N.S. environment minister’s approval of Higgins Mountain wind farm project upheld by court

The Nova Scotia Supreme Court has dismissed a Wentworth Valley group’s application for a judicial review of the approval of the Higgins Mountain wind farm proposal.

Environment Minister Tim Halman’s approval decision “is certainly one of the reasonable outcomes at which the minister could have arrived,” Justice Timothy Gabriel said in his written decision released earlier this week.

“He duly took into consideration all of the information which was required of him before rendering his decision,” Gabriel wrote. “The applicant has not demonstrated that the minister’s decision, with attached conditions, was an unreasonable one.”

The Environment Department’s site shows it received an application on March 15, 2023, from the Higgins Mountain Wind Farm General Partner Inc, the Sipekne’katik First Nation, and Elemental Energy Renewables Inc. for an environmental assessment for the wind farm project.

The proposed project would construct and operate up to 17 wind turbines that would be up to 195.5 metres in height to the tip of the blade and produce between 5.9 and seven megawatts.

The centre of the project site, which is partially located in both Colchester and Cumberland counties, is about 10 kilometres southeast of Westchester Station, 10 kilometres southwest of Wentworth Station and five kilometres northeast of Londonderry.

The proponents propose to begin construction this year and to operate the wind farm for 35 years, starting in 2025.

Moose habitat

The first of two main arguments of the Protect Wentworth Valley volunteer group that applied to the court for the judicial review was that the proposed area of the wind farm is a mainland moose habitat that’s been identified in the Mainland Moose Recovery Plan as core habitat and that there was no evidence that the minister had even read that recovery plan.

The second argument was that Halman had signed a letter on April, 28, 2023, but dated for May 4 to the proponent company saying the proposal would not be approved and asking for more information from the company.

Jamie Simpson of Juniper Law, representing the Wentworth Valley volunteer group, told the court earlier this month that in the evening of May 3, the day before the decision was to be released, the minister “changed his mind, flip-flopped and signed a whole new decision letter that he was going to approve it.”

Gabriel said the minister considered the material placed before him by his department, including scientific and other information which had been gathered by experts, a considerable amount of public input, and the results of extensive consultation with Nova Scotia’s Mi’kmaw community. 

“Indeed, he considered all of the information contained in the 2,700-plus page record,” Gabriel wrote. “He then added conditions to his approval of the application, those which he felt were sufficient to mitigate the concerns which the public and his experts had identified. He did all of this within the context of an overarching reality: climate change caused by greenhouse gas emissions.”

Gabriel said the argument about the minister changing direction the night before he was required to render his decision is valid. 

“The minister had decided to request additional information to address the socioeconomic concerns raised by the public, before approval,” Gabriel wrote. “He then received a third (and final) briefing by his department late that day, on May 3, 2023, which provided him with more information. Only then did he decide to approve the project on May 4, 2023, with conditions.”

Gabriel wrote that  an environmental assessment does not negate the authority of any other relevant government regulators.

“Since the mainland moose has been designated as ‘endangered’ or ‘threatened’ under the Endangered Species Act … that legislation would prevent Higgins Mountain Wind Farm from contravening ‘any regulation made with respect to a core habitat,’ with respect to the mainland moose as it implements the project,” the judge wrote.

‘Facts and evidence’

In a statement, Halman said Wednesday he is pleased with the judge’s decision, “which speaks for itself, and reflects the thoroughness of Nova Scotia’s environmental assessment process.” 

Halman said the court decision was made based on the facts and evidence.

“As the neutral regulator, my job is to protect the environment and ensure our processes are followed,” Halman said. “I take that seriously. Nova Scotians can have confidence in that.”

Simpson said Wednesday that the judge did not address the fact that there is no evidence that the minister looked at the recovery plan for the mainland moose.

“Given that the recovery plan recommends that there is currently a deficit of suitable core habitat for mainland moose, every acre is of utmost importance, it’s curious that there is not evidence that the minister looked at it,” Simpson said.

Simpson said the volunteer group has the option to appeal the decision.

“The overall question is not about wind energy but about appropriate places to put these sites,” Simpson said.

The conditions attached to the environmental assessment approval includes specific provisions concerning water resources, animal and plant habitat, air quality and noise impacts. One of the provisions requires the company to develop a program to monitor mainland moose for at least two years from the time the turbines become operational.