EXCLUSIVE: Wind farm owner launches court challenge against Ontario government

Forty kilometres to the south of Ottawa, a once-bustling construction site of partially built wind turbines has ground to a halt.

Nation Rise Wind Farm, nestled among dairy farms and fields of corn, was three months away from completion when Ontario Environment Minister Jeff Yurek cancelled it earlier this month, citing concerns over possible risks to local bat populations. The company behind the site, EDP Renewables, must lay off the 200 employees working on Nation Rise just before the holidays and stands to lose the $230 million in capital it has already sunk into the project.

But EDP Renewables has now launched a court challenge to try to overturn the province’s decision, alleging it was fuelled by politics instead of evidence, National Observer has learned. The government’s move clashes with earlier testimony given by the province’s own experts, according to the application filed in Ontario Superior Court on Dec. 10.

“To do this so late in the game is very, very damaging,” Tom LoTurco, director of development for EDP Renewables in Eastern Canada and the United States, told National Observer this week.

“(Yurek) didn’t use science... he abused the process.”

The company is seeking judicial review of Yurek’s decision ⁠— essentially, asking a judge to overturn it. Not only did Yurek rely on “hearsay” and ignore best-in-class measures to protect bats from harm, EDP Renewables alleges, the minister also didn’t use sound legal reasoning.

As proof that the fight isn’t about bats, LoTurco points to an interview Premier Doug Ford gave on Global News Radio 640 on Dec. 16. "If I could tear up every wind turbine in this province, I would," Ford said.

It’s also not the first time Ford’s government has axed a half-built wind farm. One of its first pieces of legislation was a specific act to kill the White Pines project in Milford in 2018.

The government has acknowledged it has spent $231 million so far to cancel some 750 renewable-energy projects. Most of that money was spent to kill White Pines.

If EDP Renewables were to pursue further legal action to recover its lost capital from Nation Rise, that number could double.

Peter Tabuns, the opposition NDP’s energy and climate crisis critic, said on Friday that the cost to taxpayers of Ford’s “war on renewable energy” was now approaching half a billion dollars.

“First he ripped down the White Pines wind farm project at a cost of at least $141 million, and now he’s scrapping the Nation Rise wind farm. It’s bigger, it was further along in its construction, and it’s likely to be even more expensive to rip it down,” Tabuns said at a news conference at Queen’s Park.

“Doug Ford needs to come clean about how much his destruction of wind farms is costing the people of Ontario,” he said, pointing out that the project would have supplied energy at the relatively low cost of 7 cents per kilowatt hour.

“It’s cheaper than [natural] gas; gas plants bottom out at about 8 cents,” he said.

The former Liberal government had agreed to pay much higher rates to boost the adoption of wind and solar energy in Ontario, but technological advances in recent years have sharply cut costs.

“We bought in high and we’re selling low,” added Ian Arthur, the NDP’s environment critic.

Andrew Buttigieg, a spokesman for Yurek, declined to answer detailed questions from National Observer about the filing, “as the matter is now under judicial consideration” and the province hasn’t yet responded in court to EDP Renewables’ application. He also declined to respond to the NDP’s comments.

But in Yurek’s Dec. 4 letter explaining the decision to revoke the project’s environmental approval, the minister said he believed the wind farm would seriously harm local bat populations, disagreeing with experts who said otherwise.

LoTurco said the Ford government’s decision makes it difficult for any business to believe Ontario is really "open for business," as the province’s slogan would indicate.

“A decision that was so egregiously made at such a late date, what it does is it erodes confidence for any kind of investor in Ontario,” LoTurco said.

The NDP’s Arthur said the Ford government’s mistreatment of green investors was closing off a massive economic opportunity for the province.

“Renewable energy is booming all over the world, except in Ontario now,” he said. “This is massive amounts of investment that we are missing out on.”

Global investment in renewable energy peaked in 2017 at $326.3 billion, according to Bloomberg New Energy Finance (BNEF). It fell back to $288.9 billion in 2018, in part due to the lower cost of solar panels, turbines and other infrastructure.

BNEF expects renewable energy to garner 77 percent of the $13.3 trillion to be invested in new power generation by 2050.

EDP Renewables alleges that Yurek fabricated the argument he used to cancel Nation Rise. When citizens brought their concerns about the project to the environment minister, they didn’t mention bats. That came up later, when Yurek asked all sides to file submissions about their worries, including the impact on bats.

“The minister essentially looked at the grounds for appeal and said, ‘I don’t see anything here, let’s introduce something else,’” LoTurco said. “That’s shocking and appalling.”

Critics say the government’s sudden concern for wildlife doesn’t fit with its passing of a bill that significantly weakens protections for species-at-risk and threatens their habitats by loosening rules meant to contain urban sprawl.

“If they were serious about protecting bats they wouldn’t have gutted the Endangered Species Act,” said Sarah Buchanan, who manages the clean energy program at Environmental Defence.

She added that it would be great if in the future the minister showed as much concern for wildlife when considering other infrastructure projects, such as highway construction and expansion.

Ontario Green Party Leader Mike Schreiner said the government must be more transparent about why it cancelled a clean-energy project that was so close to completion. The situation calls to mind the previous Liberal government’s gas-plants scandal, when the cancellation of two natural-gas power plants cost the province more than $1 billion, he added.

“For the premier to rip up a contract for a low-cost source of renewable energy at a cost that could be in the hundreds of millions of dollars is so fiscally irresponsible,” Schreiner said. “It's appalling.”

A batty wind battle

Nation Rise had been in the works since 2016, when EDP Renewables took on the project from Ontario’s Independent Electricity System Operator (IESO) after a competitive bidding process. Its plan to build 29 turbines capable of generating up to 100 megawatts of clean power received environmental approval in May 2018 under the previous Liberal government.

“We were procured competitively,” LoTurco said. “The price that Doug Ford (now) wants for energy, we were delivering.”

EDP Renewables also worked with municipal leaders so that the community would benefit. Over 30 years, the township of North Stormont — where the project was being constructed — would receive $45 million from municipal taxes, a community benefit fund, charitable contributions and landowner payments.

About 70 landowners agreed to the plan, but it wasn’t without opposition. In North Stormont, a local Facebook group devoted to stopping Nation Rise has amassed nearly 500 members. An organization called Concerned Citizens of North Stormont also challenged the project’s approval last year at the Ontario Environmental Review Tribunal, an independent body that hears such appeals.

Residents had been worried about noise and vibrations from the wind turbines, said Jane Wilson of Wind Concerns Ontario, a group that encompasses 30 community organizations opposed to wind-power projects, including Concerned Citizens of North Stormont. They were also concerned that a problematic number of birds and bats would die flying into the turbines’ blades.

“How do you do it right?” she asked. “It is an industrial use of the land... I don’t think you’d find anyone who would agree that this has been done the right way.”

Accusations of NIMBYism ⁠— NIMBY being an acronym for "not in my backyard," often used as shorthand for people who oppose public projects near their homes ⁠— aren’t fair or accurate, Wilson said. “The concerns (residents) raised over and over were environmental,” she added.

Still, Nation Rise weathered that scrutiny in January 2019. Based on expert testimony from both provincial and independent experts, the tribunal found that the project presented no danger to bats or any other component of the surrounding environment.

“It wasn’t just us arguing with our own experts; the ministry itself brought their own experts to defend the renewable-energy approval... It’s not like it’s us versus government,” LoTurco said.

Environmental Defence’s Buchanan said that a better balance needed to be struck between the views of local residents and scientific evidence.

“Concerns from local residents absolutely should be listened to, but we also have to listen to scientists,” Buchanan said. “I think there is a clear pattern emerging of dismissing scientists.”

Some wind farms do pose a risk to bats, but EDP Renewables said it took extra steps to avoid that. For example, it agreed to shut off turbines at low-wind speeds during bat migration, when bats would be in the most danger. It also did surveys in the area, which found that “bat presence and activity in the project area as a whole was low,” according to the company’s Dec. 10 court application.

The company’s plan also received a stamp of approval from Erin Baerwald, a conservation biologist and assistant professor at the University of Northern British Columbia, who had an opinion piece in The Globe and Mail on Thursday. “I never thought I’d come out swinging in support of the wind-energy industry, but here I am,” Baerwald wrote. “Ignoring science and making false claims in order to shut down a site undermines legitimate efforts to protect bats.”

Baerwald was also featured in the NDP’s Queen’s Park news conference, calling in to tell reporters that the company “did all the right things; they went above and beyond” what Ontario requires to protect bats.

“They proactively and voluntarily had agreed to implement some pretty strict mitigation strategies,” she said.

“It’s very unfortunate that this company and this site is being penalized for doing the right thing,” she said. “It just didn’t make any sense from a scientific perspective to cancel this.”

Ryan Brown, EDP Renewables’ executive vice-president for the company’s eastern region and Canada, said he thought it was baffling to allege that the project wasn’t environmentally friendly. Headquartered in Madrid, Spain, the company is a global leader in wind energy, netting investments from high-profile companies like Salesforce.

“It’s not like we’re some fly-by-night developer,” Brown said. “We’ve had an excellent track record (on other Canadian projects).”

With the tribunal decision in hand, EDP Renewables started construction on Nation Rise in May. Concerned Citizens of North Stormont, meanwhile, appealed directly to the environment minister.

‘Shocking and appalling’

Both sides filed written submissions to Yurek’s office in the spring. The Ministry of the Environment and Climate Change also filed a package, endorsing the Environmental Review Tribunal’s support for Nation Rise, according to EDP Renewables’ Dec. 10 court filing.

But in the interim, there was a cabinet shuffle, with Yurek replacing now-Finance Minister Rod Phillips as environment minister. That’s when Yurek asked all sides to make extra submissions, including about the risk to bats.

Then, using evidence that the company alleges included “obvious factual errors,” “hearsay” and a “fundamental misunderstanding” of the measures in place to protect bats, the minister revoked the project’s approval.

For example, Yurek highlighted the potential presence of bat maternity colonies. But the company says the colonies don’t mean there’s a significant bat population in the area or indicate how likely it would be for bats to collide with turbines. “No witness even testified (to the Environmental Review Tribunal) about the maternity colony habitats or raised any particular concern in respect of them,” the Dec. 10 court filing says.

The company also alleges that Yurek didn’t have the legal authority to kill the project. To do so, he would’ve had to show that there were irreversible and serious impacts to bats, but instead, EDP Renewables alleges, he said he was acting out of caution.

Wilson, for her part, said concerned residents are glad Yurek reviewed additional evidence.

“The community is very grateful that the government listened,” Wilson said. “This just feels like Christmas.”

In his letter revoking Nation Rise’s approval, Yurek argued that Ontario didn’t need the electricity the wind farm would provide. And Wilson said Ontario’s power grid mostly relies on clean energy from hydro anyway, so wind farms are generally unnecessary.

Schreiner disagrees. Though he said he respects residents’ right to oppose projects near their homes, he argues that the wind power could be useful in the coming years as Ontario loses some capacity due to nuclear power plants going offline. And although the previous Liberal government could have ensured there was more local involvement in Nation Rise, there are groups of people opposed to all sources of electricity.

“I don't think there should be a local veto, because if you had a local veto, then it would probably be pretty hard to build projects anywhere in Ontario,” he said.

Still, this particular fight isn’t over yet.

In its Dec. 10 court filing, the company said the suddenness of Yurek’s decision meant it had to quickly dismantle the Nation Rise construction site, creating possible safety risks. And any further construction delays could mean that the company would miss its deadline for the IESO.

If the company misses its deadline, it will lose $230 million in capital and another $5 million in security paid to IESO, EDP Renewables said.

A hearing date hasn’t yet been set for the company’s application.

Editor’s note: This article was updated at 6:00 p.m. on Dec. 20, 2019 to include comments from NDP MPPs Peter Tabuns and Ian Arthur, Environmental Defence’s Sarah Buchanan and conservation biologist Erin Baerwald.