Report on Environmental Review Tribunal
Remedy Hearing for White Pines Wind Project
January 27, 2017
by Paula Peel
It was a full house at the Wellington Community Centre on the last day of the remedy hearing. The hall began to fill an hour before the start time with a contingency of office workers from WPD’s head office in Mississauga led by WPD President Ian MacRae and some supporters of the project that showed up early clearly hoping to dominate the proceedings in numbers. However by 10 AM they were out-numbered by APPEC and PECFN members and supporters.
The hearing started with a motion from APPEC’s legal counsel Eric Gillespie for a ruling from the Tribunal. APPEC felt that portions of both WPD and the Directors’ replies were improper. Mr. Gillespie cited examples in WPD’s reply submissions of bolstering, repetition, misquoting APPEC and numerous attempts to restate issues to get another “kick at the can.” Mr. Gillespie asked that all these types of submissions be struck.
The Tribunal declined to make a ruling, noting that a significant amount of time would be needed to go through WPD’s submissions. However, Ms. Valiante said that the Tribunal would bear in mind the propriety of the marked paragraphs.
Ms. Valiante outlined the process for the hearing of closing submissions. As previously agreed, the respondents together had one hour. The appellants would take an hour and fifteen minutes. The respondents would then have fifteen minutes to reply.
Respondents’ Closing Submissions
WPD’s legal counsel Patrick Duffy began with submissions on the burden of proof. Mr. Duffy stated that WPD has mitigated for the harms found by the Tribunal in its February decision and having done so the onus now shifts to APPEC. When Tribunal Co-Chair Hugh Wilkins asked Mr. Duffy to elaborate, Mr. Duffy repeated that the burden of proof is now on APPEC. According to Mr. Duffy APPEC must prove that the remedy proposals will cause serious and irreversible harm.
Mr. Duffy then focussed on WPD’s plans to mitigate harm to Blanding’s turtles by compacting 15 kilometres of access roads to deter nesting turtles on these roads. He also discussed WPD’s plan to restore 8 kilometres of upgraded seasonal roads to pre-construction standards to address the Tribunals’ concerns about increased traffic and several others mitigations stated in previous filings.
Mr. Wilkins asked Mr. Duffy whether there had been a Road Use Agreement (RUA) with the County and if so was this in evidence. Mr. Duffy clarified that there was nothing in evidence. However he noted that WPD is committed to following its Mitigation Plan and does not anticipate any objections from the municipality regarding work on municipal roads.
WPD’s legal counsel James Wilson, outlined key mitigation measures for the little brown bat, including a 5.5 m/s cut-in speed from May 1 to September 30 at all turbines for the lifetime of the project.
Sylvia Davis, legal counsel for the Director, stated that the Director supports the submissions of the Approval Holder with the exception of their submissions on Dr. Brock Fenton.
Appellants Closing Submissions
Mr. Hirsch referred the Tribunal to the Gruver Summary that WPD relies on for its claims of an 87% reduction in bat fatalities by increasing the cut-in speed to 5.5. m/s. Mr. Hirsch noted that this 87% reduction was with a cut-in speed of 6.9 m/s, much higher than the 5.5 m/s proposed.
Mr. Hirsch discussed recently acquired data of bat fatalities at wind projects in Ontario from government documents obtained through a Freedom of Information request. Mr. Hirsch noted 26 little brown bat fatalities reported at the Mohawk Point Wind Project in 2012.
As summed up by Mr. Hirsch, Stantec is proposing to experiment on the little brown bat population in Prince Edward County. He noted that the target of this experiment is an endangered species.
Mr. Hirsch asked the Tribunal to consider the Statement of Environmental Values including the ecosystem approach and the fact that the Province has changed direction and is no longer supporting large wind energy projects.
Eric Gillespie began with the issue of the Tribunals’ jurisdiction. Mr. Gillespie noted that APPEC is relying on the remedy hearing for the Settlers Landing Wind Project (SLWP) where mitigations were dealt with in a different way. He noted that at this hearing on the White Pines Wind Project, the Director has provided zero evidence that he has even considered the proposed mitigations. There is no possible way the Tribunal could “stand in the shoes of the Director” at these proceedings and in fact to do so would be an error of law. The correct remedy is to revoke the REA.
Mr. Gillespie noted that all Parties have agreed that the onus is on WPD. However WPD is now trying to reverse the onus and put it back on APPEC when it is the Approval Holders’ very mitigations that will cause harm. Mr. Gillespie clarified that the onus is on WPD to address the Tribunal’s findings and show that no potentially serious adverse effects will follow from their mitigations.
Mr. Gillespie pointed to a number of holes in the Approval Holders evidence. The Gruver survey is not published or peer-reviewed and was created by a wind company consultant. The survey gives no information on project size, turbine size, location, topography, wind speed and other variables. Also, and most importantly, the survey fails to show that cut-in speeds post White Nose Syndrome are effective. With respect to the Approval Holders’ Blanding’s turtle mitigations Mr. Gillespie noted that compacting over 15 kilometres of access roads by up to 95% will radically alter hydrology in areas already prone to flooding. Mr. Gillespie also noted the potentially disastrous results of planting alien vegetation in a sensitive ecosystem. The Plans the Approval Holder has produced at this hearing are completely untried and untested anywhere in the world, let alone on the County’s South Shore.
Mr. Gillespie noted that APPEC’s expert witness Tom Adams is highly qualified to provide evidence on the province’s energy requirements. Mr. Adams has provided evidence that the White Pines Wind Project is not needed (the province has more than enough energy to meet demand for the next ten years) and that the energy produced from this project would be a “drop in the bucket”. Mr. Gillespie noted that Mr. Adams’ evidence was not contested by either the Approval Holder or the Director. Mr. Gillespie clarified the Director’s position that economic and social considerations need to be considered even if they are secondary to the environment.
Ms. Davis restated the Directors’ position that SLWP had a wider range of changes. She also noted that Mr. Hirsch’s submissions concerning the FOI request are not in evidence.
Mr. Wilson restated the mitigation process for bats in simple terms: line up wind speed, curtailment and the impact on little brown bats. He noted that the Gruver survey does exactly that.
Mr. Duffy began by reminding the Tribunal of some aspect of their mitigation at which time a series of objections were raised by Mr. Gillespie on WPD’s conduct in Reply. Mr. Gillespie again asked the Tribunal for a clear ruling on Reply Submissions but the Tribunal once again deferred the matter.
The Tribunal closed on a solemn note with no indication of a decision date other than that it would come before April.