Appealed

MOE and developer challenge Ostrander Point Tribunal decision in court

Both the Ministry of Environment (MOE) and wind energy developer Gilead Power Corporation have concluded they can’t live with an environmental review tribunal decision last month to revoke the approval of a nine-turbine project on Crown land at Ostrander Point. Both the MOE and the developer have decided to appeal the Tribunal decision that stopped the development in its tracks to the Ontario Superior Court.

The Tribunal had been persuaded the risks to the Blanding’s turtle that nest on this project site were too great and that mitigation measures were likely insufficient and in any event untested and unproven. And given the Blanding’s turtle is an endangered species, the network of roads needed to service the turbines posed too great a threat to the species in the Tribunal’s view.

It is the first renewable energy approval overturned by a review tribunal. The stakes were high for the developer, the Ministry of Environment, the appellants, the Prince Edward County Field Naturalists (PECFN) and the Alliance to Protect Prince Edward County (APPEC) and, of course the Blanding’s turtle.

The notice of appeal came at the deadline of August 2.

Both Cheryl Anderson of PECFN, and Henri Garand of APPEC had expected an appeal.

The developer is fighting to keep his project alive while the MOE is scrambling to ensure a turtle doesn’t derail the green energy ambitions of the governing Liberals.

Many had expected Gilead to appeal—but far fewer expected the MOE to pile on. After all, this was their review process, their rules and their playing field. When McGuinty’s Liberals removed many of the regulatory hurdles for wind and solar energy developers in the Green Energy Act—that same government devised the Renewable Energy Approvals process and the Environmental Review Tribunal. They promised this replacement process would listen to, and take into account, concerns raised by experts or the general public.

Now the MOE is claiming in its appeal that Tribunal members Robert Wright and Heather Gibbs, erred in law, in part because there is nothing “genetically unique” about the turtles that live at Ostrander Point. The MOE says Wright and Gibbs looked too narrowly at the fate of the turtles on the project site—that it should have considered the fate of the turtle on a province-wide basis.

The MOE claims, too, that in revoking the approval of the project, the Tribunal didn’t give them an opportunity to change its plans or develop a work around solution.

Gilead’s appeal makes many of the same claims but goes further. It claims the Tribunal erred in law, acted unreasonably or exceeded its jurisdictions in at least 12 ways.

Among the claims made by Gilead in its court filing is the notion that the Ministry of Natural Resources ruled on the fate of endangered species like the Blanding’s turtle when it granted the developer the permit to “kill, harm or harass” the turtle. As such, Gilead contends that the Tribunal made a mistake by second guessing the MNR in this way.

They argued further that it was up to PECFN to prove the mitigation they proposed would not work. It was not, Gilead’s lawyer’s contend, their onus to prove it would.

“It is very difficult to see the two representatives of the Crown, the Ministry of Environment and the Ministry of Natural Resources who are supposed to be there to protect our environment and our natural resources, are not doing that,” said Cheryl Anderson of PECFN. “Instead they are defending something that we believe to be injurious to the natural life at Ostrander Point.”

She says the appeal points to fundamental flaws in the Green Energy Act and tilts the playing field away from the protection of nature toward facilitating energy developers.

“It seeks to take away the right of one to say anything against these projects,” said Anderson. “It gives big developers the ability to pillage the countryside. That is not good.”

Henri Garand, president of APPEC, describes at least one of the MOE’s claims as preposterous. The MOE says there was no evidence to indicate how many Blanding’s turtles live on the project site. Consequently, the Tribunal could not conclude the harm inflicted by the project on the turtle would be “serious and irreversible”.

“Is the appellant required to assess this population because the proponent didn’t?” questioned Garand. “Must PECFN undertake extensive field research because the developer didn’t do it? Frankly, what it does is to encourage developers to shirk basic research—because the MOE will overlook the omissions.”

Garand finds it equally ludicrous that the developer is suggesting the MNR is the final authority over the fate of endangered species—that the Tribunal was wrong to second- guess the MNR.

“The MNR permits [to kill, harm and harass an endangered species] appear to be cited as some overarching and pre-emptive authority,” said Garand. “Permits are based on the status of the provincial population of a species and would impose a standard for assessing harm on the tribunal that always extends beyond the project area. It suggests the MNR’s judgment in issuing the permit to harm, harass and kill the endangered species is binding on the tribunal. This is overreaching.”

APPEC has also filed an appeal to Superior Court seeking to overturn the Tribunal’s ruling that the project would inflict harm upon human health. The appeal states that Tribunal erred in law in finding that the evidence did not establish a causal link between wind turbines and either direct or indirect serious harm to human health at the 40 dBA limit or at 550-m setbacks. APPEC has 30 days to provide more detail to the court of the basis for appeal. The costs and risks are significant.

“The board is reviewing the grounds for appeal very carefully,” said Garand. “It is another expensive legal undertaking, and we want to be fairly convinced of the potential for a positive outcome and APPEC’s capability to fight again.”

Gilead Power has asked the court of appeal to order PECFN to pay its legal bills for the appeal. Cheryl Anderson says Gilead and its lawyers are hoping to intimidate her group.

“It is bullying,” said Anderson. “They can ask. And the court can award costs. They can extinguish the PEC Field Naturalists but they won’t stop us as individuals.”