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.”

Comments

Pat Cusack
Reply

Shame on Dalton McGuinty and his successor.
Once again, congrats to those responsible for this great achievement and
let’s hope it does shake up the loathsome GEA.

Barbara
Reply

Who was on the “panel” back in 2008 ?

Lynda
Reply

I believe the REA was issued in December 2012. Robert Wright and Heather Gibbs were on the panel. Here is an exerpt from County Live.
http://countylive.ca/blog/?p=38389

“Lawyer Eric Gillespie represented the PECFN and the Alliance to Protect Prince Edward County (APPEC). The two citizen-based groups, on Jan. 4, 2013 – appealed the Ministry of the Environment’s approval of Gilead Power’s nine turbine Ostrander Point industrial wind project. The approval of the project by the MOE came under fire as it was issued Dec. 20, 2012 – just before the Christmas holidays.

The tribunal decision was announced Wednesday after 40 days, 185 exhibits and testimony of 31 expert witnesses appeared before the panel of lawyers Robert Wright and Heather Gibbs in Demorestville and Toronto.”

Patti Kellar
Reply

Great for endangered species and a whole bunch of lawyers. Sucks to be humans. As far as I’m concerned this doesn’t raise the governments credibility in any way shape or form for me. Quite the opposite.

Wind Concerns Ontario
Reply

If you read the decision, and stories about it, you see that Ostrander Point has changed everything: while the ERTs were largely a rubber stamp to re-approve government approvals, NOW the onus is on the MOECC to prove that there is balance in their approach and that the environment is not being harmed. Instead of “wind trumps everything” as MOECC lawyers and the wind industry lobby CanWEA allege, the panel decision says there must be balance, and the Precautionary Principle is important. This is a major shift in thinking.

Patti Kellar
Reply

Some days are more challenging believing change is going to happen, especially for everyone already living with or already moved from what Country Gal describes in her post. West Lincoln’s concentrated population will be a loud voice in this nightmare.
Here’s hoping the change in thinking translates into a positive outcome and change for all.

Moira C. Egan
Reply

This success is not because of the government but in spite of it. But it is success and it is encouraging. Like the turtles, justice sometimes moves slowly. Congratulations to those who persevered. !!!

notinduttondunwich
Reply

Yes…. again well done in your victory….
And yes shame on the liberals grey energy act!!! Absolutely appalling that this “GREEN” thinking is absolutely doing more harm to our environment!!! Negative carbon footprint… polluting ground water. … people’s health are in question…. it’s obvious that they kill large numbers of birds.. bat… butterflies etc…they require MASSIVE economically crippling subsidies. ….. they are detrimental to communities…. they are unsightly (happy windbuddy I said it..F@#@!×#@G UGLY)
the windturbine idealology baffles me…. If you’re dumping 1 L of used motor oil into a river ….. then to fix that problem you dump 2L of used motor oil into that river…. so that’s fixed now???
I just don’t get why you would think that putting up a negative life carbon footprint turbine that is unreliable unsightly and has negative social impact amongst it’s inhabitants that have no say in the process is suppose to save the environment. ….

Andre Lauzon
Reply

The people fighting for democracy and common sense renew my hope in humanity. Yes, shame on the likes of McGuinty, Wynne, Chiarelli….etc ,
they may have $$$ in their bank accounts but they are so ugly to the rest of the world. God bless all the people at WCO.

Richard Mann
Reply

77 3MW turbines are erected and set to start up in Wainfleet in August. Some may have already been running/testing. Are there any wind proponents out there willing to live under those towers?

Sommer
Reply

I sincerely pity the people of Wainfleet who are about to have their lives changed once those turbines are turned on. One cannot imagine this experience beforehand. The reality of the noise, the low frequency sound modulations and infrasound radiation effects will cause serious distress for some people who are tuned into their bodies and can’t easily escape their homes.
I hope these people will complain loudly and clearly to all who are responsible for these siting decisions and add their voices to the many throughout the province who have been forced to endure this injustice.

John Foreman
Reply

Sommer…… Our protests fall on deaf ears! I applaud the decision, rendered by the Tribunal, that will save both the Blandings Turtle and the good people of Ostrander Point. BUT…..I fail to see how Ostrander Point’s good fortune can give others, in rural Ontario, who were not so fortunate and are now living in an industrial wasteland any hope! If you’re a senior, as my wife and I are, you will die and be buried in the shadow of industrial wind turbines. If you have negative health issues,you will suffer the ill effects of the Green Energy Act until you are finally released in death! Sad but True!

Sommer
Reply

I don’t usually argue with people John, but I will continue to pursue every possible avenue for justice despite your prediction of doom and gloom for those who have had the misfortune of having had turbines sited too close to their homes and are now suffering the distress this can cause physically and psychologically. This is wrong. Anyone who acquiesces to this injustice is complicit in this crime.

Country Gal
Reply

The WFRN project consisting of 77, three MW turbines has 4 turbines in Wainfleet , 30 in Haldimand and 43 in West Lincoln where I live and which has a population of over 10,000 people within 2 KM of a turbine. The commissioning date is set for Sept. The transmission lines are still being installed and it will be a nightmare once they become operational.
All eyes need to be on West LIncoln because we are the canaries in the coal mine and even the next Walkerton. Our dedicated anti wind group has fought since 2011.
Before the start date of our ERT hearings in Jan of 2015 there was a Motion to Strike day. So many pages of KEY evidence which we were to present were struck out by the hearing panel at the request of the MOE and WFRN legal team. Bill Palmer was grilled for 2 hours by their legal team trying to discredit his knowledge as an expert witness.

A little known fact is that there are now 20 constructed turbines within the Blanding’s Turtle habitat. We were not able to submit this information at the ERT not that it would have helped. Was it not the mandate of the ERT panel to deny the appeals?
I spoke to a gentleman from Wisconsin last week seeking his expert advice on EMF’s, Radiation and Electrical Pollution. He had tested and written the report for the Shirley Wind Farm in Brown County Wisconsin.
The Board of Health declared that wind farm a “Hazard to Human Health.”
At the Shirley WInd Farm people have died of cancer and are being treated for different types. Some have left their beautiful homes to live in small apartments and are still paying mortgages.
Electrical pollution travels for miles so that fact is now on my radar screen.
With these 95 to 100′ transmission lines within a few meters to so many peoples homes here the way is paved for disaster for our community.
WEST LINCOLN IS FOR SALE

T3..Tracy from Turbine Town
Reply

I’m truly sorry for you Country Gal. The canaries have died years ago in Ontario along with many Bald Eagles, bats, people.. Unfortunately the government doesn’t care.

T3..Tracy from Turbine Town
Reply

Congratulations to the people of Ostrander Point! How close is the nearest turbine development to Ostrander Point?
Perhaps this is a place where someone as myself who has severe sensitivity and experienced negative health impact caused by the infrasound emitted by iwts can relocate to.  I would think Ostrander Point is comparable to the UNESCO declared world class biosphere reserve Long Point, where I was raised and had returned to. We have Blanding’s turtles as well; I saw 5 turtles on two different excursions in June, laying their eggs!

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