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.
A last-ditch attempt to stop an Oxford County wind farm, based on damage it will do to an endangered species, has run into a wall.
The East Oxford Alliance citizen’s group filed an urgent request last week with Environment Minister Glen Murray to stop the Gunn’s Hill Wind Farm because the project will kill little brown bats, a species whose numbers are plunging across North America and is now on Ontario’s and Canada’s endangered lists.
In a written reply on the minister’s behalf, the director of the ministry’s environmental approvals branch said it is the ministry’s priority to ensure renewable energy projects are developed in a way that will protect human health and the environment.
In the case of wind power, clear rules have been established to protect birds, bats and their habitats, Kathleen Hedley wrote.
The Gunn’s Hill Wind Farm, a 10-turbine project in Norwich Township, is required to conduct mortality surveys for at least three years after it starts up.
“If thresholds of bird and/or bat mortality are reached, contingency plans can be put in place to reduce impacts and additional monitoring is conducted to ensure the contingency plans are effective,” Hedley wrote.
Disappointed alliance member John Eacott said the bottom line is the wind power company is just required to collect bat and bird carcasses for three years before taking action: “This is the clear rules that Ontario has established — nothing has to be done.”
Fellow alliance member Joan Morris said the group will review its options.
Waiting to count carcasses of endangered species is irresponsible and completely incongruent with the intent of the Endangered Species Act, she said. “Three years from now may be too late for the little brown bat.”
A study released by Bird Studies Canada this month found bats dying at the rate of 18.5 per turbine in Ontario, well above the allowable 10-per-turbine threshold set by the province’s Natural Resources Ministry.
An estimated 42,656 bats were killed by Ontario wind turbines between May 1 and Oct. 31, 2015, including several endangered species, the study said.
North American studies of bat deaths and wind turbines have found bats are killed either by being struck by turbine blades or by air pressure changes caused by the turbines that burst blood vessels in their lungs.
Ontario’s Endangered Species Act, passed in 2007, originally prohibited killing or harming species on the endangered list and their habitat.
But that law was relaxed by the province in 2013 …
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-Reviewthere 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.
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
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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.
“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 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.”
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.
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.”
Two separate Ontario communities sought to appeal the Ontario government’s approval of local wind “farms” based on the idea that there is no research available that confirms the noise emissions from industrial-scale or utility-scale wind turbines are safe. Currently in Ontario, the government’s renewable energy policy allows for wind power projects to be located as close as 550 metres from homes; the Wynne and McGuinty governments have assumed an “innocent until proven guilty” while communities are asking for a more precautionary approach on siting the power projects.
WIND GROUPS DISMAYED WITH COURT RULING
Grey Highlands/Plympton-Wyoming, July 4, 2016 – Two citizen’s groups, situated hundreds of kilometres apart in Ontario, who are both opposed to wind turbine developments, are disappointed with the decision of the Superior Court in London released on June 28th, 2016, to confirm the decisions made by the Environmental Review Tribunals (ERT) on their respective wind projects. The two groups had joined forces to appeal their respective ERT decisions.
Gary Fohr of Grey Highlands stated one of the concerns. “The Green Energy Act puts the burden of proof on citizens to prove that wind turbines are harmful. We were asking the court to consider that wind turbines have never been proven safe. There is no scientific evidence to support the government’s claim that industrial wind turbines do not cause harm.”
The groups appealed based on the ruling made by the Divisional Court in an earlier case (Dixon). In that decision the court stated: “There is a difference between a negative determination that serious harm to human health has not been proven and a positive determination that engaging in the renewable energy project in accordance with the renewable energy approval will not cause serious harm to human health. Although no party raised as an issue on these appeals the failure of the Tribunal to confirm the decisions of the Directors, it is important that a tribunal follow its statutory mandate.”
We interpret that to mean the Tribunals are required to confirm that the evidence presented at the hearing provides proof that there will be no harm to human health.
At the Fohr ERT hearing, an expert medical witness for the project developer acknowledged that the current scientific evidence is insufficient to prove that wind projects will not harm nearby residents, and that additional scientific study is still needed in that regard.
In effect, the provincial government has been approving wind projects without definitive scientific evidence that the projects will NOT cause harm.
We believe this is not in keeping with the intent of the Environmental Protection Act which requires the developer for any non-renewable project, such as a mine or cement plant, to provide definitive proof that their project will not harm human health or the environment. Only in the case of renewable energy projects is the onus reversed; the residents must prove serious harm before the project can be stopped.
Many people living close to turbines continue to complain about adverse health effects. The scientific evidence is growing to support their claims. Apathy is turning to empowerment, as affected residents are encouraged to organize together and speak with one voice.
We’re not against renewable energy, but we believe such projects should NOT be located where they will cause serious disturbances and adverse health effects to nearby residents in their homes. This is not acceptable collateral damage, and it’s unfortunate this has to be such a painful lesson.
While we’re disappointed with this decision, we are not discouraged from our ongoing efforts to advocate for the responsible implementation of these projects.
July 6 is the final date for the proponent of the Ostrander Point wind power project to file an appeal of the Environmental Review Tribunal decision that revokes approval by the Ontario Ministry of the Environment and Climate Change.
Here is a summary of the situation by Charles Birchall of environmental law firm Willms & Shier. There is a lot riding on what happens this week, the lawyer says …
Wind Farms vs. Blandings Turtles — a decision at last?
On June 6, 2016 the Environmental Review Tribunal (“ERT”) released its decision determining the appropriate statutory remedy respecting the Director’s approval of the construction and operation of a nine turbine wind farm at Ostrander Point. The remedy hearing decision takes account of proposed mitigation measures for preventing serious and irreversible harm to the Blanding’s turtle population.
Summer is here. Trips and cottage time are being planned. Summer camps will be in full swing shortly. And, Canada Day is fast approaching.
As people prepare to spend a little less time in front of computers, iPads, and cell phones, it may be easy to miss an important date – at least in the context of the three and a half year battle over a renewable energy approval (the “REA”) issued by the Director, Ministry of the Environment and Climate Change (the “Director” and “MOECC”) on December 20, 2012, to Ostrander Point GP Inc. as general partner for and on behalf of Ostrander Point Wind Energy LP (“Ostrander”). The REA would permit Ostrander to install nine wind turbine generators (the “Project”) at Ostrander Point near Picton, Ontario.
July 6, 2016 is the last date on which Ostrander can appeal a decision rendered by the ERT to once again revoke the Director’s decision to issue the REA. This is the first REA appeal proceeding where an appellant has met the environmental harm test in s. 145.2.1(2)(b) of the Environmental Protection Act (the “EPA“) – namely a renewable energy project that will cause “serious and irreversible harm to plant life, animal life or to the natural environment”. It is also the first hearing solely on the matter of remedy in the history of renewable energy approval appeals in Ontario.
In sworn testimony at an environmental review tribunal, a Health Canada official confirmed industrial wind turbines — large, noise-emitting devices — are regulated by the Radiation Emitting Devices Act. So why isn’t it responding to hundreds of citizen complaints?
The federal government’s inaction on wind turbine noise is making Canadians sick.
It’s been a year-and-a-half since Health Canada’s $2-million study determined low-frequency acoustic waves from industrial wind turbines cause community annoyance.
According to the World Health Organization, unwanted noise, even at a moderate level, can lead to a myriad of adverse health outcomes, including stress-related symptoms such as sleep disturbance, elevated blood pressure, cardiac events and depression.
It’s a “green” form of radiation sickness.
Canada’s Radiation Emitting Devices Act (REDA) is supposed to regulate the design and operation of devices that emit radiation, such as microwave ovens and tanning beds. In sworn testimony at an environmental review tribunal, a Health Canada official confirmed industrial wind turbines — large, noise-emitting devices — are regulated by REDA.
REDA requires a manufacturer or importer of such a device to “forthwith notify the Minister” upon becoming aware its device is emitting radiations not necessary for the performance of its function.
On June 15, Barbara Ashbee of Mulmur, Ontario, together with hundreds of other Ontarians, sent an open letter to Health Minister Jane Philpott, asking why Health Canada has not insisted wind energy corporations report citizen complaints about noise radiation. She wants the minister to meet with her and representatives of citizens suffering from turbine noise radiations.
Ashbee wrote: “Many in Ontario and elsewhere have logged serious health complaints with proponents/operators of wind turbine projects, provincial and federal government ministries as well as wind turbine manufacturers … As previous ministers and current Minister Philpott have been informed, the adverse effects of wind turbines are not trivial.”
Access to Information records indicate wind energy corporations have reported no complaints.
Why is Health Canada not forcing wind turbine operators to report citizen complaints, as required?
Is the wind industry lobby that strong?
Why were Canadians not told wind turbine corporations are required to report citizen complaints to Health Canada? Were wind energy companies also not told about the REDA?
Why did Health Canada’s Wind Turbine Noise and Health study exclude people under age 18 and over age 79, the most vulnerable segments of Canada’s population?
Why do REDA regulations not include standards for the design and operation of wind turbines, as they do for microwave ovens, etc.?
Prior to the 2015 federal election, Canadians for Radiation Emission Enforcement (CFREE) asked candidates in wind turbine-affected Ontario ridings: “Will you support a moratorium on new wind turbines within 2 km of residences, until REDA regulations are updated to clearly stipulate wind turbine operators must comply with REDA, and to include scientifically proven safe setback distances?”
The survey revealed equal support from candidates of all four parties for a wind turbine moratorium. Only three candidates opposed it, but none were elected. In Ontario, the turbine setback is only 550 meters from residences.
Other countries are extending setbacks to safer distances. In Poland, the setback is now ten times turbine height. In closely settled Bavaria, it is now two kilometres. But there is no such action from Health Canada. No moratorium. No change in setbacks. No standards in REDA. More wind projects are planned. More Canadians are getting sick.
Openness and transparency are supposedly important to the federal Liberal government.
What will Prime Minister Justin Trudeau do about Health Canada’s inaction on wind turbines?
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 top executive for Gilead Power, the firm that was seeking to develop Ostrander Point in Prince Edward County into a wind power generation project, confirms what Wind Concerns Ontario has known for some time: there are projects in Ontario that are approaching, or have even passed, their key contract date to be supplying power to the grid.
The Wynne government has the option of now cancelling these contracts.
In an interview with the Picton Gazette, interim Gilead president Dan Hardie said the company is now “in limbo” with the decision by the Environmental Review Tribunal going against the project, and the “drop-dead” date approaching. (Actually, Wind Concerns Ontario’s information is that the key contract date was May 12, 2016.)
“We were supposed to be up and running by a certain date this year,” Hardie told the Gazette. “We are running out of time and that’s due to the Blanding [sic] turtle problem that we had.”
Asked if the ERT decision could mean the end of the company, Hardie replied, “Probably.”
According to WCO information, the cost to the government of getting out of the Ostrander Point contract would be $420,000 at most to terminate.
FIT Contract status: estimated from FIT contract source documents