Court action ‘premature’ in wind energy project, judge rules 

ASHFIELD-COLBORNE-WAWANOSH – A $4-million lawsuit and Canadian Charter of Rights and Freedoms challenge by Shawn and Trisha Drennan over a wind energy project that proposes 12 wind turbines within two kilometres of their home north of Goderich is premature until the renewable energy approval process in exhausted, Justice A. Duncan Grace has ruled, more than two months after a hearing in Goderich court.

“I have concluded the plaintiffs’ action is premature and this action should be stayed until the statutory process set forth in the Environmental Protection Act (EPA) is complete,” Grace wrote in his May 15 ruling, in response to a motion from the Drennans’ lawyer, Julian Falconer, to dismiss a motion by K2 Wind Project and the provincial government, represented by the Ministry of the Attorney General, to either dismiss or stay a bid for an injunction that would stop the K2 Wind Project from proceeding in the Township of Ashfield-Colborne-Wawanosh until the lawsuit is dealt with.

The renewable energy approval process outlined in the EPA requires the director of the Ministry of the Environment (MOE) to review a mandated list of about a dozen reports and public comments before deciding whether to allow a project to proceed, and an Environmental Review Tribunal (ERT), which could be triggered by a concern that the project will cause serious harm to human, plant or animal health or to the natural environment.

Once the REA is issued, a wind energy development company could work toward construction.

The Drennans were supported by SWEAR (Safe Wind Energy for All Residents).

“This is not a dismissal of the proceedings, only a delay until after an REA has been issued,” said Dave Hemingway, the president of SWEAR, in a press release issued yesterday.

During the hearing, Falconer said the couple’s rights under the Charter of Rights and Freedoms has been breached because the wind energy company isn’t required to prove that its project won’t cause adverse health effects. He argued on the basis of the precautionary principle that states when there’s a possibility of health risks and no scientific evidence, the burden of proof that it won’t be harmful rests with whoever is taking the action or establishing policy.

He said the Drennans were seeking recourse through superior court now because the harm to their health begins with the REA process, what he called the “on-ramp” to wind turbines being built. No wind energy project has been shut down during the administrative process.

Lawyers for the wind energy project argued, in part, that the claim was premised on events that may not occur because the MOE can reject or apply conditions to a project before issuing an REA.

The question arose as to whether a charter challenge can be heard in an ERT. In his ruling, Grace said he sees nothing that would exclude charters issue from the purview of a tribunal.

“This is very important,” says plaintiff, Shawn Drennan. “If the Green Energy Act and its legislation are found to be in violation of the charter, the burden of proof shifts from having to prove serious harm to human health to the possibility of harm, a much lower threshold. “

Hemingway said although the Drennans’ name is associated with this case, there is a broader public interest being served.

“It has taken time to educate the public to the fact that this case is not personal to the Drennans, but the understanding is now clearly there. This case is for the people of Ontario who want safe wind energy in their communities and beyond. The government says that massive industrial wind turbines are safe. We, the people, are holding them accountable,” he said.

Hemingway said the greater issue is the charter challenge, specifically Chapter Seven, which guarantees the security of the individual.

“The charter is the government’s promise to every man, woman and child in Canada, guaranteeing that we will have security to conduct our affairs and lives in relative peace. The government of Ontario did not exercise due diligence when crafting the Green Energy and Economy Act.  A very heavy-handed approach was used.  Rural Ontario does not take kindly to this type of governance,” he said.

SWEAR is currently fund-raising to cover the ongoing legal costs of this case.

To read the judge’s decision, please visit online.

The K2 Wind Project is a partnership of Capital Power Corp., Pattern Renewable Holdings Canada ULC and Samsung Renewable Energy Inc. and includes 140 2.3-MW Siemens turbines, a substation and a transformer station on land leased from 90 farmers in Ashfield-Colborne Wawanosh. However, only four will operate at full nameplate capacity while the remainder will be factory de-rated to ensure the provincially regulated noise thresholds aren’t exceeded at people’s homes.

The project lies north of Kingsbridge I, a 39.6-MW project that went into operation in 2006. The project area is bound by Hwy. 21 to the west, County Road 86 to the north, Golf Course Road and Blyth Road to the south, and Halls Hill Line with a diagonal jog eastward between the Dungannon Road and the Blyth Road to the east.

The partnership, K2 Wind Ontario Inc., has a power purchase agreement with the Ontario Power Authority, which was signed in 2011 separate from the Feed-In Tariff program. On Feb. 15, 2013, the MOE posted the proposed renewable energy approval for the project on the Environmental Registry, starting the 45-day public comment period. The project is currently under technical review, according to a listing of renewable energy projects on the MOE’s website.