GEA Judicial Review
APPLICATION FOR JUDICIAL REVIEW – AN EXPLANATION
CCSAGE NATURALLY GREEN has commenced an Application for Judicial Review (JR) of the process by which a Renewable Energy Approval (REA) was issued in Prince Edward County. The Application is for the purpose of asking the Supreme Court of Ontario the following questions:
(A) Is the REA issued to White Pines (wpd Canada) to construct an industrial wind turbine factory of 27 turbines and associated transmission and collector lines the result of institutional bias in the Green Energy Act (GEA) and/or operational bias by the various Ministries?
(B) If the GEA is essential, is it fair to place the burden entirely on the minority who live in rural areas in Ontario?
Two other important issues that will be raised in the process are:
(C) Is the GEA necessary or even desirable?
(D) What will Ontario be like after IWTs cover rural areas and will it be worth saving?
The Application is based on evidence of institutional and procedural bias, infringement of natural justice, and on a denial of rights created under the Charter of Rights and Freedoms in that residents of rural Ontario are discriminated against as turbines will never, ever, be inflicted on urban communities. Evidence is by way of sworn affidavits. Currently some 15 have been prepared by different individuals dealing with various aspects of the allegations. By way of example, the GEA removes powers from Municipalities and takes no meaningful account of the impact on health, endangered species, or local economy, tourism or property and business values, and the affidavits address all these concerns and more.
The Application will eventually be heard by a panel of three Justices sitting in Ottawa. It challenges the GEA, the acts and omissions of the Ministry official who issued the REA, the Ministry permit to kill endangered species and the Ontario Energy Board’s cursory approval of the 28 kilometre long transmission line bisecting the County.
The JR has the potential to help protect all rural Ontario from the continued onslaught of these industrial machines.
The main critical dates are as follows:
Oct 16, 2016: Motions regarding wpd requesting party status, North Frontenac mayor as intervener, were presented.
Dec 30, 2016: Alan’s arguments convinced the judge to deny WPD full participation in the case, but did grant them intervenor status with restrictions that limit their witnesses, evidence, and examination of witnesses, to the impact of the proceedings on their particular interests. Mayor Ron Higgins was not granted intervenor status but he will include an affidavit in the JR.
June 14, 15, 2017: Our motion to protect CCSAGE from costs, and one to compel the government agencies to produce the records of their decisions regarding the approval of wpd White Pines and the transmission lines. A motion will be filed by OEB regarding their removal from the case.
CCSAGE argue this is a public interest case, as it potentially affects the over 100 municipalities that have declared themselves “not willing hosts” to turbines, so are asking for protection from cost awards – for both sides.
Jan 9, 2018: The Court recognized all of our arguments but relied on the fact that we had not filed our complete set of affidavits to conclude that it was premature to decide the issues we had asked to be decided. In addition, it was ruled that our request for a Record from the decision-makers was a “fishing expedition”. This even though there is no explanation as to the basis of the approval decisions. (We did not file a complete Record initially because the question of whether the Respondents had to file a Record first had not been determined, protective costs were being sought, and combining issues as we did would reduce court time.)
None of this prevents CCSAGE from filing a complete Record and proceeding with the JR.
CCSAGE has studied Justice Labrosse’s decisions and found them to contain numerous errors and misunderstandings. Consequently, we are appealing all the negative decisions to the Divisional court, in a Motion to Vary. To view both the Labrosse decision and our appeal, click to read the Motion to Vary and Labrosse Decision. We believe our arguments are sound.
Feb 7, 2018: WPD applied for costs from CCSAGENG, even though they are only intervenors (the requested Party status was not granted). CCSAGE responded with their own Cost Request.
June 12, 2018: JR record was served in Ottawa. It includes about 50 affidavits from across the province.
July 25, 2018: Termination of the White Pines Wind Project through passage of Bill 2 and the White Pines Wind Project Termination Act (WPWPTA) into law. Hurrah!
Todd Smith clarified the reasons for cancelling the Project in a statement made in the Ontario Legislature, a few of which are listed below:
WPD missed milestone dates (2 years past long stop date);
WPD’s inability to comply with the terms of its original Feed-In-Tariff (FIT) contract that required production of 75% of the original nameplate capacity. With only 9 out of the original 29 proposed turbines remaining after the ERT concluded irreversible harm to the environment, remaining capacity would be less than 30%;
WPD’s continued construction during the Blanding’s Turtle Active Season (May 1 to Oct 15th) which was contrary to the Renewable Energy Approval (REA) Avoidance Measures;
the IESO issued the Notice to Proceed (NTP) on May 11th, 2 days into the election campaign and in violation to the caretaker convention;
with the embedded solar capacity in PEC, there is a legitimate question that the County is already a net neutral municipality.
During the recent Ontario provincial election, the PCs stated that they would “cancel energy contracts that are in the pre-construction phase and renegotiate other energy contracts.” Notice to Proceed (NTP) and Key Development Milestones (KDM) are granted by the Buyer (government) after the Contractor has obtained all necessary environmental and other approvals (after which the Contractor may commence actual construction). If cancelled by the Province at this stage, the Buyer would have to compensate the Contractor for its “Pre-Construction Development Costs” up to a maximum defined Pre-Construction Liability Limit. For example, this would be $400,000 plus $2.00/kW of Contract capacity, to total $436,900 for an indicative 18.45 MW wind project. (http://www.progressive-economics.ca/2018/08/08/sepulveda-ontario-electricity-vi/) Only FIT-4, FIT-5 and LRP-I have post NTP/KDM “Optional Termination” compensation provisions that consider costs incurred; White Pines has a FIT-1 contract, for which there are no such provisions. However, prior to the October 2011 provincial election, the Liberals offered to waive its right to cancel FIT-1 projects at pre-NTP status. It is not known by us if White Pines took advantage of this waiver option.
Note that WPD White Pines started construction well before receiving its NTP, which was then “at their own risk”. They also accelerated construction after the July 10th announcement to terminate the project even after they were advised by IESO it is in their best interest to stop construction immediately.
Impact of Bill 2 on the Judicial review of CCSAGE Naturally Green:
The Scope of CCSAGE’s JR goes beyond what the new government has promised in terms of dealing with the Green Energy Act.
We have requested a meeting with the new PC government to discuss the impact of Bill 2 and future plans on our JR.