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.
We received word late last evening that Joe Crowley, at-risk species expert with the Ontario Ministry of Natural Resources and Forestry is to testify at the appeal of the White Pines wind power project in Prince Edward County today.
The hearing is being held at the Essroc Community Centre in Wellington, Ontario.
Mr. Crowley was an expert witness at the Ostrander Point appeal, currently in its fifth phase, and testified that it was his professional recommendation that the danger to the Blandings turtle and other species at the Ostrander site was so great, a permit should not be granted. Mr Crowley has also commented the Blandings turtles range over the South Shore of Prince Edward County, the site of the other proposed wind power project, White Pines by wpd Canada.
The wind power developer denies this, and the endangered turtle was not even on the company’s permit regarding the Endangered Species Act.
At issue in these proceedings, for both appeals, is the fundamentals behind the Ontario government’s approval process for wind power plants. Documents have been withheld, expert advice ignored, and government staff have been shown to play the role of supporting and encouraging the power developments, not protecting the environment or wildlife.
The Ostrander Point appeal is on hiatus but may resume at the end of November; White Pines continues this week.
Project contravenes development guidelines set by Ontario Ministry of Natural Resources and Forestry and Environment Canada for protection of wildlife
November 5, 2015
Report from the Alliance to Protect Prince Edward County on Day 3 of the appeal of the White Pines power project:
On Day Three of the Environmental Review Tribunal (ERT) John Hirsch, one of the appellants, and Jim Bowlby, a Participant in the appeal testified that the White Pines Wind Project will cause serious and irreversible harm to the environment.
Opening Statement and Presentation of Mr. John Hirsch
Mr. Hirsch told ERT co-chairs Marcia Valiante and Hugh Wilkins of his long-time active community involvement and interest in environmental stewardship.
Mr. Hirsch informed the ERT panel that the government’s conclusion that no serious and irreversible harm would result from the White Pines Wind Project is based on incomplete, outdated and faulty information. The following issues were identified by Mr. Hirsch in his presentation:
No accurate accounting of bird and bat mortality as the prescribed method has been proven to dramatically understate the numbers;
Overall Canadian global population levels are used by WPD / Stantec as opposed to local or regional counts. The harm needs to be adjusted to the local project area;
Cumulative effects are not considered;
Lack of consideration of over lake migration route;
The siting of the White Pines Wind Project goes against documented MNRF and Environment Canada guidelines;
No remedies when mortality thresholds are exceeded;
No evidence provided by the MOECC (Ministry of the Environment and Climate Change) of independent verification of environmental facts;
There is no basis in fact that avoidance measures (read: “mitigations”) by WPD to prevent serious and irreversible harm to Blanding’s turtle as this matter is still before the ERT hearing on Gilead Power’s wind project at Ostrander Point.
No questions were raised to Mr. Hirsch by Sylvia Davis, counsel for the MOECC, Ministry of the Environment and Climate Change or Patrick Duffy, counsel for the approval holder / wind developer WPD.
Presentation of Mr. Jim Bowlby
The Tribunal accepted Mr. Bowlby as qualified to give evidence as a fisheries biologist. The Tribunal noted Mr. Bowlby’s employment with the Ministry of Natural Resources and Forestry (MNRF) as a Fisheries Assessment Biologist and more recently as a Coordinator for the Lake Ontario Management Unit.
Mr. Bowlby gave evidence of the presence of spawning runs of White Suckers and Northern Pike in the Black Creek tributary, which is known as an exceptionally high quality spawning habitat. White Suckers spawn within 120 m of a proposed access road and transmission line. Northern Pike migrate downstream of the REA area but these pike are dependent on streamflow that originates within the REA area. Mr. Bowlby gave his opinion that if road and transmission line construction disrupts the aquifer supplying water to this stream and reduces streamflow, then the fish habitat and fish spawning in the stream will suffer serious and irreversible harm.
Mr. Bowlby also advised the Tribunal of five fissures or cracks in the ground within 120 m of Turbine 2. Some of the fissures are more than 2 m deep and form caves that are consistent with the MNRF descriptions of bat hibernacula. According to REA regulations the presence of potential bat hibernacula triggers requirements for further study before approvals can be made.
While Mr. Duffy might contend that the White Pines Wind Project is totally different than the Ostrander Point Wind Project and not only with respect to size, the process that ended with the approvals of these projects hasn’t changed. As Mr. Hirsch summed up today: “Quite simply, the entire conclusion by the MOECC that serious and irreversible harm will not be caused. . .is based on four MNRF (Ministry of Natural Resources and Forestry) sign-off letters and highly questionable and biased reporting by the approval-holder’s consultant, Stantec.” This statement is as accurate now as it would have been three years ago.
Plans for next week
Monday, November 9 – Site Visit (not open to the public)
Tuesday, November 10 – ERT starting at 10:00 in Essroc Centre, Wellington – Summonsing of Joe Crowley, MNRF expert on reptiles
Thursday, November 12 -ERT starting at 10:00 in Essroc Centre, Wellington – Testimony by the Presenters
A nest belonging to the endangered barn owl was found with an eggshell inside it next to a proposed site for wind turbines in Port Ryerse, an environmental hearing heard Tuesday.
The nest was located inside a sawmill where a pair of owls – they are on the endangered species list – had been spotted earlier, the Environmental Review Tribunal was told.
But because the bird has not been seen in the area for more than a year, the northern edge of the lakeside village has lost its official habitat status for the owl.
The one-year lapse means the company, Boralex, is no longer required to come up with a plan to create new habitat in the area for the owl before it can start building.
Boralex wants to construct four wind turbines 99.5 metres in height on farmland just north and east of the village.
Port Ryerse residents have strenuously opposed the project, warning it will ruin their quaint village and their health, and lead to declines in property values.
They are still trying to stop it and went to the tribunal in June where they argued against turbines on health grounds. The tribunal ruled against them.
On Tuesday, their lawyer, Graham Andrews of Toronto, was in front of the tribunal suggesting the project should be halted for environmental reasons – because of the damage it could do to the unique wildlife around the village, including turtles, bald eagles, and especially the barn owl.
The barn owl is so rare about one nest every five years is found in Ontario, testified Chris Risley, a biologist with the Ontario Ministry of Natural Resources and Forestry.
Risley, who was involved in assessing Boralex’s application for special permission to build, said he had concerns the nesting site at the sawmill was only 18 metres from a road heavy trucks will use to get to the turbine sites during construction.
“One of the possible situations is a barn owl could be killed by hitting the turbine blades, and that was not considered,” Risely added.
The barn owl’s habitat, he said, includes a one-mile radius around a nesting site. In the case of Port Ryerse, the birds would be looking to “forage” for food in the surrounding grasslands, some of which, he noted, would be lost due to construction.
Under cross-examination by Jonathan Kahn, lawyer for Boralex, Risely acknowledged he is only one of about half a dozen biologists in the ministry who were involved in the Port Ryerse case.
Earlier on Tuesday, Port Ryerse resident Suzanne Andrews testified and expressed concern about the safety of bald eagles in the area that will now have to fly past “monoliths” on their way from their nests to the lake.
Tribunal chair Justin Duncan will hand down his decision by Dec. 15.
While Ontario citizens fight the invasion of utility- or industrial-scale wind power projects throughout the province, using millions of after-tax dollars to protect the natural environment, wildlife, and their communities, the Wynne government engages in double-speak about environmental action.
At Ostrander Point, for example, it has been revealed in the ongoing legal proceedings (we are into stage 5 of a three-year fight) that a single person at the Ontario Ministry of Natural Resources and Forestry was responsible for granting the permit to the wind power developer to build, ignoring the Ministry’s own at-risk species expert who said the risk to the endangered Blandings turtle was too great.
Mere kilometers away, and in the same Blandings turtle habitat, the ministries objected to more testimony from staff at the MNR on the same subject, at the appeal of the White Pines power project.
Of the 77 wind turbines being constructed as part of the Niagara Region wind power project, 20 are in Blandings turtle habitat—this was not allowed to be discussed in the appeal of that project.
But Ontario’s policy on the endangered turtle is very clear: these creatures are in danger, and are to be protected. Here is a warning from the government’s own website on the turtle:
The public can help protect Blanding’s turtles by avoiding their nesting areas and by contacting authorities if they observe harmful behavior toward turtles or their habitat.
Building a power plant and killing turtles in their habitat seems to be OK, though, if it’s for wind power.
The Ontario government needs to do an audit on its environmental policies … and STOP building power plants in fragile environments and wildlife habitat.
Report on the Environmental Review Tribunal Hearing on the White Pines Wind Project
November 3, 2015
Henri Garand and Paula Peel, Alliance to Protect Prince Edward County (APPEC)
Day Two of the Environmental Review Tribunal (ERT) was again devoted to procedural motions.
The hearing began with the ERT panel’s ruling on two motions discussed yesterday. Finding the scope overly broad, the Panel dismissed a motion for disclosure of all Ministry of Natural Resources and Forestry (MNRF) documents related to species at risk from the White Pines project. However, it approved a second motion summonsing MNRF staff Joe Crowley and Kathleen Pitt and ordering them “to produce all documents in their possession or control related to the impacts of White Pines on species at risk in the vicinity of the project.”
APPEC counsel Eric Gillespie followed up the second ruling by presenting a motion for adjournment. He said there would be a need to assess Crowley’s and Pitt’s documents and perhaps to call more witnesses as a result of the evidence. Therefore, he proposed that the environmental case (or part of APPEC’s appeal) be adjourned till January and the health case rescheduled to precede it.
While Sylvia Davis, counsel for the Ministry of Environment and Climate Change (MOECC), took no position on the motion, Patrick Duffy, counsel for approval holder/wind developer WPD, opposed it vigorously. He argued that the ERT had already been delayed and that the two MNRF witnesses could readily be accommodated in the current schedule. After an early and long lunch break the ERT panel dismissed the motion to adjourn without citing reasons.
The panel directed the Parties to deal with the issue of the order in which witnesses will appear. This was complicated by the uncertainties of when MNRF witnesses would provide documents, how long MOECC would take for document review, and how much time APPEC experts would need to examine them.
The ERT next focused on a motion from WPD’s counsel to strike the Witness Statements of APPEC witnesses Dr. Michael Hutchins of the American Bird Conservancy and Bill Evans, who testified at the Ostrander Point ERT. Duffy cited case law to support his contention that it was too late to bring in these witnesses.
In his submissions Eric Gillespie questioned how WPD could raise issues about proposed APPEC witnesses when it has not yet provided its own complete list, such as its hydrology expert. He also argued that Mr. Duffy is reviewing Witness Statements not thus far filed as evidence. Most important, the appellants had no notice of any kind that this motion was going to be brought today. He asked why WPD did not have to follow the same Tribunal rules as the appellants have been doing.
After taking a recess to consider the submissions the ERT panel clarified that all Parties had previously agreed to discuss Mr. Duffy’s motion today. Mr. Gillespie stated for the record that the motion to have been discussed was not the motion now being put forward, and that the appellants were hearing this motion for the first time. The ERT ordered that the motion, evidence and all authorities be provided in writing.
The second day concluded with a short discussion on schedules moving forward. On Wednesday the ERT will hear Opening Statements from the Parties and Presenters. These will conclude the hearings for this week.
The ERT will conduct a Site Visit on Monday, Nov. 9.
Again: citizens of Ontario taking legal action to protect the natural environment from … the Ministry of the Environment
November 3, 2015
Just days after explosive revelations at the Ostrander Point appeal, lawyer for the appellant in the appeal of the giant White Pines power project –also to be located on the South Shore of Prince Edward County–yesterday demanded more information from the Ontario Ministry of Natural Resources on how a permit came to be granted for a power project, in spite of the presence of the endangered Blandings turtle, and danger to other forms of wildlife.
Here is a report from the Alliance to Protect Prince Edward County:
Report on the ERT Hearing on the White Pines Wind Project – Nov. 2, 2015 By Henri Garand, APPEC
If Day One is any indication, the White Pines appeal will be as contentious as Ostrander Point’s.Even before opening statements the Environmental Review Tribunal (ERT) consisting of co-chairs Marcia Valiante and Hugh Wilkins, heard motions that may require an adjournment of the proceedings.
Eric Gillespie, counsel for APPEC, asked the ERT to summon two staff members of the Ministry of Natural Resources and Forestry (MNRF) and to order production of all materials related to White Pines permits approved under the Endangered Species Act (ESA).The request derived from similar disclosures and witnesses in the Ostrander Point appeal that have raised doubts about the integrity of the MNRF’s process for assessing risk to endangered species like the Blanding’s turtle.
Gillespie believes that testimony is relevant and necessary from Joe Crowley, the MNRF’s expert on reptiles and turtles, and Kathleen Pitt, the MNRF manager who oversaw permitting for White Pines.He argued that an appellant has a right to all the related documents on the basic principles of justness and fairness.
Four other lawyers challenged the motion: Sylvia Davis and Andrew Weretelnyck representing the Ministry of Environment and Climate Change (MOECC), Sunny Zhai for MNRF, and Patrick Duffy for approval holder/wind developer WPD.They questioned the timing of the motion at this stage, the broad scope of the materials and the difficulty of timely production, the focus of the materials on ESA permits rather the Renewal Energy Approval (REA) under appeal, and the overall need for such evidence, some of it dealing with Ostrander Point, when APPEC was calling its own expert witnesses.Duffy went so far as to accuse Gillespie of “bad faith” in using a delaying tactic.
In rebuttal, Gillespie pointed out that the ERT had been informed in September about the potential, but the need only became clear and imperative after documents were disclosed at the Ostrander appeal last week. Since much of the White Pines project adjoins Ostrander Point, Blanding’s turtles would also be harmed by White Pines access roads because experts had agreed that the turtles range over “the wetland complexes along the whole south shore and as far as six kilometers inland.”Gillespie therefore wondered how the White Pines ERT could choose not to follow the ruling of the Ostrander Point panel when the situations were so similar.
John Hirsch, the initial appellant of the White Pines REA, supported Gillespie’s motion by asking the ERT to consider why the MNRF, curiously, didn’t require an ESA permit for Blanding’s turtles which would be harmed by the White Pines project.
The hearing concluded with the ERT panel seeking comments on the scope of a production order and the probable timelines for witness preparation.A ruling on the motions will be given when the hearing resumes on November 3 at 10 a.m. in the Essroc Centre, Wellington.
LIVERMORE — A wind power provider that operates about 800 turbines in the Altamont Pass — where thousands of birds are believed killed by them each year — is shutting down its operations.
Altamont Winds told the U.S Fish and Wildlife Service in an email Oct. 23 that it is ceasing operations as of Sunday [Nov. 1].
The decision was applauded by environmental groups, which for years have been fighting to build awareness around the large numbers of golden eagles, raptors, burrowing owls and other birds that are killed by turbines.
“It’s a really big deal,” said Michael Lynes, director of public policy for Audubon California. “(Altamont Winds) is the second-largest operator in the Altamont, and they were doggedly continuing to use those old turbines that we know have a disproportionately high rate of mortality.”
Friday October 30 was supposed to be the last day of the hearings in the Ostrander Point appeal, where a wind power project is planned (and approved by the province) for a location in habitat of the endangered Blandings turtle.
At issue up to this point has been the fact that the Ontario Ministry of Natural Resources’ (MNR) own at-risk species expert, Joe Crowley, determined that there was significant risk to the turtle and that proposed mitigation strategies would not be successful. The MNR, headed by District manager Karen Bellamy, ignored Crowley’s advice and issued a permit for the wind power developer Gilead to proceed. The Tribunal demanded documentation be produced on the research and decision-making at the MNR.
Here is a report from the appellant, the Prince Edward County Field Naturalists on Friday’s proceedings:
Ostrander Point ERT in Demorestville Day 3
After much procedural wrangling about the documents that were disclosed by Karen Bellamy, finally Ms. Bellamy’s cross examination was begun in the late morning. There was a discussion about how to deal with the vast amount of material that had been disclosed. Normally each item would be entered as an exhibit as it was discussed with the witness, but this was deemed to be a cumbersome method in this case. It was decided to get started and see how things went.
Mr. Wright [Robert Wright, co-chair of the Tribunal panel] was quite insistent that it was necessary to get on with the cross examination. [Appellant lawyer] Eric Gillespie started through the 1,500 documents that were disclosed. Most of the information that Eric was taking Ms. Bellamy to was about the process of how the Endangered Species Act was to be implemented and the plans for the Impact Management Plan. It became obvious that the approach of going through 1,500 documents one by one was not a productive exercise. Eric suggested – with the agreement of Ms. Davis and Ms. Kromkamp — that the documents could be grouped into categories and that a representative document or two from each category would provide the information he wanted to relay to the Tribunal.
Over the lunch break we went through the three volumes of documents and categorized them into groups such as: articles that could be removed from the record; articles that had been previously referred to; and a broad category of newspaper articles, Powerpoints, draft ESA permits and EBR postings and a group of unclassified emails.
The gist of Eric Gillespie’s argument was that the documents showed clear indications that Ms. Bellamy’s role was to coordinate and promote the Ostrander Point development. The written notes that were released through a freedom of information request included a communication between Ms. Bellamy and Mike Lord of Gilead regarding a CBC interview that took place in 2011. It was revealed that the “House Notes” about Ostrander Point that were delivered to assistant deputy ministers and deputy ministers were reviewed and approved by her. There were 31 newspaper articles in the released documents that showed that she was regularly receiving media stories about Ostrander Point.
The final argument was about which documents would be entered into the record as exhibits for the Tribunal to consider when making their decision on the case. Ms Kromkamp continued to assert that none of the documents were relevant to the remedy case. Eric Gillespie’s argument was that although some documents were not relevant, most of them were and these documents went to the determination of credibility of Ms. Bellamy as a fact witness. In his final submissions he pointed out the lack of information about the Blanding’s Turtle in any of the documents.
The organization of documents that Eric Gillespie proposed was accepted because it allowed for the tribunal to have context of the arguments presented. All the documents he proposed that the Tribunal accept as exhibits were accepted.
Two witnesses remain to be heard. There will be a teleconference on Wednesday Nov 4 to determine further timing for the Ostrander Point Environmental Review Tribunal hearings.
So, what we have so far as regards the Ministry of Natural Resources’ role:
the goal is to promote the wind power development, no matter what
the goal is to help the wind power proponent through the process, no matter what
actual science, i.e., evidence that serious and irreversible harm may come to the natural environment and wildlife is not to stand in the way
Note the Ministry’s mission statement below, taken from their website: the goal is to “protect biodiversity while promoting economic opportunities“…
These proceedings will be an eye-opener for those who thought the government’s role was to protect the environment and wildlife, not push through invasive power projects.
More news on this after the teleconference next week. Two more witnesses are to be heard from: Mike Lord of Gilead Power and Shawn Taylor, a “road ecologist” for the power developer.
MNR manager accused of being advocate for power developers, not the environment
October 29, 2015–
The appeal of the wind power project at Ostrander Point, on Prince Edward County’s South Shore, an Important Bird Area, and home to the endangered Blandings Turtle, continued yesterday in Ameliasburgh, where revelations from the Ministry of Natural Resources witnesses shocked those attending.
Here is a report from the Appellant, the Prince Edward County Field Naturalists (PECFN):
This day was spent in arguments. It began with a motion from Eric Gillespie to demand the release of all the documents from Joe Crowley and Karen Bellamy. The MOECC witnesses had previously been requested to release documents; however, it became evident during Ms Bellamy’s witness qualification that some documents released by freedom of information requests had not been released as a result of the Tribunal order and then it seemed that other documents that should have been released were not.
The question of the release of these documents was argued almost through the entire day.
The other matter of contention was exactly what Ms. Bellamy was allowed to be examined about. The Tribunal had made a decision that Ms. Bellamy’s evidence would only be related to fact. No opinions could be part of her evidence. As a result it was necessary to go through her whole witness statement to make a decision about which items would be heard and which would not be heard.
Finally, at about 4:20 pm the examination of Ms. Bellamy began. Ms. Bellamy responded to questions from Ms. Kromkamp of the MOECC about the Impact Monitoring Plan, Adaptive Management and the Endangered Species Act all as they related to the permits for Ostrander Point. With a brief break at 5 pm so that Eric Gillespie could postpone a previously arranged teleconference Ms. Bellamy was on the stand until 6 pm. Her cross examination by Mr. Gillespie and Mr. Paliere of South Shore Conservancy will proceed when the Tribunal resumes.
The Tribunal was adjourned until such time as the documents are released and counsel has an opportunity to look at them. The decision about whether to resume the hearing on Friday will be made in a teleconference tomorrow. [Thursday October 29]
So the issues here are:
why did the MOECC and the MNR not release documents, when they were directed to do so by the Environmental Review Tribunal panel? They were only caught out in this because citizens had spent money to do Freedom of Information requests, and possessed important and relevant information.
Bellamy, an executive with the MNR, revealed that the MNR was aware of the advice of at-risk species expert Joe Crowley but chose to ignore it; she appears to have acted alone to determine to give a permit for the power project, but received “thanks” from the MOECC for helping push the power project through. (The relationship between the MNR and the power developer was apparently so cosy that questions were raised as to whether Ms Bellamy had a “personal relationship” with the contact person for the wind power developer, due to the nature of the emails revealed.)
Lawyer Eric Gillespie accused Karen Bellamy of not acting as an advocate for the environment and wildlife as she is supposed to do but rather, acting as an advocate for the proponent.
Mr Gillespie also accused the MOECC of stringing out the proceedings and not producing relevant documents over the course of three years and now five separate legal hearings. Costs to the appellants will be an issue, he said.
Will the revelations here have an impact on other appeals held in the past, where documentation was also not produced or revealed to the Tribunal?
Ostrander Point, once all about a little turtle, now shares concerns with the lawsuit by Mesa Power vs Canada, in which it is alleged that the government contracting process for wind power is “arbitrary” and political; issues such as the role of the MOECC’s so-called “iterative process” (in which the Ministry and the wind power proponent work together to make changes to the project so it can proceed, often without public oversight or notice, as in the Gunn’s Hill project) are also being called into question.
It was not certain on Wednesday whether the proceedings would resume as planned, but in a teleconference held Thursday afternoon, the Parties decided the hearing will continue on Friday, October 30, in Demorestville.
Law firm Gowling Lafleur Henderson has published a detailed analysis of last week’s election win as regards the environment and energy policy.
With regard to energy and renewables, and climate change in specific, the analysts had this to say:
Mr. Trudeau has promised to “provide national leadership” and work with the provinces to take action on climate change. In the short term, he plans to attend the Conference of the Parties in Paris this December, and within 90 days establish a cross-country framework on climate change. A specific action item is the creation of a Low Carbon Economy Trust, which would provide funding to projects that materially reduce emissions. The Liberals have pledged 2 billion dollars in funds to this Trust.
This approach recognizes that the provinces hold significant power to shape climate initiatives. While the Liberals have promised a Pan-Canadian approach and a Canadian Energy Strategy, the new government has not promised that all measures adopted will be consistent across Canada. However, the federal government does have the jurisdiction to implement certain changes related to emissions. For instance, in the medium-term, Mr. Trudeau has promised to phase out subsidies for the fossil fuel industry, in keeping with G20 commitments. He will also work with the USA and Mexico to develop a North American clean energy agreement.14
The Liberals are also focused on creating more jobs, specifically in the clean technology sector. The Liberals plan to invest 100 million additional dollars in clean technology producers, and 200 million more each year to support the use of these technologies in Canada’s natural resource industries. Another aspect of their approach is to establish the Canadian Infrastructure Bank, which will provide low cost financing to new projects, with a specific interest in supporting renewable energy through the issuance of Green Bonds. These financing instruments are intended to “level the playing field” with fossil fuel energy sources.15
The Liberals, in short, have promised to kick-start a green economy, one with more jobs and funding for clean technology, and greater integration of these techs into Canadian industry. The federal government has promised to “lead by example” and increase the government’s use of these technologies such as through expanding the federal fleet of electric vehicles.16
Our hope is that they closely examine the Ontario experience, and determine that blindly following ideology without cost-benefit or impact analysis as Ontario has (despite advice from two Auditors General) is perhaps not the wisest course of action.