Scattergun

Robert Wright (right) is a bit grayer, and everyone involved, is a bit older than when the hearing into the Ostrander Point wind project began in March 2013.

Lawyers use final day of Ostrander Point hearing to pellet Tribunal with a mix of new and bizarre arguments

The final day of hearings in this latest stage of the battle over whether industrial wind turbines may be constructed at Ostrander Point, offered a bit of drama and intrigue on Friday. This second round of hearings was ordered to consider the narrow argument of whether installing gates at the entrances to the roadways servicing the proposed nine-turbine project might sufficiently lessen the harm to the Blanding’s turtle, an endangered species.

Lawyers for both the developer and the province, however, used the final day of hearings to lob a few grenades into the proceedings. First, Doug Hamilton, a partner in the national law firm McCarthy Tetrault, representing the developer, Gilead Power Corporation, surprised the small room packed with Prince Edward County Field Naturalists (PECFN) by recommending that Environmental Review Tribunal (Tribunal) members, Robert Wright and Heather Gibbs recuse themselves—that is, that they remove themselves from deciding this matter.

Hamilton accused Wright, in particular, of bias.

That is because in July of 2013, this same panel revoked the developer’s permit to build this project— a permit granted by the Ministry of Environment. After 40 days of hearings and digesting nearly 100 pieces of evidence, Wright and Gibbs concluded that the risk posed by the project to the Blanding’s turtle was serious and irreversible. It was the first time an Environmental Review Tribunal had overturned a provincial Renewable Energy Approval (REA). It was precedent.

In the intervening months, Wright and Gibbs were appointed to hear other REA appeals. In one of these appeals, Wright cited the Ostrander decision in one of his decisions. On Friday, Hamilton argued that Wright could no longer be objective in deciding the reconsideration of the Ostander Point project.

On this point, Hamilton did not have support of the province’s lawyer. Sylvia Davis, representing the Ministry of Environment and Climate Change (MOECC) has, throughout this two-year legal battle, mostly acted in lock-step with the developer’s legal team. But she could not support the attempted subversion of Tribunal process, nor was she eager to push a reset button and start the process all over again.

But Hamilton wasn’t done.

He argued that the time had run out on the Tribunal’s ability to make a decision. It was a peculiar argument, inasmuch as it was the developer’s appeal of the Tribunal’s decision, that had compelled it to reconvene—extending past the six month limit imposed upon these panels.

But it was the MOECC’s Davis who prompted the sharpest exchange with the panel. Davis tendered the argument that industrial wind energy is renewable energy and therefore in the public interest as determined by the province.

“It’s okay to kill turtles,” observed Davis. She reasoned that since wind energy is renewable and as such, it would reduce greenhouse gases, it was in the public interest that the endangered species suffer harm—even serious and irreversible harm.

That aroused the interest of Tribunal member Wright.

“Are you saying that public interest trumps everything?” asked Wright.

Davis denied the characterization—but offered nothing else to support the argument.

Wright ordered Davis, and other lawyers seeking to make this argument, to put it in writing by Wednesday January 20.

Notwithstanding the various distractions, the lawyers did manage to summarize their arguments about whether the gates would sufficiently protect the Blanding’s turtle to enable the Tribunal reverse its 2013 decision.

Both Davis and Hamilton argued that gates would reduce the risk exposure to the endangered species—to merely universal harm. That is that the harm faced by the turtles at Blanding’s turtle would, at least, be no worse than elsewhere. They relied on opinions by the Ministry of Natural Resources and Forestry (MNRF) staffers who had informed the decision to grant the developer with the permit to “harm, harass and kill” the endangered species. However, in September, it was reavealed that the MNRF’s turtle expert, Joe Crowley, had initially advised against granting the permit, fearing for the viability of the species in the project area.

Lawyers for PECFN and the South Shore Conservancy argued that the addition of gates did not alter the prognosis for the Blanding’s turtle in the wake of the industrialization of this rare and sensitive habitat. They relied on independent experts, Drs. Fred Beaudry and Kari Gunson, who had given evidence during the hearing that the gates would not safeguard the turtles from serious and irreversible harm.

The Tribunal will, after receiving written submissions today, retire to consider its decision. There is no indication when that might be rendered.