the Wolfe Island monitoring records, stating the mortality rates are reasonable for a searched radius of 50m, an area commonly used at other wind projects.  Considering the project location and size, he concluded that White Pines would not cause serious and irreversible harm to wildlife.

In cross-examination Eric Gillespie confirmed that Dr. Strickland had not visited the White Pines site but had based his opinions on WPD’s reports and on Google Earth images.  Although aware of Prince Edward Point National Wildlife Area and Point Petre Provincial Wildlife Area, he did not know their proximity to wind turbines.  However, he dismissed the “globally significant” South Shore Important Bird Area because the IBA designation reflects convenient public access and use of the site for bird-watching.

Dr. Strickland did not know of an “activity report” by the Ministry of Natural Resources and Forests finding five threatened bird species and three bat species in the White Pines area.  He agreed with Mr. Gillespie that such information might have influenced his opinions.  Similarly, he conceded that if there had not been adequate surveys for karst, then one needed more information to estimate the bat population.  He also admitted that the cumulative effects of wind projects must be considered to determine local impacts on birds.

When asked by ERT co-chair Marcia Valiante about a proposed 31ha compensation property, Dr. Strickland said it would have little measurable effect on the populations of displaced bobolinks and eastern meadowlarks.

-by Henri Garand, APPEC