Windstream Energy LLC v. Government of Canada, UNCITRAL, Canada's Counter-Memorial (January 20, 2015)
1. The development of an offshore wind facility is an inherently “high-risk” activity. Today, only nine fully commissioned offshore wind facilities with a capacity of 300 MW or more exist in the world, all of them in Europe, and none of them in a freshwater environment. Not a single offshore wind facility is operational in North America.
2. The reason why there are so few operational offshore wind facilities is simple. Developing one requires overcoming significant challenges with respect to getting financing, obtaining access to a site, connecting to the electricity grid, conducting relevant research, acquiring the requisite permits, obtaining the necessary equipment and expertise, and securing onshore and offshore facilities to support construction. Most importantly, though, it requires time – particularly if it is a novel type of project, such as a freshwater wind facility, or first-of-a-kind project in a jurisdiction. The proponent requires enough time to ensure that it has gathered the relevant information, done the appropriate studies, obtained the necessary financing, consulted with all relevant stakeholders, and constructed the project efficiently, safely and properly. The regulatory authorities also need sufficient time to understand and evaluate all of the potential effects of the proposed project, and to develop the regulatory standards, guidelines and permitting requirements necessary to protect people and the environment from harm or interference through appropriate mitigation measures. Such timeframes for both the proponent and the government regulators are measured in years, not months. North America’s most advanced offshore wind project, the Cape Wind project, remains unconstructed more than a decade after filing for its initial permits.
3. Time is ultimately what this claim is about, and in particular, the time that the Government of Ontario requires to develop the regulatory framework necessary to assess the Claimant’s proposal to construct the first ever large-scale freshwater wind facility in the world. Put differently, this dispute is about whether Ontario has the right to proceed with caution when determining how to assess an activity that has never been attempted before and which would have uncertain effects on the Great Lakes environment and the millions of people who depend on it.