April 19, 2020
People who enjoy watching shows like Law and Order or The Good Fight on TV would find real court hearings quite dull. But that doesn’t mean there isn’t plenty of drama—that was the case last Friday when Spain-based power developer EDPR faced off against the Minister of the Environment no less, in a battle over approval of an Ontario wind power project.
EDPR, developer of the 100-megawatt Nation Rise wind power project, applied for a judicial review of the decision by the environment minister in Ontario to revoke the Renewable Energy Approval (REA) for that project. The Minister issued his decision last December, following a direct appeal.
Nation Rise was one of five wind projects that received REAs in 2016; almost all the others were cancelled, in 2018.
The court challenge is remarkable in that a power developer (and the industry lobbyist) is alleging the minister had no authority to make a decision for his own department.
The EDPR lawyer, John Terry of mega law firm Torys, claimed that the current government was “implementing its anti-green energy platform” and that the decision was not warranted. He claimed further that the appeal to the minister brought by community group Concerned Citizens of North Stormont (CCNS) was not proper, that the minister’s decision was not “reasonable,” that in fact he showed bias (they quoted a statement by Mr Yurek in the Legislature in support of his own community’s fight against a wind power development), and that he “simply revoked the REA” without a remedy hearing.
Mr. Terry said if only EDPR could have presented its mitigation plan to prevent bat deaths, that remedy “will completely take care of it [the threat to wildlife].” He said Minister Yurek in fact had “no authority” to do what he did.
The lawyer for CanWEA told the court that the community group appeal to the minister was an attempt to hold a new hearing; moreover, the Minister’s powers are “confined,” he said and there are very limited circumstances in which an REA can be revoked.
Not so, said the Ontario Attorney General lawyers acting for the minister who countered that “The Minister has broad, discretionary authority to consider the matter before him in the ‘public interest.’ “
They also disputed the applicants’ claims that the minister was biased and unfair, and that the applicant never got a chance to present its mitigation proposal:
“The Minister provided the Applicants with more than the minimal content of procedural fairness…they were provided an opportunity to be heard, including when the Minister sought additional submissions, specifically with regard to harm to bats.”
Last, lawyers Kathleen Coulter and Eric Gillespie, appearing for the Concerned Citizens of North Stormont, asserted that the Minister had applied the “correct legal test” in his actions, he was able to act “in the public interest” and last, that allegations of bias are “completely unfounded.” Lawyer Eric Gillespie argued that the application should be dismissed, and told the panel of judges that, “The evidentiary record before this Honorable Court also establishes that, with respect, many of the factual assertions relied upon by the Applicants [EDPR] and the Intervenor CanWEA are incorrect. This results in both the Applicants’ and the Intervenors’ submission failing to provide grounds for judicial review to be granted.”
The matter is now before a panel of three judges.
This matter is important to everyone in Ontario, as the wind power lobby seeks to establish that the environment minister can’t revoke Renewable Energy Approvals, can’t act in the public interest, and must always give over to the importance of wind power.
Let’s help CCNS fight this! Their legal bills are piling up. Here’s how:
*go to the website and use the DONATE buttonor*send a cheque to Concerned Citizens of North Stormont, 14950 County Rd 9, Berwick ON K0C 1G0
This fight affects the government’s ability to stand up to wind power developers everywhere in Ontario.
Concerned Citizens of North Stormont is a community group member of the Wind Concerns Ontario coalition