MOECC refuses to reconsider appeal of Gunn’s Hill power project to save endangered bats

ToughonNature-smaller

July 27, 2016

The Ontario Ministry of the Environment and Climate Change is refusing to reconsider the situation at a Norwich Township wind power project, where it was acknowledged during the appeal last year that the endangered Little Brown Bat was present, and would die as a result of the presence of wind turbines.

The MOECC instead relies on its Renewable Energy Approval process and told the East Oxford Community Alliance in a letter that “post-construction protocols have been prepared in accordance with the MNRF guidelines. The applicant is required to conduct mortality surveys for a minimum of three years once the wind farm is operational.”

Local resident and Alliance member John Eacott told the Woodstock Sentinel-Review there isn’t much point in conducting surveys to find out how many animals you’ve killed, then trying to figure out how to fix the situation. The group had referenced the Environmental Review Tribunal decisions from  the White Pines appeal (Hirsch vs. the MOECC) and Ostrander Point in its filing with the MOECC, saying that the new understanding about the endangered bats was that there are so few of the animals left that any deaths will result in serious and irreversible harm.

The precautionary principle must be applied, as the government balances its renewable energy program with the need to protect the natural environment.

“You can’t have two sets of rules for different sites,” said Eacott.

Bird Studies Canada released a report earlier this month that showed an astounding number of bats are being killed by Ontario’s wind turbines — in fact, 77% of the bats killed by wind power projects in Canada, were in Ontario. The average was 18 bats killed per turbine. Prowind’s threshold for bat mortality is actually 10 bats per turbine, according to its Renewable Energy Approval.

The community group also wrote to the Environmental and Lands Review Tribunal demanding that the appeal be reopened. The Tribunal’s response was that the appeal date has passed and the group’s only recourse now is to go to Divisional Court.

Wind turbines killing bats, other endangered species: Bird Studies Canada report

 

London Free Press, July 20, 2016

By John Miner

Wind turbines are killing bats, including ones on the endangered species list, at nearly double the rate set as acceptable by the Ontario government, the latest monitoring report indicates.

Bats are being killed in Ontario at the rate of 18.5 per turbine, resulting in an estimated 42,656 bat fatalities in Ontario between May 1 and October 31, 2015, according to the report released by Bird Studies Canada, a bird conservation organization.

Ontario’s Ministry of Natural Resources has set 10 bat deaths per turbine as the threshold at which the mortalities are considered significant and warrant action.

The bats being killed by turbines in Ontario include the little brown bat, tri-coloured bat, eastern small footed bat, and northern long-eared bat, all on the endangered species list.

The Birds Studies Canada report draws its information from a database that is a joint initiative of the Canadian Wind Energy Association, Canadian Wildlife Service, Ontario Ministry of Natural Resources and Bird Studies Canada.

Brock Fenton, an expert in the behaviour and ecology of bats and professor in Western University’s department of biology, said the bat deaths are a concern.

Bat populations across North America have been plunging with the emergence of a fungal disease called white nose syndrome.

Birds are taking less of a hit from wind turbines, according to the report, with an estimated 14,144 non-raptors killed by wind turbines and 462 raptor fatalities between May 1 and October 31 in 2015.

The report noted that some wind farms have moved to reduce bat mortalities by cutting their turbine speeds from dawn to dusk in the late summer and early fall.

A spokesperson for the Canadian Wind Energy Association said the association is concerned about reports that are based on limited data that have the effect of boosting estimates.

In response, CanWea is developing its own system that will be released this fall that is designed to improve existing and proposed bat regulations, said Brandy Giannetta, CanWea’s Ontario regional director.

“It aims to achieve this in part by enhancing knowledge of the existing data in order to drive science-based policy decisions and also by providing avoidance, minimization, and mitigation options that we hope operators and regulators alike will find useful in conservation efforts,” Giannetta said in an email.

Wind Concerns Ontario, a coalition of provincial groups opposed to wind farm development, said it is concerned that birds and, significantly, bats are being killed in numbers that were not forecast by either the Ontario government or the wind power developers.

“The population of the Little Brown Bat in particular is now at 5-10 per cent of its historical levels, so, as the Environmental Review Tribunal stated in the White Pines decision in Prince Edward County, even a few deaths will have a serious impact on the species as a whole. And we know for a certainty that bats are killed by wind turbines,” Jane Wilson, president of Wind Concerns Ontario, said.

It is critical to understand that wind power projects shouldn’t be approved without a full and objective assessment of all factors in any given location. The government’s push for wind power has to be balanced with the continuing need to protect the natural environment, Wilson said. …

Read the full story here.

Community group demands halt to wind farm construction over endangered species

little brown bat

Photo: Ontario Ministry of Natural Resources

NEWS RELEASE

WOODSTOCK, ON, July 18, 2016 /CNW/ – The East Oxford Alliance has filed an urgent request to halt a wind power project with the Ontario Ministry of the Environment and Climate Change and the Environmental Review Tribunal. The group has also asked that its appeal of the Gunn’s Hill wind power project be reopened.

Although the endangered Little Brown Bat was acknowledged at the original appeal, the appeal was dismissed. “The Tribunal did not have the opportunity to examine the danger to these animals in light of the need for precaution,” says Joan Morris, East Oxford chair. “In the recent successful White Pines appeal, the Tribunal determined that because only five to ten percent of the original population of Little Brown Bat remains in Ontario, even a small number of deaths constitutes serious impact.

It was confirmed at the Gunn’s Hill appeal that bats will be killed in this wind power project.”

The Environmental Review Tribunal also noted in its decision on Ostrander Point that approvals of renewable energy projects must seek balance between the government policy of encouraging clean power generation and protecting the environment.

SOURCE Wind Concerns Ontario

For further information: morrisj99@gmail.com, kdmckay@execulink.com, president@windconcernsontario.ca

RELATED LINKS
http://www.windconcernsontario.ca

For more information (though outdated) on the Gunn’s Hill wind power project, developed by Prowind of Germany, see the company website here. The project is financed in part by the Oxford Community Energy Co-op; information here.

Wind farm appeals no longer a ‘rubber stamp’ after Ostrander Point community success, says lawyer

“If a sports team went out week after week for the better part of a decade and lost every single game, you would have to question what is going on,” says environmental lawyer Eric Gillespie. “Even the Toronto Maple Leafs win some games.”

Ostrander-Tree
Photo: The Wellington Times

The Wellington Times, July 15, 2016

Ostrander Point Tribunal drags scrutiny of wind and solar projects out into the open

Only when time has passed and the memories of the the yearslong struggle begin to fade, will we know that industrial wind turbines have been banished from Ostrander Point for good. But for now, the creatures who occupy or pass through this bit of land on Prince Edward County’s south shore may do so without the threat of bulldozers rolling across the terrain or 50-storey machines whirring overhead. Maybe forever.

The Ostrander Point wind project has been stopped. Its appeal period has expired. There remain scenarios in which the project could be revived, but that likelihood is now remote, according to the lawyer acting for the Prince Edward County Field Naturalists (PECFN).

“There is rarely a final chapter written in these types of sagas,” said Eric Gillespie. “It is fair to say, however, that the odds of this going further are extremely low. To the best of our understanding, the Gilead Power permit is revoked. That decision is not being appealed. The file has concluded.”

The volunteers who form PECFN allowed themselves to exhale on Thursday evening—after the developer’s appeal period had expired.

“It is particularly wonderful to finally realize that the battle is over,” said Cheryl Anderson of PECFN.

WHAT IT MEANS
The decision by the Environmental Review Tribunal—written by Heather Gibbs and Robert Wright—fundamentally alters the future for Ostrander Point, and has the potential to disrupt other projects involving land where Blanding’s turtles are known to nest, including White Pines and Amherst Island. But it has the potential to reach much further. Indeed, it has the potential to shake the very foundations of the Green Energy Act (GEA).

In 2009, the provincial government, led by Dalton McGuinty, was unsatisfied with the pace of wind and solar energy development in the province. Deadline after deadline had passed and his targets for renewable energy had gone unmet. A panel of experts had reported a year earlier that the regulatory process— the safeguards that protect human health, the environment and even the electrical grid itself—were causing the delays to wind and solar development across the province.

The GEA set out to remove these hurdles—eliminating safeguards in the Ministry of the Environment, Ministry of Natural Resources and Forestry, Ministry of Energy and the Ontario Energy Board, among others.

Since the GEA was enacted, industrial wind and solar projects have been reviewed and approved behind closed doors in a mostly tightly controlled process. The only nod to public transparency and accountability was a single Environmental Review Tribunal.

But the test, established under the GEA, to overturn or amend a project at the Tribunal stage was thought to be impenetrable. That is, until now.

The only way to block a project with a renewable energy approval (REA), according to the legislation, is that an appellant must prove the risk posed by the project will cause “serious harm to human health,” or “serious and irreversible harm to plant life, animal life or the natural environment.”

dozens of appeal hearings, predictions of impenetrability proved true. Gillespie says this led many to despair the review mechanism was just a formality.

“If a sports team went out week after week for the better part of a decade and lost every single game, you would have to question what is going on,” said Gillespie. “Even the Toronto Maple Leafs win some games.”

He says there was growing consensus among the legal community in Ontario that the test was being interpreted in such a way that “nobody could ever get to first base.”

“For many people, that undermined the credibility of the government and the credibility of the Tribunal’s process,” said Gillespie. “Every hearing became a rubber stamp process.”

The Ostrander Point Tribunal changed that— perhaps in a profound way.

For what it does is bring the review process out into the open. The developer and its lawyers had argued that it was beyond the Tribunal’s reach to consider the thoroughness or strength of the review conducted inside ministry walls. The Tribunal could conclude only whether the tests of harm had been met.

But Tribunal adjudicators Wright and Gibbs weren’t satisfied with this constriction. Nor were they comfortable that the risks, posed by the project to the Blanding’s turtle, were acceptable or the plan to create replacement habitat would work to protect the endangered species. This was much further than some legal experts believed was contemplated by the GEA.

Faced with the probability that the project was likely to damage the Blanding’s turtle population at Ostrander Point, the Tribunal overruled the provincial government and its ministries.

“Legally, it is significant for its ruling that once ‘serious and irreversible harm’ is found and the Tribunal moves into a consideration of appropriate remedy, the Tribunal will step into the Director’s shoes to fashion an appropriate remedy,” wrote Jack Coop et al in June, in an analysis of the decision for Osler, a law firm.

For the first time, an Environmental Review Tribunal had defined the measures it deems, based on the evidence and expert opinion presented before it, necessary to protect the species at risk. It concluded the only remedy demonstrated to work was to revoke the permit—to prevent the project from being built.

The decision, in some instances, will now enable Tribunals to consider concepts as the precautionary principle— that, based on a balance of probabilities, the risk posed by the proposed project is simply too great.

The Ostrander Point decision has the potential to return relevancy to the Tribunal review process, according to Gillespie.

“If the system was to maintain any credibility in the eyes of many across the province, something had to change,” said Gillespie.

He adds it is critical to this sense of faith people have in their regulatory processes that advances made in Ostrander Point are reflected in future decisions.

“If ultimately, appeals to White Pines and Amherst Island fail then arguably, we are back to where we were three years ago,” predicted Gillespie. “People will conclude that the right to appeal such projects is completely hollow.”

Citizens call for Environment Minister resignation over wind turbine damage to wells: not a credible steward of the environment

It’s established that wind power projects pose a risk to endangered species like the Little Brown Bat and Blandings turtle; now there is evidence that the construction activities and the vibration from operating industrial-scale or utility-scale wind turbines is having a serious effect on nearby wells.

(Postmedia Network)
Photo: PostMedia

Chatham Daily News, July 11, 2016

Trevor Terfloth

A citizens’ group worried about the potential impact on groundwater from wind turbine vibrations is calling for the provincial minister’s resignation.

Water Wells First placed protest signs on Monday at the Windsor, Sarnia and London offices of the Ministry of the Environment and Climate Change, said group spokesman Kevin Jakubec in a media release..

“Water Wells First no longer sees the MOECC as credible stewards of the environment.

We are asking for the immediate resignation of Ontario’s Minister of the Environment and Climate Change Glen Murray,” he said.

Last week, Water Wells First held a demonstration at a Chatham Township farm to show how difficult it would be logistically for farmers and their livestock to use bottled water, if it was required.

Jakubec said the management of the Renewable Energy Program could jeopardize the health and safety of Ontario’s livestock when “the MOECC put forward the impractical use of using bottled water to resupply livestock farms” that have lost their water wells due to wind farm construction and operation.

The proposed North Kent 1 Wind Project, which calls for 40 to 50 wind turbines to be constructed in the area, had some residents worried that the vibrations could result in dirty water.

“Water Wells First will protest the actions of the MOECC until the MOECC recognizes that groundwater must be protected as the first line of defense against climate change,” Jakubec said.

Last month, the group held an initial media conference to help raise awareness about the issue.

In an e-mail on Monday, the ministry stated that it was taking the necessary precautions.

“The MOECC takes all public concerns very seriously. That is why MOECC included an extremely stringent series of conditions on the proponent for the North Kent Renewable Energy Approval,” it stated.

Read the full news story here.

No appeal in Ostrander Point wind farm case

The Prince Edward County Field Naturalists, who brought the appeal against the Gilead Power wind project at Ostrander Point in Prince Edward County, released this information tonight.

Media Release

Prince Edward County Field Naturalists

PECFN breathes out

July 6, 2016 Picton, Ontario — On June 6, 2016 we reported that “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 the Director’s decision to issue the REA [Renewable energy Approval]. ”

Following that decision both the Director (Minister of Environment and Climate Change) and Gilead Power had the right to to appeal to the Divisional Court based on legal errors in the decision of the Environmental Review Tribunal. The proponent had thirty days to submit their appeal and today was the deadline.  As of 5 pm today no notice has come of that request to appeal.

In early 2012 Myrna Wood, Pamela Stagg and I started a blog on Countylive to try to let people know how important the habitat at Ostrander Point Crown Land Block was to migrating birds, bats, and butterflies.  We also spent time writing about reptiles and amphibians at risk and the important imperilled alvar habitat.

At the same time Nature Canada, Ontario Nature and PECFN were writing comments to the Environmental Bill of Rights about the proposed project which the government claimed was public input under the Green Energy Act.  All organizations pointed out the importance of this site to migrating birds, bats, monarchs and species at risk such as the Whip-poor-will and the Blanding’s Turtle.  In spite of all this input the Ministry of the Environment approved a project on December 20, 2012 to install 9 turbines and their associated roads and ancillary equipment at Ostrander Point Crown Land Block.  Given 15 days to appeal, PECFN moved forward, solid in the knowledge that Ostrander Point was the wrong place for wind turbines.

This action has been described as a David versus Goliath battle.  PECFN, a rural organization of about 60 members was up against the Ministry of Environment and Climate Change and a large oil company-owned business.  It is particularly wonderful to finally realize that the battle is over and that “David” has prevailed.  Myrna Wood comments “This was a long and hard battle, but totally worth it – important habitat has been conserved and we are very happy.”

Myrna Wood

Cheryl Anderson

For more information go to: www.savethesouthshore.org

Wind power contract process ‘unfair’ ‘frustrating’ and undemocratic say Ontario municipalities

Mayor Higgins: Hoping for open discussion with the new Energy MInister (Photo CBC)
Mayor Higgins: Hoping for open discussion with the new Energy Minister (Photo CBC)

CBC News June 20, 2016

 

Seventy-five municipalities across Ontario are calling on the provincial government to give them more say on future wind farm projects.

Some eastern Ontario communities have declared themselves “unwilling hosts” to wind farms, only to recently have the province award contracts against their wishes.

The City of Ottawa, North Frontenac and at least 73 other municipalities want Ontario’s Independent Electrical System Operator (IESO) to “make formal municipal support a mandatory requirement in Ontario’s next round of procurement for renewable energy projects,” according to the resolution.

The provincial energy agency claims to let communities express their concerns, but that has little impact on the outcome, according to North Frontenac Mayor Ron Higgins.

“We basically don’t have any democratic right when it comes to deciding where these wind turbines go … within our municipality,” he said.

Wind Energy

75 municipalities across Ontario have endorsed a resolution that calls for increased local consultation before the next round of renewable energy projects. (Robert F. Bukaty/Associated Press)

Higgins said if given the opportunity North Frontenac would turn down all wind turbine projects, but he said some area municipalities would support them.

“We may want them, we may not want them, but if we do want them we’d like to be able to tell you where to put them,” said Higgins.

“Not right in front of a cottage door, or high on a mountain where all our cottages can see it.”

Current process ‘unfair,’ Ottawa councillor says

The current procurement process for renewable energy projects is “unfair” and “incredibly frustrating,” according to Rideau-Goulbourn ward Coun. Scott Moffatt.

Moffatt said he has no choice but to tell upset constituents “‘sorry, it’s the province, sorry, it’s the province.’ It just sounds like we’re passing the buck, but literally we have no control over these things.”

Both Higgins and Moffatt said they’re hopeful Ontario’s new energy minister, Glenn Thibeault, will be open to new discussions.

Higgins said he requested meetings with previous minister, Bob Chiarelli, three times, but that all requests were denied.

See the entire story here

 

Ostrander Point decision: key changes to wind power process say lawyers

Blanding turtle as depicted by Jim Coyle of the Toronto Star: changing history
Blanding turtle as depicted by Jim Coyle and Paul Watson of the Toronto Star: changing history

The decision of the Environmental Review Tribunal to revoke the approval of a wind power generation project at Ostrander Point in Prince Edward County is key, says a leading law firm, because it provides insight into how the Tribunal will now exercise its powers.

In an opinion published on the Osler Hoskin Harcourt LLP website, lawyers Jack Koop, Richard Wong and others say that the Tribunal can now step into the Ministry of the Environment’s Director to approve a remedy to environmental challenges but, more important, “it may consider the general purpose of the EPA, the general purpose of REAs, the public interest under section 47.5 of the EPA, and the principles set out in the Ministry’s Statements of Environmental Values (including the ecosystem approach and the precautionary principle).”

The Precautionary Principle, which had been deemed irrelevant to appeals of wind power projects is now back in play, says Osler Hoskin Harcourt: “With the Ostrander decision, the Tribunal now appears to be saying that once the more stringent harm test has been met, and the Tribunal moves to a consideration of ‘remedy’, it has licence to consider a much broader range of factors, including the precautionary principle. This raises the question of whether the decision has opened a backdoor for the Tribunal to relax the stringent harm test imposed by the statute.”

This is a highly significant finding as it has long been surmised that the test imposed under the regulations for wind power project approvals was virtually impossible to meet. In fact, as lawyer for the industry trade association CanWEA or the Canadian Wind Energy Association said in court in January, 2014, “this [the Ostrander Point decision in favour of the Appellant] was never supposed to happen.”

Read the full opinion here but it appears the little, endangered, smiling Blanding’s turtle will go down in history for more than just being in the way of an inappropriate power development.

Final arguments in Amherst Island appeal: danger to turtles and people?

The Whig-Standard, June 7, 2016

By Elliot Ferguson

The public waits for the start of the final day of the Amherst Island ERT. Elliot Ferguson/The Whig-Standard
The public waits for the Amherst Island hearing to begin June 7th. Photo: Elliot Ferguson/Whig-Standard

STELLA — The two sides in the legal battle over the Amherst Island wind energy project laid out their final submissions Tuesday.

The Association to Protect Amherst Island (APAI) is seeking the revocation of a conditional approval of Windlectric’s wind power project.

The hearing comes after the association appealed an August decision by the Ontario government that gave the project conditional approval. The Amherst Island Island Environmental Review Tribunal is expected to be the largest such hearing since the process was established.

Island resident Amy Caughey led off the final submissions by arguing that the negative effects on children’s health have not been studied collectively.

Caughey said the proximity of a proposed concrete batch plant near Amherst Island Public School would hurt pupils’ health.

But Caughey said such effects can’t properly be studied unless the children are first exposed to the dust and noise from the plant and the changes in their health documented.

“In Canada, in 2016, we do not permit such trials on children,” she said. “The burden of proof cannot fall on a parent.”

APAI’s lawyer, Eric Gillespie, said the evidence has met the burden of proof needed to show wind turbines are detrimental to human health.

“This case advances the health claims further than any other case this tribunal has heard,” he said, before outlining the key evidence his witnesses presented about the potential negative impacts of the wind turbines.

Gillespie said expert testimony showed Amherst Island is home to many species — birds, bats and turtles — that could be negatively affected by the project.

“This island is a stronghold for species that is under pressure,” he said of the local bobolink population.

Gillespie saved his final submission for the Blanding’s turtle, which has taken a special place in ERTs in this area.

The closing of the Amherst Island ERT came the day after a similar process rejected a wind energy plan for Prince Edward County.

On Monday, an ERT upheld an appeal of a nine-turbine project by the Prince Edward County Field Naturalists (PECFN), saying the installation of gates on access roads won’t adequately protect the population or habitat of Blanding’s turtles.

Gillespie said island residents called as witnesses have testified to have seen the turtle on the island. …

Read the full story here.

Victory for environment, community at Ostrander Point

Ontario Coat of Arms

The people of Prince Edward County have been battling a wind power project planned for–and supported by the Ontario government–for more than six years. An Important Bird Area and staging area for hundreds of thousands of migratory birds, and home to endangered species, Ostrander Point was a fragile environment— not suitable, most thought, for a huge, utility-scale, wind power project.

The Environmental Review Tribunal released its decision today, prepared by co-chairs Robert Wright and Heather Gibbs.

Here is a news release from the Prince Edward County Field Naturalists and their lawyer, Eric Gillespie.

TORONTO, June 6, 2016 /CNW/ – The endangered Blanding’s turtle has come out ahead in its race to protect the species and its habitat in Prince Edward County.

The Ontario Environmental Review Tribunal ruled today that the Ministry of Environment and Climate Change permit related to proposed industrial wind turbines on the Ostrander Point crown lands should be revoked.

“This is a great outcome for everyone involved and for the environment” said Myrna Wood of the Prince Edward County Field Naturalists, the appellant. “It’s taken some time, but with this result the effort has clearly been worthwhile” said Eric Gillespie, legal counsel.

SOURCE Eric K. Gillespie Professional Corporation

A key point in the decision was the concepts that there must be balance between preserving the natural environment and wildlife and the goals for “renewable” power generation.

The Ontario government has approved wind power projects in other areas where environmental protection is a concern.

Will the government of Ontario do the right thing and now cancel contracts for utility-scale wind power in these locations?

ToughonNature