Stay denied

Despite appeal ruling, White Pines developer cleared to begin construction of 27 industrial wind turbines in South Marysburgh and Athol

The Tribunal that concluded an industrial wind project in South Marysburgh and Athol will cause serious and irreversible harm to little brown bats and Blanding’s turtles—both endangered species in Ontario—decided last Tuesday it won’t stop the developer from clearing the site and constructing the 27-turbine project.

The next day the developer withdrew its offer of community benefit to Prince Edward County.

GREEN LIGHT
The Tribunal examining the White Pines project has refused to grant a stay of activities on the site. The Association to Protect Prince Edward County (APPEC) sought an emergency stay earlier this month after the developer, wpd Canada, announced it was proceeding with clearing vegetation on the project site, despite the Tribunal’s decision to uphold the appeal.

But as wpd Canada spokesperson Kevin Surette explained, the Tribunal’s ruling didn’t mean an automatic stay. And so APPEC and others had to scramble, preparing arguments explaining how the construction of the project would negate the Tribunal’s own ruling—that the act of clearing the site and construction would likely kill and imperil endangered species.

The Tribunal rejected these arguments. It declined, too, to explain why it reached this conclusion saying only it would explain its reasons later.

Clues may be found, however, in the Tribunal’s appeal decision, where it found the greatest risk to the turtles and bats was likely to come from the operation of the turbines and increased use of upgraded municipal roads once the project is completed. The Tribunal had fewer concerns about the construction than it did about the long-term issues.

But it begs the question: what happens if the Tribunal deems the developer’s remedies as inadequate, if the turbines are already constructed and spinning?

SERIOUS AND IRREVERSIBLE
While the Tribunal found the project posed an unacceptable risk to endangered species, it stopped short of revoking the developer’s renewable energy approval permit. It learned from the Ostrander Point Tribunal experience that to be fair in the context of the Green Energy Act, it was required to allow the developer the opportunity to present remedies or plans to address the threats posed to endangered species by its project.

This may take months. The hearings into the remedies suggested to protect the Blanding’s turtle in the Ostrander Point appeal, for example, were heard last fall. A decision has not yet been reached in that matter.

Since the White Pines Tribunal didn’t revoke wpd Canada’s permit, and declined to issue a stay, the developer is now free to proceed with construction of the project.

Surette confirmed to The Times that wpd Canada has cleared its final obstacle with the Ministry of the Environment and Climate Change after the stormwater management plan had been approved. Land clearing is expected to begin this week.

In fact, the industrial wind turbine project may be up and running before the Tribunal hears, and ultimately rules on, possible remedies the developer comes up with to reduce the threat to the bats and turtles.

But what happens if the Tribunal ultimately rules the developer’s remedies won’t work?

wpd Canada is betting it will be able to persuade the Tribunal it can manage the risks to the little brown bat and Blanding’s turtle.

APPEC will challenge the Tribunal’s decision to refuse to stay work on the project.

“APPEC will be making an application as an urgent matter to the Ontario Divisional Court,” wrote Orville Walsh, chair of APPEC. “This legal action is considered to be necessary. wpd still plans to start construction on the White Pines wind project. In wpd’s own words: ‘We are entitled to begin vegetation clearing immediately.’ We strongly disagree.”

The developer has advised that if APPEC pursues this legal challenge, it will seek costs from the courts.

Walsh says many people have reached out to him and APPEC over the past few weeks offering encouragement and support.

“These messages are always appreciated but especially so when faced with a developer that is determined to destroy the natural and cultural heritage of our community for its own financial gain.”