The P.E.I. Energy Corporation (PEIEC) says a municipality went against its own bylaws when denying a 30-megawatt wind farm expansion.
"This was a very technical application that was placed before this small, rural municipality, and they should have reached out to specialists," the PEIEC's lawyer Gordon MacKay said on Friday.
In October 2020, the council of Eastern Kings voted 3-1 against an application for a seven-turbine wind farm in its region. The application has been in the works since 2019 and PEIEC already operates turbines in nearby communities.
PEIEC appealed the decision shortly after. Arguments for and against council's decision were heard by the Island Regulatory and Appeals Commission (IRAC) between Wednesday and Friday. IRAC will now consider the evidence and make its final decision.
MacKay argued that Eastern Kings failed to consider the public's interest regarding the wind farm's provincial benefits – namely reducing P.E.I.'s greenhouse gas emissions and increasing its domestic supply of renewable energy.
When Eastern Kings informed PEIEC of council's decision, the primary reason stated was because councillors believed it was in residents’ best interests. The municipality's official plan states public interest must be considered, but MacKay noted the word "public" was vague.
"(And it's) not much guidance to the applicant who has spent hundreds of thousands of dollars to get to that point," he said.
He argued that this should encompass the wider public of residents across P.E.I. The municipality rebutted that its council only has responsibility and jurisdiction within its boundary lines under the Municipal Government Act.
"Why is the province not regulating it if it is such a provincial issue?" Eastern King's lawyer Hilary Newman said.
While many residents had voiced concerns at public meetings, MacKay noted there were many residents in favour of the expansion, such as about 40 property owners who live right beside the proposed turbine sites and would therefore have made deals with PEIEC.
Eastern Kings’ plan also states council ought to consider long-term economic sustainability. MacKay argued the expansion would create local revenue and employment opportunities, which most councillors agreed would be a benefit during the October meeting.
Most councillors were supportive of wind energy but simply weren't in favour of PEIEC's proposed location, even though when a previous wind farm proposal fell through in 2012, Eastern Kings added guidelines to its plan promoting wind farms a year later.
"That's an expression of the desires of the community," MacKay said. "So, if not there, where?"
Other concerns included the necessary clearing of 14 hectares of forest to make way for the turbines and the impact on the region's migratory bird population. But MacKay noted this was all addressed in its environmental impact assessment.
The province had approved the expansion subject to 17 conditions, which included attaining and preserving another 42 hectares in compensation and conducting a two-year study monitoring bird and bat mortality near the turbines after their construction.
MacKay, therefore, argued the stated reasons for rejection didn't consider all the information and negated Eastern Kings' plan. Newman argued otherwise, referencing the October meeting transcript and noting councillors grappled with many pros and cons before deciding.
She also noted there's no guarantee how much revenue or jobs will be generated directly for area residents and the additional 42 hectares could be anywhere in Kings County, whereas councillors are required by the plan to preserve Eastern Kings' natural attractions.
MacKay said it was striking when, at one point, Eastern Kings requested PEIEC work with council on the application rather than with the municipality's staff, which was limited but would have been the norm, he said.
"(And) they had no development officer to deal with the application," he said. "(It) was managed by an elected official, the deputy mayor."
Evidence revealed during the hearing indicated Eastern Kings still has most of the money attained from PEIEC's application and was encouraged to consult a land-use planner because of how technical it was. But it chose not to.
PEIEC hosted two public meetings to address the public's concerns, so MacKay argued councillors should have been more upfront with PEIEC before the decision if these concerns were still causing an issue.
"It was only at the very end of the day that that message was sent," he said.
Newman said the municipality’s decision not to seek help on such a technical application is not a valid argument against council’s October decision.
Applications are to be decided on at council's discretion, and councillors are not responsible to pre-judge them and warn applicants of a potential outcome such as this one, she said.
"They're never guaranteed a result, they're guaranteed process," she said. "At the end of the day it was an application – they got fairness."
Daniel Brown, Local Journalism Initiative Reporter, The Guardian