Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: January 8, 2016

CASE NO.: 15-071

PROCEEDING COMMENCED UNDER section 139(1)(c) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: wpd White Pines Wind Incorporated

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Refusal of a Renewable Energy Approval for two turbines for White Pines Wind Project

Reference No.: 2344-9R6RWR

Municipality: Prince Edward County

ERT Case No.: 15-071

ERT Case Name: wpd White Pines Wind Incorporated v. Ontario (Environment and Climate Change)

Heard: October 29, 2015, November 25 and 30, 2015 and December 22, 2015 by telephone conference call and in writing

APPEARANCES:

Parties

Counsel/Representative⁺

wpd White Pines Wind Incorporated

Patrick Duffy

Director, Ministry of the Environment and Climate Change

Sylvia Davis, Andrew Weretelnyk and Rebecca Crangle

Elizabeth Driver and Edwin Rowse

Ralph Cuervo-Lorens, Talia Gordner and Marc Kemerer

Municipality of Prince Edward County

Wayne Fairbrother and Samantha Foster

Presenter

Architectural Conservancy Ontario

Stanley Jones⁺

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 “Appellant”) 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 Appellant’s application for the REA, designated as “WTG7” and “WTG11”. 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 31, 2015, wpd White Pines Wind Incorporated (the “Appellant”) filed a Notice of Appeal with the Environmental Review Tribunal (the “Tribunal”) pursuant to s. 139 of the Environmental Protection Act (“EPA”) seeking an amendment to the REA to add the two refused wind turbines to increase the total number of wind turbines in the Project to 29 and an amendment to correct “apparent drafting errors” in condition L1.(3)(a) of the REA. The issues in the appeal relate to the protection of cultural resources and heritage properties and to conditions respecting the protection of Blanding’s Turtle, respectively.

3Appeals of the Director’s decision to issue the REA were also filed by John Hirsch and the Alliance to Protect Prince Edward County (“APPEC”) under s. 142.1 of 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 and serious harm to human health (the “Hirsch and APPEC appeals”). The Hirsch and APPEC appeals were assigned Tribunal Case Nos. 15-068 and 15-069 respectively. The Tribunal agreed to hear this proceeding immediately after the Hirsch and APPEC proceeding, which was scheduled to commence on November 2, 2015.

4On August 26, 2015, Elizabeth Driver and Edwin Rowse, who own a protected heritage property within the Project area, filed an Application for Judicial Review (the “JR Application”) in the Divisional Court seeking, among other relief, an order setting aside the Director’s decision to issue the REA on the grounds that it was based on a heritage assessment report that was “fundamentally flawed” and failed to meet the requirements for heritage assessment reports in Ontario Regulation 359/09.

5At the preliminary hearing in this proceeding, held on September 9, 2015, the Tribunal granted party status to Ms. Driver, Mr. Rowse and the Municipality of Prince Edward County (the “County”). It also granted presenter status to the Architectural Conservancy Ontario.

6On October 20, 2015, the Tribunal dismissed a motion brought by Ms. Driver and Mr. Rowse requesting an order staying the proceedings or, in the alternative, adjourning the hearing of this matter until the final disposition of the JR Application. Written reasons for that Order were issued on November 6, 2015. The hearing was then scheduled to start on December 2, 2015, following the completion of the Hirsch and APPEC hearing.

7On October 21, 2015, the Tribunal received correspondence from the Director stating that he had made a drafting error in Condition L1.(3)(a) of the REA. In addition, the Director stated that he and the Appellant in this proceeding had agreed on wording that would amend the condition and requested that the Tribunal accept the amendment to the condition as a settlement of that portion of the Appellant’s appeal. On October 29, 2015, the Tribunal held a telephone conference call (“TCC”) with the parties to discuss the amendment request. No party opposed the proposed amendment.

8On November 20, 2015, during the hearing of the Hirsch and APPEC appeals, the Tribunal received correspondence from the Appellant in this appeal notifying the Tribunal that it proposed to withdraw the portion of its appeal related to adding the two refused wind turbines to the Project, requesting that the Tribunal amend Condition L1.(3) in settlement of the remaining issue in its Notice of Appeal and dismiss this proceeding.

9On November 25 and 30, 2015, the Tribunal held further TCCs to receive submissions on how the Tribunal should proceed with respect to these requests. On November 25, 2015, the Tribunal adjourned the hearing, scheduled to start on December 2, pending its determination on the Appellant’s proposed withdrawal and its request to amend the REA and dismiss the proceeding. On November 30, 2015, the Tribunal received further written submissions from the Director and on December 2, 2015, the Tribunal received submissions from the other parties and the presenter. On December 22, 2015, the Tribunal held a TCC to discuss its proposed resolution of the appeal.

Relevant Rules

10Rules of Practice of the Tribunal

Termination of Proceedings

Where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.

Issue

11The issue is whether to dismiss the proceeding.

Discussion, Analysis and Findings

Submissions of the Parties

12The Director submits that he made a drafting error in Condition L1.(3)(a) of the REA. He requests that the error be corrected by replacing the words “not possible” with the word “unavoidable”, so that the Condition would be amended to read (with emphasis added):

L1.(3)(a) If construction and maintenance activities between May 1 and October 14 are unavoidable, every attempt must be made to avoid harrassment or injury to Blanding’s Turtles, including, but not limited to the following further restrictions: […]

13The Director submits that the existing language in the Condition, which uses the words “not possible” rather than “unavoidable”, is non-sensical when read in context with the other provisions in Condition L1.(3).

14Referencing Rule 201 of the Tribunal’s Rules, the Director submits that the parties have agreed to settle the appeal on the basis that Condition L1.(3)(a) would be amended as proposed by the Director and the remainder of the appeal would be withdrawn as proposed by the Appellant. The Director notes that no party objects to this proposed settlement and that it is consistent with the purpose and provisions of the EPA, which is the relevant legislation with respect to this appeal. He further submits that the settlement is in the public interest. The Director submits that the proposed amendment would give Condition L1.(3)(a) practical meaning and would thereby better contribute to the protection and conservation of the natural environment as envisioned in the purpose section of the EPA. The Director argues that inputs on the proposed settlement from non-parties, including Mr. Hirsch and APPEC, are not needed to determine the public interest in these circumstances. The Director argues that the proposed amendment would not affect the Hirsch and APPEC appeals as these appeals seek the REA’s revocation, not its amendment.

15The Appellant submits that both the proposed withdrawal of the heritage portion of the appeal and the proposed amendment to Condition L1.3(a) could be addressed by the Tribunal either now or after the Hirsch and APPEC appeals have concluded. The Director supports the Appellant’s proposal. Added Parties, Ms. Driver, Mr. Rowse and the County, consent to the proposed amendment to the condition, as well as the Appellant’s proposed withdrawal of the heritage portion of its appeal on a without costs basis. However, they ask the Tribunal to dismiss the heritage portion of the appeal immediately and not wait until after the resolution of the Hirsch and APPEC appeals.

16APPEC and Mr. Hirsch agree with the position of the Added Parties.

Findings

17Under Rule 201, when there has been a proposed withdrawal of an appeal that alters the decision under appeal as part of a settlement agreement which is not objected to by any party, the Tribunal must consider whether the agreement is consistent with the purpose and provisions of the legislation, in this case the EPA, and is in the public interest in making a determination of whether to continue with the hearing or to dismiss the proceeding. In this case, there are two elements to the Appellant’s request: withdrawal of its appeal with respect to WTG7 and WTG11; and amendment of Condition L.1(3)(a) of the REA.

18The Tribunal finds that it is not in the public interest to accept the settlement agreement with respect to the proposed amendment to Condition L.1(3)(a) at this time. Where there are inter-related appeals in separate proceedings, the Tribunal must take a cautious approach when addressing issues in one appeal that may potentially impact the other appeals or lead to conflicting outcomes. In the present circumstances, there are separate proceedings (this one and the other respecting the Hirsch and APPEC appeals) and, although these proceedings were brought via different routes as provided for in the EPA, all the appeals are in respect of the same REA. It is important to note that the Hirsch and APPEC appeals raise the issue of the adequacy of Condition L1.(3)(a) in protecting Blanding’s Turtle, which is a subject addressed in the settlement proposed by the Appellant. Given these circumstances, the Tribunal finds that there is a risk of conflicting outcomes if Condition L1.(3)(a) of the REA is amended by way of a settlement of this appeal while the same provision remains under appeal in the Hirsch and APPEC appeals.

19 Section 145.2.1 (4) of the EPA sets out the Tribunal’s powers when adjudicating appeals of renewal energy approvals brought under s. 142.1 of the Act. It states that where the Tribunal determines that engaging in a renewable energy project in accordance with the applicable renewable energy approval will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment, the Tribunal may revoke the Director’s decision to issue the renewable energy approval, direct the Director to take certain actions, or alter the Director’s decision. In this case, theTribunal must consider the possibility that the Hirsch and APPEC appeals could result in the revocation or alteration of the Director’s decision to issue the REA, including Condition L1.(3)(a). If this occurs, there could be a conflict between that outcome and the proposed settlement.

20The Tribunal does not have the same concern with respect to the Appellant’s proposed withdrawal of its appeal regarding WTG7 and WTG11. The parties and the presenter do not oppose this proposed withdrawal, which does not alter the terms of the REA. The Tribunal notes that some of the parties have expressed a need to have immediate finality with respect to this portion of the appeal in order to be able to pursue other proceedings.

21The Tribunal notes that Rule 4 provides that the Rules “shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.” In light of the unusual circumstances of this case, where the same approval is under appeal in separate proceedings, and in light of the submissions of the parties, the Tribunal finds that the just, most expeditious and cost-effective determination of this proceeding is to accept the proposed withdrawal of the appeal regarding WTG7 and WTG11 and dismiss that portion of the proceeding, and to adjourn the hearing on the settlement agreement amending Condition L.1(3)(a) of the REA until the Hirsch and APPEC appeals have been resolved.

ORDER

22The Tribunal dismisses the portion of this proceeding respecting the Director’s refusal to approve wind turbines WTG7 and WTG11.

23The Tribunal adjourns the hearing of the issue of the proposal to amend Condition L.1(3)(a) of the REA to a TCC to be held within 30 days of the issuance of the Tribunal’s reasons for decision in Case Nos. 15-068 and 15-069. At the TCC, the parties will have an opportunity to make further submissions on that issue. The Case Coordinator will contact the parties following the Tribunal’s issuance of the reasons for decision in Case Nos. 15-068 and 15-069 to schedule the TCC.

Proceeding Dismissed in Part

Hearing Adjourned

Procedural Directions Given

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS