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  • Writer's pictureProtect Wentworth Valley

Community Group questions Critical Government Decision by launching Judicial Review

Press Release – October 23,2023

Community Group questions Critical Government Decision by launching Judicial Review.

Protect Wentworth Valley is a committee of the Folly Lake Wentworth Valley Environmental Preservation Society (Society). The mandate of the Society is to protect the special ecology and biodiversity of the Wentworth Valley area and support the sustainable human enjoyment of it.

On Wednesday, October 18,2023 Juniper Law, Counsel representing Folly Lake Wentworth Environmental Preservation Society submitted on the Society’s behalf a brief to the Supreme Count of Nova Scotia supporting their request for a Judicial review of the Nova Scotia Minister of Environment and Climate Change (The Minister) conditional environmental approval decision concerning the Higgins Mountain Wind Farm Project issued May 4,2023. It is the position of the Society as outlined in the brief that the Minister’s decision is unreasonable. The Society is requesting of the court to remit the Decision back to the Minister to be remade in consideration of the court’s decision.

The Society spokesperson Nancy Frame notes that they were very concerned after a review of the documents required to be provided by the province to find that the decision making process followed by the Minister and his Department resulted in a decision not to approve the project ( and to request additional information from the proponent ) as of May 3,2023 and that the Minister changed his mind in the 24 hours before the final decision released . As explained in the brief this fact makes it extremely difficult to see a rational chain of analysis leading to the final decision. Indeed, the rational chain of analysis resulted in a decision not to approve the project. The last-minute flip flop suggests arbitrary decision making on the part of the Minister. The Society and Protect Wentworth Valley wonders what factors in that 24 hours period caused the Minister to change his decision after approximately 50 days of review and analysis by him and his department.

In the submission to the Court the Society states that the Minister’s decision to approve the project was unreasonable on the following grounds:

  1. The Minister unreasonably concluded that the terms and condition attached to the decision to approve the project would adequately mitigate the Project’s adverse effects on the endangered Mainland Moose and their habitat.

  2. The Minister failed to adequately consider the factors he was required to consider on the s 12 of the regulations when deciding to approve the project including:

  • The concerns expressed by the public in formal comments submitted during the 30-day public review period of the Projects EA document. The briefing states that a total of 187 (122 unique) comments were received including 88 letters of opposition, 21 comments that did not express opinion and 13 letters of support. Primary concerns received from the public included potential impacts on Wildlife, wetlands and water quality, tourism, electromagnetic interference, and visual impacts. The number of public comments on this project is significant as compared to other similar projects as is outlined in the brief. Evidence provided as a result of the judicial review process indicates a lack of review and response to public concerns.

  • The Project’s adverse effects on the endangered Mainland moose a species at risk listed under the Endangered Species Act, with a Recovery Plan identifying core habitat for potential designation within the Project area, as required by s12 (e) of the EA regulations and

  • The cumulative effects of all wind farm projects in the area, as required by s 12(h) of the EA regulations.

. The brief filed on October 18,2023 on behalf of FLWEP concludes that:

  1. The lack of explanation in the Minister’s decision concerning the public concerns, the impacts on the mainland moose, the impacts on the current land use of the area for recreation and tourism, and the deficiencies in the EA Registration Document regarding cumulative effects demonstrates a fundamental failure in the requisite rational chain of analysis. There is no rational connection between the Minister’s decision and the claim that the decision (with conditions) mitigates adverse environmental impacts identified in the Record and in the EA Registration document.

  2. Granting the EA approval without including the advice from the DNRR regarding Mainland Moose, without adequate consideration of the concerns expressed by the public and the current uses of the area, and without the necessary information on cumulative impacts is contrary to the Environment Act’s purpose.

  3. In light of these purposes, the statutory requirements and the context expressed above, the decision lacks the “internally coherent and rational chain of analysis” and justification “ in relation to the facts and law that constrain the decision maker” and is thus unreasonable .

The judicial review is scheduled for a one-day hearing on January 2,2024.

For additional information related to this release please refer to our website , , call Nancy Frame 1-902-899-0843 or Leslie Dykeman 1-506-866-6393

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