Wind Concerns Ontario is a province-wide advocacy organization whose mission is to provide information on the potential impact of industrial-scale wind power generation on the economy, human health, and the natural environment.
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.
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. …
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?
Municipalities vote for more say in wind power locations
May 25, 2016
Hard as it is to believe, with electricity bills soaring, hydro and nuclear power being wasted, and Ontario’s surplus power being sold at bargain-basement rates to neighbouring U.S. jurisdictions, Ontario still plans to let contracts for 600 more megawatts of expensive, intermittent utility-scale wind power.
The new bid process begins later this year.
Although the Independent Electricity System Operator (IESO) claims the citizens of Ontario have a “say” in where these huge power projects — which result in considerable impact on the environment and communities forced to have them — they still can’t “say” NO.
In March, Energy Minister Bob Chiarelli said it was “virtually impossible” for a power developer to get a contract for wind power without municipal support—then the IESO announced five new contracts, three of which were in Not A Willing Host communities. One, Dutton Dunwich, had even held a referendum on the wind power bid, which resulted in a resounding 84 % NO vote, but a contract was awarded there anyway.
Now, more than 60 Ontario municipalities have told the Ontario government under Premier Kathleen Wynne that they don’t think that’s right — in future, the municipalities say, local or municipal support must be a mandatory requirement in wind power bids, not just a way to get more points in the bidding process for Large Renewable power projects.
Last evening, council in Prince Edward County voted unanimously to send that motion to Queen’s Park. The County is currently battling two high-profile wind power projects on the basis of the clear danger to wildlife, specifically the endangered Blandings Turtle and the Little Brown Bat. The County is also on the flyway for hundreds of thousands of migratory birds each spring and fall.
Among the cities and municipalities which have passed the resolution are the City of Kawartha Lakes (which is itself the size of a county) and the second largest city in Ontario and Canada’s Capital city, Ottawa.
“Communities have good reasons for not wanting these huge power projects,” says Wind Concerns Ontario president Jane Wilson. “Wind power represents high impact on the environment, both natural and social, for very little benefit. What’s worse, wind power on this scale has no benefit in actions aimed at climate change. Everyone wants to do what’s best for the environment —this isn’t it.”
A list of municipalities that have passed the motion to date is here.
The U.S. Fish and Wildlife Service, the agency charged with protecting bald and golden eagles, is once again trying to make it easier for the wind industry to kill those birds.
Two weeks ago the agency opened public comment on “proposed improvements” to its eagle conservation program. It wants to extend the length of permits for accidental eagle kills from the current five years to 30 years. The changes would allow wind-energy producers to kill or injure as many as 4,200 bald eagles every year. That’s a lot. The agency estimates there are now about 72,434 bald eagles in the continental U.S.
Let’s hope Judge Lucy H. Koh is keeping an eye out. Last August, Ms. Koh, a federal judge in California, shot down the Fish and Wildlife Service’s previous “improvements.” In a lawsuit brought by the American Bird Conservancy, Judge Koh ruled that the agency had violated the National Environmental Policy Act by declaring that it could issue 30-year permits without first doing an environmental assessment. Now the agency has drafted an environmental review and is still pushing for the 30-year permits.
Yet as Judge Koh noted in her ruling, one of the agency’s own eagle program managers warned that 30-year permits are “inherently less protective” and “real, significant, and cumulative biological impacts will result.”
A 2013 study in the Wildlife Society Bulletin estimated that wind turbines killed about 888,000 bats and 573,000 birds (including 83,000 raptors) in 2012 alone. But wind capacity has since increased by about 24%, and it could triple by 2030 under the White House’s Clean Power Plan. “We don’t really know how many birds are being killed now by wind turbines because the wind industry doesn’t have to report the data,” says Michael Hutchins of the American Bird Conservancy. “It’s considered a trade secret.”
The new rule could further harm golden eagles, which are rarer than bald eagles and are being whacked by wind turbines in far greater numbers. Mr. Hutchins says that the lack of protection for golden eagles is “the biggest weakness of this whole rule.”
Stunning double standard
The double standard is stunning. In 2011 the Fish and Wildlife Service convinced the Justice Department to file criminal indictments against three oil companies working in North Dakota’s Bakken field for inadvertently killing six ducks and one phoebe.
Now see how the agency treats wind: In 2013 it submitted to the Federal Register that “wind developers have informed the [Department of the Interior] and the Service that 5-year permits have inhibited their ability to obtain financing, and we changed the regulations to accommodate that need.”
Nine months after being rebuked by a federal judge, America’s top wildlife protector is still bending over backward to accommodate an industry that is killing iconic wildlife while at the same time collecting huge subsidies from taxpayers. If there’s a better example of regulatory capture and crony capitalism, I can’t think of one.
More than one ‘tough guy’ needed to restore democracy in Ontario, Wind Concerns Ontario president says. We all need to be in this fight.
Responding to an opinion by farmer Ian Cummings in the April edition of Farmers Forum, Wind Concerns Ontario president Jane Wilson wrote:
We know that many citizens of Ontario are working hard to protect their communities, their families and yes, the environment from this government’s unfounded and unnecessary push for wind power projects in rural/small town Ontario.
Many people are spending hundreds of thousands of after-tax dollars to appeal wind power project approvals where there will be harm to the environment and risk to human health.
Mr. Cumming spins a colourful story but to suggest all that’s needed is a local tough-guy character to scare the wind power developers out of town is uninformed, unrealistic and frankly insulting to your readers and the citizens of Ontario.
What we have are huge, multi-national, multi-billion-dollar corporations which feel entitled by the current provincial government to bully their way into our communities.
There are no single heroes to chase them out of town: it takes all of us to insist on a return to democracy in Ontario.
Wind Concerns Ontario submitted a series of recommendations to the Independent Electricity System Operator (IESO) as part of the “engagement” process on the Large Renewable Procurement (LRP) process on May 3rd.
In a letter to IESO CEO Bruce Campbell, WCO president Jane Wilson wrote:
WCO has been involved supporting individuals and community groups dealing with wind turbines imposed on communities since before the Green Energy Act was enacted. We saw the government’s commitment in 2012 that it would only place wind turbines in communities willing to host them as a positive first step toward addressing the concerns of rural Ontario. The results from the RFP I process, however, made a complete mockery of this policy. The Minister of Energy stated as recently as March 7 that it would be “virtually impossible” for a contract to be awarded without municipal support. Yet, three of the five successful bids for wind turbine contracts in LRP I were awarded to municipalities that did not support the project.
The wind power contracting process shows no respect for Ontario citizens and communities, Wilson said.
The key issue is: neither the government nor participants in the procurement process have listened to valid community concerns or displayed any learning from problems created by the existing projects. Most people in rural Ontario seem to know more about the impact of wind turbines (economic, environmental, societal) than the people proposing projects, who continue to use outdated and limited information to support their proposals. Far from streamlining the process, the Green Energy and Economy Act has created a confrontational environment. Based on local activities such as municipal resolutions, public demonstrations and media stories, it is clear this situation is not going to change until provincial government agencies deal seriously with the problems that have been created by wind turbine projects to date.
WCO recommendations: let communities choose
The recommendations to change the RFQ and RFP process as well as the generic contract are driven by four objectives.
Activities within the process need to be consistent with the high levels of openness and transparency that the provincial government expects of agencies and municipalities.
Full disclosure of project information is needed to allow the community to provide meaningful feedback.
Mechanisms need to be included within the process to measure the responsiveness of proponents to input from the community.
The process needs to place value on and respect for community views on proposed projects.
Among the recommendations was the need for municipal support to be mandatory. “More than 90 municipalities have declared themselves ‘unwilling hosts’ to wind power projects,” says president Jane Wilson. “They have good reasons for that. But this government has no respect for Ontario citizens and their elected governments, who want to plan what is appropriate and sustainable for their own community.”
Highlights of WCO Recommendations:
Qualification of bidders
Failure to deliver past projects on time should result in disqualification of bidders
Inappropriate behaviours or actions such as clearing land that is habitat for endangered species while a project is still under appeal, should result in disqualification as a bidder
The qualifications of proponent team members should be evaluated: “experts” in noise and health impacts for example, should have appropriate training/education and proper professional credentials
“Engagement” should not be confused with “support”
Public meetings should be more accessible and greater in number, and take place before a municipality is called upon to determine whether it supports a wind power project bid
Communities need much more detail about projects than they were given under FIT or LRP I
Proponents should disclose and have available the full range of documentation on impacts of the proposal including impacts due to environmental noise (potential for adverse health effects), and effect on property value as well as other economic considerations (e.g., airport operations, tourism)
Municipal support must be a mandatory requirement in contract bids
Proponent engagement with Aboriginal communities should be subject to the same disclosure requirements as for other communities
IESO needs to do an independent technical review of proponent submissions
Full documentation should be provided to municipalities prior to bid submission, so that local governments can review the information and comment as to completeness and accuracy
Again, a resolution of support from a municipality must be a mandatory requirement for a bid in the RFP process
Statement from the Alliance to Protect Prince Edward County (APPEC) after the Environmental Review Tribunal decision yesterday, April 25.
Today the Environmental Review Tribunal issued a decision on APPEC’s motion for a stay on WPD’s proposed White Pines Wind Project. The Tribunal has upheld APPEC’s motion in part, finding that vegetation clearing will cause irreparable harm to the Blanding’s turtle. According to the Tribunal: “the Approval Holder’s vegetation clearing and site preparation activities in spring foraging habitat in the specific locations proposed for work in the Spring of 2016 will cause irreparable harm to Blanding’s turtles.”
While the Tribunal has put a stop to vegetation-clearing in the spring foraging habitat of these turtles it is silent with respect to the potential destruction of other types of habitat that are also critical to Blanding’s turtles, including their over-wintering habitat and oviposition habitat. The decision does not bode well for these turtle which as we know use many types of habitats across the White Pines project site and depend on all of them for their survival.
For this reason we are disappointed. We can only conclude that the Tribunal has an incomplete understanding of “significant habitat” and the importance of protecting all significant habitat, not merely one specific type.
The board is discussing the implications of the decision with our legal counsel and giving careful consideration to next steps. More information will follow.
Late this afternoon the Environmental Review Tribunal granted a temporary stay of WPD’s Renewable Energy Approval (REA). As a result of the stay all construction work at the project site has been brought to a halt. The Tribunal will schedule a written hearing at a later date to decide on the merits of a more permanent stay.
This long-awaited decision is the outcome of a tremendous effort by Eric Gillespie and Priya Vittal, who have worked tirelessly around the clock since Wednesday when the Tribunal issued its reasons related to our previous stay motion.
In giving its reasons the Tribunal indicated that a further motion could be brought to the Tribunal should new evidence become available. Thanks to the efforts of many individuals and above all our legal counsel, this new evidence was submitted this morning in the form of photographs showing the level of destruction, an affidavit from a Blanding’s turtle expert that turtles are out of hibernation and moving across the project, and letters from local and national groups including the Canadian Wildlife Federation.
We have many to thank for this welcome news including those who attended the Court of Appeal hearing in Toronto on Wednesday. The concern and public engagement left an impression which may have reached out past the courtroom.
The good news is that WPD has been ordered to stop all construction at its project site.
In the meantime however our legal bills are growing.
Donations can be made by cheque or by PayPal on APPEC’s website www.appec.ca. Please make cheques payable to the South Shore Appeal Fund and mail to the Alliance to Protect Prince Edward County, P. O. Box 173, Milford, ON K0K 2P0.
– See more at: http://savethesouthshore.org/details-regarding-the-stay-statement-by-orville-walsh/#sthash.tWBt30B7.IpiXaqVk.dpuf