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Aura Power Renewable Ltd. Decision on Preliminary Question Application for Review of Decision 27488-D01-2023 Burdett Solar Project, AUC Decision 28409-D01-2023

Link to Decision Summarized

Solar Power – Review and Variance

Application

Aura Power Renewables Ltd. (“Aura”) applied for a review and variance of AUC Decision 27488-D01-2023, regarding the Burdett Solar Project (the “Decision”).

Decision

The AUC denied Aura’s application for review and variance.

Pertinent Issues

In the Decision, the AUC denied the application from Aura to construct and operate the 17.5-MW Burdett Solar Project (the “Project”), to connect the Project to the FortisAlberta Inc. distribution system, and to transfer ownership of the Project.

The AUC’s review process has two stages. In the first stage, a review panel decides if there are grounds to review the original decision (the “Preliminary Question”). If yes, it moves to the second stage where it decides whether to confirm, vary or rescind the original decision (the “Variance Question”).

Review Panel Findings

There are New Facts Material to the Decision; Specifically, Additional Post-Construction Bird Fatality Data for BluEarth Renewables Inc.’s Burdett Solar Project, Immediately Adjacent to the Project Site

Aura submitted that a 2022 post-construction bird fatality monitoring report for BluEarth Renewables Inc.’s (“BluEarth”) Burdett Solar Project (the “2022 BluEarth Report”), which was adjacent to Aura’s Project, was erroneously filed in the AUC proceeding for the BluEarth Yellow Lake Solar Project (Proceeding 25668). The 2022 BluEarth Report was intended to be filed in the proceeding for the relevant BluEarth project (Proceeding 25658) and accordingly was not discoverable by Aura exercising reasonable diligence. Aura explained that it became aware of this on July 28, 2023. Aura argued that the 2022 BluEarth Report was material to the Decision as it provides actual evidence of the effect of a solar project on wildlife in the immediate vicinity.

The AUC determined that the 2022 BluEarth Report could have been discovered during Proceeding 27488 through the exercise of reasonable diligence as required by s 5(1)(b) of Rule 016: Review of Commission Decisions (“Rule 016”). Aura could have requested the 2022 BluEarth Report from Alberta Environment and Protected Areas (“AEPA”) or BluEarth Renewables Inc. during the proceeding. In addition, the AUC determined that the 2022 BluEarth Report did not include new information material to the Decision. The AUC denied a review of the Decision on this ground.

The AUC Made an Error of Fact, or Mixed Fact and Law

Public Interest Test

Aura argued that the AUC did not properly apply the public interest test. Aura claimed that the AUC did not provide reasons demonstrating any balancing of the adverse effects of the Project against the public benefits. Aura stated that the Decision focused primarily on potential adverse effects and failed to address the actual evidence regarding adverse effects, as provided in the Burdett Solar Project 2021 Post-construction Fatality Monitoring Report(“2021 BluEarth Report”).

Although Aura relied on s 5(1)(a) of Rule 016 for this ground, Aura primarily characterized this error as an error of law. Rule 016 does not provide for review of errors of law. Accordingly, Aura’s request for a review on this ground was denied.

The review panel determined that the hearing panel’s assessment in the Decision that the potential impacts of the Project on the environment are unacceptable and that the Project is not in the public interest was reasonable and based on the record of the original proceeding. The determination does not amount to any error justifying a review.

Adverse Environmental Effects

Aura further argued that the AUC unreasonably assessed the potential adverse environmental effects of the Project. Aura submitted that in the Decision, the AUC attributed excessive weight to minor misalignments with the AEPA Wildlife Directive for Alberta Solar Energy Projects. It further argued that the Decision contained a major gap with respect to site-specific data and AEPA’s conclusion about the proposed mitigation strategy. Aura stated that decisions that contain such fundamental gaps or that contain an unreasonable chain of analysis are not reasonable and therefore constitute an error of mixed fact and law.

The review panel stated that under Rule 016, its role is not to second guess conclusions made in the Decision or provide a second opportunity for parties to reargue the issues in a proceeding. The AUC was satisfied that the hearing panel’s assessment of the evidence did not amount to an error of fact or mixed fact and law. The AUC denied a review of the Decision on this ground.

Past Precedent

Aura submitted that, while administrative decision-makers are not bound by their past precedent, decisions that depart from longstanding practices or internal authority must be appropriately justified. Contrary to past precedent, the AUC attributed excessive weight to the AEPA Referral Report’s identification of avian mortality risk associated with the Project and to recommended setback infringements. The AUC failed to weigh such adverse effects against the positive effects of the Project, which was an unjustified departure from past precedent. In the AUC’s view, this alleged error was an error of law for which no review is available under Rule 016.

The AUC denied the request for a review on these grounds since it was not satisfied that Aura appropriately justified or could mitigate the impacts of siting its Project in contravention of the requirements. The review panel reiterated that it should not second guess the hearing panel’s assessment absent an error of fact or mixed fact and law. In the review panel’s view, no such error has been identified in association with this ground.

Decision Made Without Hearing or Notice

Aura argued that the Decision was made without a hearing and that a review should be permitted on this basis under s 5(1)(d)(i) of Rule 016. The AUC stated that, even though the hearing was cancelled, the AUC did conduct a proceeding to assess Aura’s application, which consisted of three rounds of information requests. Relevant jurisprudence clearly states that an administrative tribunal, such as the AUC, is the master of its own process. While the AUC did not solicit argument from Aura, it followed a process consistent with the AUC’s general practice in facilities proceedings where there are no objections or an objection has been withdrawn. The review panel denied the request for a review on this ground.

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