File photo. Pinnacle Pellet Plant.

Image Credit: Contributed

A North Okanagan man who fought and lost an environmental battle with the province and a controversial Lavington wood pellet company, is now being pursued by the provincial government for nearly $24,000 in legal costs.

Thomas Coape-Arnold, a retired scientist, challenged the environmental approval for the pellet company before the Environmental Appeal Board in March 2019. Coape-Arnold argued permits granted by the Ministry of Environment and Climate Change Strategy to Lavington wood pellet company Pinnacle Renewable Energy, should have included stricter controls over contaminants the company releases into the atmosphere.

But now the fight has come back to Coape-Arnold. One month after the appeal board decision, the Ministry of Environment filed a motion demanding Coape-Arnold cover its legal costs to the tune of $23,758.98.

In the Nov. 1 hearing, Coape-Arnold tried to persuade the Environmental Appeal Board to drop the costs award and while the board hasn't awarded costs, it ruled the Ministry is within its rights to seek them. 

Pinnacle Renewable Energy did not file an application for costs involved in the case. It's unusual for a respondent such as the Ministry to seek costs in this venue. 

The controversy surrounding the Lavington pellet plant dates back five years or more, with community groups garnering hundreds of signatures opposing the pellet plant. Concerns focused largely on air quality and the plant's proximity to Lavington Elementary school, located less than 300 metres away.

Community group Lavington Is For Everyone spearheaded a campaign questioning the environmental impacts the pellet plant would have on the community. Lavington Is For Everyone member and retired scientist Coape-Arnold took legal action against the Ministry of Environment who authorized the permits allowing the plant to operate.

In the Nov. 1 Environmental Appeal Board decision, Coape-Arnold argued the Board should dismiss the Ministry's claim for costs as it has "no reasonable prospect" it will succeed.

According to the decision, the Environmental Appeal Board should only award costs in "special circumstances" and costs should only be awarded if a case is "frivolous or vexatious" or used for an "improper purpose."

The Ministry argued Coape-Arnold was "disingenuous" in answers given in cross-examination and "unreasonably" proceeded to a four-day hearing without expert evidence, and relied upon scholarly articles which didn't support the conclusions he "sought to draw from them."

Coape-Arnold argued he had a genuine belief in the arguments he put forward during the original appeal.

The retired scientist also argues there are only a few cases where the Appeal Board has awarded cost and those cases involved an element of bad faith.

"There was no bad faith here," Coape-Arnold argued.

However, the Appeal Board rejected Coape-Arnold's application to throw out the motion, giving the green light to the Ministry to go after costs.

The three board panel, Gregory Tucker, R.G. Holtby, and Kent Jingfors do however state their decision to allow the case to move forward should not be taken as an indication that costs will be awarded.

The Ministry of Environment did not respond by deadline. Arnold Coape-Arnold could not be reached by press time. 

See more stories about the plant here.

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