ERT grants APPEC motion to stay construction at White Pines

UPDATE APRIL 8 – Late Friday afternoon, the Environmental Review Tribunal granted a motion to stay construction at the White Pines industrial wind turbine site on the south shore of Prince Edward County.

The Alliance to Protect Prince Edward County (APPEC) filed the appeal yesterday.

wpd had commenced clearing vegetation this week in the habitat where endangered Blandings turtles live.

The decision is as follows:

“The Tribunal grants APPEC’s motion for an interim stay of the REA until the resolution of APPEC’s motion for a stay, with reasons to follow.”

“This long-awaited decision is the outcome of a tremendous effort by APPEC’s legal counsel Eric Gillespie and Priya Vittal, who have worked tirelessly around the clock since Wednesday when the Tribunal issued its reasons related to our previous stay motion,” said Orville Walsh, APPEC president.

“Thanks to the efforts of many individuals and above all, our legal counsel, new evidence was submitted in the form of photographs showing the level of destruction, an affidavit from a Blanding’s turtle expert that turtles are out of hibernation and moving across the project, and letters from local and national groups including the Canadian Wildlife Federation.

wpd’s communications spokesman Kevin Surette said the panel had limited time Friday to consider the evidence brought forward by all sides, but indicated they want to further consider information and deal with the matter quickly.

“wpd accepts that it has a responsibility to ensure that Blanding’s Turtles are protected. The REA contains conditions to mitigate harm to the Blanding’s turtle when they emerge from hibernation. The condition calls for wpd to have an expert on site after May 1st, when the turtles normally come out of hibernation, however we have already implemented that condition.”

The Tribunal will schedule a written hearing at a later date to decide on the merits of a more permanent stay.”

On Monday, April 4, White Pines Wind Inc (wpd) began clearing trees at sites for the 27-turbine project on the south shore of Prince Edward County. APPEC took this photograph to the Appeals Court in Toronto today in hopes to stop the work in the area, known to be habitat for the endangered Blandings turtle which has emerged early from their winter hibernation. – APPEC photo

APPEC withdraws motion; will prepare new request to stay clearing of turtles’ habitat

APRIL 6 – Before a packed house of supporters Wednesday at the Court of Appeal in Toronto, the Alliance to Protect Prince Edward County (APPEC) was forced to withdraw its motion for a stay on all physical activity at the 27-industrial wind turbine White Pines project site on the County’s south shore.

“The outcome of today’s hearing is not what we had hoped for,” said Orville Walsh, APPEC president. “On our arrival we had hoped that Justice Katherine van Rensburg would hear our appeal and our new evidence including aerial photography of the destruction that has occurred at the White Pines project site since wpd began clearing vegetation two days ago, as depicted in photographs.”

Walsh reports Sylvia Davis, lawyer for the Ministry of the Environment and Climate Change, cited a ruling from more than 50 years ago that only a panel of three judges could hear an appeal of this nature.

“It became clear at that point that the motion would not be heard until after the legal matter of whether this was properly before the court had been dealt with, with a potentially unfavourable decision,” said Walsh. “Rather than spend considerable time and money on legal wrangling, the decision was made to withdraw our motion for a stay on all physical activity at the White Pines project site. The motion was withdrawn on consent of all parties and without costs.”

Walsh noted thanks to those who filled the courtroom in support.

“The courtroom was filled to capacity with no seats left empty. The numbers left an impression on all present from the judge to the security guards who were curious about what case all the commotion was about. We thank all of you who made this possible. Our special thanks to Mayor Robert Quaiff and Warren Howard, of Wind Concerns Ontario.”

“It is shocking that the Green Energy Act is as draconian as it is and that the ERT can rule one way, but yet wpd can still proceed the way they currently are,” said Mayor Quaiff. “Does this not just prove what they think of the process and the residents of PEC? They care about only one thing – the money.”

Meanwhile, APPEC received the written reasons from the Environmental Review Tribunal (ERT) for its original refusal of the stay motion to stop the clearing of vegetation. The ERT has not yet scheduled the next phase for the appeal process, which is hearings on remedies for the wildlife.

The conclusion of the 19-page document was “Given the Tribunal’s finding that irreparable harm will not ensue if a stay of the Approval Holder’s proposed activities is refused at this time, the Tribunal finds that APPEC has not satisfied the stay test and its motion is dismissed” …though rules do not preclude a party from again seeking requested relief should circumstances change.

Noted in the findings, the onus is on APPEC to establish that irreparable harm “will” be caused if a stay is not granted. wpd, using another case as an example, stated “speculation about possible harm is not sufficient to meet the test”. The Tribunal also recognized that “serious and irreversible” and “irreparable” harm are not the same.

-APPEC photo

wpd submited that none of the harms to the Blanding’s turtle identified by the Tribunal in its February 26 order will arise from vegetation removal; however, “it will suffer the risk of significant financial harm if a stay is granted… because the timing restrictions in the REA will prevent it from undertaking vegetation clearing between the end of April and October 15, which will delay the final construction of the project.”

wpd also submitted that because of previous delays in the hearing it is already at risk of failing to meet its contractual commitments to the Independent Electricity System Operator (IESO) “which could cause it to have to make liquidated damages payments to the IESO, or possibly, have its contract terminated.”

The Tribunal states that “even if the Tribunal were to assume that some harm would occur, APPEC has not provided convincing evidence to demonstrate that the magnitude of that harm is likely to be significant, widespread or long-lasting in its effects on Blandings turtle.”

“The Tribunal’s Rules do not preclude a party from again seeking the requested relief, should circumstances change in the future.”

“We will immediately be going to the tribunal to once again request a stay,” said Walsh. “As the saying goes when one door closes, another opens. More information will follow soon.”

Turbine locations: