Category Archives: Green Energy

Wind Power Gets Go-Ahead in Ontario

Yesterday the Ontario Superior Court of Justice dismissed the appeals of a group of residents who lived close to proposed wind turbines, paving the way for those turbines to be built: Dixon v Director, Ministry of the Environment, 2014 ONSC 7404 (CanLII).

The residents had argued that the turbines would cause serious harm to human health if constructed, and suggested that prior hearings before prior Tribunals were procedurally unfair.

A number of ‘grounds of appeal’ were argued, including suggestions that: the “harm” test contained in the Environmental Protection Act violated the Charter; the Tribunals erred in their treatment of the “post-wind turbine witnesses”;  the Tribunals erred in finding that they lacked jurisdiction to assess whether a Director’s decision, or the process in making a decision, is Charter compliant; and the Tribunals failed to follow the principles of fairness or natural justice. On each ground, the residents failed.

To view the decision in its entirety, click here.

James Early

 

 

Carbon Capture, Alberta’s Licence to Drill

Last week, the Government of Alberta announced that, as part of “Budget 2014”, Alberta will continue to invest in two carbon capture and storage projects that, it says, will reduce greenhouse gas emissions from oil sands upgrading.

The report added that these two projects will commence in 2015 and will store 2.76 million tonnes of carbon dioxide per year, the equivalent, Alberta says, of taking 550,000 cars off the road each year.

What happens to the carbon dioxide once it is pumped underground? Is it safe? Will it leak? What energy has to be expended to actually pipe the carbon dioxide to its final resting place? Perhaps these questions need to be asked, and answered. Likely the carbon dioxide will be used to extract even more oil from the ground – adding more gas-using vehicles to our roads?

One thing is for sure, carbon capture and storage is being used by industry and the Alberta and Canadian governments as a licence to continue along the unsustainable path of developing the Alberta tar sands.

By James Early

Green Transit Projects Get Green Light in Alberta

In an announcement made by the Alberta Government on April 15, 2014, Alberta municipalities were advised that they may now submit new GreenTRIP applications.

The Green Transit Incentives Program (“GreenTRIP”) is a program that financially assists municipalities with the development of sustainable public transit alternatives.

This second call for GreenTRIP funding applications means municipalities can now apply for capital grant funding to support their new or evolving public transit projects. The deadline for receipt of applications is November 30.

GreenTRIP has already led to transit projects in 15 municipalities, worth more than $1 billion, and reported $1 billion remains in the program.

GreenTRIP is designed to provide Alberta residents with a wider range of sustainable and accessible public transit alternatives for local, regional and inter-municipal travel. This second call, and the length of the application period, gives municipalities time to consider their local transit priorities and opportunities for regional collaboration. It may also allow those communities with plans in place to move ahead sooner than expected.

Municipalities can apply for GreenTRIP funding to help purchase transit vehicles and technologies, build transit terminals and expand light rail transit services. Applicants for GreenTRIP funding are required to contribute at least one-third of the capital cost of a project.

By James Early

Costs: Public Interest Litigation

If you have been reading this blog for the last two months you will have seen reference to the conservation vs. wind energy battle that is playing out in Ontario courts at present. If you haven’t, see here and here.

In relation to the February 20, 2014 appeal (where Ostrander Point GP Inc. (“Ostrander”) was successful in putting the wind energy project back on track) the court asked for written submissions with regard to the issue of costs for that appeal.

Prince Edward County Field Naturalists (“PECFN”) and Alliance to Protect Prince Edward County (“APPEC”) argued that no costs should be awarded as their litigation was in the “public interest” and raised novel issues. Ostrander argued that costs should be awarded in the amount of $150,000.00 ($120,000.00 of which against PECFN, the rest against APPEC).

The court accepted that there was a measure of public interest engaged by the appeals, and that the issues raised were matters that had not previously been considered by the court. However, that was not the end of the decision.

In deciding whether a particular proceeding constitutes public interest litigation, five factors are to be considered:

(1) The nature of the unsuccessful litigant.
(2) The nature of the successful litigant.
(3) The nature of the lis – – was it in the public interest?
(4) Has the litigation had any adverse impact on the public interest?
(5) The financial consequences to the parties.

In response to these five factors, the court found:

“While the outcome of these factors in this case is mixed, overall they do not support a conclusion that this was public interest litigation. First, PECFN and APPEC had a direct and personal interest in the outcome of this litigation. They represent one element of the interests of the residents of Prince Edward County. They clearly have a view about the wisdom of this wind turbine development. They are entitled to pursue that view but not with impunity. Second, Ostrander is a private actor, not a public one. It is more difficult to deny costs to a successful private actor than it is to a public one. The third factor is more favourable to PECFN and APPEC. As we have already said, there is a measure of public interest in this litigation. The fourth factor is more neutral. While there is no serious adverse impact on the public interest from this litigation, there is nonetheless an adverse impact associated with the delay that is occasioned in having a project go forward that has been either directly or indirectly approved by two provincial ministries. Fifth, while undoubtedly Ostrander is better suited financially to absorb the costs of the litigation, that alone is not a reason to deny costs. One of the functions of costs is to ensure that all parties consider the wisdom of pursuing litigation and understand that there are consequences to doing so. PECFN and APPEC chose to pursue this matter before the Tribunal and then chose to pursue it further in this court. They must have been aware that there would be costs considerations engaged by pursuing their appeals in this court. There is no compelling reason to treat PECFN and APPEC any differently than any other party to litigation in that regard. In particular, PECFN and APPEC are not general public advocacy groups whose work elsewhere might be adversely affected by a costs award.”

What the court added, however, was that the five factors also have an impact on the quantum of costs to be awarded. In particular, costs should be fair and reasonable. As there was a measure of public interest involved in the litigation, the court saw fit to reduce the costs sought by two-thirds, resulting in costs awards of $40,000.00 against PECFN and $10,000.00 against APPEC.

The costs are payable within 30 days. To review the costs decision, you can click here.

By James Early

Blanding’s Turtle Litigation Update

In February I wrote here on the issue of green energy vs. conservation and how the Blanding’s turtle, a vulnerable and endangered species, was holding up the development of a wind farm in Ontario.

After confirming that wind had trumped turtle in the latest edition of this battle, I also added that Prince Edward County Field Naturalists (“PECFN”) were considering seeking leave to appeal the decision.

Well, PECFN has done just that and, in a decision dated March 25, 2014, the Ontario Court of Appeal granted a stay of the Divisional Court’s order to allow the wind farm to proceed, until a decision on the appeal has been made.

In applying for a stay, a party must show that:

(a) it has raised, or will raise if leave is granted, a serious issue for consideration on appeal;

(b) it will suffer irreparable harm if a stay is not granted; and

(c) the balance of convenience favours such an order.

In this case, the Court of Appeal found that:

– there was an argument to be made that is sufficiently serious to meet the first test;

– agreed that once a habitat is destroyed, it is destroyed – and the species sought to be protected is vulnerable and endangered; and

– that given the conclusion reached on the prospect of irreparable harm, the balance of convenience favoured the stay.

Until a decision is made by the Court of Appeal on the merits of the appeal itself, the wind farm will have to wait.

By James Early.

Green Energy vs Conservation

It is unfortunate when environmental litigation pits two “green” battles against one another. In this case, it is green energy against conservation.

This legal battle stems from a decision made by the Ministry of Environment for Ontario (“MOE”) to issue a Renewable Energy Approval (“REA”), which authorized Ostrander Point GP Inc. (“Ostrander”) to construct and operate nine wind turbines in Prince Edward County in Ontario (the “Project”).

As a result of the MOE’s decision, the Prince Edward County Field Naturalists (“PECFN”) and the Alliance to Protect Prince Edward County (“APPEC”) filed appeals, arguing that the Project would cause serious and irreversible harm to animals and human health.

Between March and June 2013, for a period of forty days, the Environmental Review Tribunal (“Tribunal”) heard the appeal, hearing evidence from thirty-one experts, along with a number of fact witnesses.

In a decision dated July 3, 2013, the Tribunal allowed the appeal of PECFN and revoked the MOE’s decision to grant a REA. The Tribunal found that the Project would cause serious and irreversible harm to the Blanding’s turtle. The Tribunal rejected PECFN’s arguments relating to birds and alvars, and rejected APPEC’s argument regarding the impact to human health.

With the Project at risk, Ostrander and the MOE appealed the Tribunal’s decision, arguing that the Tribunal was incorrect when it found that the Project would cause serious and irreversible harm to the Blanding’s turtle.

Not to be outdone, PECFN appealed the Tribunal’s decision as it related to the dismissal of PECFN’s argument that the Project would bring serious and irreversible harm to birds and alvar. APPEC also appealed the Tribunal’s decision as it related to the dismissal of their argument that the Project would impact human health.

On January 21, 22 and 23, the Ontario Superior Court of Justice heard the appeals.

The Court conducted a thorough review of the particulars of the Blanding’s turtle, its predators, and its threatened status. It seemed to the Court that, based upon the evidence available, it was “unquestionable” that there was a risk of serious harm to the Blanding’s turtle from the Project. The question, however, was whether the harm was irreversible.

In reviewing the Tribunal’s decision, the Court found numerous errors in the Tribunal’s analysis and decision making including:

– making findings with no factual foundation;

– failing to interpret and apply the Endangered Species Act (“ESA”) harmoniously with the Environmental Protection Act (“EPA”); and

– failing to separately consider the issue of irreversible harm.

In particular, the Court found that the Tribunal did not have a handle on the population size of the Blanding’s turtle, or where the population was located, or what impact vehicular traffic would have on the turtle. The Court also ruled that the Tribunal erred by considering the issue of irreversible harm in conjunction with serious harm when those lines of analysis should have been separate.

The Court opined that the Tribunal failed to give sufficient weight to the fact that Ostrander had obtained an ESA permit in relation to the Project. While the Court expressly noted that the Tribunal does have jurisdiction to consider the issue of Blanding’s turtle mortality, even in the face of the ESA permit, the permit was relevant and significant evidence relating directly to the issue that the Tribunal had to decide and, by failing to give sufficient weight to the permit, the Tribunal failed to ensure harmonious interpretation and application of the ESA and EPA.

Based upon these errors, the Court set aside the Tribunal’s decision.

With regard to the remaining appeals, the Court found that the Tribunal’s decision with regard to birds and alvar was reasonable and was entirely within the scope of the Tribunal’s statutory mandate. The Court also found that the Tribunal’s decision on the issue of human harm was also a reasonable. All of the remaining appeals were, therefore, dismissed.

Subject to an appeal of the Court’s decision, Ostrander’s Project now has the green light to proceed despite the “unquestionable” serious harm that it may cause to the Blanding’s turtle.

Wind trumps turtle in this battle. However, at the time of writing, it appears that PECFN is considering seeking leave to appeal to the Court of Appeal. The war may not be over. To read the full text of this decision, see: Ostrander Point GP Inc. and another v. Prince Edward County Field Naturalists and another, 2014 ONSC 974 (CanLII)

By James Early.