Wind Power vs. Ontario Environmentalism (ERT says no)

“This decision not only protects the Blanding’s turtle but also the staging area for millions of migrating birds and bats and the Monarch butterflies.” – Cheryl Anderson, PECFN 

In an unprecedented decision, Ontario’s Environmental Review Tribunal (ERT) ruled against the nine-turbine Ostrander Point project sited for a prime sensitive and environmentally rich area. Cheryl Anderson, the lead appellant on behalf of Prince Edward County’s Field Naturalists (PECFN), stated:

The Tribunal in the Ostrander Point ERT hearing has found that “the remedies proposed by Ostrander [Gilead] and the Director are not appropriate in the unique circumstances of this case.  The Tribunal finds that the appropriate remedy under s.145.2.1 (4) is to revoke (emphasis, Ms. Anderson) the Director’s decision to issue the REA [Renewable energy Approval]”.

The Tribunal decision says that no matter how important renewable energy is to our future it does not automatically override the public interest in protecting against other environmental harm such as the habitat of species at risk.  This was the basis of PECFN’s appeal.

This decision not only protects the Blanding’s turtle but also the staging area for millions of migrating birds and bats and the Monarch butterflies. 

The Tribunal decision reminds the Ministry of Environment and Climate Change of its Statement of Environmental Values that “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.”

Ontario has perpetuated its goals of pushing industrial wind by placing in front of objecting communities, virtually all, a wall of near impossibility: overriding the goals of the ERT, which is essentially to facilitate industrial wind, and comply with the renewables goals of the Province. The odds to date have been insurmountable. The costs to communities to fight the tight timelines, enormous. The Tribunal at times has been chastised for lack of clarity, and lack of objective standards, and even charged by lead lawyer, Eric Gillespie, with conflicts of interest; the Tribunal process is now seen widely as tainted, a mere puppet for Liberal policies, and in the public’s view, not anywhere near to compliance with the Province’s statement of Environmental Values.

So the years’ long battle to protect this prime sensitive area met its conclusion today, with celebrated news: a celebration for some tarred by their own inability to master the ERT’s circular and Kafkaesque manners and rules; communities already gouged with massive turbines and loss of health. Imagine looking down the throat of an approved project, facing a 15 day deadline to register an objection with the ERT, and then enormous legal costs, and until now, a rubber stamp process with zero compassion or logical conclusions.

The Decision

Years of wrangling and a preliminary decision by the Tribunal that the Blanding’s Turtle would be negatively impacted, brought about the second layer of developer led proposals for “mitigation” or an Impact Plan. The Tribunal under the REA (Renewable Energy Act) could supervise implementation of this Impact Monitoring Plan and address the risk of harm to the Blanding’s Turtle, including “road mortality and cumulative risk of harm, and harm to Blanding’s turtle habitat.”

Replete with language suitable for a Ministry of the Environment (and Climate Change), MOECC, the decision reminds the province that the public good must be served in applying or denying approvals, and that also,

“…the Tribunal should have regard to the broader considerations of the “environment” as defined in the Environmental Assessment Act (this term and its definition are specific to the purpose of Part V.0.1 of the EPA which governs renewable energy approvals by the Director). The Director further submits that these considerations include: the impact of the proposed remedy on Blanding’s turtle.”

The language within the decision provides insight as well: possibly a reflection of things to come with other related projects such as White Pines, and Amherst Island, where Blanding’s Turtles are also in prime habitat.

“The SSC (South Shore Conservancy) argues that in balancing public interest considerations, the Tribunal may legitimately consider the consequences of uncertainty of the results of the proposed mitigation measures. It submits that, if it is not clear on the evidence that the proposed mitigation measures will sufficiently protect the local population of Blanding’s turtle, then the Tribunal may consider that the risks to the population outweigh countervailing considerations, such as the claimed “importance of renewable energy”. (Our emphasis)

Important conclusions of this decision will resonate with Lakeside communities both sides of the border, and beyond. The implications are that the LEEDCo (Lake Erie Icebreaker) project, 6-9 exploratory turbines in Lake Erie, fraught with environmental obstacles, as well as other projects (Galloo) for perimeter migration routes, as well as the universal recognition of the importance indeed, of “at risk” or endangered species, humble as the turtle, will use this decision fruitfully. Two more Ontario nearby projects, White Pines and Amherst, have already seriously impacted the soon to come Tribunal decisions as they have Blanding’s Turtle viewings and identical likely findings.

(Enumeration below is ours and is a selection of key points.)

1. “This is the first renewable energy approval appeal proceeding in which an appellant has met the environmental harm test in s. 145.2.1(2)(b) of the Environmental Protection Act (the “EPA”) and, therefore, this is the first case to engage the Tribunal’s statutory discretionary remedial power under s. 145.2.1(4). “
2. …. Mr. Taylor states that it may be important to inhibit turtles from nesting on the shoulders of the access roads, which can “best be accomplished” through fencing the roads. However, neither of the Blanding’s turtle experts, Dr. Beaudry or Mr. Crowley, recommends exclusionary fencing as a means of keeping the turtles off the roads in this location, nor did the road expert Ms. Gunson. They observed that the access roads form a circle located entirely within high quality Blanding’s turtle habitat that Blanding’s turtles may criss-cross in every direction for their various life cycle requirements. There are temporary wetlands scattered throughout the Project Site, permanent wetlands in the south-east corner of the Project Site and to the north, and connected wetlands along the west side, with Lake Ontario to the south (see para. 337 of the APPEC decision).   Fencing was not recommended by the experts in the 2013 hearing because it would fragment this high quality habitat, creating more harm than good. For these reasons, the Tribunal concludes it is not an acceptable mitigation measure in this location.  (Our emphasis)
3. The experts disagreed on the likely “success” of creating artificial nesting habitat in discouraging Blanding’s turtles from nesting on roadsides. Much of the disagreement originates from their different definitions of success.
4. On the question of the definition of “success”, Mr. Taylor noted in his witness statement that in the USA, “wetland construction success is deemed to be acceptable by the US Corp of Engineers, and, therefore, deemed successful by the proponents, if the plants simply remain alive after three months.” Nonetheless he recognized that “the key to the preservation of this species … is to plan for their longevity,” and that Blanding’s turtles “are thought to live to an age of about 65-75 years, perhaps longer”. For this reason he opined that the 20-year conservation recommendation for the compensation property in the ESA permit may be inappropriate.
5. The Project Report states that access roads are to be composed of “granular A” gravel material, which all experts acknowledge is often used by Blanding’s turtles for nesting. The experts agreed that turtles are less likely to nest on hard road shoulders, or in areas with dense vegetation. No evidence was adduced, however, to indicate how these measures could successfully be implemented at this Site.
6. ….much of the Ostrander Point area is an MNRF-designated “significant” alvar, or an alvar landscape, which is “characterized by a mosaic of distinctive plant associations adapted to extreme environmental conditions, including periodic flooding and severe drought, mediated by shallow soil depths, variable water tables and dramatic runoff patterns” (APPEC decision, paras. 546, 558). The Tribunal found that engaging in the Project will cause “serious harm” to the alvar, although it found that the evidence did not establish that the harm would be “irreversible”.
7. With respect to predation, the experts agreed that nest cages are effective in increasing hatchling survival, although nests may be difficult to find, even for experts. On the other hand, cages identify turtle nests, and thus increase the risk of poaching. The IMP’s Adaptive Management appendix states: “the increased risk of poaching from members of the public will be addressed by restricting public access to the road network.”
8. PECFN relies on Dr. Beaudry’s evidence to submit that at this site, “there is simply no practical or effective way to exclude the public or personnel associated with the Project,” and that the only effective mitigation measure is to not build the roads.  
9. For the above reasons, the Tribunal finds that Ostrander and the Director have not demonstrated, on a balance of probabilities, that the measures outlined in the IMP dated November 15, 2013, including the Road Access and Control Plan, together with the pre-existing REA conditions, will prevent serious and irreversible harm to the population of Blanding’s turtle at the Project Site and surrounding area, as was found in the 2013 APPEC decision.
10. Having weighed all of the relevant considerations, the Tribunal finds that the remedies proposed by Ostrander and the Director are not appropriate in the unique circumstances of this case. The Tribunal finds that the appropriate remedy under s. 145.2.1(4) is to revoke the Director’s decision to issue the REA.   (Renewable Energy Approval)

Conclusion 

In short, high quality habitat for an endangered species, access road contentions, inability to ensure sustainability of the turtle over a 20 year permit, and the fact that poaching will be facilitated, not remediated by the proponent’s mitigation plan, has led to protection of an at risk species. The first Tribunal decision in favor of wildlife in Ontario.

Years ago, noting that the bar to cross for irreversible harm is very high for the ERT, objectors crowded the hall at Demorestville, likely yet unaware of how high a hurdle. For a tattered wind-torn province, this ERT decision is long overdue.

We congratulate the PECFN (Prince Edward County Field Naturalists) and APPEC (Alliance to Protect Prince Edward County) as well as SSC (South Shore Conservancy) and CCSAGE (County Coalition for Safe Appropriate and Green Energy) and all their supporters everywhere, for their tenacity literally over years. This is a universal win: impacts will be applied quickly.

Groups around the province are now calling on the Premier and Ministers to revoke all environmentally inconsistent approvals, where potential for harm exists: that would be, everywhere.