On September 28, 2012, the ERT released its decision dismissing the Summerhaven REA appeal. The appeal focused on allegations of serious and irreversible harm to plant life, animal life or the natural environment. The argument that one bird or bat mortality will always constitute such harm was rejected. Instead, the ERT acknowledged that it is anticipated that wind energy projects can be approved notwithstanding that some mortalities will occur. Ultimately, the appeal was dismissed because the appellant’s evidence was insufficient to meet its onus.
Summerhaven was only the second of eight REA appeals filed to date, to proceed through a full hearing. The Kent Breeze appeal was the first to be dismissed due to insufficient evidence. Three others were withdrawn after the ERT required disclosure of medical records and expert evidence to support allegations of serious harm to human health. Three additional appeals continue to proceed.
The ERT also released reasons for decision on motions in the South Kent and Grand Renewable Energy Park(“GREP”) appeals on September 28, 2012. In South Kent, the ERT reiterated the requirement that allegations of harm to health be supported by medical documents. In GREP, the ERT rejected an appellant’s adjournment request after it had failed to make timely and reasonable efforts to disclose the medical information to which its request was tied.
Albert is an Associate whose practice involves all aspects of Renewable Energy and Environmental Law. He joined Foglers in 2010 after 10 years with Ontario’s Ministry of the Environment. He is a graduate of York University’s joint MES/LLB program and also has a B.Sc. in Biology from York. He can be reached at aengel@foglers.com or 416-864-7602.
Tagged as:
Environmental Review Tribunal,
ERT,
Renewable Energy Approval
Bruce to Milton Transmission Line, by one.juniper, used under Creative Commons Licensing CC BY-NC 2.0
Tim Hudak released the first of what apparently will be several white papers called “Paths to Prosperity”. His first, on affordable energy, purports to “tackle the issues of job creation and a growing debt by promoting affordable energy policies.”
Recommendations include:
- Affirm nuclear as the key source of Ontario’s basic energy supply
- Cancel the non-competitive Feed-In Tariff (FIT) Program
- Subject future wind and solar projects to local approval
The two page paper can be read here.
Tagged as:
FIT Program,
municipalities,
nuclear energy
On Monday April 24, 2012, the Divisional Court dismissed a judicial review brought by Preserve Mapleton Incorporated (PMI) against the Director of the Ministry of the Environment over a Renewable Energy Approval (REA) issued to Conestogo Wind, LP. In dismissing the case, the Court found that PMI failed to meet the well-established test for standing as it “has not shown a genuine or long and continuing interest” in the REA before the Court. In support of this finding, the Court noted that the REA was issued to Conestogo on December 8, 2011 after “nearly five years of extensive public consultation and project study”; by contrast, “PMI was not created until December 2011. There is no explanation in the record as to how it was formed or who its members are, and there is nothing in the record to suggest it existed throughout the consultation process, or that it has expertise or experience in the area of environmental approvals.”
The Court also rejected PMI’s claim that the REA process was “procedurally unfair.” As noted by the Court: “The REA regulation establishes a comprehensive procedural code to govern the approval process which ensures that affected individuals and entities will be consulted.” The Court found that it would not be “appropriate” to add further requirements to this code “especially here, where no individual has come forward with evidence to show that he or she was denied an opportunity to participate in the consultation process.”
This ruling, together with decisions released by the ERT earlier this year with respect to the nature of REA hearings should cause PMI to discontinue its appeal.
You can read the decision in its entirety here: PMI v Director, MOE.
Albert is an Associate whose practice involves all aspects of Renewable Energy and Environmental Law. He joined Foglers in 2010 after 10 years with Ontario’s Ministry of the Environment. He is a graduate of York University’s joint MES/LLB program and also has a B.Sc. in Biology from York. He can be reached at aengel@foglers.com or 416-864-7602.
Tagged as:
Conestogo,
Divisional Court,
judicial review,
procedural fairness,
Renewable Energy Approval,
standing
