Next step uncertain for wind opponents who lost court challenge

Friday, January 2, 2015

by SUSAN MANN

Cash crop and pork farmer Shawn Drennan can sum up his initial reaction to the Ontario Divisional Court decision dismissing a constitutional challenge to the wind energy regulatory project approval process in one word – disappointing.

But Drennan, who farms 300 acres in Huron County’s Township of Ashfield-Colborne-Wawanosh, says he has so far only taken a very “cursory glance” at the decision released Monday and wants to go over it in more detail after the holidays before commenting further. He says he’s uncertain about the amount of legal costs his group may be on the hook for.

Shawn and Tricia Drennan were one of four families launching the challenge. The families were challenging three different wind energy projects in Huron and Bruce counties. The panel of three divisional court judges was unanimous in dismissing the families’ appeal.

As for what their next step is, Drennan says “when we actually talk to our lawyers, we’ll probably sit down to figure that out. We haven’t decided where to go from here or what to do from here.” They also haven’t yet talked to the other families involved in the challenge.

The project being built near the Drennans’ farm will have 140 wind turbines and be 270 megawatts (MW). It’s being built by K2 Wind Ontario Limited Partnership, a partnership of Capital Power LP, Samsung Renewable Energy Inc. and Pattern Renewable Holdings Canada ULC. The other two projects are a 180 MW, 92-turbine project owned by Armow Wind Ontario LP and a 33 MW, 15-turbine project owned by St. Columban Energy LP.

K2 Wind spokesperson Michael Sheehan says they’re optimistic that the divisional court ruling “will finally put an end to the challenges brought against the regulatory approvals authorizing the construction and operation of K2 Wind.”

All three projects received their renewable energy approval in 2013 and 2014 under the Environmental Protection Act from the Environment and Climate Change Ministry. The families in this court case live close to the proposed sites of the wind turbines and are concerned about the potential health effects of living near the turbines. But since launching the challenge, one family, the Kroeplins, who lived near the Armow Wind Ontario project, has moved.

Sheehan says construction of K2 Wind’s project began in late 2013 and is on schedule. Commercial operation of the wind project will begin in mid 2015. So far, about half of the 140 wind turbines have been erected or assembled, he adds. The project will provide the average annual power needs for about 100,000 homes.

Through the Environmental Protection Act, the families sought review hearings of the environment ministry director’s decisions approving the projects. Those reviews were heard by the Environmental Review Tribunal. But in each case, the tribunal dismissed the families’ appeals, the divisional court written decision says. The tribunals found the families did not establish that the energy approval appeal provisions or the Act itself violated the families’ right to security of the person under Section 7 of the Charter of Rights and Freedoms. The tribunals also found the families didn’t establish that engaging in the project as approved will cause serious harm to human health.

The Act “stipulates that the tribunal shall review the decision of the director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause (a) serious harm to human health,” the decision says. Under the Act, the families had the responsibility of proving the projects will cause serious harm to human health.

After the tribunal made its decisions, the Act’s appeal rights enabled the families to bring those tribunal decisions to the court “on a question of law,” the decision says. The families were asserting that aspects of the process to review the environment ministry director’s decision are “constitutionally flawed,” especially the section that requires the families to demonstrate the projects would cause serious harm to human health.

The decision says for appeals like ones brought by the families challenging the wind energy project approvals process, the court can only consider questions of law. It cannot reweigh or reassess the evidence brought before the tribunals or the factual findings the tribunals made.

Part of what the families wanted was that section 145.2.1 (2) the Environmental Protection Act be declared constitutionally invalid. Another request was for the addition of an order to the Act saying the test to be met is whether there is a reasonable prospect of serious harm caused by engaging in the renewable energy project.

In its written decision, the judges said their purpose in describing the expert evidence before the tribunals on the impact of wind turbines on human health was a narrow one. Their job was only to identify that the tribunals didn’t have before them expert evidence that “seriously called into question” the principle underpinning of the Act’s renewable energy project regulatory regime. BF