Regulatory Law Chambers logo

Members of the Concerned Cypress County Owners Group Decision on Preliminary Question – Application for Review of Decision 27240-D01-2023 Buffalo Trail Wind Power Project, AUC Decision 28057-D01-2023

Link to Decision Summarized

Electricity – Review and Variance

Application

Members of the Concerned Cypress County Owners Group (“CCCOG”) applied for review and variance of Decision 27240-D01-2023 (the “Decision”) regarding ENGIE Development Canada GP Inc. (“ENGIE”)’s 400-megawatt Buffalo Trail Wind Power Project (the “Project”).

Decision

The AUC denied the application from the CCCOG for review and variance of the Decision as the requirements set out in Rule 016: Review of Commission Decisions (“Rule 016”) were not met.

Applicable Legislation

Alberta Utilities Commission Act, SA 2007, c A-37.2 – ss 10 and 29.

AUC Rule 016: Review of Commission Decisions

Pertinent Issues

Request to Reweigh Evidence

CCCOG requested that the AUC revisit the improperly weighed evidence, including turbine locations, proposed mitigations, guarantees for potential significant water damages and imposition of different decommissioning conditions. The AUC held that the scope of a review application does not include rearguing outcomes unless the review applicants demonstrate an error occurred in the reasoning of the hearing panel. As a result, the AUC denied the CCCOG’s request for the review panel to revisit these issues.

Errors of Law

CCCOG also raised a concern that the construction of the Project would conflict with Alberta’s Environmental Protection and Enhancement Act. The AUC found that the concern posed a question of law. However, since no review is available on errors of law under Rule 016, the AUC found this issue is outside the scope of the application.

Errors of Fact or Mixed Fact and Law

The AUC determined that the concern that health issues were not given enough weight required that the AUC reweigh evidence from the original proceeding. The AUC noted that while this concern is related to reweighing evidence, CCCOG was also taking issue with the application of the legal principles of expert evidence to the evidence before the hearing panel. The AUC explained that expert evidence is opinion evidence on a scientific or technical matter provided by a person with specialized knowledge, experience, or training in that field. Where the nature of an issue is of a scientific or technical nature, the AUC cannot accept opinion evidence from witnesses who are not experts in that field. Expert witnesses are allowed to provide opinion evidence on issues or matters within their area of expertise.

In the Decision, the AUC accepted the expert evidence regarding health issues submitted by ENGIE over the concerns expressed by the CCCOG. Accordingly, while the panel of this review proceeding noted the health concerns raised by CCCOG, the panel of the Decision found there was insufficient evidence of health impacts based on the expert evidence before it. The review panel found CCCOG did not sufficiently demonstrate an error in this regard.

The AUC further determined that CCCOG did not demonstrate a reviewable error in its concerns that the AUC erred in its assessment of the impacts of the Project on birds. CCCOG did not consider the distinction between property value impacts to properties hosting turbines and those that were not hosting turbines. Further, the AUC was not convinced that the panel of the Decision erred in finding that while the Project would produce visual impacts on the viewscapes, the benefits of the Project outweighed that concern, and approval would be in the public interest.

Other Grounds

The review applicants raised several issues that were not raised before the hearing panel, such as concerns that wind turbine construction would negatively impact insurance costs, that the specific model of turbines has a history of malfunctions, and that the AUC should consider impacts to the Central Alberta Flyway constituted new facts that warrant a review and variance.

The AUC found that CCCOG did not demonstrate these are facts that could not have been discovered prior to the hearing through the exercise of reasonable diligence, as required under s 5(1)(b) of Rule 016.

Related Posts

Judd v Alberta Energy Regulator, 2024 ABCA 154

Judd v Alberta Energy Regulator, 2024 ABCA 154

Link to Decision Summarized Download Summary in PDF Appeal – Production of Records Application Michael Judd ("Appellant") appealed a decision by the Alberta Energy Regulator (“AER”) that denied his...