Ostrander Tribunal members Heather Gibbs and Robert Wright review submissions before an array of lawyers representing PECFN, the South Shore Conservancy, the Ministry of the Environment and Gilead Power Corporation.

Tribunal says government can’t override nature

An Environmental Review Tribunal has, for the second time, revoked the permit of a wind developer seeking to build nine industrial wind turbines at Ostrander Point on Prince Edward County’s south shore.

The Tribunal, consisting of Robert Wright and Heather Gibbs, found that measures proposed by the developer to reduce the harm to the Blanding’s turtle, an endangered species in Ontario, likely would not eliminate the threat posed by the project and its road network. It concluded that fencing and other control measures proposed by the developer might reduce the threat to the Blanding’s turtle, but would not eliminate it. It found that over the lifespan of the project, even a small number of turtle deaths posed an intolerable threat to the species—given the Blanding’s turtle’s long life and low reproductive output.

“No doubt that this case is now precedentsetting on a number of different levels,” said Eric Gillespie, legal counsel for Prince Edward County Field Naturalists (PECFN), the organization that launched the appeal in 2013 and has battled through a variety of legal settings.

Gillespie says the decision will guide future decisions, such as the White Pines remedy hearing, in three important ways. The judgement, he says, enunciates clear protection for an endangered species. It says that while renewable energy policies are important— but don’t trump other environmental polices—a balance must be struck. It also brings back the precautionary principle— that governments and their agents may weigh the relative risk of acting without a complete picture versus avoiding the risk altogether.

Eric Gillespie takes a moment outside the Town Hall in Demorestville during the Ostrander Point remedy hearing.

“These factors alone will make this decision truly precedent-setting,” said Gillespie.

Opponents of the project are thrilled.

“This decision vindicates everything we’ve said since the beginning,” said Myrna Wood, of PECFN. “The province’s renewable energy policy doesn’t automatically override the public’s interest in protecting against other environmental harm,” said Wood, quoting the Tribunal decision.

PECFN also underlined the critical importance of the Tribunal’s recognition of the precautionary principle, pointing to the following statement in the decision.

“As our understanding of the way the natural world works and how our actions affect it is often incomplete, [government] staff should exercise caution and special concern for natural values in the face of such uncertainty,” wrote Gibbs and Wright in their decision.

It is likely to be analyzed and picked apart by legal scholars and counsel for many years.

INCOMPLETE UNDERSTANDING
Just days before Christmas in 2012, the Ministry of the Environment announced it had enough information to grant Gilead Power Corporation a permit to build a nine-turbine industrial wind project on Crown land on the County’s south shore. The project was appealed to the Environmental Review Tribunal. It was a long shot— no wind project had been derailed by a provincially appointed Tribunal. Besides, the test was impossibly narrow. Appellants had to prove this project would cause serious harm to humans living nearby. The only other available appeal was that the project posed a serious and irreversible threat to plant life, animal life or the natural environment.

Despite the long odds, the Association to Protect Prince Edward County took on the human health appeal. PECFN went to bat for nature.

After 40 days of hearings in the spring of 2013 and examining more than 180 exhibits of evidence, the Tribunal—Wright and Gibbs— concluded that no causal link between the proposed turbines and the health of nearby residents had yet been established. They denied that appeal.

They found, however, that the risk to the Blanding’s turtle was simply too great and that the mitigation measures proposed by the developer were untested and likely inadequate. In July, they revoked the developer’s permit.

The developer appealed to the Divisional Court in 2014. It ruled in favour of the wind company, arguing the Tribunal ought to have given the developer an opportunity to propose remedies to the issues raised by the Tribunal.

Another appeal judge later overturned the Divisional Court’s ruling, but said the Tribunal would have to hear and render judgement upon the developer’s proposed remedies. Those hearings took place last fall in Demorestville.

It has taken six long months for the ruling.

The developer proposed to protect the Blanding’s turtle in two ways—keeping turtles off the roadway and limiting traffic on roadways where turtles might cross. But the Tribunal concluded that neither approach was likely to be effective.

The Tribunal was persuaded that creating artificial nesting grounds might attract some Blanding’s turtles, but on their own, these artificial zones wouldn’t prevent the animals from criss-crossing the project area as they’ve done through the ages.

More problematic is that Blanding’s turtles like to lay eggs in gravel—on the edge of roadways. And the developer was proposing to build 5.4 kilometres of new roadway in the centre of the turtle habitat.

The Tribunal noted that Blanding’s turtle experts Frederic Beaudry, Kari Gunson and the Ministry of Natural Resources and Forestry’s Joe Crowley all agreed that the measures proposed would reduce mortality but would not eliminate it. Given the turtles’ long life and low reproductive rate, they concluded the project could not proceed.

“The Tribunal finds that a small number of individual adult turtles will be killed annually, that poaching will not be reduced but rather facilitated, and that there will be no measurable change to the impacts of predation,” wrote Gibbs and Wright. “The Tribunal finds that these harms cumulatively over the lifetime of the Project will cause irreversible harm to the local population, and lead to the eventual loss of the population.”

The story likely doesn’t end here. The developer has the right to appeal this most recent decision to the Divisional Court.

“Yes, there is going to be another stage,” said Gillespie. “We all know, however, in the contest between the turtle and the hare, who won the race. The turtle is doing just fine.”

Implications

What does the Ostrander decision mean for White Pines?

Now that an Environmental Review Tribunal has ruled for a second time that an industrial wind project at Ostrander Point may not proceed because it threatens the survival of the Blanding’s turtle, many are beginning to ask what this decision means for another, larger industrial wind project surrounding the Ostrander Point site.

The White Pines project comprises 27 wind turbines stretching from Milford, south toward the South Marysburgh shore, around the Ostrander Point site, reaching the edges of the Prince Edward Point National Wildlife Area.

The project was appealed last fall to an Environmental Review Tribunal adjudicated by Marcia Valiante and Hugh Wilkins. (The project is also subject to two judicial reviews—one probing the protections to landscape heritage, the other a more general examination of the equity and fairness of the Green Energy Act as it applies to the individuals, businesses and community upon whom industrialization on a massive scale has been imposed.)

The Tribunal ruled in February that the project would cause serious and irreversible harm to the Blanding’s turtle and the little brown bat.

But unlike the Ostrander Tribunal, Valiante and Wilkins did not revoke the developer’s Renewable Energy Approval, pending a hearing to consider possible remedies that could mitigate the harm to these species. That hearing has not yet taken place.

According to Eric Gillespie, counsel for both the Prince Edward County Field Naturalists (PECFN) on the Ostrander appeal and the Alliance to Protect Prince Edward County (APPEC) in the White Pines appeal, the Ostrander Tribunal understood they were writing a precedentsetting ruling.

“This is the first remedy decision,” said Gillespie. “The decision is going to have major impacts on the White Pines project because we are right in the middle of a similar remedy hearing process. Everything the Tribunal said here they no doubt had in mind for the White Pines case and the third case, subject to a remedy hearing, at Settler’s Landing. They had those and all future cases in mind.”

Gillespie says the issues and principles at stake at White Pines are the same as the Ostrander Point case.

“We think the decision is extremely positive for the White Pines case—protection of endangered species, return of the precautionary principle—those things alone have to be viewed as positives by the appellants.”

APPEC’s Orville Walsh is equally buoyed and relieved by the Ostrander Tribunal decision.

“We believe that this decision will have an impact on our appeal of the White Pines project,” said Walsh. “The Tribunal itself has also said as much in that they had allowed more time for submissions with the knowledge that this decision was about to be released.”

He notes that both projects are similar in nature, issues and geography.

“The Ostrander decision touches upon several areas that also should apply,” said Walsh. “Specifically, the protection of an endangered species—the Blanding’s turtle and their habitat. The decision also includes a statement on balancing the want for more renewable energy with the need to protect the natural environment. It also recognizes the need to utilize the precautionary principle in situations where there is incomplete information. All of this applies equally the White Pines project. We hope the White Pines Tribunal will arrive at a similar finding and ruling.”