An update on the E.L. Smith Solar Farm: Case Comment on Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton


An update on the E.L. Smith Solar Farm: Case Comment on Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton

An update on the E.L. Smith Solar Farm:

Case Comment on Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton

 

In August 2021, we released our report “Here Comes the Sun: Solar Law in Alberta” which outlined the regulatory framework in place for solar energy in the province and made policy and regulatory recommendations intended to help solar become a central pillar of Alberta’s energy system. It is clear that in order to manage climate change we need to transition to a renewable energy future; however, as we do so we must ensure that we do not replicate environmental harms of the past. Today, we will take a closer look at a recent Alberta Court of Queen’s Bench decision about a proposed solar project located in the North Saskatchewan River Valley. This is an interesting case because it highlights some of the tension between a speedy transition and other environmentally or socially desirable outcomes.

 

The Project

The E.L. Smith Solar Farm is an EPCOR project intended to provide the E.L. Smith Water Treatment Plant with clean renewable energy (the “EPCOR project”). However, it hit a snag when opposition arose to the proposed location in Edmonton’s North Saskatchewan River Valley.

 

Approval at the AUC

Initially, the EPCOR project received approval from the Alberta Utilities Commission (“AUC”).[1] In 2019, the AUC stated that they found the “approval of the project is in the public interest having regard to the social, economic, and other effects of the project, including its effect on the environment.”[2] In their decision, the Commission also noted that despite the location being in the river valley, when they considered the current land use of the area and the mitigation measures proposed by EPCOR, they were satisfied that the environmental impacts will not be significant.[3]There were a number of statements of intent to participate filed prior to the AUC hearing process; however, most were denied for lack of standing. Instead, most participation in the hearing was limited to written submissions.[4]

The AUC looked at an environmental evaluation of the project conducted by Stantec and commissioned by EPCOR. In their evaluation, Stantec concluded that “the potential adverse effects of the project can be avoided, reduced or controlled with the implementation of the standard and project-specific mitigation measures … and the potential effects of the project on the environment would not be significant.”[5] This was the only environmental assessment available to the AUC because Alberta Environment and Parks (“AEP”) opted out of the project approval process, stating that the Wildlife Directive for Alberta Solar Energy Projects, did not apply to urban locations.[6]  In other locations, the Directive would trigger a requirement for a Renewable Energy Referral Report – a report submitted by an Alberta Environment and Parks Wildlife Biologist which describes the mitigation efforts that must be undertaken by the project developer to ensure that any environmental and health effects of a project are minimized.[7] However, in this case the AUC determined that such a report was not applicable. In coming to this decision, the AUC relied on the fact that referral reports are not required for projects located in urban settings or on federal land.[8]

More specifically, the Directive reasons that solar energy infrastructure has inherently low impacts on wildlife when “integrated into an existing anthropogenic footprint such as on rooftops.”[9]  However, it is questionable whether this is a reasonable decision given that the E.L. Smith Solar Power Plant is located on river valley land not in an industrial area or on a brownfield lot. Amendments to the Wildlife Directive and how it is administered in urban natural spaces may be required to ensure that wildlife impacts within urban green environments are properly assessed.

Additionally, Alberta Environment and Parks and the Canadian Environmental Assessment Agency (now known as the Impact Assessment Agency) stated that they were not legally required to conduct an environmental assessment on the project.[10] Without a referral report and without the benefit of environmental assessment at either the provincial or federal level, the AUC had less information with which to properly weigh the environmental impacts of the project.[11]

A number of groups and individuals were cited in the AUC decision as being in opposition to the project. In particular, submissions from the Edmonton and Area Land Trust and the Edmonton River Valley Conservation Coalition Society were quoted, arguing that the location of the project was problematic and would have a negative impact on the human use, and environmental health, of the area.[12] The AUC acknowledged these concerns but found that EPCOR’s alterations to the project “demonstrate EPCOR Water’s willingness to adapt its project in response to concerns raised by stakeholders.”[13] The Commission found that considering the submissions of those in opposition to the project and the plans proposed by EPCOR, they were satisfied that the project would not result in negative environmental impacts.[14] Notably, the Commission also found that the land in question had been included in City of Edmonton plans for expansion of the water treatment plant for a number of years.[15]

The AUC also “acknowledge[d] that EPCOR Water is working through the City of Edmonton’s process for rezoning the land and for a development permit for the application.”[16] During the AUC approval process, EPCOR stated that they had already submitted a land development application to the City of Edmonton and that they would be submitting a development permit application and indicated that the project would be subject to the City’s North Saskatchewan River Valley Area Redevelopment Plan.[17]

It is within this context that the AUC issued an approval for the project.

 

The Bylaws

Once AUC approval was complete, the process moved to City Council for bylaw amendments. The Bylaws in question are Bylaw 18889 and Bylaw 18890. Bylaw 18889 is a statutory plan amendment bylaw which amends the North Saskatchewan River Area Redevelopment Plan and Bylaw 18890 is a land use bylaw amendment, or a rezoning.[18]

One effect of these bylaw changes was to rezone the relevant piece of property from Metropolitan Recreation Zone (A) to Direct Development Control Provision (DC1), expanding potential uses for the land to include a solar farm.[19]During the City’s proposed rezoning and plan amendment information sessions, they indicated that a DC1 provision would accommodate utility systems of works including, but not limited to, a solar farm and future water treatment plant works.[20] The Bylaw amendments also included certain requirements including minimum setbacks, maximum building heights, fencing, landscaping, and more.[21]

Before municipal approval was finalized, the City required EPCOR to make certain changes to limit the project’s impact on the area including a reduction of the project’s footprint and the designation of space along the riverbank for wildlife.[22] However, even once these changes were complete and the City approval was finalized, debate remained about whether this project should have been approved due to its potential impact on wildlife and the more overarching question of whether such development should be allowed in the river valley at all. During the AUC approval, EPCOR argued that they had considered other locations, including on rooftops of other EPCOR facilities, but that this was the lowest cost option.[23]

The North Saskatchewan River Valley Area Redevelopment Plan also requires that if a project is declared to be a major facility that is either publicly owned or developed on public lands, the location will be subject to an environmental impact assessment necessary to determine if the location is deemed as ‘essential’ for the project.[24]In making their decision regarding the rezoning, the City determined that the project was not a ‘major public facility’ and therefore no environmental assessment nor determination of essential location would be required.

In response, the Edmonton River Valley Conservation Coalition Society (the “Society”) filed an application for judicial review seeking to quash both bylaws and have them declared invalid and of no force and effect, arguing that the City “erred by not passing a resolution deeming the relevant land essential and improperly weighing the financial costs, social and environmental and institutional constraints.”[25] EPCOR filed a response in which they argued that the Society does not have the required public interest standing to bring the application and that even if they do, their request is moot due to section 619 of the Municipal Government Act (“MGA”).[26]

 

The Decision

The decision in Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton (“Edmonton River Valley v Edmonton”) is the outcome of this application for judicial review. The focus of the decision is whether the judicial review application was moot and, if not moot, whether the City’s interpretation of the bylaw was reasonable.

On the question of mootness, the Court considered whether the operation of section 619 of the Municipal Government Act (“MGA”) was such that the City had no real decision making power around the bylaw amendments.  Section 169 states:[27]

(1) A licence, permit, approval or other authorization granted by the … AUC prevails, in accordance with this section, over any statutory plan, land use bylaw, subdivision decision, or development decision by a subdivision authority, development authority, subdivision and development appeal board, or the Land and Property Rights Tribunal or any other authorization under this Part.

(2) When an application is received by a municipality for a statutory plan amendment, land use bylaw amendment, subdivision approval, development permit or other authorization under this Part and the application is consistent with a licence, permit, approval or other authorization granted by the NRCB, ERCB, AER, AEUB or AUC, the municipality must approve the application to the extent that it complies with the licence, permit, approval or other authorization granted under subsection (1).

(4) If a municipality that is considering an application under subsection holds a hearing, the hearing may not address matters already decided by the NRCB, ERCB, AER, AEUB or AUC except as necessary to determine whether an amendment to a statutory plan or land use bylaw is required.

In the event that there is a discrepancy between a municipal planning document and an AUC approval, the AUC decision prevails.[28] More specifically, if an application to amend a statutory plan is brought to a municipality and the application is consistent with a licence, permit, approval, or other authorization by the AUC, the municipality must approve the application to the extent that it complies with the licence, permit, or approval.[29] If a municipality does not approve an application to make these amendments, the MGA sets out an appeal process for the proponent.[30]

In this case, EPCOR argues that because the AUC has already approved the project, City Council is forced to approve the rezoning application in order to facilitate the approved project, meaning that the Court’s decision will have no practical effect.[31] The test for mootness looks at whether there is a live issue and whether this issue engages the Court’s adjudicative function.[32] If the answer to these two questions is yes than the issue cannot be considered moot. The mootness argument in this decision turns on an interpretation of section 619 and whether the AUC approval means that the City has no choice but to amend municipal zoning to allow for the project (i.e. the City did what it had to do and a judicial review of their decision is meaningless).

Ultimately, the Court found that judicial review of the City’s bylaw amendments was moot.[33] In coming to this finding, the Court relied upon a recent Alberta Court of Appeal decision Borgel v Paintearth (Subdivision and Development Appeal Board), (“Borgel) which considered the proper interpretation of section 619.[34] In Borgel, the Court of Appeal found that section 619 grants “paramountcy to decisions of certain provincial bodies, to ensure projects are not blocked at the municipal level for issues already considered and approved at the provincial level [emphasis added].”[35]

The Court in Edmonton River Valley v Edmonton found that because the AUC directly referred to the location of the project, the approval was specific to that area and that redevelopment, as necessary, would follow.[36] Reading the AUC approval, the Court found that the “only conclusion that can be reached is that the AUC approved construction of the plant at the designated location in the River Valley.”[37] The Court also found that “[a]lthough the specific issues regarding rezoning of the property were not raised at the hearing, it seems all other issues regarding the development of the solar farm were well and fully argued” and stated that, as such, the City had no discretion regarding the rezoning.[38]

So, is a reference to the location sufficient to force the City to act even without any direct reference to next steps? This is a crucial question to consider because in issuing a development permit, a municipality retains the jurisdiction to address planning considerations not addressed by the Board(s) so long as they can be construed as “consistent” with the provincial authorization.[39] In light of this question, another AUC decision approving a solar farm in Lethbridge County – the Coaldale Solar Project, is worth considering.[40] In approving the Coaldale Solar Project, the AUC acknowledged that while they must have regard for the land use regime in place, they must also ensure that approvals fulfill the objectives of their governing legislation.[41] In considering the environmental effects of that project, the AUC concluded that an approval of the Coaldale Solar Project on the location selected by the project proponent was in the public interest and stated that upon issuing the approval, they expected the county to work with the project proponent to ensure that their portion of the approval went through.[42] In that decision, the AUC was clear both that they considered necessary rezoning and that they expected municipal cooperation.

However, in the case of the EPCOR project, the prospect of any required rezoning was not specifically highlighted by the AUC. Rather, the AUC stated “the Commission acknowledges that EPCOR Water is working through the City of Edmonton’s process for rezoning the land and for a development permit for the application.”[43] The Court agreed that if the matter of rezoning was not decided by the AUC, it could be subject to City Council approval.[44] However, the Court then goes on to find that because the AUC identified the proposed location for the solar farm as “3900 E.L. Smith Road in Edmonton, Alberta, in the northwest quarter of Section 3 and the southwest quarter of Section 10, Township 52, Range 25, west of the Fourth Meridian” this did not leave any room for the project to be located at any other location and that the AUC envisioned the City would do what was required to ensure this.[45]

It seems; therefore, that the lack of clarity in the EPCOR project decision would not render the decision moot and we can look to the Coaldale decision to see how the AUC has more specifically set out what they expect from a municipality. However, while the City may be able to form zoning and development conditions that are consistent with the AUC approval, they cannot overturn a decision.

From there, the Court goes on to find that regardless of whether the outcome was moot or not, it would still find the rezoning decision by the City to be appropriate and dismiss the application for judicial review. Specifically, the Court considered the Society’s argument that the City did not deem the relevant land to be essential as required under the North Saskatchewan River Valley Area Redevelopment Plan (thereby triggering further environmental assessment) and erred in unreasonably assigning excessive emphasis on the financial benefits of the project.[46] The Court stated that it was reasonable that the City did not find the solar plant to be a ‘major public facility’ in part because the property would not be accessible to the public and no direct City funds would be used to construct the plant.[47]However, to come to this conclusion the Court had to restrict the meaning of ‘public’. Specifically, the North Saskatchewan River Valley Area Redevelopment Plan does not define ‘major public facility’ or ‘public facility’ so the Court goes on to do their own interpretation of the meaning of ‘public.’

Although it is standard for a Court to go through other legislation or caselaw to help define a term, the bylaws referred to by the Court in this decision, specifically the Public Places Bylaw and the Zoning Bylaw 12800, have a different focus than that of the North Saskatchewan River Valley Area Redevelopment Plan and may not provide an accurate comparison.[48] Additionally, the Court even notes that neither of the bylaws they look to for help actually refer to public facilities.[49] It seems that in this section, the Court is going out of its way to define ‘major public facility’ in a way that favours the city’s interpretation, with a focus on public access. Presumably the bylaw could have been phrased to include “accessible public facility” if that was the City’s intention. While the Court acknowledges that they need not determine the correct use of the term ‘major public facility’ but must only do so in a reasonable way, a plain reading is the standard.[50] It may be unreasonable for the Court to justify a more restrictive definition through their own interpretation.

The Court also found that it could not overturn a City decision based on an improper weighing of the factors or, more specifically, because the City placed too much weight on the financial benefits of the project.[51] The Court determined that as elected officials, the City Councillors could weigh the factors as they see fit and that the proper recourse would be at a future election, rather than through the courts.[52] In other words, the Court gave City Council a high level of deference in their decision making around the bylaw amendments.

The level of deference that should be awarded to City Council is determined by the appropriate standard of review. Generally, it is a standard of reasonableness, which is discussed in the 2019 Supreme Court of Canada (“SCC”) decision in Canada v Vavilov (“Vavilov”). [53]  However, this decision has also resulted in ongoing jurisprudence about the nature and scope of deference municipalities (and other administrative decision makers) are owed.

It is notable that the Alberta Court of Appeal, in Koebisch v Rocky View (County), has confirmed a high level of deference to municipal decision makers, and that the Vavilov decision reaffirmed the earlier decision of Catalyst Paper Corp v North Cowichan (District) (“Catalyst Paper Corp”).[54] In Catalyst Paper Corp., he SCC found that, in the context of municipal bylaws, “reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable” and that courts will not “overturn municipal bylaws unless they are found to be ‘aberrant’, ‘overwhelming’, or if ‘no reasonable body’ could have adopted them.”[55] The Alberta Court of Appeal has also confirmed that it is not the Court’s role to weigh the policy choices or social, economic, or other factors for Council.[56] Notwithstanding this reaffirming of deference, it appears that the application of Vavilov to municipal decision-making will continue to evolve and it is hard to predict how a Court would interpret the appropriate standard of review in this case.[57]

Regardless of the final outcome, these types of land use conflicts add cost and time to the development of solar regimes and are a reflection of a failure to integrate planning around land use and multiple environmental, social, recreational, and economic outcomes. Integrating renewable energy into planning decisions has been the subject of recent work from Jiaao Guo et al., who have developed tools to assist in identifying the “most suitable lands” for renewable developments.[58] Similarly, the Miistakis Institute has published a decision support tool called “Least Conflict Lands: Municipal Decision Support Tool for Siting Renewable Energy Development.”[59] Planning for solar energy in this way will mitigate conflicts with municipal plans and will create clarity for future solar developers.

To read more about solar energy check out our report “Here Comes the Sun: Solar Law in Alberta” and accompanying documents:

So you want to Start A Solar Coop
So, you want to Lease Your Condo Roof to a Solar Company
So, you want to Lease Your Property to a Solar Company
Here Comes the Sun: Solar Law in Alberta by Rebecca Kauffman

 

More information

Further, to read more about municipal law and the environment check out our community conserve report “Municipal planning and environmental autonomy: An update on provincial paramountcy and its implication for progressive environmental planning and decision making”.

 

 

[1] Alberta Utilities Commission, “EPCOR Water Services Inc. E.L. Smith Solar Power Plant” (20 February 2019) online: http://www.auc.ab.ca/regulatory_documents/ProceedingDocuments/2019/23418-D01-2019.pdf [“AUC – EPCOR Water Services”].

[2] Ibid at para 1.

[3] Ibid at para 2.

[4] Ibid at paras 6-11.

[5] Ibid at para 26.

[6] Ibid at para 27.

[7] Alberta Environment and Parks, “Wildlife Directive for Alberta Solar Energy Projects” (4 October 2017) AEP Fish and Wildlife 2017 No.5 online: https://open.alberta.ca/dataset/6a71e752-8d72-4126-a347-e9f328279904/resource/527c6a99-4004-440c8033-07872cb8adb0/download/wildlifedirective-albertasolarenergyprojects-oct4-2017.pdf (“AEP Wildlife Directive”).

[8] Alberta Utilities Commission “Akamihk Energy Incorporated Montana First Nation Solar Facility” (10 January 2020) at para 13 online: http://www.auc.ab.ca/regulatory_documents/ProceedingDocuments/2020/24751-D01-2020.pdf.

[9] AEP Wildlife Directive, supra note 7.

[10] AUC – EPCOR Water Services, supra note 1 at para 10.

[11] See AUC – EPCOR Water Services, supra note 1 at para 27 which states that both Alberta Environment and Parks and the Impact Assessment Agency (then called the Canadian Environmental Assessment Agency) confirmed that an environmental assessment was not required.

[12] AUC – EPCOR Water Services, supra note 1 at paras 42-47.

[13] Ibid at para 60.

[14] Ibid at para 61.

[15] Ibid at para 65.

[16] Ibid at para 67.

[17] Ibid at para 31.

[18] City of Edmonton, revised bylaw 18889, A Bylaw to amend Bylaw 7188, as amended, the North Saskatchewan River Valley Area Redevelopment Plan, (19 October 2020); City of Edmonton, charter bylaw 18890, A Bylaw to amend Bylaw 12800, as amended, The Edmonton Zoning Bylaw Amendment No. 2821 (19 October 2020) [Bylaw 18890].

[19] City of Edmonton, “Proposed Rezoning and Plan Amendment Information Session” (23 April 2019) City of Edmonton Powerpoint online: https://www.edmonton.ca/sites/default/files/public-files/assets/PDF/LDA17-0283_April2019_InformationSession_DisplayBoards.pdf [“Zoning Powerpoint”]; Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton, 2022 ABQB 11 at para 4.

[20] Zoning Powerpoint, supra note 19.

[21] Bylaw 18890, supra note 18.

[22] CBC News, “Edmonton council approves rezoning for river valley solar farm” (19 October 2020) CBC News online: https://www.cbc.ca/news/canada/edmonton/river-valley-solar-farm-1.5768921.

[23] AUC – EPCOR Water Services, supra note 1 at para 22.

[24] City of Edmonton, bylaw 7188, A Bylaw to designate the North Saskatchewan River Valley and Ravine System as a Redevelopment Plan Area and to adopt the North Saskatchewan River Valley Area Redevelopment Plan (26 February 1985), s 3.5.3.

[25] Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton, 2022 ABQB 11 at para 5 [“Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton”].

[26] Ibid at para 6.

[27] Ibid at para 17.

[28] Municipal Government Act, RSA 2000, c M-26, ss 619 & 620 [“MGA”].

[29] Ibid, s 619(2).

[30] Ibid, ss 619(5) & (6).

[31] Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton, supra note 24 at para 17; MGA, supra note 29, s 619.

[32] Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton, supra note 24 at paras 19 & 20.

[33] Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton, supra note 24 at para 32.

[34] Borgel v Paintearth (Subdivision and Development Appeal Board), 2020 ABCA 192.

[35] Ibid at para 22.

[36] Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton, supra note 24 at paras 27-30.

[37] Ibid at para 30.

[38] Ibid at para 31.

[39] Environmental Law Centre, “Municipalities and Environmental Law – Part 1: The scope of municipal powers and the environment” (November 2017) Community Conserve at 14 online: https://www.communityconserve.ca/wp-content/uploads/2021/02/Municipal-Environmental-Jurisdiction-Part-1-Final-1.pdf.

[40] Alberta Utilities Commission, “Coaldale Solar Project Acestes Venture Ltd.” (31 May 2019) online:http://www.auc.ab.ca/regulatory_documents/ProceedingDocuments/2019/23821-D01-2019.pdf.

[41] Ibid at para 45.

[42] Ibid at para 49.

[43] AUC – EPCOR Water Services supra note 1 at para 67.

[44] Edmonton River Valley Conservation Coalition Society v Council of the City of Edmonton, supra note 24 at para 22.

[45] Ibid at paras 27 & 28.

[46] Ibid at para 33.

[47] Ibid at para 53.

[48] Ibid at paras 41 & 42.

[49] Ibid at para 43.

[50] Ibid at para 53.

[51] Ibid at para 56.

[52] Ibid at para 57.

[53] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

[54] Koebisch v Rocky View (County), 2021 ABCA 265; Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2.

[55] Koebisch v Rocky View (County), 2021 ABCA 265 at para 19 citing Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 at paras 19 & 20.

[56] Koebisch v Rocky View (County), 2021 ABCA 265 at para 42.

[57] See for example: Young v Red Deer County, 2022 ABQB 13 in which the Court found that City Council’s reliance on a deficient environmental assessment to pass a development bylaw was not sufficient and quashed the bylaw in response. Notably; however, there was no AUC approval in this case.

[58] Jiaao Guo, Victoria Fast, Philip Teri and Kirby Calvert “Integrating Land-Use and Renewable Energy Planning Decisions: A technical Mapping Guide for Local Government” International Journal of Geo-Information (May 2020) 9(5):324.

[59] Tracy Lee, Kelly Learned and Ken Sanderson (Calgary, Miistakis Institute, 2018), online: https://www.rockies.ca/files/reports/MIR_LCL_Report_FINAL.pdf.

 


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