White Pines Wind Project Remedy Hearing Motions

On October 5 the Tribunal suspended the remedy hearing schedule in order to adjudicate a number of motions from APPEC.   The Tribunal’s rulings on the motions could be days, weeks or even a month-plus away.

1. Referral to the Director
This motion is for an Order of the Tribunal to remit the REA (Renewable Energy Approval) for the White Pines wind project back to the Director of the Ministry of the Environment and Climate Change (MOECC) for reconsideration in light of the amendments proposed by wpd.  A large number of significant amendments to the Project have been proposed.  As a result this Project can no longer be said to be the Project “as approved” by the Director.

2. Striking Respondents’ Evidence
Affidavits from witnesses for wpd and the MOECC raise issues that as a matter of law could only be properly raised at the main hearing.  In effect both wpd and the MOECC are seeking to re-litigate large portions of the hearing that have already taken place.

3. Motion re New Evidence
On April 5, 2016 APPEC obtained aerial photographs, taken by a drone, of the large-scale clear-cutting at T16 and T17.  The devastation of the construction from only two sites clearly demonstrates just how pervasive and severe the construction process actually is. This motion is for an Order to admit this new evidence pursuant to the Tribunal’s Rules 233 and 234.

4. Disclosure Motion
APPEC requests an Order from the Tribunal directing that wpd and the Director provide any documentation in relation to their witnesses that were considered by these witnesses in the formulation of their opinions for the remedy phase.

5. Clock Stop Motion
The hearing as contemplated by the Tribunal cannot be completed within the remaining hearing time under O. Reg. 359/09 s.59 (i.e., the Green Energy Act).

6. Motion for Recusal
This motion is for an Order that the presiding Tribunal members be recused.  APPEC respectfully submits that there exists a reasonable apprehension of bias in this matter.

7. Motion re Refusals on Cross-Examination, etc.
This motion is for an Order of the Tribunal directing wpd witnesses Dr. Scott Reynolds, Khlaire Parre and Shawn Taylor to re-attend to answer questions arising from their cross examinations on September 29, 2016.

8. Motion to Admit Studies Arising from the Cross Examination of Dr. Brock Fenton
APPEC seeks an Order of the Tribunal admitting into evidence two studies on Little brown bats referred to by Dr. Fenton that he authored in 1969 and 1970 in response to questions during his cross examination on September 28, 2016.

9. Motion to Admit Documents provided to wpd prior to the commencement of cross examination of its witnesses on September 29 as follows:

  • Two scientific papers presented to Dr. Reynolds, wpd’s expert on bats. The 2016 report was only accepted for publication in June of 2016, and even Dr. Reynolds was not aware of it.
  • The announcements put to Klaire Parre, wpd’s Director of Renewable Energy Approvals, regarding the current supply of energy in Ontario and the decision of the Ontario Government that was announced two days before to not seek to procure any additional power from largescale renewable energy projects.
  • Photos from Amherst Island that were put to Shawn Taylor, wpd’s ecological and construction mitigation expert, that deal directly with Blanding’s turtle and the issue of areas where they are likely to travel, notwithstanding compaction, etc.
Posted in Uncategorized, White Pines ERT

Remedy Hearing Cross-examination of wpd witnesses

Report on Remedy Hearing for White Pines wind project
Cross-examination of wpd witnesses on September 29, 2016 
by Paula Peel

Shawn Taylor
APPEC legal counsel Eric Gillespie questioned Mr. Taylor on a series of exhibits from the Amherst Island ERT, where Mr. Taylor recently testified for the wind developer.  Mr. Gillespie’s questions were repeatedly blocked by wpd’s legal counsel, Mr. Duffy who indicated that wpd would object to any document that Mr. Gillespie referred to from the Amherst Island ERT.  Mr. Duffy also directed their witness, Mr. Taylor, to not respond to any questions relating to Amherst Island, even the simple question whether one of the issues that came up at those hearing was the location of Blanding’s turtles on the island.  The transcript shows twelve refusals by wpd during Mr. Gillespie’s cross-examination of Mr. Taylor.  Mr. Gillespie noted that there was no mechanism for dealing with refusals and motions and asked that the cross-examination be adjourned as it would not be productive to proceed with Mr. Taylor at this time.

little_brownDr. Reynolds
Mr. Gillespie noted that Dr. Reynold’s original affidavit included a 5-volume set of literature references containing 79 studies and reports and told Dr. Reynolds that APPEC has brought a motion asking the Tribunal to strike out evidence.  Mr. Gillespie remarked on the difficulty of a cross-examination on what is essentially over 100 documents at this point in this kind of format and with these time constraints.  Mr. Duffy told Mr. Gillespie that this would be the only opportunity Mr. Gillespie would have to cross-examine Dr. Reynolds but Mr. Gillespie replied that this would ultimately be up to the Tribunal to decide.

In the time available Mr. Gillespie was able to sort out a discrepancy between Dr. Reynold’s affidavit and his Literature Cited list involving two missing papers.  Mr. Gillespie also questioned Dr. Reynolds on the paper “Bat Mortality Due to Wind Turbines in Canada”. Mr. Gillespie asked Dr. Reynolds if there was anything in that paper that was inconsistent with his own understanding and that he would disagree with.  Mr. Duffy directed Dr. Reynolds not to respond and suggested that Mr. Gillespie ask narrow, more focused questions about the paper.  Mr. Gillespie responded to the effect that if we were to do that with the over 100 papers that Dr. Reynold produced we would never get anywhere at these hearings, ever.  Mr. Gillespie asked that the cross-examination be adjourned as this was as far as it was possible to go given the time constraints. The transcript shows three refusals by wpd during Mr. Gillespie’s cross-examination of Dr. Reynolds.

Khlaire Parre
After confirming Ms. Parre’s position as wpd’s Director of Renewable Energy Approvals, Mr. Gillespie questioned Ms. Parre on the document that had been issued by the provincial government two days earlier entitled “Ontario Suspends Large Renewable Energy Procurement”.  Mr. Duffy objected to the admission of this and two other related documents, citing relevance. Mr. Gillespie challenged the timing of the objection, as it was made before Mr. Gillespie had an opportunity to show relevance through questioning of the witness.  Mr. Gillespie argued that the relevance was clear enough given the benchmark hearing in the Ostrander Point case, where the Tribunal made it clear that it is completely proper to make submissions around the Ministry’s Statement of Environmental Values (the “SEV”) which includes economic considerations.

Mr. Gillespie asked Ms. Parre if she was aware that on the 27th September that the Ontario government announced that it was suspending any further procurement of large energy projects.  Mr. Duffy directed Ms. Parre to refuse to answer that question and any other question on that topic.  Mr. Gillespie asked that the cross-examination be adjourned as this was as far as it was possible to go with this witness at this time. The transcript shows three refusals by wpd during Mr. Gillespie’s cross-examination of Ms. Parre.


Posted in Uncategorized, White Pines ERT

Report on Kari Gunson Remedy Hearing Examination

kari-gunsonReport on Remedy Hearing for White Pines wind project
Cross-examination of Kari Gunson on September 28, 2016

Wpd legal counsel Patrick Duffy questioned Kari Gunson, a Road Ecologist, on wpd’s mitigation to remove upgrades to the seasonal roads following construction of the wind project. Ms. Gunson testified that road upgrades will be in place for up to 18 months and will impact at least one active season for Blanding’s turtles.  Road upgrades will facilitate use of the roads at increased volumes and speed during this period.

Ms. Gunson also provided evidence of degradation and destruction of Blanding’s turtle habitat due to the roadworks. In an attempt to disqualify that evidence, Mr. Duffy repeatedly referred Ms. Gunson back to the February 26, 2016 Tribunal ruling.  Mr. Gunson agreed that the Tribunal ruling did not include construction, did not include the destruction of habitat, did not include alvar or any corresponding impact on Blanding’s turtles from the destruction of alvar and did not include hydrology.

However Ms. Gunson explained that this is a different case now. The Tribunal ruling was made before the mitigation to remove the road upgrades was known.  At this point both the construction period and the construction impacts are changed from what they were before and it is now known that there will be more construction.  With respect to alvar, for example, the Tribunal ruling was made before the impacts of having two construction periods in the alvar ecosystem was known.  Ms. Gunson noted that the roads where the upgrades are to be removed are in alvar habitat, and that the impact will be worsened with the employment of the new mitigation measures.  The same is also true with hydrology: the impacts on wetlands will be more severe with twice the amount of construction.

Ms. Gunson noted that removing road upgrades is highly experimental and not a lot of research has been done on this in contrast with the impacts of bringing heavy machinery into wildlife habitat, where there is a solid base of existing research.

Mr. Duffy noted that the mitigation to remove the road upgrades will be subject to the same conditions in the REA that limit construction to certain times of the year. Ms. Gunson replied that her understanding of the REA is that these conditions are to be taken into consideration wherever possible.

Ms. Gunson also indicated her support for APPEC’s report on wind project-related tourism and increased traffic on the municipal roads. (click here to view APPEC Tourism Report)  Ms. Gunson agreed with Mr. Duffy that the report is not an expert analysis by someone with experience in tourism and that no independent traffic study has been done.  Ms. Gunson noted that she did not rely solely on this report as she conducted her own website research and found similar results.

Posted in Uncategorized, White Pines ERT

Report on Dr. Fenton Remedy Hearing Examination

brock-fentonReport on Remedy Hearing for White Pines wind project
Cross-examination of Dr. Brock Fenton on September 28, 2016

Dr. Brock Fenton was questioned by Sylvia Davis, counsel for the MOECC (Ministry of the Environment and Climate Change).

Ms. Davis referred Dr. Fenton to his witness statement for the Fairview wind project where he states that the months of the highest activity level for the Little brown bat are August and September.   Dr. Fenton indicated that while he believes this to be true there is some bat activity throughout the year and it would be nice to know that we’re reducing the risk to these bats.  One of the things that has changed in our knowledge of bats is the extent to which they are active other times of the year and it is becoming more and more evident that Little brown bats are active year-round.  The Lausen and Barclay study (2006) in Alberta revealed that bats, even in the dead of a prairie winter, are out flying around.  And nobody would have believed that, before that study.

Dr. Fenton noted that the Renewable Energy Approval proposes that the bat season is from May 1 to September 30 but no rationale for those dates are given. Dr. Fenton explained that it no longer makes sense to hold certain ideas, such as the idea that you only have to worry about bats around wind turbines until midnight and the idea that it’s only May to September.  Data is now showing that this is not the case.  For someone who’s saying we only have to worry about bats being at risk from turbines from the 1st of May is misleading, because, in fact, there is bat activity throughout the whole winter.

Dr. Fenton agreed with Ms. Davis that the studies that he cited can only give data on activity levels and that there’s no indication from these studies of population levels. However Dr. Fenton went on to add that there’s another side of the coin where there are endangered species like Little Brown bats:

You see the other side of that coin, though, is that from the point of view of threat posed by a turbine, a bat that is flying around a turbine is likely, very likely, they get taken out. And that doesn’t matter whether it’s a January bat or a March bat or an August bat.  So if what we’re concerned about is the threat to an endangered species, then I think that it’s better to be cautious and try to prevent little brown bats, for example, from being exposed to turbines.

On being asked if he has ever personally done a study on the effects of wind turbines on bats Dr. Fenton indicated that he has not.

In re-examination Eric Gillespie, legal counsel for APPEC, asked Dr. Fenton if he could produce a copy of a paper that he referred to during cross-examination. Ms. Davis said that she would object to the admission of this paper unless Dr. Fenton could produce it now.  Dr. Fenton was unable to locate a copy after a short break but has agreed to undertake to provide it.

Posted in Uncategorized, White Pines ERT

Large Renewable Procurement Process Suspended

On Tuesday, Sept. 27, 2016 the Ontario Ministry of Energy announced the suspension of the second round of its Large Renewable Procurement process (LRP II) for 1,000MW of renewable energy contracts.  These contracts were scheduled to be handed out in 2017.  The Energy Minister and the IESO have both stated that the power isn’t needed.  
This is good news for rural Ontario communities that were being prospected by wind and solar developers hoping to be awarded a lucrative contract from the government.
Unfortunately this suspension does not apply to the White Pines wind energy project proposed by WPD, which received its power procurement contract in 2010.  This project continues to threaten the South Shore of Prince Edward County.  It is only APPEC’s appeal through the Environmental Review Tribunal process that is preventing construction of this project.
The Ministry of Energy estimates that not proceeding with LRP II will save ratepayers and taxpayers up to 3.8 billion dollars. The Minister now has an opportunity to not only save money but also save the environment by cancelling the contract for the White Pines wind project.  This very poorly-sited project has been shown through the Environmental Review Tribunal appeal process to cause serious harm to migratory birds and serious and irreversible harm to two of the Province’s species at risk: Blanding’s turtles and Little Brown Bats. 
Yesterday (Thursday) the cross-examination of witnesses in the remedy portion of the White Pines ERT appeal concluded.  Cross-examinations were closed to members of the public.  The ERT was adjourned while cross-examinations were taking place and remains so until November when oral submissions will be made before the Tribunal.  The date and location for oral submissions has not yet been set.  We will keep you informed.
The next round of the remedy hearing is the filing of written submissions.  WPD and the Director of the Ministry of the Environment and Climate Change are scheduled to file their submissions on October 14 followed by APPEC on October 28. 
Orville Walsh
President, APPEC


Posted in Uncategorized

American Bird Conservancy Press Release on Wind Turbines on Great Lakes shorelines

Canada-Warbler_Frode-Jacobsen_PR1-003Wind energy development does not belong along the Great Lakes shorelines says the American Bird Conservancy (ABC). For a copy of the press release click here. A high number of birds migrate along the Great Lake shorelines at altitudes that place them directly in the line of collision with wind turbines.  The Conservancy currently recommends a 5-mile (8-kilometres) setback from the shoreline but says that the setback may need to be extended based on new radar studies that are providing more information on migratory bird activity along the Great Lakes shorelines.

The White Pines wind project is in one of the locations where the American Bird Conservancy says that wind energy development does not belong.  14 of the projects’ 27 wind turbines are 2 kilometres or less from the Lake Ontario shoreline with the shortest distance only 400 metres from the shoreline.  Wind turbines are arranged in small clusters along a 15-kilometre stretch of shoreline.

How did White Pines get a Renewable Energy Approval from the government?  Here are some of the reasons.

The Ontario Government does not have:

  • ANY set back regulations (or even recommendations) for wind projects on the Great Lakes;
  • ANY studies, radar or otherwise, of migratory bird and bat activity along the Great Lakes shorelines;
  • ANY prohibitions on wind projects in Ontario including in Important Bird Areas such as the Prince Edward County South Shore Important Bird and Biodiversity Area;
  • ANY requirement for wind energy developers to report on cumulative impacts of wind projects on migratory birds and bats.  There are 139 proposed or built wind turbines along the eastern Lake Ontario shoreline including the White Pines wind project (27 turbines), Wolfe Island (86 turbines) and Amherst Island (26 turbines).

You can read the London Free Press article on American Bird Conservancy by clicking here.

Posted in Environment, Uncategorized

Report on Remedy Hearing for White Pines Wind Project

August 1, 2016
by Paula Peel, APPEC

blandingsturtlecloseup.jpg.size.custom.crop.590x650At the end of June everything was on track for the remedy hearing.  We were encouraged to see our Tribunal members, Marcia Valiante and Hugh Wilkins, endorsing key findings in the Ostrander decision in their June 30 Order including the use of the Precautionary Principle and the ecosystem approach, its finding that harm should be evaluated based on the balance of probability and its finding that the Tribunal can “stand in the shoes of the Director” with full access to the scope of the powers given to the Director under the relevant part of the Environmental Protection Act and other regulations and policies.

However on July 12 the Tribunal issued a procedural statement that was highly prejudicial to APPEC.  In a July 27 teleconference with the Tribunal identified 11 issues of concern with the process the Tribunal had put forward for the Remedy Hearing, including allowing the Ministry of the Environment and Climate Change and WPD to introduce reply evidence after all APPEC’s evidence was served, filed and cross examined. This process is directly contradictory to the process the courts have established in the Rules of Civil Procedure.

The following day the Tribunal suspended its schedule and requested submissions from the parties on process.  One of our submissions deals with the “clock stop challenge”.   At this point in time there are only four hearing days left.  While the ERT is adjourned and technically the clock is stopped, Mr. Gillespie pointed out that legal work is still on-going with submissions, motions, qualifications of witnesses, evidence preparation, disclosure and many other tasks that typically take hearing time.

Other submissions will include requesting full disclosure from the Ministry of the Environment and Climate Change.  Mr. Gillespie noted that according to the rules the Ministry should have been disclosing information to the Appellants on an ongoing basis these past five months.   We are also requesting that the Ministry provides the actual wording in the revised REA up front, at the start of the hearing.  This is to ensure a fair hearing, which it clearly would not be if the Ministry and WPD are permitted to revise and add more mitigations “on the fly” during the hearing.

At this time there is a big question mark whether it will be an oral or a written hearing.  In its July 12 procedural statement the Tribunal only set aside one day for a hearing of final oral submissions in the County with the remainder of the hearing done in writing.

Needless to say the remedy hearing is delayed.  In the mean time APPEC is reviewing over 300 pages of material from wpd and the Ministry on the Blanding’s turtle and on Little Brown Bats.  APPEC will call our own expert witnesses to respond to their proposed mitigations.

Posted in Uncategorized, White Pines ERT