By Heather Stauble
The Appeal and request for a Stay has now been in front of the Minister of the Environment and Climate Change since January 23, 2016. This is request is among the first in the Province. The issues of access to a fair hearing, protection of human health, protection of quality and quantity of water and the protection of the environment, particularly in an area protected by provincial legislation, (Oak Ridges Moraine Act and Conservation Plan) are the focus of the Appeal.
We are getting an increasingly clear idea of how restricted municipalities and conservation authorities are when it comes to large scale green energy projects. A Divisional Court decision against the City which was brought by wpd (wind project developer) following Council’s resolution to ban access to Wild Turkey Rd, ordered that the City issue permits, grant access, pay costs and found that the City had acted in “bad faith”. The decision has major implications and is being appealed by the City at the Court of Appeal, but in the meantime, the case stands as the most recent precedent and the City is obligated to follow the order.
Kawartha Conservation Authority had deferred a decision on permits for Snowy Ridge in January after being advised that the Appellants had filed a Request for a Stay and an Appeal with the Minister. Permits are issued on a case by case basis. Capstone then sent a letter to the Board. The Green Energy Act removed consideration of “conservation of land” by the Conservation Authorities when reviewing Green Energy projects, effectively removing the legal basis for Kawartha Conservation to deny the permits. The Snowy Ridge project is the fourth industrial wind project and fifth large FIT project located on the Oak Ridges Moraine.
The request for the Stay was filed when it was noticed that construction on the the Ganaraska wind project, which is also located on the Oak Ridges Moraine, continued despite being under Appeal. When inquiries were made, the public was advised that a Stay had never been requested. As a result of the delay in the Decision by the Minister on the Ganaraska Appeal, there are 9 almost 500’ tall wind turbines now built just east of Hwy 115 at the Kirby (Rd 9) exit. In order to ensure that the same thing does not happen here, SR Opposition Corp. filed a request for a Stay with the Minister to ensure that it was clear that a Stay had been requested.
The landmark request for a Stay places the responsibility for construction of a project during an Appeal, denial of access to a fair hearing, protection of human health and the construction of these projects on the environmentally protected Oak Ridges Moraine squarely on the Minister of the Environment and Climate Change.
Delays by the Minister in issuing a Stay are allowing Capstone to continue with construction, resulting in environmental damage and increased construction costs. The continuation of construction during an Appeal has further undermined the province’s claims to be protecting the environment and human health. Placing turbines in environmentally protected areas and failing to require wind companies to follow environmental legislation and noise regulations is not protective of the environment or human health.
Public confidence in the Province’s commitment to protect human health and the environment continues to be eroded by the lack of commitment to these protections by the Ministry of the Environment and Climate Change.
Public confidence in the ERT process continues to be eroded in the wake of decisions upholding approvals; excessive adjournments in favour of the wind companies; and remedy opportunities granted to wind companies. In an even more surprising move, the ERT dismissed a motion to Stay construction on a project in Prince Edward County even after finding that the project would cause “serious and irreversible harm”. The ERT decision defies logic given that the test for a stay at the ERT is “serious and irreversible harm”. The ERT decision was then appealed to the Divisional Court which also dismissed the motion for a Stay citing the lack of reasons given by the ERT.
Locally, lawyers and witnesses for wind companies and the Ministry of Environment argued with a straight face at the ERT that the destruction of environmentally protected areas is good for the environment. One lawyer for the MOECC stated “we already have gravel pits and highways on the Oak Ridges Moraine, so why not wind turbines – the precedent is already established”. An expert witness for Capstone testified that removing vegetation and installing roads would improve the woodlands. Experts for the MOECC and the wind companies testified that spills of hazardous materials from wind turbines and transformers in environmentally protected areas, on highly vulnerable aquifers and agricultural land where we grow our food and near private shallow wells where we get our water is not a risk.
Ministry staff assured the municipality in writing and under oath that cumulative noise assessments including all three adjacent wind projects would be required and that the project would be “protective of human health” but then, the MOECC did not require the wind companies to do full cumulative assessments. As a result, some of these turbines will be placed too close to homes, schools and daycares.
Earlier this week, Premier Wynne told a group of high school students in Kingston that “over time, people get used to having renewable energy projects built near them”. The Premier could lead by example and host a wind project in her own riding. The Minister of the Environment needs to recognize the very real harm that is being done to the environment and human health, and to public confidence by proceeding with these projects and issue a Stay and overturn the Approval.
As this community continues in its herculean efforts to protect their own health and environment contributions may be made to their legal fund. The next event is rumoured to be a community garage sale with details to be announced -so save your garage sale items to donate! In the meantime, direct contributions are deeply appreciated and may continue to be made to:
SR Opposition Corp. c/o 1063 Highway 7A P.O. Box 142 Bethany, Ontario L0A 1A0
