Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: May 25, 2017

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: May 12, 2017 by telephone conference call

APPEARANCES:

Parties	Counsel
wpd White Pines Wind Incorporated	Patrick Duffy, James Wilson and Jesse Long
Director, Ministry of the Environment and Climate Change	Sylvia Davis

REASONS

Background

1On July 16, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change, issued Renewable Energy Approval No. 2344-9R6RWR (“REA”) to wpd White Pines Wind Incorporated (“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 (“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, the Appellant filed a notice of appeal with the Environmental Review Tribunal (“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 (“wpd appeal proceeding”).

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 (“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 the wpd appeal proceeding immediately after the Hirsch and APPEC appeals, which were 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 (“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 Pre-hearing Conference in the wpd appeal proceeding, held on September 9, 2015, the Tribunal granted party status to Ms. Driver, Mr. Rowse and the Municipality of Prince Edward County (“County”). It also granted presenter status to the Architectural Conservancy Ontario.

6At the Pre-hearing Conference, APPEC requested party status “for procedural purposes”. In its order of September 30, 2015, the Tribunal refused to grant party status to APPEC, stating that it had not been demonstrated to be necessary at that time. However, the Tribunal also stated that APPEC could renew its request for party status if circumstances were to change in the future and stated its intention to continue to facilitate inclusive procedural discussions with the parties to both proceedings as necessary to ensure that procedural issues were dealt with fairly.

7On October 20, 2015, the Tribunal dismissed a motion brought by Ms. Driver and Mr. Rowse requesting an order staying the wpd appeal proceeding 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 wpd appeal hearing was then scheduled to start on December 2, 2015, following the completion of the hearing of the Hirsch and APPEC appeals.

8On 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 the wpd appeal 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.

9On November 20, 2015, during the hearing of the Hirsch and APPEC appeals, the Tribunal received correspondence from the Appellant in the wpd appeal proceeding notifying the Tribunal that it proposed to withdraw the portion of its appeal related to adding the two refused wind turbines to the Project, and requesting that the Tribunal amend Condition L1.(3)(a) in settlement of the remaining issue in its notice of appeal and dismiss this proceeding.

10On 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.

11On December 22, 2015, the Tribunal held a TCC to address the proposed resolution of the appeal, and on January 8, 2016 it issued an order dismissing the portion of the proceeding respecting the Director’s refusal to approve wind turbines WTG7 and WTG11. In that order, the Tribunal adjourned 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 the Hirsch and APPEC appeals. It stated that, at that TCC, the parties would be given an opportunity to make further submissions on the proposed amendment and request for dismissal of the proceeding.

12On April 26, 2017, the Tribunal issued its reasons for decision in the Hirsch and APPEC appeals, and on May 12, 2017, it held a TCC for the wpd appeal proceeding. The Appellant and the Director participated in the TCC. Ms. Driver, Mr. Rowse, the County and the Architectural Conservancy Ontario were given notice of the TCC, but did not attend. APPEC attended the TCC as an observer and was permitted to make submissions.

13This decision addresses the proposed resolution of the remaining issue in the proceeding; namely, the proposed withdrawal of the appeal as part of a settlement agreement that amends Condition L.1(3)(a) of the REA.

Relevant Rules

14The relevant provision of the Tribunal’s Rules of Practice (“Rules”) is as follows:

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

15The issue is whether to dismiss the proceeding.

Discussion, Analysis and Findings

16Neither the parties nor the presenter oppose the proposed amendment of the REA and proposed withdrawal of the appeal. During the TCC on May 12, 2017, the Appellant, relying on its submissions made in November and December 2015, stated that the revised wording of the condition was to correct an obvious error and noted that the parties in the Hirsch and APPEC appeals had conducted that hearing on the basis of the amended language of the condition. The Director made similar submissions. APPEC agreed and stated that it does not object to the proposed amendment.

17As noted above, Ms. Driver, Mr. Rowse, the County and the Architectural Conservancy Ontario were given notice of the TCC, but did not attend. In their submissions made in November and December 2015, Ms. Driver, Mr. Rowse and the County consented to the proposed amendment to Condition L1.(3)(a).

18The parties’ November and December 2015 submissions are reflected in the Tribunal’s January 8, 2016 Order, at paras. 12 to 14, as follows:

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. ...

19Where there is 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, Rule 201 requires that the Tribunal consider whether the proposed settlement agreement is consistent with the purpose and provisions of the legislation in question and is in the public interest. The Tribunal must also consider the interests of participants and presenters. The Tribunal must then determine whether to continue with the hearing or to dismiss the proceeding.

20In the present case, the parties have agreed to an amendment to the REA, so that the Director would amend Condition L1.(3)(a) to read:

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: […]

Based on the submissions, the Tribunal finds that the proposed amendment would give practical meaning to Condition L1.(3)(a) and would contribute to the EPA’s objectives of protection and conservation of the natural environment. In particular, the improved clarity in language in Condition L1.(3)(a) will assist in providing protection for a species at risk, namely Blanding’s turtle, in the vicinity of the Project. The Tribunal finds that the amendment to Condition L1.(3)(a) of the REA is in the public interest.

DECISION

21The Tribunal accepts the proposed settlement in which the Director will amend Condition L1.(3)(a) of Renewable Energy Approval No. 2344-9R6RWR to read:

22In accordance with Rule 201, the Tribunal dismisses the proceeding.

Proceeding Dismissed

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

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Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

wpd White Pines Wind Incorporated v. Ontario (Environment and Climate Change), 2017 CanLII 32694

Case Summary