Facilities – Review and Variance
Application
Anita Jenkins (“A. Jenkins”), applied for review and variance of Decision 27561-D01-2023 (the “Decision”). The Decision partially approved, with conditions, applications from RES Forty Mile Wind GP Corp. (“RES”) to amend, construct and operate the Forty Mile Wind Power Project and the Forty Mile 516S Substation, located in the Bow Island area (the “Project”). A. Jenkins was an intervener in Proceeding 27561.
Decision
The AUC denied A. Jenkins’s application to review and vary the Decision.
Pertinent Issues
Review Grounds
Jenkins asserted that new information emerged and became available that changed the circumstances material to the Decision, which information was contained in: (i) AUC Decision 27486-D01-2023, issued on April 20, 2023, and (ii) Impacts to bats report from the Committee on the Status of Endangered Wildlife in Canada, dated May 10, 2023, (the “COSEWIC Report”). A. Jenkins further alleged that the Project did not comply with regulatory requirements as RES did not provide an updated Alberta Environment and Protected Areas (“AEPA”) renewable energy referral report.
Review Process
The AUC review process has two stages: a review panel decides if there are grounds to review the original decision (the “Preliminary Question”); and, if yes, it moves to the second stage to decide whether to confirm, vary, or rescind the original decision (the “Variance Question”). In this decision, the review panel decided the Preliminary Question.
AUC Findings
The AUC review panel determined that A. Jenkins did not prove that any of the grounds for review set out in s 5(1) Rule 16: Review of Commission Decisions were met. The AUC determined that Decision 27486-D01-2023 did not change circumstances material to the Decision. The AUC is not bound by its decisions and considers each application on its own unique facts. A decision in prior proceeding does not create an entitlement to the same result in subsequent proceedings. The issuance of Decision 27486-D01-2023 did not set a precedent, was not material to the Decision, and did not provide a ground for review of the Decision. Further, the AUC noted that the circumstances in Decision 27486-D01-2023 were very different from those in the Decision.
The AUC also explained that AEPA confirmed that the original renewable energy referral report remained valid for the purposes of the Decision and that there was no need for RES to submit an updated AEPA report. The hearing panel considered A. Jenkins’ argument regarding the updated report a disagreement with the hearing panel’s finding, which did not constitute a ground for review.
The AUC held that neither the COSEWIC Report nor any other document discussed by A. Jenkins in relation to the Project’s potential impacts to bats was published after the issuance of the Decision. A. Jenkins could have, with reasonable diligence, discovered all relevant information at the time of the proceeding. The AUC also found that none of the information contained in these documents was material to the Decision.
