Co-authored by Sean Tyler, Summer Student
For the first time, Ontario’s Environmental Review Tribunal (“ERT”) has revoked the Ministry of the Environment’s (“MOE”) decision to grant a Renewable Energy Approval with its decision in Alliance to Protect Prince Edward County v Director, Ministry of the Environment. The ERT determined that the wind farm would cause serious and irreversible harm to the endangered Blanding’s turtles that live in and around the project site. The decision is of consequence for proponents and opponents of wind, solar and other renewable projects and for anyone else with an interest in Ontario’s growing renewable energy sector.
The case arose when two community groups appealed the MOE approval of a nine-turbine, 22.5 megawatt wind farm and all its requisite infrastructure on Crown land along the south shore of Prince Edward County. The property is a recognized area of interest for the natural environment and home to numerous plant and wildlife species, including the protected Blanding’s turtles, various birds, bats, and alvar.
The community groups challenged the decision on each of the two grounds the ERT is empowered to consider: that the project will cause serious harm to human health, and that the project will cause serious and irreversible harm to plant life, animal life, or the natural environment (see Environmental Protection Act, section 142.2.1(2)). They failed on the first (including with respect to issues of harm from noise) but succeeded on the second and the ERT exercised its discretion to revoke the MOE decision.
It remains to be seen whether the proponents will appeal the decision.
Blanding’s turtle played a leading role in this case because of the roads the project would construct through its habitat. Individual turtles in this threatened and endangered species, described by the ERT as an “attractive and good-natured” animal, move overland between different habitats over the course of the year. The proposed roads threatened the population of Blanding’s turtles in and around the project site with increased mortality due to vehicle traffic, poachers, and predators. Given the vulnerability of the turtles on this site and its assessment that mitigation measures would be insufficient, the ERT was convinced that this project would cause serious and irreversible harm to the animal life.
There are a number of key elements to take away from the decision.
- REA appeals are case-by-case analyses. The relevant factors to be considered, and their respective importance and weight, will be determined on a case-by-case basis and not subject to a set list of criteria. This means that expert evidence will remain a central component of these hearings.
- Damage to a population or habitat of species at risk warrants greater protection. Negative consequences for a species at risk “will generally be factors with considerable weight when considering ‘serious and irreversible harm’ and applying the test” (at para 208). This is consistent with the October 2012 decision denying the Mt. Nemo quarry because of concerns about protecting the Jefferson Salamander.
- The decision is not specific to wind projects. The decision turned on harm to endangered species, not wind-specific grounds like noise (which the ERT again rejected). The principles in this decision could be applied to other types of renewable energy projects, including solar fields.
- Mitigation measures will be probed for their effectiveness. They are insufficient if they do not prevent serious and irreversible harm. Specific measures that were deemed unsatisfactory in this case included most measures to reduce vehicle speed, and creating nesting habitat and providing “compensation property” when both were already within the species’ habitat. When applying for REAs, developers should therefore ensure that the mitigation measures they propose are supported by science that is specific to the species found in the vicinity of the project.
- This was not a blanket approval of wind farm opposition. The ERT dismissed claims for damage to human health, birds, bats, monarch butterflies, and alvar plant life. This decision was a narrow win for the field naturalists.
- Parties have to argue for relief as well. The ERT has discretion to revoke or alter the decision, or order the MOE to take certain actions, but neither side provided any argument. The ERT viewed the balancing of whether to allow public access to the roads as a value judgement beyond its purview. Without the benefit of argument on this point, its only option was to revoke the decision.
This decision is a departure from a line of cases that had dismissed REA appeals for wind farms. For project proponents, opponents, equity investors, lenders and environmental consultants, this is a notable decision that warrants closer examination. However, it is still the case that these appeals are highly fact-specific and neither proponents or opponents should expect future hearings to be strictly bound by the outcome in this case.