Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: April 11, 2016

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 (File No.: 15-068)

Appellant: Alliance to Protect Prince Edward County (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: County of Prince Edward

ERT Case No.: 15-068

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

Heard: In writing

APPEARANCES:

Parties	Counsel
Alliance to Protect Prince Edward County	Eric Gillespie
Director, Ministry of the Environment and Climate Change	Sylvia Davis
wpd White Pines Wind Incorporated	Patrick Duffy

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1This Order of the Environmental Review Tribunal (the “Tribunal”) is in relation to a motion for an interim stay and a stay of a renewable energy approval for a proposed wind power generation project in Prince Edward County, Ontario. The moving party, the Alliance to Protect Prince Edward County (“APPEC”), seeks a stay of all physical activities within the area of the project associated with Renewable Energy Approval No. 2344-9R6RWR (the “REA”) pending the disposition of the appeal. The main hearing of the appeal is currently adjourned.

2The REA was issued on July 16, 2015 by Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (the “MOECC”) to wpd White Pines Wind Incorporated (the “Approval Holder”). It authorizes the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer substations, underground electrical cabling, distribution lines and associated infrastructure (the “Project”).

3On July 29, 2015, John Hirsch filed a notice of appeal of the REA with the Tribunal, pursuant to s. 142.1 of the Environmental Protection Act (the “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, 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. A third appeal, by the Prince Edward County South Shore Conservancy, was withdrawn and dismissed by the Tribunal in an Order dated September 30, 2015.

4The hearing in this proceeding commenced on November 2, 2015 and continued over 21 days in November and December 2015 in Wellington and Picton in Prince Edward County and at the Tribunal’s offices in Toronto, Ontario. On February 26, 2016, the Tribunal issued an Order allowing the appeal in part based on its finding that engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment under s. 145.2.1(2) of the EPA. The Tribunal found that engaging in the Project would cause serious and irreversible harm to Blanding’s Turtle, which is listed as a “threatened” species under the Endangered Species Act, 2007, S.O. 2007, c. 6 (“ESA”). The Tribunal also gave procedural directions for the hearing of submissions with respect to the appropriate remedy, pursuant to s. 145.2.1(4) of the EPA. The hearing has been adjourned and will resume for the Tribunal to consider the parties’ submissions on remedy.

5On March 1, 2016, the Approval Holder notified APPEC and the Director that it intended to start vegetation clearing in parts of the Project area as early as March 14, 2016. On March 4, 2016, APPEC brought a motion seeking an order of the Tribunal staying all physical activities within the proposed Project area associated with the REA. The motion was based principally on APPEC’s concern that proposed work clearing vegetation and preparing the site by the Approval Holder will cause harm to Blanding’s Turtle. On March 22, 2016, the Tribunal issued an Order dismissing APPEC’s motion and issued reasons for the Order on April 6, 2016.

6On April 8, 2016, APPEC informed the Tribunal that it had new evidence that the Approval Holder’s vegetation clearing and site preparation work was causing irreparable harm and it brought a new motion for an interim stay and a stay.

7On April 8, 2016, the Tribunal issued an Order granting an interim stay pending the disposition of a stay motion. These are the reasons for that Order. A motion for a stay pending the disposition of the appeal will be heard in writing in accordance with directions provided by the Tribunal.

Relevant Rule

8Tribunal’s Rules of Practice (the “Rules”):

The Party shall provide evidence and submissions in support of its motion respecting:

(a) how the relevant statutory tests that are applicable to the granting or removal of a stay are met;

(b) whether there is a serious issue to be decided by the Tribunal;

(c) whether irreparable harm will ensue if the relief is not granted; and

(d) whether the balance of convenience, including effects on the public interest, favours granting the relief requested.

Issue

9The issue is whether physical activities in the Project area associated with the REA should be stayed until such time that a motion for a stay of the REA pending the disposition of the appeal may be heard and determined.

Discussion, Analysis and Findings

10The Tribunal’s Rules require the moving party to prove that an interim stay is warranted according to the same test that the Tribunal applies to a stay motion. The difference is that the Tribunal typically applies a lower threshold of proof, given the circumstances that usually pertain with an interim stay (see, for example, Oakville Hydro Energy Services Inc. v. Director, Ministry of the Environment and Climate Change, 2015 CarswellOnt 6992 (Ont. Env. Rev. Trib.), para. 31).

11Rules 110(b) to (d) require the Tribunal to consider a three-part test: whether there is a serious issue to be tried; whether there will be irreparable harm to the moving party if a stay is refused; and whether the balance of convenience favours the moving party.

Serious Issue

12In its reasons respecting APPEC’s previous stay motion, the Tribunal agreed that there is a serious issue remaining to be resolved in this proceeding. The Tribunal adopts that finding.

Irreparable Harm

13Based on new evidence, APPEC submits that three types of irreparable harm will occur if an interim stay is refused: harm to Blanding’s Turtle due to their early emergence from hibernation; destruction of spring foraging habitat for Blanding’s Turtle; and removal of vegetation close to the Ostrander Crown Land Grant, which is located adjacent to the Project area and is the subject of a separate proceeding before the Tribunal (the “Ostrander site”), with potential harm to Blanding’s Turtle on that site. Only the first type of harm was alleged in the first stay motion.

14With respect to the first type of irreparable harm alleged, APPEC had submitted with the first stay motion evidence that Blanding’s Turtle might overwinter in unexpected wet areas and might emerge early from hibernation. In its reasons for dismissing the previous stay motion, the Tribunal held that APPEC had not demonstrated that this type of irreparable harm will occur. The Tribunal stated:

The Tribunal finds that the REA conditions governing the proposed work activities adopt a precautionary approach by requiring that steps be taken by the Approval Holder to mitigate risk and avoid harm to Blanding’s Turtle if turtles are encountered in unexpected locations or the turtles emerge from hibernation early.

15With this motion, APPEC provided an affidavit that turtles were sighted in two locations in the Project area in early April. In other words, it is APPEC’s submission that Blanding’s Turtle have emerged from hibernation and will suffer irreparable harm through direct mortality if vegetation clearing continues. The Approval Holder submitted an affidavit that the Blanding’s Turtle mitigation and avoidance measures required by the REA are being followed in work areas and that no turtles have yet been encountered in areas where vegetation clearing has been conducted.

16The Tribunal adopts its previous finding that the REA conditions outline mitigation and avoidance measures that address the concerns raised by APPEC’s witnesses and that those measures were not considered by APPEC’s witnesses in their statements. The Tribunal finds that this new evidence has not demonstrated that irreparable harm to Blanding’s Turtles active in the Project area will occur if the stay is refused.

17With respect to the second type of irreparable harm alleged, destruction of spring foraging habitat for Blanding’s Turtle, APPEC provided photographs taken by its drone of the vegetation clearing that the Approval Holder has carried out at two locations, T16 and T17, which are located close to Army Reserve Road. APPEC provided no expert evidence on the implications of the vegetation clearing, but the evidence provided does show impact to vegetation. The Approval Holder provided no evidence about the implications of the vegetation clearing, but did verify that the areas cleared correspond to the Construction Plan Report, which are the approved areas for vegetation clearing. The Tribunal is concerned that this impact could be irreparable given the nature of this vegetation, which based on evidence produced at the main hearing, may be difficult to restore. Due to the lower threshold applied by the Tribunal on an interim stay motion, and taking a precautionary approach, the Tribunal accepts that the evidence is sufficient to indicate that irreparable harm may occur.

18With respect to the third type of irreparable harm alleged, proximity of clearing activity to the Ostrander site, APPEC’s submission is no different from its other allegations of the nature of the harm to Blanding’s Turtle, but raises a concern about its location. There was no reason presented as to why this location would be more susceptible to irreparable harm to turtles than other locations in the Project area.

Balance of Convenience

19The potential for irreparable harm due to the destruction of vegetation must be weighed against the inconvenience to the Approval Holder of a short interruption in vegetation clearing activities. No new evidence of serious inconvenience to the Approval Holder was presented.

20The Tribunal finds that the balance of convenience favours APPEC.

ORDER

21The Tribunal grants APPEC’s motion for an interim stay of the REA until the resolution of APPEC’s motion for a stay.

22The Tribunal directs that the hearing of the motion for a stay of the REA will be in writing and will be scheduled as soon as possible. The Tribunal Case Coordinator will contact the Parties to make these arrangements.

Motion Granted in Part

Interim Stay Granted

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS