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ERT Upholds Revocation of Wind Farm's Renewable Energy Approval - Risk of Harm to Blanding's Turtle

Posted in Climate Change / Renewables

On June 6, 2016, the Environmental Review Tribunal (Tribunal) issued a ruling revoking the renewable energy approval (REA) granted by the Director of the Ministry of Environment and Climate Change (MOECC) to Ostrander Point GP (Ostrander) for the installation of nine wind turbine generators and supporting facilities, including new access roads and upgrades to existing roads, on the south shore of Prince Edward County.

Appeal of the Ostrander REA

The Director's decision to grant the Ostrander REA was appealed to the Tribunal by the Prince Edward County Field Naturalists (PECFN) in 2013 on the grounds that engaging in the wind turbine project under the REA would cause serious and irreversible harm to plant life, animal or the natural environment.[1] In its July 3, 2013 decision, the Tribunal found that PECFN had met this "environmental harm test" and revoked the Ostrander REA. Specifically, the Tribunal found that the installation of access roads and improvement of existing roads for the construction, maintenance and monitoring of the wind turbines would pose serious and irreversible harm to the Blanding's turtle, a species listed in Ontario as "threatened," through increased vehicle traffic, poachers and predators.

The Tribunal's decision was appealed to the Divisional Court and then to the Court of Appeal.

In 2014, the Divisional Court overturned the Tribunal's decision to revoke the Ostrander REA on the basis that the decision was unreasonable. The Court found that the Tribunal had made a number of errors, including:

  • failing to explain its reasons for deciding that the harm to the Blanding's turtles would be irreversible

  • making the conclusion that there would be serious and irreversible harm to the Blanding's turtles without evidence of the size of the population of the Blanding's turtle, the current level of vehicle traffic and the degree of increase in vehicle traffic that would result from the project

  • failing to give the parties a chance to address the issue of the scope of the Tribunal's remedial jurisdiction and what the appropriate remedy was

In 2015, the Court of Appeal overturned the Divisional Court's ruling and restored the Tribunal's conclusion on the issue of environmental harm. The Court of Appeal found, however, that the Tribunal had erred in failing to give the parties a chance to address what the appropriate remedy was and sent the matter back to the Tribunal for a further hearing on the remedy issue.

The Tribunal's Discretionary Remedial Powers in Appeals of REAs

During the hearing on the remedy issue, the Tribunal heard fresh evidence from Ostrander, responding evidence from the Director and PECFN, and written and oral submissions of the parties and participants. The Tribunal concluded that the appropriate remedy, even with this new evidence, was to revoke the Director's decision to issue the Ostrander REA.

This is the first time that the Tribunal has exercised its remedial powers in relation to the successful appeal of an REA on the grounds that it would cause serious and irreversible harm to the environment. The Tribunal found that in exercising its discretionary remedial powers and determining an appropriate remedy, it may consider:

The Tribunal noted that the policy of promoting renewable energy as set out in the Green Energy Act, 2009 does not automatically trump protecting against other environmental harm. Once the environmental harm test is satisfied, "the policy goals of promoting and streamlining renewable energy projects lose their primacy and become just one of the many factors to consider within the broader legislative framework and the public interest in energy generation that mitigates harm to the environment."[4]

Ostrander and the Director argued that an appropriate remedy would be for the Tribunal to order that the REA remain in place with amendments to include additional mitigation measures such as the installation of gates to deter public road users and protect Blanding's turtle.

The Tribunal found that Ostrander and the Director had not proven, on a balance of probabilities, that the mitigation measures would actually protect Blanding's turtle from serious and irreversible harm caused by the project due to road mortalities, predation and poaching. The Tribunal agreed that the installation of gates would deter some road users, but that due to the geology of the site, gates would not physically prevent members of the public from driving onto access roads by driving around the gates. The success of the gates as a mitigation measure, the Tribunal stated, "depends almost entirely on well-intentioned visitors not to use the access roads because they are gated and signed." Further, it is unlikely that the gates would deter poachers, but rather, easier access to the area via improved roads will likely facilitate poaching.[5]

The Tribunal found that, having weighed all of the relevant considerations, the remedies proposed by Ostrander and the Director were not appropriate in the unique circumstances of this case. The Tribunal ordered that the appropriate remedy, therefore, was to revoke the Director's decision to issue the Ostrander REA.[6]

The parties have 30 days from the date of the issuance of the Tribunal's decision within which to bring any appeal.

[1] Another group, the Alliance to Protect Prince Edward County, also filed an appeal of the Director's decision to grant the REA on the basis that the Ostrander project would cause serious harm to human health. The Tribunal dismissed this appeal.

[2] MOECC Statement of Environmental Values: "The Ministry adopts an ecosystem approach to environmental protection and resource management. This approach views the ecosystem as composed of air, land, water and living organisms, including humans, and the interactions among them."

[3] MOECC Statement of Environmental Values: "The Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment." 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40 at para 31: "In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation."

[4] Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change) ERT 13-003 at para 48.

[5] Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change) ERT 13-003 at paras 124 and 129.

[6] Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change) ERT 13-003 at para 144.

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