Three appeals against turbine project tribunal decision

Right at the August 2 deadline, three appeals were launched against the recent decision of the Environmental Review Tribunal to revoke approval of the Ostrander Point wind turbine project.

Ostrander Point Wind Energy LP (Gilead Power), the Ministry of the Environment (MOE) and the Association to Protect Prince Edward County (APPEC) have submitted counter-appeals of the Environmental Review Tribunal’s (ERT) decision to support the Prince Edward County Field Naturalists appeal of the initial MOE approval of Gilead’s wind turbine project at Ostrander Point Crown Land block.  The counter-appeals have to be based on the assertion that the ERT made errors in law in the decision.

The tribunal decision was announced early July after 40 days, 185 exhibits and testimony of 31 expert witnesses appeared before the panel of lawyers Robert Wright and Heather Gibbs in Demorestville and Toronto.

The tribunal concluded “that engaging in the project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment. This is on the basis of findings that such harm will be caused to Blanding’s turtle.”

“The proponents now say that the serious and irreversible harm test applies province wide and that it was the responsibility of PECFN to prove that the project would cause serious and irreversible harm to the turtle population province wide,” said Cheryl Anderson, of PECFN. “They also assert that the tribunal erred in not recognizing the provisions of the Species at Risk Permit issued to Gilead.

“The MOE asserts that the size and density of the Blanding’s turtle population, the potential effects of traffic and poaching are unknown. These issues were the responsibility of the Ministry of Natural Resources to establish before issuing a permit to ‘kill harm and destroy’ an endangered species or before approving the project.”

PECFN and APPEC submissions had to prove the project will cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment.

The tribunal concluded APPEC did not meet the test regarding harm to human health “because no causal link has been established between wind turbines and human heath effects at the 550m setback distance required under this renewable energy approval.”

APPEC is appealing the tribunal’s decision dismissing the claim that turbines would cause serious harm to human health.

The case is unique in Ontario.  It questions Renewable Energy Act regulations, their interpretation by the ERT and the intent of legislation which removes the right of development determination from local municipalities.

“In the world of the Green Energy Act, democracy is paid but lip service,” said Garth Manning, chair of the County Coalition for Safe and Appropriate Green Energy. “The only prospective ray of light at the moment is that the appeals are to the Divisional Court of the Superior Court of Ontario on alleged “points of law”. Superior Court judges are of a high calibre, federally appointed and completely independent.”

Anderson explained that Ostrander Point Wind Energy LP, the MOE and APPEC have 30 days to submit further material to the court after which PECFN will have a further 30 days to respond.  The proponents request that the case be heard at Divisional Court in Toronto and Gilead is requesting that costs be assessed against PECFN.