William J. Seitz and Kevon Martis: Trespass zoning is wind energy’s secret subsidy

There was a time when the environmental movement opposed noise pollution, fought industrial blight, and supported “little guys” whose quality of life was threatened by “corporate greed.”

But that was a long time ago, before wind energy.

The American Wind Energy Association and its allies at the Sierra Club and the Ohio Environmental Council continue to press the Ohio legislature to overturn recent wind energy siting guidelines that corrected a grievous fault in the earlier state guidelines.

The old regulations measured turbine setback distances and noise limits from the 500 foot to 600 foot tall wind turbines from the foundation or bedroom windows of neighboring homes. The new regulations established by the legislature measure setback distance and noise limits from neighboring property lines. Establishing siting regulations from property lines is standard practice for all other land use regulations. After all, homeowners are not confined to their homes. They and their kids like to play in the yard, enjoy outdoor picnics, or watch sunsets from patios and decks.

By measuring noise and setbacks for wind turbines from neighboring homes rather than property lines, the old law essentially awarded wind developers an uncompensated nuisance noise and safety easement across private property even though that neighboring parcel was not leased to the wind developer.

read more: February 19th, 2016 By William J. Seitz and Kevon Martis – Contributing Columnists


Bill 161 2016 An Act to prohibit harmful electrical ground current


f7e12810-fb3c-4932-8ff8-c932b2423701The laws of physics for electrical engineering require that electrons flowing from a substation transformer return there to complete the circuit. This is normally accomplished by the use of neutral wires provided by an electrical distribution or transmission system. However, if those wires provide more than one neutral path for the electrical current to use to complete the circuit, the current will use the earth’s surface as the path of least resistance and, in that way, can travel through yards, buildings, fields, human beings and animals.

This ground current pollution is a major problem for hospitals, manufacturing plants and farms. On farms, the levels of ground current pollution can become so high that human beings and animals feel electrical shocks. These shocks disrupt the comfort of human beings and animals and can harm their health and adversely affect farm income. Adverse effects can also occur even if there are no shocks.

As we increase our use of electric power in Ontario, the potential for ground current pollution will also increase. This can result from a combination of an antiquated distribution system in some areas, inadequate neutral returns, multiple grounded neutral conductors and poor quality of electricity generated by electronic equipment.

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

read more: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet&BillID=3677

George Smitherman’s High Principle

Yesterday evening, former MPP George Smitherman appeared as a witness supporting Windstream in its $475 million NAFTA suit against the Canadian government. Over the course of about 2 hours, Mr. Smitherman delivered what appeared to me to be a broadside against the Canadian taxpayer with little push back from Canada’s lawyers.

Mr. Smitherman was asked to introduce himself to the Tribunal. He served three terms as an MPP, held portfolios of Health & Long Term Care and Energy & Infrastructure, and served as Deputy Premier. He explained that in the McGuinty government, a handful of top officials spoke with the authority of the Premier on issues of policy and that all major policy initiatives or changes in direction had to be cleared by “The Centre”, meaning the Premier’s Office.

After a very brief examination-in-chief, he was cross-examined by lawyer Shane Spelliscy, who like many on the legal team for Canada, was one of the litigators in the Mesa case (pending a decision since that hearing ended in 2014).

Initial questioning established that Mr. Smitherman was active in the green energy sector in the year after leaving government but his primary activity in this period was to run for mayor of Toronto. Over the course of his testimony, he made several witty remarks about his unsuccessful foray into municipal politics.

Central to the government’s case is a twisty-turny hypothesis. Canada is saying the Ontario government was not prepared from a regulatory perspective to accommodate the development of the off-shore wind industry and that Windstream should have known this fact and abandoned its effort to develop the 300 MW, 130 turbine off-shore wind power project the Ontario government had contracted Windstream to build. In aid of this hypothesis, Mr. Spelliscy presented Mr. Smitherman with a press release issued after he had resigned from the government, the gist of which was that the government was putting off-shore wind development on hold pending the need for more “research”. Mr. Smitherman’s response was, ‘No one discussed with me during the development and early FIT period that the government wasn’t ready to accommodate the development of off-shore wind’ (My effort to record direct quotations should be taken as approximations only.) Elsewhere over the course of the testimony, Mr. Smitherman stated that the ministers of Environment and Natural Resources during his time expressed strong support for the Green Energy Act and the rapid expansion of green power production.

read more: Posted by Tom Adams on 17 February 2016

Niagara Field Naturalists warned of impacts of wind power project on wildlife




Huge Niagara project to be built in Blandings turtle habitat, on migratory bird pathways, and near wetlands. Wind power developers get a free pass under the Green Energy Act

Niagara area resident Loretta Shields recently gave a presentation to the Niagara Peninsula Field Naturalists on the impact of wind power development on the environment and specifically, the fact that the Green Energy Act allows corporate wind power developers to escape the protections afforded by Ontario’s laws created for endangered and at-risk wildlife.

Here is an excerpt from a report on the presentation:

The Short-eared owl: one of many species affected by Niagara wind power project. But we’ll never know how many, due to incomplete or absent studies

One serious concern of the project approval is the incomplete physical site investigations within the 120-metre zone of investigation for the industrial wind turbines. In most of the turbine locations, the 120-metre zone of investigation includes neighbouring lands where the landowners are not participants of this project.  Loretta showed several field notes where the surveyors for this project could not fully conclude the ecological land classification within the survey area (i.e., “interior not visible, only edge”);  30 percent of the field notes were inconclusive for reptile hibernacula, bat roosting areas, stick nests and vernal pools.

While the Renewable Energy Regulations do allow for alternative site investigations (surveys from the roadside instead of physical site surveys), these must be supported by an explanation as to why it was not reasonable to physically survey the site. An explanation (other than it was not reasonable) was not provided in the Natural Heritage report provided by the wind energy company, but the project was approved nonetheless.

Read the full report here: LorettaShieldsPresentationReport


Niagara Field Naturalists warned of impacts of wind power project on wildlife

Canadian Wind Energy Association pulls out of B.C.

While the announcement does nothing to change the status of the Meikle Wind Energy project near Tumbler Ridge, it does put the future of other projects in doubt, including the $480-million Red Willow Wind project


The country’s largest wind energy organization has announced it is pulling out of British Columbia to chase better opportunities in Alberta and Saskatchewan.  

Jean-Francois Nolet, vice-president of the Canadian Wind Energy Association (CanWEA), made the announcement in a letter to members of the association’s B.C. caucus Feb. 5, and obtained by the Alaska Highway News.

“In the last few months we have seen significant new commitments to renewable energy in Alberta and Saskatchewan, but much work remains to be done to make those commitments a reality,” Nolet wrote. 

“At the same time, despite the hard work and efforts of CanWEA and other stakeholders over many years in British Columbia, we have not yet secured any significant new opportunities for wind energy in the province and both the B.C. Government and BC Hydro have indicated that they do not expect to proceed with a new call for power within the next decade.”

In response, CanWEA determined it must shift its focus from B.C. to emerging markets in Alberta and Saskatchewan. With the announcment comes the closure of CanWEA’s B.C. office. Regional director Ian Baille will be leaving the organization.

– See more at: http://www.alaskahighwaynews.ca/regional-news/canadian-wind-energy-association-pulls-out-of-b-c-1.2172268#sthash.PqRmWoAq.dpuf

Ontario Gas Scandal Doppelgänger

On Monday, a NAFTA arbitration panel will start oral hearings in Toronto arising from a dispute between the Delaware-incorporated renewable power developer, Windstream Energy, and the Government of Canada (notice how awkward it is for the public to attend). At stake is Windstream’s claim for damages of $475 million plus interest and costs over an alleged breach of NAFTA obligations by the Ontario government. Windstream had a Feed-In Tariff (FIT) contract granted by the Ontario Power Authority in 2010 to develop a 300 megawatt, 130-turbine offshore wind project west of Wolfe Island, but says it was thwarted by the Ontario government prior to construction.

My main interest in the Windstream litigation is how it illuminates the chaos inside official Ontario’s administration of the province’s electricity future. The case also illustrates how international trade agreements can leave the federal government on the hook when provincial government engage in shenanigans, an important but previously known fact of life in our imperfect federation. (As if our provincial governments need more incitement for irresponsibility.)

(Three short appendices are included at the end of this piece, one briefly glancing at other litigation going on initiated by other unsuccessful wind developers, another noting what appears to be special treatment by the Ontario government for a Samsung solar project, and finally links to other coverage of the Windstream case.)


The litigant’s pleadings are linked here.

Connecting to the Gas Scandal

Represented by a team of lawyers from Torys LLP lead by John Terry, Windstream’s arguments draw heavily on evidence arising from the Ontario gas plant scandal. That event precipitated the exit of then Premier McGuinty from politics in 2012 and criminal charges against McGuinty’s former Chief of Staff and Deputy Chief of Staff. Their next court date is February 24. The government’s business decisions in the Windstream and gas plant cancellation and relocation cases arose contemporaneously in the period from 2010 through 2012.

In defending the NAFTA claim, the government has made legal arguments that much of the gas scandal evidence is privileged and inadmissible. I am unable to weight the strength of those arguments.

read more: Tom Adams, Feb 12 2016