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