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APPEC appeal dismissed as ‘facts still forthcoming’

UPDATE MARCH 30 – An appeal of an Environmental Review Tribunal decision to allow land clearing on the County’s south shore at the site of the wpd Canada industrial wind turbine project was dismissed Wednesday.

The Alliance to Protect Prince Edward County (APPEC) legal counsel Eric Gillespie took the appeal to Divisional Court on Tuesday.

“What APPEC could not provide to the court, however, was the ERT’s reasons for its decision of last week to dismiss our stay as the ERT never provided reasons,” said Orville Walsh, APPEC president. “Justice Stewart noted in her decision that ‘the specific grounds of any such appeal are uncertain given the fact that reasons for the decision are still forthcoming.'”

Walsh said that by not providing timely reasons for dismissing the original motion for a stay, the ERT “handcuffed” APPEC in appealing the decision.

APPEC provided evidence from four expert witnesses of serious and irreversible harm to Blanding’s turtles if wpd proceeds with vegetation clearing.

The court will allow APPEC to renew its motion if it so chooses “on a fuller record that will include the reasons for the Tribunal’s decision under appeal.”
UPDATE MARCH 25 – The Alliance to Protect Prince Edward County (APPEC) intends to appeal Wednesday’s decision of the Environmental Review Tribunal.

APPEC’s legal counsel Eric Gillespie has notified wpd Canada and the Ministry of the Environment and Climate Change of APPEC’s intent to appeal the ERT’s dismissal of the stay motion.

A motion for a stay stopping the clearing of vegetation at the White Pines project site was denied Wendesday – with reasons for dismissal to be provided at a later date.

“This legal action is considered to be necessary following the ERT’s decision this week to not allow APPEC’s motion,” said Orville Walsh, APPEC president. “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.”

Kevin Surette, of wpd Canada has notified the MOECC they could proceed with the work anytime after March 28, but the schedule is dependent on the weather.

“The concern that the ERT raised in its Feb. 26th ruling relates to the operational phase of the project and concerns the access roads and municipal roads,” said Surette. “The activity we will be undertaking is simply clearing vegetation and does not relate to the concerns of the ERT.”

APPEC will be making an application as an urgent matter to the Ontario Divisional Court, with submission at the beginning of next week.

“During the past few weeks APPEC has received many messages of encouragement from members and supporters in the County and beyond,” said Walsh.

UPDATE MARCH 23 – A motion for a stay stopping the clearing of vegetation at the White Pines project site has been denied – with no reason for dismissal.

The Alliance to Protect Prince Edward County (APPEC) was notified about its motion Tuesday but the The Environmental Review Tribunal (ERT) did not provide any reasons for dismissal.

“We are of course very disappointed with the decision,” said APPEC president Orville Walsh. “But we are also disappointed in the Tribunal itself. In denying APPEC’s motion for a stay the Tribunal is putting APPEC in the bizarre position of defending its successful appeal of the White Pines wind project at the ERT at the very same time the project is being constructed.”

Walsh said APPEC is examining possible courses of action and “will use all legal means available to prevent wpd from carrying out its plans. We will continue to work with the Prince Edward County Field Naturalists (PECFN) and CCSAGE-Naturally Green to prevent this destruction of the natural and cultural environment.”

APPEC shares this photo it noted was provided to the Environment Review Tribunal in its reply to APPEC’s motion for a stay.  The photo depicts the type of heavy machinery wpd intends to utilize onsite to clear vegetation.

APPEC shares this photo it noted was provided to the Environment Review Tribunal in its reply to APPEC’s motion for a stay. The photo depicts the type of heavy machinery wpd intends to utilize onsite to clear vegetation.

March 14 – The Environmental Review Tribunal is expected to make a ruling this week on a motion to stay clearing of brush on the site of proposed industrial wind turbines.

Other parties have indicated support and input into the motion by the Alliance to Protect Prince Edward County (APPEC).

Orville Walsh, APPEC President, said the Tribunal has allowed a few days this week for those submissions and replies.

“Reply documents to the stay motion from the Ministry of the Environment and Climate Change indicate that wpd needs to obtain approval from the director for a Storm Water Management Plan for the project. In addition wpd must give the director 10 days written notice of its intent to start construction. We believe that due to these conditions wpd will not be in a position to commence activity until after March 19th.”

WPD describes what it wants to do as “vegetation-clearing” but Walsh said the work will result in clearing of significant wildlife habitat for endangered species such as the Blanding’s turtle and ​endangered ​grassland species ​​such as the Whip-poor-will, Eastern Meadowlark and Bobolink. ​

“wpd’s decision to start clearing vegetation demonstrates how little respect it has for due process,” said Walsh. “Rather than wait for the resumption of the ERT hearing, where further evidence will be submitted on its project and for a final order from the Tribunal, ​wpd is bringing ​out the bulldozers and chainsaws… allowing all of this habitat destruction to happen for a wind project that has no assurance of ever being built.”

APPEC files motion to stop clearing work at turbine site

MARCH 9 – Just four days after an Environmental Tribunal ruling that turbine development would pose serious risk to the Little Brown Bat and the Blanding’s Turtle, the Alliance to Protect Prince Edward County has had to file a motion to stay construction to stop wpd Canada from plans to begin clearing vegetation next Monday.

APPEC president Orville Walsh said the group is “appalled” by wpd’s action and that “it is disprespectful of the appeal process”.

wpd had informed APPEC, resident John Hirsch and the ministry, the company intended to commence with site preparation — namely clearing of brush — as early as next week.

“It is our position that site clearing is not related to the concerns raised by the tribunal,” said Kevin Surette, of wpd’s communications department. “In regards to Blanding’s Turtle, the tribunal is seeking further mitigation measures during the operation phase related to internal access roads and upgrades to municipal roads.

“We disagree with APPEC’s position,” added Surette. “This is part of the process, and they were aware of it early in the ERT process.”

In its decision, the ERT ruled the development would cause “serious and irreversible harm” to the turtles and Little Brown Bats, suspending wpd Canada’s Renewable Energy Approval, pending remediation hearings (no date has been set).

“Vegetation clearing for turbines and access roads will cause irreparable environmental destruction,” said APPEC president Orville Walsh. “Of particular concern is the impact of heavy machinery that will be brought in on Blanding’s turtle habitat, where most of the wind turbines are located, and on Blanding’s turtles themselves as they emerge from their over-wintering sites early this year after a mild fall and winter.”

Walsh said the decision by wpd to proceed with site preparation was similar to another Prince Edward County turbine development, Gilead Power’s nine-turbine project at Ostrander Point.

“APPEC, Mr. Hirsch and the Prince Edward County Field Naturalists (PECFN) note the similarities between wpd’s attempt to start on construction while an appeal is under way and a prior attempt by Gilead Power to do the same at Ostrander Point,” he said. “In this instance, the Ontario Court of Appeal had no hesitation in granting a stay on construction in order to prevent irreparable harm (and) we are confident that wpd’s attempt will meet with the same outcome.”

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  1. hockeymom says:

    Why not the concern that hydro one can clear the same type of property on County Road 8 but WPD can’t do anything at the tubine project.Seems that you are picking on WPD but couldn’t care less about the rest of the county or do turtles only live on one road in the county

  2. lou says:

    guess its because its private land?

    what is happening with the other ostrander? and why the difference.

  3. Chris Keen says:

    If this is true, wpd and the property owners should be ashamed of themselves for showing such contempt for the County and the ERT process! Stewards of the land, indeed.

  4. Gary Mooney says:

    I’m told that wpd has started clearing vegetation. Not sure the extent, but could include stripping topsoil.

  5. Gary says:

    Good news that the Divisional Court will re-entertain the appeal once the ERT get around to providing reasons. I have to wonder who carries the liabilty for harming neighbour properties and their right to reasonable peace & quiet and health. Is it WPD or the leasing property owner?

  6. barney rubble says:

    Private land can be worked as deemed appropriate.
    High five a positive court ruling.

  7. Fred says:

    I suspect the fact that the land is privately owned is the basis for the request for a stay being dismissed. It is difficult for the ERT to dictate what a landowner chooses to do with his vegetation.

  8. Chris Keen says:

    I trust that the landowners who have leases with wpd will do the right thing and insist that no work be done on their properties until the legal issues have been resolved fully. If wpd has no respect for the spirit of the ERT process, perhaps the landowners do.

  9. painterman says:

    unbelievably… the fix is in folks…

  10. David Edwards says:

    Anyone know what contractor wpd is using for site clearance? Is it a local firm, or are the equipment and crews being shipped in from outside the County?

  11. Dennis Fox says:

    After all the time and expense that some people have gone to in order to ensure that the right things happen for our community re: IWTs – only to have the developer literally bull doze their way over anyone who gets in their way – shows how little they respect our legal processes and our democracy. Maybe it is time for the people to become just as obstinate – our aboriginal brothers in BC have shown us how blocking roads to prevent pipelines gets a lot of media attention and results! If they are prepared to take such action to protect their environment – well why not us here? Maybe it is time for all levels of government to feel embarrassed seeing the news media covering the nonsense taking place right here in PEC – it might just get them to start acting on our behalf. Wow, wouldn’t that be a first for the Wynne government?

  12. Gary says:

    Hopefully a positive decision soon. Clearing of land, road proposals etc when the approval has been rejected by the Tribunal is just bizarre!

  13. Jackie Soorsma says:

    I received an email today, Tuesday, 29 March 2016,with the following information.

    There will be a hearing at 2:15 pm today of APPEC’s motion for a stay. The hearing before the Divisional Court is at Osgoode Hall, 130 Queen St. W., Toronto in Courtroom 4.

    If you are able to attend the hearing this afternoon to support APPEC that would be appreciated. The hearing is expected to take approximately half an hour to an hour.

  14. Chris Keen says:

    Here’s an interesting article on the wind energy debacle in Germany. No wonder wpd, a German company, is so determined to its projects on Ontario and now B.C. proceed!

    http://stopthesethings.com/2016/03/26/germans-face-wind-powered-economic-nightmare-ebillions-squandered-on-subsidies-as-co2-emissions-rise/

  15. Borys says:

    APPEC submitted the stay to the Tribunal on March 5, whereas the Tribunal refused the stay on March 22.
    17 days seems to me a long time.
    Surely, the ERT could have provided a written explanation.

  16. Mark says:

    Kudos to APPEC for their tireless efforts.

  17. Taffy says:

    The ERT’s unbelievable decision is definitely appealable to the Divisional Court and APPEC is to be congratulated on doing so. What is equally unbelievable is that wpd submitted a Road User Agreement for consideration by Committee of the Whole having no authority to do so as the ERT had previously turned thumbs down on its 27 industrial machines. The adjourned COW meeting is next Thursday, at which it is widely anticipated that staff’s recommendation will be turned down and consideration of the agreement be postponed until the ERT decision is final following its second hearing and after any Court appeals yet to come. We should all contact our councillors to ensure this happens.

  18. Chris Keen says:

    Susan: I’m not a lawyer but my understanding is that the decision is released as soon as the Tribunal has made it in the interests of time. Written reasons for the decision, which might then provide the basis for an appeal, follow at a later date as the Tribunal’s time allows.

  19. Susan says:

    Can they not be ordered by the Divisional Court to release the reasoning for the dismissal?

  20. Gary Mooney says:

    Decisions of an ERT are appealable to Divisional Court. By not releasing the text to explain its decision to deny the stay, the ERT is effectively preventing an appeal, because the appeal needs to cite errors of law, which can only be identified by review of the text.

  21. Susan says:

    Perhaps the stay was dismissed because they could not order a stop to vegetation clearing on privately owned land. It is quite possible that a landowner has the right to give permission for this activity to proceed.

  22. Gary Mooney says:

    When the ERT’s decision on the stay was released, there was a note that reasons would be provided later. This is not uncommon when issues are considered to be time-sensitive.

  23. Emily says:

    Sometimes civil disobedience is necessary. This is of consideration. Is it corruption or the people that have the say at the end of the day? Food for thought!

  24. Mark says:

    Unbelievable! The Tribunal rejects the proposal because it will do irreversible harm and turns around and permits construction to proceed and harm what they ruled was at dire risk. Can anyone any longer have doubts that the fix is in? And while we wait with baited breath for the Ostrander Point decision.

  25. Karen says:

    The ERT has broken their own Rules of Conduct. On the ELTO government web site, Mandate, Mission, Core Values – section Transparency it is written

    Tribunal procedures, rules, policies and decisions will be clear and readily available to the public. Reasons for decisions will be concise and will explain how the decision was reached.

    If no reason has been provided then the tribunal has broken their rules of conduct.

  26. lou says:

    what part of the hint that we do not want them here do they not understand?
    ay
    1) the wellington times has an article today……….i dont understand. n
    it says the COUNTY has been making deals with the company for money???

    2) there is also another news article (in quintenews i think)……..saying the Mayor is asking council to vote against…allowing road admittance for them(cant remember the exact name

    so hope they vote as the mayor says………

    suppose to vote

  27. Borys says:

    [ this post to fix typo made in my previous comment. Website link should read http://www.savethesouthshore.org ]

    Who has the money to appeal all these roadblocks?
    APPEC and PECFN are doing their best to raise money, but the total required to fight keeps going higher.

    Donations can be made at the South Shore Appeal Fund can be made at http://www.savethesouthshore.org

  28. Borys says:

    Who has the money to appeal all these roadblocks?
    APPEC and PECFN are doing their best to raise money, but the total required to fight keeps going higher.

    Donations can be made at the South Shore Appeal Fund can be made at http://www.savethesouthshore.ca

  29. Chuck says:

    This makes no legal or common sense. Is there a further appeal avenue?

  30. Chris Keen says:

    This ruling clearly demonstrates the absurdity of the “Green” Energy Act. How construction can be allowed by the same Tribunal that found serious and irreversible harm to the Blanding’s turtle and the little brown bat, is incomprehensible and illogical in the extreme! Since wpd’s appeal of the Tribunal’s original ruling won’t be heard until June or July a tremendous amount of damage can be done can be done between now and then. This is shameful.

  31. Jackie Soorsma says:

    I just had an email regarding the Motion for stay. This is how it reads.

    “ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

    Environmental Review Tribunal Tribunal de l’environnement

    ISSUE DATE: March 22, 2016 CASE NO(S).: 15-068

    PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental

    Protection Act, R.S.O. 1990, c.E.19, as amended

    Appellant: John Hirsch (File No.15-068)

    Appellant: Alliance to Protect Prince Edward County (File

    No.15-069)

    Approval Holder: wpd White Pines Wind Incorporated

    Respondent: Director, Ministry of the Environment and Climate Change

    Subject of appeal: Renewable Energy Approval for White Pines Wind

    Project

    Reference No.: 2344-9R6RWR

    Municipality: County of Prince Edward

    ERT Case No.: 15-068

    ERT Case Name: Hirsch v. Ontario (Environment and Climate Change)

    Heard: In writing

    2 15-068

    BACKGROUND

    [1] On March 4, 2016, the Alliance to Protect Prince Edward County (“APPEC”) brought a motion seeking an order of the Environmental Review Tribunal (the “Tribunal”) staying all physical activities within the proposed Project area associated with the Renewable Energy Approval issued to wpd White Pines Wind Incorporated, which is the subject of the appeals in this proceeding, to a date to be determined by the Tribunal.

    ORDER

    [2] The Tribunal dismisses APPEC’s motion for a stay, with reasons to follow.

    Motion Dismissed Stay Refused

    “Marcia Valiante”

    MARCIA VALIANTE MEMBER

    “Hugh S. Wilkins”

    HUGH S. WILKINS MEMBER

    If there is an attachment referred to in this document, please visit http://www.elto.gov.on.ca to view the attachment in PDF format.

    Environmental Review Tribunal

    A constituent tribunal of Environment and Land Tribunals Ontario

    Website: http://www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248″

  32. Borys says:

    I was initially opposed to industrial wind turbine development for environmental reasons.
    Over time, my concerns have broadened.
    Jack and Chris’ comments harden my convictions even more. The Ontario government has made a terrible mistake by imposing the Green Energy Act on its people.
    Our elected officials should have and could have developed benign policies, including the use of iwts, to fight climate change.

  33. Jack Dall says:

    After 5 years on the market We have sold our waterfront property on the South shore. We were advised by our realtors that because of the possibility of turbines locating here the only way we would sell was to drop our price by 30% of it,s original listed price.
    Their concerns were valid. One of the questions and in most cases the first was ” how close will the turbines be?”
    In the end we sold for less then our municipal tax assessment that we were paying taxes on, and well under the evaluation price in 2005.
    Employed in an industry that offered no pension benefits, what we felt would be our nest egg to allow us to retire with a comfortable lifestyle has and will not come to past.
    We feel that we have been robbed and are helpless to do anything about it.

  34. Chris Keen says:

    Properties have been difficult to sell in South Marysburgh ever since the possibility that IWTs would be built became known years ago. In preparation for possible legal action at some future point, I had our house professionally appraised several years ago to have a baseline value pre-IWTs. I was told then that my property value would drop by at least 40% if/when turbine construction began. This was based upon what had happened in other parts of Ontario.

    This is a very tangible indicator of the urban/rural divide caused by this issue – one of many.

    It is now mandatory to advise potential buyers that the construction of IWTs is a possibility in this area – something those of us who live along the South Shore will suffer with for decades should the Environmental Review Tribunals not reach a sensible conclusion.

  35. Borys says:

    I think what Emily says is most likely correct.
    However, I would like a real estate broke broker or agent to confirm this through their observations.
    If properties are not selling in South Marysburgh,then things are not fair.
    In the meantime, the Toronto Real Estate Board says house prices rose 16.3% YOY to the end of February 2016.
    I do not think Toronto or the GTA has to worry about 500 foot wind turbines being built next to their homes.

  36. Emily says:

    Properties for sale in South Marysburgh along the Germany $$ route have virtually no offers. The word is out.

  37. Mark says:

    I must say that while we still await the Ostrander Point Gilead proposal is unsettling. We have all seen the huge power lines already being built for the Elmbrook substation. It’s not a healthy situation for so many.

  38. Gary says:

    Surette seems to shoot the same sheet all over the province. German company must love him! Nothing like sending our energy increases to Germany. I wonder back home what they quietly say about Canadians that can be so easily suckered!

  39. Gary says:

    Of course it’s money! Continue to bleed the apellants in hope they cannot afford to continue. It’s a classic case of Big $$ Goliath against pauper David. And what was supposed to be an easy deal with the Government is now irritating!

  40. Sandar says:

    I can only speculate why WPD would do such a thing.

    > they are under a deadline to begin the project, is the bank or financial supplier stating that the contract states you START before expiry dates or funding is at risk?

    > hmm, are they setting up to sue the MOE for late start down the road? pardon the pun?

    > or some other sinister reason unknown by just about everyone involved?

    Anything this ridiculous has an ulterior motive and it’s money.

  41. Gary says:

    One would think that disturbing land would be tied to the irreversible harm to the turtle ruling. Or is that too much common sense to expect?

  42. Sandar says:

    This move is what is called “lawyering”
    . . . more money . . . in pockets . . . out pockets. Another effort to run appellants out of money.

    They did it because they can.

    The decision didn’t say any thing about not disturbing land. Perhaps it should have been in the initial presentation therein ending up in the ERT decision. Now it seems to be a regular part of doing turbine business after the ERT has spoken re: Gilead did it, WPD did it.

  43. Chris Keen says:

    Gary: I think that they will await the Tribunal’s ruling on the motion. I believe that this threat is part of their overall strategy to wear opponents down physically, mentally, and financially with endless legal manoeuvering. They’ve picked the wrong place!!

  44. Gary says:

    Well that could be too late with clearing of land scheduled for tomorrow.

  45. Chris Keen says:

    Correction to my earlier post. I attended the CCSAGE annual meeting this afternoon and the ruling on the motion to stay is now expected later this week.

  46. Chris Keen says:

    The ruling is supposed to be released Monday, March 14.

  47. Lynda says:

    What is the status of the brush clearing? Did the lawyer manage to get a ‘stop work’ order? Is there a contingency plan for Monday morning? Boots on the ground? Hide and seek in the brush? Apparantly queen wynne doesn’t care about the murder and mayhem. Money rules!

  48. lou says:

    this company sure doesnt want to go somewhere else do they

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