Green Energy vs Conservation

It is unfortunate when environmental litigation pits two “green” battles against one another. In this case, it is green energy against conservation.

This legal battle stems from a decision made by the Ministry of Environment for Ontario (“MOE”) to issue a Renewable Energy Approval (“REA”), which authorized Ostrander Point GP Inc. (“Ostrander”) to construct and operate nine wind turbines in Prince Edward County in Ontario (the “Project”).

As a result of the MOE’s decision, the Prince Edward County Field Naturalists (“PECFN”) and the Alliance to Protect Prince Edward County (“APPEC”) filed appeals, arguing that the Project would cause serious and irreversible harm to animals and human health.

Between March and June 2013, for a period of forty days, the Environmental Review Tribunal (“Tribunal”) heard the appeal, hearing evidence from thirty-one experts, along with a number of fact witnesses.

In a decision dated July 3, 2013, the Tribunal allowed the appeal of PECFN and revoked the MOE’s decision to grant a REA. The Tribunal found that the Project would cause serious and irreversible harm to the Blanding’s turtle. The Tribunal rejected PECFN’s arguments relating to birds and alvars, and rejected APPEC’s argument regarding the impact to human health.

With the Project at risk, Ostrander and the MOE appealed the Tribunal’s decision, arguing that the Tribunal was incorrect when it found that the Project would cause serious and irreversible harm to the Blanding’s turtle.

Not to be outdone, PECFN appealed the Tribunal’s decision as it related to the dismissal of PECFN’s argument that the Project would bring serious and irreversible harm to birds and alvar. APPEC also appealed the Tribunal’s decision as it related to the dismissal of their argument that the Project would impact human health.

On January 21, 22 and 23, the Ontario Superior Court of Justice heard the appeals.

The Court conducted a thorough review of the particulars of the Blanding’s turtle, its predators, and its threatened status. It seemed to the Court that, based upon the evidence available, it was “unquestionable” that there was a risk of serious harm to the Blanding’s turtle from the Project. The question, however, was whether the harm was irreversible.

In reviewing the Tribunal’s decision, the Court found numerous errors in the Tribunal’s analysis and decision making including:

– making findings with no factual foundation;

– failing to interpret and apply the Endangered Species Act (“ESA”) harmoniously with the Environmental Protection Act (“EPA”); and

– failing to separately consider the issue of irreversible harm.

In particular, the Court found that the Tribunal did not have a handle on the population size of the Blanding’s turtle, or where the population was located, or what impact vehicular traffic would have on the turtle. The Court also ruled that the Tribunal erred by considering the issue of irreversible harm in conjunction with serious harm when those lines of analysis should have been separate.

The Court opined that the Tribunal failed to give sufficient weight to the fact that Ostrander had obtained an ESA permit in relation to the Project. While the Court expressly noted that the Tribunal does have jurisdiction to consider the issue of Blanding’s turtle mortality, even in the face of the ESA permit, the permit was relevant and significant evidence relating directly to the issue that the Tribunal had to decide and, by failing to give sufficient weight to the permit, the Tribunal failed to ensure harmonious interpretation and application of the ESA and EPA.

Based upon these errors, the Court set aside the Tribunal’s decision.

With regard to the remaining appeals, the Court found that the Tribunal’s decision with regard to birds and alvar was reasonable and was entirely within the scope of the Tribunal’s statutory mandate. The Court also found that the Tribunal’s decision on the issue of human harm was also a reasonable. All of the remaining appeals were, therefore, dismissed.

Subject to an appeal of the Court’s decision, Ostrander’s Project now has the green light to proceed despite the “unquestionable” serious harm that it may cause to the Blanding’s turtle.

Wind trumps turtle in this battle. However, at the time of writing, it appears that PECFN is considering seeking leave to appeal to the Court of Appeal. The war may not be over. To read the full text of this decision, see: Ostrander Point GP Inc. and another v. Prince Edward County Field Naturalists and another, 2014 ONSC 974 (CanLII)

By James Early.