Hirsch v. Ontario (Environment and Climate Change), 2015 CanLII 64846

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: October 6, 2015

CASE NO: 15-068

PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: John Hirsch (ERT File No.15-068)

Appellant: Alliance to Protect Prince Edward County (ERT File No.15-069)

Approval Holder: wpd White Pines Wind Incorporated

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for White Pines Wind Project

Reference No.: 2344-9R6RWR

Municipality: Prince Edward County

ERT Case No.: 15-068

ERT Case Name: Hirsch v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties

Counsel

wpd White Pines Wind Incorporated

Patrick Duffy and James Wilson

Alliance to Protect Prince Edward County

Eric Gillespie and Priya Vittal

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1On July 16, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Renewable Energy Approval No. 2344-9R6RWR (the “REA”) to wpd White Pines Wind Incorporated (the “Approval Holder”) authorizing the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer stations, underground electrical cabling, distribution lines and associated infrastructure, to be located in Prince Edward County, Ontario (the “Project”). The Director’s decision to issue the REA did not include approval of two proposed wind turbines included in the Approval Holder’s application for the REA. The REA states that these wind turbines were refused “to ensure that impacts to identified cultural resources and protected properties are mitigated sufficiently and appropriately.”

2On July 29, 2015, John Hirsch filed a notice of appeal of the REA with the Environmental Review Tribunal (the “Tribunal”), pursuant to s. 142.1 of the Environmental Protection Act (“EPA”), seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment. On July 31, 2015, the Alliance to Protect Prince Edward County (“APPEC”) filed a notice of appeal with the Tribunal seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment and will cause serious harm to human health. In this Order, these two appeals are collectively referred to as “this proceeding” or the “s. 142.1 Proceeding”.

3A third appeal, brought by the Prince Edward County South Shore Conservancy (Tribunal File No. 15-070), was withdrawn and dismissed by the Tribunal on September 30, 2015.

4Also on July 31, 2015, the Approval Holder filed a notice of appeal with the Tribunal pursuant to s. 139 of the EPA requesting an amendment to the REA to include the two wind turbines that the Director has not approved. The issues in that appeal relate to the protection of cultural resources and heritage properties. The Tribunal has assigned that appeal Case No. 15-071 (the “s.139 Proceeding”).

5On August 26, 2015, Elizabeth Driver and Edwin Rowse filed a Notice of Application for Judicial Review in the Divisional Court, in which they apply for, among other things, an order setting aside the REA because of alleged errors in the heritage impact assessment relied on by the Director. In the alternative, they apply for the removal or relocation of 19 wind turbines.

6On September 9, 2015, the Tribunal held preliminary hearings in the s. 142.1 Proceeding and in the s. 139 Proceeding in Wellington, Ontario. Among other determinations, in the s. 139 Proceeding, the Tribunal granted party status to Ms. Driver and Mr. Rowse and to the Municipality of Prince Edward County, which also seeks to raise issues related to the protection of cultural resources and heritage properties.

7At the preliminary hearings, the Approval Holder informed the Tribunal that it intended to bring a motion for direction in the s. 142.1 Proceeding. On consent of the parties, the Tribunal directed that the motion would be heard in writing. Both the Director and Mr. Hirsch informed the Tribunal on September 18, 2015 that they take no position in respect of this motion.

Issue

8The issue is whether to direct the parties to address the potential impact of the Project on human health and the natural environment, on the basis that the Project includes the 29 wind turbines described in the Approval Holder’s application for the REA, when submitting evidence in this proceeding.

Relevant Legislation

9Environmental Protection Act

47.5 (1) After considering an application for the issue or renewal of a renewable energy approval, the Director may, if in his or her opinion it is in the public interest to do so,

(a) issue or renew a renewable energy approval; or

(b) refuse to issue or renew a renewable energy approval.

(2) In issuing or renewing a renewable energy approval, the Director may impose terms and conditions if in his or her opinion it is in the public interest to do so.

139. (1) When the Director,

(a) refuses to give his or her approval of plans and specifications;

(b) requires a condition precedent to the giving of his or her approval;

(c) refuses to issue an environmental compliance approval or renewable energy approval;

(d) refuses to renew a renewable energy approval;

(e) suspends or revokes an environmental compliance approval or renewable energy approval; or

(f) issues a certificate of property use,

the Director shall serve notice upon the applicant or holder, as the case may be, together with written reasons therefor, and the applicant or holder may, by written notice served upon the Director and the Tribunal within fifteen days after the service of the notice, require a hearing by the Tribunal.

142.1 (1) This section applies to a person resident in Ontario who is not entitled under section 139 to require a hearing by the Tribunal in respect of a decision made by the Director under section 47.5.

(2) A person mentioned in subsection (1) may, by written notice served upon the Director and the Tribunal within 15 days after a day prescribed by the regulations, require a hearing by the Tribunal in respect of a decision made by the Director under clause 47.5 (1) (a) or subsection 47.5 (2) or (3).

(3) A person may require a hearing under subsection (2) only on the grounds that engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

145.2.1 (1) This section applies to a hearing required under section 142.1.

(2) The Tribunal shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

(4) If the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b), the Tribunal may,

(a) revoke the decision of the Director;

(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or

(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

10Statutory Powers Procedure Act

15.1(1) The tribunal may treat previously admitted evidence as if it had been admitted in a proceeding before the tribunal, if the parties to the proceeding consent.

(2) In subsection (1), “previously admitted evidence” means evidence that was admitted, before the hearing of the proceeding referred to in that subsection, in any other proceeding before a court or tribunal, whether in or outside Ontario.

(3) This power conferred by this section is in addition to the tribunal’s power to admit evidence under section 15.

Discussion, Analysis and Findings

Submissions of the Parties

11The Approval Holder moves for a direction that all parties, when submitting evidence to the Tribunal in this proceeding, address the potential impacts on human health and the natural environment of the Project “as applied for”, that is, comprising 29 wind turbines, rather than “as approved”, comprising 27 wind turbines.

12The Approval Holder submits that the Director refused to approve two wind turbines that were included in its application for approval, WTG07 and WTG11, in order “to ensure that impacts to identified cultural resources and protected properties are mitigated sufficiently and appropriately,” and not because of their impacts on health or the environment.

13The Approval Holder argues that the direction it seeks is appropriate to facilitate a practical approach in hearing these two proceedings and to facilitate a possible remedy in the s. 139 Proceeding. It states that it is seeking an order from the Tribunal in the s. 139 Proceeding whereby the Tribunal alters the REA to authorize the “as applied for” Project. It submits that if the Tribunal in that proceeding sets aside the Director’s reasons for refusing the two wind turbines, the Tribunal could approve them without further assessment by the Director. The Approval Holder argues that if, as a result of the direction it seeks, the Tribunal in this proceeding has already assessed whether the full “as applied for” Project will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment, then another hearing under s. 142.1 of the EPA to consider the evidence of the impacts of the two wind turbines, may be avoided. It takes the position that this would be a fair, efficient and effective way for the Tribunal to manage the two proceedings and that there is no prejudice or inconvenience to any of the parties if the Tribunal were to hear evidence in this proceeding respecting the two wind turbines that the Director has not approved. The Approval Holder submits that the Tribunal has the jurisdiction to consider the health and environmental impacts of the “as applied for” Project and, in addition, has broad discretion to determine its own procedures that are informed by practical considerations.

14APPEC asks the Tribunal to deny the motion. It submits that the Tribunal’s jurisdiction in a proceeding under s. 142.1 of the EPA is limited to considering “only whether engaging in the renewable energy project in accordance with the renewable energy approval” will cause serious harm to health or serious and irreversible harm to plant life, animal life or the natural environment. It refers to several decisions in which the Tribunal ruled that it does not have jurisdiction to consider evidence that a project will operate out of compliance with a REA in support of its position. It submits that, because the REA was issued for 27 wind turbines, the Tribunal’s jurisdiction is limited to consideration of the potential impacts of those 27 wind turbines and evidence respecting the “as applied for” Project must be excluded.

15APPEC argues that the power of the Tribunal to alter the decision of the Director can only be exercised if the Tribunal determines that the Project will cause the specified harm. Therefore, it submits, the proper procedure is for the Tribunal to adjudicate the two proceedings separately. APPEC argues that the Tribunal is not free to craft procedures that are “fair, efficient and effective” if they attempt to override procedure prescribed by statute, which is the case for a proceeding under s. 142.1 of the EPA.

Analysis and Findings

16The EPA in s. 142.1(2) provides that a hearing by the Tribunal may be required “in respect of a decision made by the Director” under s. 47.5. The decision made by the Director, following his or her consideration of an application for the issuance of a REA, is either to issue or to refuse to issue the approval and, if issued, to impose terms and conditions. Once a hearing is required, s. 145.2.1 (2) mandates that the Tribunal “review the decision of the Director” and “consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause” certain specified harms. The decision of the Director in this case is approval of the Project, consisting of 27 wind turbines.

17When reviewing the Director’s decision and considering whether engaging in the Project in accordance with the REA will cause the specified harms, the Tribunal may admit any evidence that is relevant. Based on the notices of appeal, it seems likely that at least some of the evidence in this proceeding will be general in nature, will address the impacts of the Project as a whole, and will not be site-specific for individual wind turbines. It is possible that some of the evidence that the Tribunal will hear may relate to impacts of the two refused wind turbines. At this point in time, the determination of what specific evidence is relevant and what is not, has yet to be made. However, the Tribunal observes that the focus of the hearing and the Tribunal’s final determination is limited to the Director’s decision and consideration of whether engaging in the Project in accordance with the REA will cause the specified harms.

18The Approval Holder argues that if it is successful in the s. 139 Proceeding, the two wind turbines will be reinstated and the Project that is ultimately approved will be that for which it applied, that is, a Project with 29 wind turbines. It argues that the Tribunal can and should consider all evidence as to whether this 29-turbine Project causes the specified harms now, so that, if it is successful in the s. 139 Proceeding, there will be no need for a further hearing to consider whether the two reinstated wind turbines will cause harm. It encourages the Tribunal to adopt a practical approach to the procedure it follows.

19To be practical, and in an effort to ensure efficiency in these proceedings, the Tribunal has ordered that the hearings will be held one immediately after the other. The parties asked to have the hearing in the s. 142.1 Proceeding held first and the Tribunal has agreed to do so. This is in part because the Tribunal’s decision in this proceeding must be issued by January 29, 2016 and there is no such deadline in the s. 139 Proceeding. However, at this time, the outcome of both hearings is unknown and the remedies the Tribunal may consider to be appropriate in each are hypothetical. With respect to the s. 139 Proceeding, s. 145.2(1) of the EPA provides that the Tribunal “may confirm, alter or revoke the action of the Director” and “may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.” Thus, if the Approval Holder is successful in the s. 139 Proceeding, an alteration in the REA to approve the two wind turbines is not the only possible remedy that the Tribunal could impose. In determining a just resolution and remedy, the Tribunal may have to consider, among other things, the interests of persons who are not parties or participants in the present proceedings.

20If the appeal in the s. 139 Proceeding is successful, the Tribunal notes that receiving evidence respecting the “as applied for” Project at the hearing of the appeals in the s.142.1 Proceeding will not resolve the question as to whether a future hearing will be required. Much will depend on the outcome of this proceeding and on the resolution of the pending application for judicial review of the Director’s decision. If another hearing is required, there may be ways to use the general evidence introduced in this proceeding, thus ensuring some efficiencies. For example, s. 15.1 of the Statutory Powers and Procedure Act, R.S.O. 1990, c. S.22 allows the Tribunal to treat previously admitted evidence as if it had been admitted in a proceeding before it, if the parties consent.

21The parties may submit at the hearing of this appeal any evidence that is relevant. At this time, the Tribunal does not direct the parties to submit specific evidence or make any findings on the relevance of any evidence, including that relating to the two refused wind turbines.

ORDER

22The Tribunal denies the Approval Holder’s motion for direction.

Motion for Direction Denied

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

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Environmental Review Tribunal

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