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Wind farm owner launches court challenge against Ontario government  

Credit:  EXCLUSIVE: Wind farm owner launches court challenge against Ontario government | By Emma McIntosh | National Observer | December 20th 2019 | www.nationalobserver.com ~~

Forty kilometres to the south of Ottawa, a once-bustling construction site of partially built wind turbines has ground to a halt.

Nation Rise Wind Farm, nestled among dairy farms and fields of corn, was three months away from completion when Ontario Environment Minister Jeff Yurek cancelled it earlier this month, citing concerns over possible risks to local bat populations. The company behind the site, EDP Renewables, must lay off the 200 employees working on Nation Rise just before the holidays, and stands to lose the $230 million in capital it has already sunk into the project.

But EDP Renewables has now launched a court challenge to try to overturn the province’s decision, alleging it was fuelled by politics instead of evidence, National Observer has learned. The government’s move clashes with earlier testimony given by the province’s own experts, according to the application filed in Ontario Superior Court on Dec. 10.

“To do this so late in the game is very, very damaging,” said Tom LoTurco, director of development for EDP Renewables in Eastern Canada and the United States.

“(Yurek) didn’t use science… he abused the process.”

The company is seeking judicial review of Yurek’s decision ⁠— essentially, asking a judge to overturn it. Not only did Yurek rely on “hearsay” and ignore best-in-class measures to protect bats from harm, EDP Renewables alleges, the minister also didn’t use sound legal reasoning.

As proof that the fight isn’t about bats, LoTurco points to an interview Premier Doug Ford gave on Global News Radio 640 on Dec. 16: “If I could tear up every wind turbine in this province, I would,” Ford said.

It’s also not the first time Ford’s government has axed a half-built wind farm ⁠— the White Pines project in Milford, Ont., was one of 750 renewable-energy projects to be cancelled in July 2018, costing taxpayers $230 million so far.

If EDP Renewables were to seek further legal action to recover its lost capital from Nation Rise, that number could double.

Andrew Buttigieg, a spokesman for Yurek, declined to answer detailed questions from National Observer, “as the matter is now under judicial consideration” and the province hasn’t yet responded in court to EDP Renewables’ application. But in Yurek’s Dec. 4 letter explaining the decision to revoke its environmental approval, the minister said he believed the project would seriously harm local bat populations, disagreeing with experts who said otherwise.

LoTurco said the Ford government’s decision makes it difficult for any business to believe Ontario is really “open for business” as the province’s slogan says.

“A decision that was so egregiously made at such a late date, what it does is it erodes confidence for any kind of investor in Ontario,” LoTurco said.

EDP Renewables also alleges that Yurek created the argument he later used to cancel Nation Rise. When concerned citizens appealed the project to the environment minister, they didn’t mention concerns about bats ⁠— that came up later, when Yurek asked all sides to file submissions about it.

“The minister essentially looked at the grounds for appeal and said, ‘I don’t see anything here, let’s introduce something else,’” LoTurco said. “That’s shocking and appalling.”

Ontario Green party Leader Mike Schreiner said the government must be more transparent about why it cancelled a clean-energy project that was so close to completion. The situation calls to mind the previous Liberal government’s gas-plants scandal, when the cancellation of two natural gas power plants cost the province more than $1 billion, he added.

“For the premier to rip up a contract for a low-cost source of renewable energy at a cost that could be in the hundreds of millions of dollars is so fiscally irresponsible,” he said. “It’s appalling.”

A batty wind battle

Nation Rise had been in the works since 2016, when EDP Renewables took on the project from Ontario’s Independent Electricity System Operator (IESO) after a competitive bidding process. Its plan to build 29 turbines delivering 100 megawatts of clean power received environmental approval in May 2018, under the previous Liberal government.

“We were procured competitively,” LoTurco said. “The price that Doug Ford (now) wants for energy, we were delivering.”

EDP Renewables also worked with municipal leaders so that the community would benefit. Over 30 years, it would receive $45 million from municipal taxes, a community benefit fund, charitable contributions and landowner payments.

About 70 landowners agreed to the plan, but it wasn’t without opposition. In the township of North Stormont, where the project was being constructed, a local Facebook group devoted to stopping Nation Rise has amassed nearly 500 members. An organization called Concerned Citizens of North Stormont also challenged the project’s approval last year at the Ontario Environmental Review Tribunal, an independent body that hears such appeals.

Residents had been worried about noise and vibrations from the wind turbines, said Jane Wilson of Wind Concerns Ontario, a group that encompasses 30 community organizations opposed to wind-power projects, including Concerned Citizens of North Stormont. They were also concerned that a problematic number of birds and bats would die flying into the turbines’ blades.

“How do you do it right?” she asked. “It is an industrial use of the land… I don’t think you’d find anyone who would agree that this has been done the right way.”

Accusations of NIMBYism ⁠— NIMBY being an acronym for “not in my backyard,” often used as shorthand for people who oppose public projects near their homes ⁠— aren’t fair or accurate, Wilson said. “The concerns (residents) raised over and over were environmental,” she added.

Still, Nation Rise passed that scrutiny in January 2019. Based on expert testimony from both provincial experts and independent ones, the tribunal found that the project presented no danger to bats or any other component of the surrounding environment.

“It wasn’t just us arguing with our own experts, the ministry itself brought their own experts to defend the renewable-energy approval… it’s not like it’s us versus government,” LoTurco said.

Some wind farms do pose a risk to bats, but EDP Renewables said it took extra steps to avoid that ⁠— for example, it agreed to shut off turbines at low-wind speeds during bat migration, when bats would be in the most danger. It also did surveys in the area, which found that “bat presence and activity in the project area as a whole was low,” according to the company’s Dec. 10 court application.

The company’s plan also received a stamp of approval from Erin Baerwald, a conservation biologist and assistant professor at the University of Northern British Columbia, who had an opinion piece in the Globe and Mail on Thursday. “I never thought I’d come out swinging in support of the wind-energy industry, but here I am,” Baerwald wrote. “Ignoring science and making false claims in order to shut down a site undermines legitimate efforts to protect bats.”

Ryan Brown, EDP Renewables’ executive vice-president for the company’s eastern region and Canada, said he thought it was baffling to allege that the project wasn’t environmentally friendly. Headquartered in Madrid, Spain, the company is a global leader in solar energy, netting investments from high-profile companies like Salesforce.

“It’s not like we’re some fly-by-night developer,” Brown said. “We’ve had an excellent track record (on other Canadian projects).”

With the tribunal decision in hand, EDP Renewables started construction on Nation Rise in May. Concerns Citizens of North Stormont, meanwhile, appealed directly to the environment minister.

‘Shocking and appalling’

Both sides filed written submissions to Yurek’s office in the spring. The Ministry of the Environment and Climate Change also filed a package, endorsing the Environmental Review Tribunal’s support for Nation Rise, according to the EDP Renewables’ Dec. 10 court filing.

But in the interim, there was a cabinet shuffle, with Yurek replacing now-Finance Minister Rod Phillips as environment minister. And Yurek asked all sides to make extra submissions ⁠— including about the risk to bats, which Concerned Citizens of North Stormont hadn’t brought up in its appeal to his office.

Then, using evidence that the company alleges included “obvious factual errors,” “hearsay” and a “fundamental misunderstanding” of the measures in place to protect bats, the minister revoked the project’s approval.

For example, Yurek highlighted the presence of potential bat maternity colonies. But the company says the colonies don’t mean there’s a significant bat population in the area, or how likely bats would be to collide with turbines: “No witness even testified (to the Environmental Review Tribunal) about the maternity colony habitats or raised any particular concern in respect of them,” the Dec. 10 court filing says.

The company also alleges that Yurek didn’t have the legal authority to kill the project. To do so, he would’ve had to show that there were irreversible and serious impacts to bats, but instead, EDP Renewables alleges, he said he was acting out of caution.

Wilson, for her part, said concerned residents are glad Yurek reviewed additional evidence.

“The community is very grateful that the government listened,” Wilson said. “This just feels like Christmas.”

In his letter revoking Nation Rise’s approval, Yurek argued that Ontario didn’t need the electricity the wind farm would provide. And Wilson said Ontario’s power grid mostly relies on clean energy from hydro anyway, so wind farms are generally unnecessary.

Schreiner disagrees ⁠— though he said he respects residents’ right to oppose projects near their homes, he argues that the wind power could be useful in the coming years as Ontario loses some capacity due to nuclear power plants going offline. And although the previous Liberal government could have ensured there was more local involvement in Nation Rise, there are groups of people opposed to all sources of electricity.

“I don’t think there should be a local veto because if you had a local veto, then it would probably be pretty hard to build projects anywhere in Ontario,” he said.

Still, this particular fight isn’t over yet.

In its Dec. 10 court filing, the company said the suddenness of Yurek’s decision meant it had to quickly dismantle the Nation Rise construction site, creating possible safety risks. And any further construction delays could mean that the company would miss its deadline for the IESO.

If the company misses its deadline, it will lose $230 million in capital and another $5 million in security paid to IESO, EDP Renewables said. A hearing date hasn’t yet been set for the company’s application.

Source:  EXCLUSIVE: Wind farm owner launches court challenge against Ontario government | By Emma McIntosh | National Observer | December 20th 2019 | www.nationalobserver.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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