Opponents of the Nation Rise Wind Farm in North Stormont are taking a different tack in their battle to have the resurrected project cancelled once and for all.
In a letter to Ontario Premier Doug Ford, Stormont-Dundas-South Glengarry MPP Jim McDonell and a host of other provincial officials, Ruby Mekker and Rainer Pethke claim that EDP Renewables Canada Ltd. (EDPR) breached its contract with the IESO (Independent Electricity System Operator).
Established in 1998, the IESO is a Crown corporation responsible for operating the electricity market and directing the operation of the bulk electrical system in Ontario.
As a result of the alleged breach, Mrs. Mekker, a resident of Finch, and Mr. Pethk, who resides in Berwick, aver that the provincial government could stop the project – despite its reinstatement by the Ontario Superior Court of
Justice in mid-May.
“From court reinstatement of the REA (Renewable Energy Approval) to Aug. 31, 2020…it is 13 days past the 4 years allowed to achieve COD (the Commercial Operation Date),” under the conditions of the contract, states the letter.
“Therefore, be it recognized that the Nation Rise Wind Farm project has failed to meet its required Commercial Operation Date and therefore Notice of Breach of Contract with Cancellation must be issued forthwith for the benefit of all Ontario ratepayers,” it adds.
In a post on social media, Mrs. Mekker wrote that “there are 6 of 29 turbines erected in the Nation Rise Wind project, EDPR has not met its Commercial Operation Date requirements, and that (the) Nation Rise Wind Farm project can be legally cancelled.”
According to some media sources, the IESO has stated that Nation Rise Wind Farm Limited Partnership has requested force majeure relief, and that the request is currently under review.
If a court deems a force majeure – a legal term referring to unforeseeable circumstances that prevent a party from fulfilling a contract – claim to be valid, an extension of the original COD can be granted.
Under Section 10.3 of a March 2018 bylaw creating a road user agreement between North Stormont township and EDPR for the Nation Rise Wind Farm project, a case of force majeure can be invoked for a number of reasons.
Among them: strike/lockouts; wars or act of military authority; material or labour shortage not within the control of the affected party; and “any event not wholly or mainly within the control of the affected party (other than lack of funds or any financial condition of the parties hereto).”
A force majeure event may be applicable in this situation, given the current pandemic.
‘COVID no excuse’
However, Mrs. Mekker and Mr. Pethke disagree.
“Renewable energy projects have been deemed essential services and therefore COVID-19 cannot be cited as cause for delay,” their letter states, adding that “EDPR argued the critical nature of the Nation Rise Wind Farm project in order for the case to be heard by the Ontario Divisional Court during COVID-19.”
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