Amherst Island appeal dismissed: community to meet soon on next steps

Amherst Island: a David vs Goliath fight, say residents defending their community, environment, and health
Amherst Island: a David vs Goliath fight, say residents defending their community, environment, and health

Almost a year after the Ministry of the Environment and Climate Change approved the project planned by Windlectric/Algonquin Power on Amherst Island, the Environmental Review Tribunal has dismissed an appeal of the power project.

The appeal was based on the impact on the natural environment, heritage features, and human health.

While the Tribunal was complimentary in a number of areas on the evidence presented by the Appellant, the Association to Protect Amherst Island, it did not find that the evidence of harm put forward was irreversible or met the standard of the legislation. For the Blandings turtle, for example, the Tribunal allowed that turtles did inhabit the Island but that their habitat would not be affected by the power project, and that the number fatalities likely would not result in irreversible harm to the species.

APAI has said it will meet this weekend and discuss next steps; the community has already considered for a Judicial Review of the power project approval.

For more information please see the APAI website here, and note the need for funding assistance. http://www.protectamherstisland.ca/sad-day-amherst-island/

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.”

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

Ottawa to IESO: municipal support must be mandatory for wind power bids

Municipal approval key to sustainable development, Canada’s capital city tells the Wynne government

Ottawa: how about WE get to say what happens?
Ottawa: how about WE get to say what happens?

The City of Ottawa, Ontario’s second largest city and Canada’s capital, has sent a letter to the Minister of Energy requesting a return of local land-use planning powers removed under the Green Energy Act.

Ottawa is a city but it also has a large rural area, which makes it a “draw” for wind power developers, Councillor Scott Moffatt wrote in the letter. Moffatt is Chair of the city’s Agricultural and Rural Affairs Committee, and the representative for the rural Rideau-Goulbourn ward in the city.

The City is not opposed to renewable energy projects, the letter states, but because wind power projects have “significant implications” for planning, Ottawa believes their approval should “go through the existing planning framework that takes Ottawa’s Official Plan, community sustainability, and input of the community into consideration.”

Under the current Large Renewable Procurement process, Ottawa’s letter says, municipalities’ role is “consultative” only, and without “decision-making authority.”

The letter was sent to the former Energy Minister Bob Chiarelli, whose own riding is in Ottawa.

In 2013, the City supported a Not A Willing Host declaration by residents faced with a 20-megawatt wind power project that would have been close to hundreds of homes and a school.

See the letter from Ottawa here: OttawaLetter2016-05-30-minister-chiarelli-wind-power

The Ottawa resolution, passed unanimously at Council in May reads as follows. Ottawa is among 75 municipalities now requesting the IESO and the Ontario government to make municipal support a mandatory requirement for new wind power bids.

Ask the Province of Ontario to make the necessary legislative and/or regulatory changes to provide municipalities with a substantive and meaningful role in siting wind power projects and that the “Municipal Support Resolution” becomes a mandatory requirement in the IESO (Independent Electricity System Operator) process.

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.

Wind power exec confirms: contracts to miss key performance date

"I'm a problem?"
“I’m a problem?”

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

Project 20 Year Cost Termination Cost (Max) Status/ Estimated

Key Contract Dates

Nigig/Henley Inlet, Parry Sound $2,057 M $1.0 M Pre-submission – Default Date =   Sep 24, 2015
Trout Creek, Parry Sound $68.6 M $420,000 Default Date = Nov 6, 2015
Fairview, Clearview $126.2 M $436,000 Default Date = Nov 6, 2015
Skyway 126, Grey Highlands $68.6 M $420,000 Default Date = Nov 6, 2015
Ostrander Point, Prince Edward $154.3 M $448,000 ERT – 24 months of Force Majeure = May 12, 2016
White Pines,

Prince Edward

$411.5 M $520,000 ERT – Default Date = 57 days after favourable ERT
Amherst Island, Loyalist $514.4 M $550,000 ERT – Default Date = 18 days after favourable ERT
Settlers Landing, Kawartha Lakes $68.6 M $420,000 Remedy ERT – Default Date = May 6, 2016
Majestic, Kincardine $13.7 M $408,000 Default Date – May 11, 2016
Meyer, Kincardine $27.4 M $404,000 Default Date – Jun 17, 2016
Total $3.5 B $5.0 M

 

 

 

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

Ontario lacked scientific evidence to approve wind projects safely: Ottawa Citizen

Further proof that Ontario’s Green Energy Act was not based on any real scientific evidence, or that its setbacks and other regulations were really created for public safety. Former Energy Minister George Smitherman’s testimony is revealing.

Reevely: Ontario’s wind-power decision makes it look like a ‘banana republic,’ ex-deputy premier tells tribunal

Ottawa Citizen, June 2, 2016

By David Reevely

George Smitherman was Ontario's energy minister in 2008 and 2009.

George Smitherman, former Energy Minister: no one told him there was a problem with offshore wind farms. But no one had a problem with the lack of science for onshore wind power, either.

The Ontario government would not have bailed out on its plans to allow wind farms in the Great Lakes without agreement from the premier’s office, Dalton McGuinty’s former deputy testified at an international tribunal dealing with some of the fallout of that 2011 decision.

“Every time there’s a decision of significance it’s coming with an intervention from the centre,” George Smitherman testified. That could have meant the premier, it could have been meant his chief of staff or principal secretary. Maybe the premier’s office would have initiated it, maybe a minister would have. “(B)ut the central command and control would be a consistent element, no matter the pathway.”

That’s directly opposite to the way the Ontario government says it decided to abandon a big chunk of its green-energy plan.

Smitherman was the energy minister and deputy premier who pushed that plan through but was no longer in with government when the decision was made to call off the plan. The plan included ways to let private companies install hundreds of windmills several kilometres out in the province’s big lakes.

Since then, the government has commissioned zero research on the subject. Wilkinson lost his seat later in 2011 but the moratorium he imposed is still in place.

The government is being sued by one would-be wind-farm builder and has been taken to an international court by another, which claims it was specially harmed because it’s American — a no-no under the North American Free Trade Agreement. The two companies are demanding about $500 million each in compensation for their blown projects.

Both of them were very large wind farms that would have been built at the eastern end of Lake Ontario, off Kingston. Either would have generated as much power as a nuclear reactor.

Both companies allege the premier’s office had to be involved in the decision to cancel their projects, and numerous others elsewhere in the province, all in one February 2011 announcement, and the fact that it’s produced almost no documentation of that involvement shows deceit and impropriety. The Ontario Provincial Police are investigating it as a criminal matter.

The Permanent Court of Arbitration, based in The Hague, heard that NAFTA case between Windstream Energy and the Canadian authorities over two weeks in February and three arbitrators are working on a decision. The court posted transcripts of the sworn testimony on Wednesday.

In Smitherman’s testimony, he said that if Wilkinson decided personally to ball up a whole section of the province’s green-energy plan, that was like no other decision he saw in six-plus years in government. The environment minister would have had that authority but in real life ministers simply did not make calls that important on their own.

Smitherman was not involved in the decision to scrap Great Lakes wind projects, which came after he quit provincial politics to run for mayor of Toronto in 2010, he acknowledged.

“I wasn’t there at the time,” he testified, “but I can say that in every other decision of a similar circumstance or magnitude, the person that declares the consensus is the head of the government, that’s the premier or one or two of his most senior staff.”

Wilkinson testified that the decision to cancel all the lake wind projects was his alone.

“I did not discuss the issue of offshore wind development with the premier or seek his counsel before I made the deferral decision, and he did not attempt to influence my decision in any way,” Wilkinson testified.

The premier’s office was told and backed him up, Wilkinson said, and McGuinty’s chief of staff Chris Morley was involved in planning how to communicate the decision — including vetoing a draft of a press release from Wilkinson’s ministry — but Wilkinson wasn’t acting on any orders, he said.

(Neither McGuinty nor Morley testified in the case.)

Wilkinson reached the decision abruptly when his deputy minister couldn’t assure him the government had enough science on hand to be sure that dozens of foundations for windmills could be sunk into lake bottoms without swirling up toxic metals and fertilizer residue that could lead to dangerous algae blooms, he said.

Nobody ever brought that up while Smitherman worked for years on Ontario’s Green Energy and Green Economy Act, the ex-minister of energy said. Nobody objected that the province lacked the scientific expertise to approve wind projects safely. Everyone knew for years that the government was planning to pay high prices for all sorts of wind-based projects — through a thing called a feed-in-tariff — to boost Ontario’s renewable-energy industry.

“The rollout of the Green Energy and Green Economy Act was lengthy,” Smitherman testified. “At no time whatsoever did colleagues of mine, formally or informally, raise concerns with me with respect to the implementation of wind power as one of our chosen fuel sources for the feed-in-tariff.”

Read the full story here.