Ontario court rules against environment minister, allowing construction of North Stormont wind farm – for now

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Community group says it will appeal May 14 decision

Ontario Construction News staff writer

An Ontario Superior Court of Justice decision will allow construction to resume on a $200-million wind farm south of Ottawa, five months after Ontario’s environment minister stopped work on the project.

However, that may not be the end of the battle.

“This appears to leave the entire province highly vulnerable. The Minister and Ministry of Environment with all of their resources can’t protect our natural resources and species at risk,” said Margaret Benke, spokesperson for Concerned Citizens of North Stormont. “The only protection against these kinds of mistakes by the ERT is now in the hands of private citizens.”

“We will very respectfully be asking the Court of Appeal to reconsider what seems to be a tremendous step backwards for environmental protection in Ontario”, said Margaret Benke of the appellant Concerned Citizens of North Stormont (CCNS).”

The group points to a 2014 Divisional Court ruling, allowing another major industrial wind project to proceed. That decision was overturned by the Court of Appeal and the project was ultimately denied on environmental grounds.

CCNS is already planning to appeal the decision, and a statement from the organization explained that the court had stopped a different renewable energy project in 2014.

“Our client will be requesting the Court of Appeal stop construction of this project, as it has previously done, based on the precedent already in place”, said Eric Gillespie, legal counsel for CCNS.

The Nation Rise Wind Farm is a 29-wind turbine, 100-megawatt wind energy project in the municipality of North Stormont. Ontario’s environment minister Jeff Urek ordered construction stopped in December, due to suspected impacts on the local bat population.

However, the Ontario Superior Court of Justice (Divisional Court) has granted EDPR’s judicial review application, reinstating the Renewable Energy Approval (REA) for the project. During the hearing, the court heard the cost of tending to the already built pieces of the cancelled Nation Rise Wind Farm amounts to $100,000 a week.

The Minister stated that construction and operation of the project was likely to cause serious and irreversible harm to the maternity colonies of bats, including at-risk bat species. Based on this finding, the Yurek declined to let the project proceed and revoked the regulatory approval.

However, in its written decision, the Court stated: “This is a case where the Minister’s decision is not reasonable and does not deserve deference. The decision does not meet requirements of transparency, justification, and intelligibility, as the Minister has failed to adequately explain his decision.”

“This is a rare case in which the Minister’s decision should be quashed and the decision of the ERT should be reinstated.”

According to the court ruling, the issue of bat maternity colonies was not raised by any of the parties at the hearing before the ERT, was not discussed in the reasons of the ERT and was not raised by any of the parties in their submissions to the Minister on appeal.

The Ministry of the Environment, Conservation and Parks (MECP) issued the REA for Nation Rise Wind Farm in May 2018, and that decision was confirmed, without conditions, by the Environmental Review Tribunal (ERT) in January 2019.

The Minister opposed the application, along with the Concerned Citizens of North Stormontm a group that opposed the project before the ERT, and then appealed the approval to the minister. The wind farm was under construction when Yurek, issued his decision on December 6 to revoke the project’s REA, halting construction.

In ruling against the government, the court noted the following:

  • The Minister’s decision was unreasonable because he acted without statutory authority in raising new issues on the appeal.
  • Even if he had the authority to do so, he applied the wrong legal test by taking a precautionary approach rather than determining whether the ERT erred when it held that CCNS failed to meet its onus under the harms test.
  • He made factual conclusions that were not supported by the evidence in the record, and he ignored material evidence about the level of bat activity, the low level of risk to the bat colonies in the area, and the efficacy of the proposed mitigation and monitoring plans that were a condition of Nation Rise’s REA.

Following the court’s decision, an EDPR says the company eager to restart construction on the project, after a delay “resulted in unnecessary expenditures to-date, at a time when governments and businesses should be focused on reducing costs and restarting the economy.”

Nation Rise Wind Farm was competitively procured under the IESO’s Large Renewable Procurement program and will provide low-cost energy at approximately half the price of typical residential electricity rates, while producing zero emission electricity.

“EDP Renewables stands behind the benefits of the project and its commitments to the local community,” said Miguel Prado, EDP Renewables North America CEO. “We look forward to the Nation Rise Wind Farm stimulating the local economy in the Township of North Stormont, United Counties of SD&G and the Ottawa region.”

The Divisional Court’s judgment is available here.

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