Cramming

APPEC counsel Eric Gillespie discusses a scheduling proposal with James Wilson, counsel for the wind company, wpd Canada

Industrial wind turbine hearings piling on top of each other

Colliding schedules brought out a series of sharp exchanges at the appeal hearing of the White Pines industrial wind project on Friday. On Monday, in a dramatic twist, the appellant, the Alliance to Protect Prince Edward County (APPEC) asked the Tribunal members to step down from this hearing.

There had been a growing sense among observers that the adjudicators in this hearing appear to be driven more by meeting deadlines than ensuring the appellants get a full airing of the facts they believe will stop 27 industrial wind turbines from being constructed between Milford and the gates to the Prince Edward Point National Wildlife Area in South Marysburgh. Parts of three appeal hearings— Ostrander, White Pines and Amherst Island— have all been crammed into the final weeks before Christmas.

The appeal of the Ostrander Point project should have been completed by now. However, a blizzard of emails and documentation—connecting the dots between the Ministry of Natural Resources and Forestry species-at-risk expert’s advice that the project would in fact cause serious harm to the Blanding’s turtle and the Ministry of Environment’s subsequent approval of the project anyway—has slowed down that hearing’s schedule. This hearing resumes on Thursday in Demorestville.

Meanwhile, hearings into a project that seeks to blanket Amherst Island with 26 industrial wind turbines is getting underway in the first week of December. Eric Gillespie is serving as counsel to appellants in all three hearings.

So when the White Pines Tribunal began to propose overlapping schedules on Friday, Gillespie lost his patience with the Tribunal panel, Marcia Valiante and Hugh Wilkins.

“We object to you creating a conflict,” charged Gillespie. “Please read our submission. I don’t know why we talk about this every day. Our client’s case is being prejudiced.”

Gillespie cited administrative law providing the Tribunal the ability to “stop the clock” on a hearing, to work around scheduling conflicts. But Valiante pressed for a resolution.

“We are not leaving here today without a schedule,” said Valiante. Then, chastising all sides, she added, “I am disappointed by the lack of co-operation.”

It was just the most recent instance of a series since the hearing began, that has caused Gillespie and his clients to worry whether they will get a fair hearing from Tribunal.

“There seems to be an extremely strong focus on the part of the wind company and the MOE and the Tribunal on completing the hearing by the end of January, no matter what,” says Gillespie.

On Monday Gillespie made a formal request that the Tribunal members Valiante and Wilkins recuse themselves from the remainder of the hearing. The Tribunal agreed to receive written submissions on this matter and will make a ruling as soon as possible.

Seemingly in a concession to the case for expediency, the wind company, wpd Canada, on Friday dropped its appeal seeking to restore two of its proposed turbines the MOE had declined to approve on the basis of negative impacts upon cultural heritage. Each of the disallowed turbines were deemed to be too close to historic South Marysburgh buildings.

Gillespie says he has no idea why the schedule has become a pressing issue for the Tribunal.

“We’ve heard a number of theories about why the wind company and the Tribunal want this completed quickly,” said Gillespie. “It is too early to speculate what the real reason is. However, we have great concern that many other aspects of the hearing process appear to be sacrificed in the interest of completing within a very limited schedule.”

Gillespie’s exchanges with the Tribunal, and Valiante in particular, have, at times, been uncharacteristically combative. He has often found himself arguing arcane bits of law with the MOE, wind developer and Tribunal simultaneously.

“Our client has been very concerned that a number of their issues may not be clear in the Tribunal’s mind,” said Gillespie. “As counsel for APPEC, it is our duty to raise issues that may affect their interest. There appear to be many more issues coming up in this hearing than other appeals.”

ANOTHER PROJECT APPROVAL REVOKED
In another development last week, an Environmental Review Tribunal panel hearing an appeal to an industrial wind project near Pontypool south of Lindsay revoked the permit of the developer. The Tribunal concluded the project and access road would cause serious and irreversible harm to plant and animal life. It is only the second time that an ERT has decided to rescind an approval granted by the MOE—the first being the Prince Edward County Field Naturalists’ appeal of the Ostrander Point wind project in 2013 and currently the subject of a second Tribunal hearing.

Citing the Prince Edward County experience, the Tribunal in the Settlers Landing matter has allowed the developer the opportunity to propose a remedy. Opponents to the project are doubtful a satisfactory plan can be developed, given the geography of the proposed site.

But for Gillespie, it is an important signal to both the provincial government and developers that neither can construct 500-foot industrial turbines wherever they wish.

“The fact that there is a second ERT appeal that has resulted in a finding of serious and irreversible harm to the environment appears to be a clear sign that, given correct facts, the Tribunal can and will find in favour of appellants,” said Gillespie. “It is certainly our point of view that there are compelling facts in the White Pines case. The Settlers Landing decision affirms that our client’s view that it is worth continuing.”

The White Pines hearing continued this week in Toronto. On Thursday, attention shifts to Demorestville as the Ostrander Point hearing resumes.