The law and wind farms in Ontario: mix them and “you get litigation”

Canadian Lawyer, September 8, 2015

A few kilometres west of the eastern Ontario village of Consecon in Prince Edward County, on a narrow but busy stretch of road known as the Loyalist Parkway, there is a yellow road sign. It warns of turtles crossing the main automobile route to the popular Sandbanks Provincial Park — the Blanding’s turtle, to be precise.
The medium-sized turtle, with bright yellow throat and chin and domed shell, is classified as a threatened species in Ontario. It also has another distinction. So far, it is the only species, including humans, to derail at least temporarily a proposed wind energy project in the province.
There have been nearly 30 hearings before the Environmental Review Tribunal, seeking to stop so-called wind farms, since the enactment of the Green Energy Act in Ontario in 2009. Each time, local residents, usually in rural areas, have been unsuccessful in meeting the legal test to revoke or change the terms of a permit issued by the province for a wind energy project.
The one exception is the Ostrander Point plan to construct nine wind turbines in an area on the south shore of the county. The Ontario Court of Appeal earlier this year overturned a Divisional Court decision that would have approved the project. The appeal court sent the matter back to the tribunal for a second hearing because of concerns about threats to the safety of the Blanding’s turtle.
The case has also highlighted a statutory framework in Ontario that makes it difficult to stop a wind-energy project because of health and other concerns by local residents yet is arguably easier to block if certain species of wildlife are threatened.
Eric Gillespie, a Toronto lawyer who is representing the Prince Edward County Field Naturalists in the Ostrander hearing and has acted for many residents’ groups in other wind cases, says the circumstances are somewhat unique in Ontario.
Wind developments in other provinces have generally been constructed in areas without any nearby communities. In Ontario, most of the projects so far have been along the “highway 401 corridor,” says Gillespie, near a number of small municipalities. “When you mix wind projects with people, you get litigation,” he explains.
Many of the court cases have involved residents’ groups in rural communities. They have argued about the potential health hazards as a result of the sounds from wind turbines and other issues, including decreased property values. As well, there are concerns about what will happen to the large structures when they must be decommissioned in the next 20 or 25 years.
The provincial Environment Protection Act states that once a renewable energy approval has been granted by the government, the ERT’s jurisdiction is limited to deciding if the project will cause “serious harm to human health” or “serious and irreversible harm to plant life, animal life or the natural environment.” The onus is also on the party challenging the project to present the evidence that shows the harm will occur.
Gillespie says that, in terms of the requirements to gather the evidence, the renewable energy provisions are similar to other environment-related statutes. “What is different is that the Ontario government has created legal tests that are almost impossible to meet. The test requires you to show that there will be harm, unlike almost any other area of environmental harm,” he says.
For opponents of wind projects, the legal test is more difficult than that of pipelines, says Stephen Hazell, general counsel for Nature Canada, which was an intervener in the Ostrander case at the Court of Appeal.
Section 52 of the National Energy Board Act requires consideration of whether a pipeline project is desirable in the public interest. “It is a totally different standard,” says Hazell of the Ontario renewable energy test. “It is the toughest standard I have ever seen.”
It is not that Nature Canada is opposed to wind developments, says Hazell. It is the process in place if there are objections that is the problem. “We need more wind projects. But it depends on where they are located,” he says.
The opposition to the Ostrander Point project is because “it is right on an important wetland” and could impact wildlife beyond that of the Blanding’s turtle, says Hazell.
Albert Engel, a partner at Fogler Rubinoff LLP in Toronto, who has represented a number of developers in the renewable-energy sector, agrees it is a “high test” for opponents of the projects. “It is a test that the legislature has decided is appropriate,” says Engel. At the same time, he explains there is a rigorous process to receive approval from the province and there are other provisions, such as setbacks of 550 metres from any dwelling that is not part of a wind project.
There is also an automatic right of appeal to the ERT, which a resident can file once a wind project permit has been granted, Engel explains. As well, “costs have never been awarded” against an unsuccessful party before the tribunal, he adds. For opponents, the process is relatively inexpensive to take a case to the tribunal, suggests Engel.
Opposition to wind projects has been loudest in rural communities in Ontario and is potentially a political issue for the provincial Liberal government. It is also facing an ongoing $500-million legal action related to a moratorium it put in place in 2011 on offshore wind developments.
In terms of the framework in place for challenges to approval of onshore projects,  though, that is unlikely to be changed. “There are no plans to amend the EPA to expand the scope of issues that can be raised,” says Lindsay Davidson, a spokesman for the Ministry of the Environment and Climate Change.
Last fall, a study released by Health Canada concluded the noise from wind turbines could be an “annoyance”* to nearby residents but stated there was not sufficient evidence to link it to other conditions such as stress, nausea, or fatigue. The health implications “are a matter of great debate,” says Gillespie, although he agrees these arguments have not been successful in tribunal cases. Still, he questions whether wind projects are a good economic choice. “There are transmission and storage issues. Green energy is probably the most heavily subsidized in the world,” says Gillespie.
The industry organization for the wind sector in Canada agrees that it probably could have done a better job in responding to the criticisms in recent years. “That has been a lesson learned for the industry,” says Brandy Giannetta, Ontario director of the Canadian Wind Energy Association.
A new procurement process put in place by the province that requires community consultations when applying for an energy contract will help address concerns about public involvement, says Giannetta. The process should lead to contracts awarded later this year at prices about half of the ones already in place. The new process requires at least one community meeting when applying for an energy contract. It also includes the “Aboriginal Price Adder,” which can permit a developer to increase prices by about 10 per cent if there is a First Nations stake in the project.
The changes may potentially reduce the amount of litigation over wind projects, initiated by residents’ groups, says Engel. “The hope is that the process will result in the awarding of contracts in locations where the developments are welcomed,” he says.
However, these changes are unlikely to impact disputes over potential threats to wildlife, even when the developers have taken steps to try to mitigate the impact of a wind project.
In the Ostrander case, the company obtained an Endangered Species Act permit from the Ministry of Natural Resources. It permitted some harm to the turtles subject to certain conditions, which included setting aside a large area of land outside the project for a natural habitat. The permit also requires an “overall benefit” to the species so it is better off in the province than before the project started.
In the first tribunal hearing, the panel focused only on the impact to the turtle on the project site and the surrounding landscape in deciding there was serious and irreversible harm.
The legislative framework involving wind energy projects “does not sit well with the Endangered Species Act,” says Douglas Hamilton, who is representing Ostrander Point GP Inc. Obtaining a permit under the ESA “may potentially hurt you in front of the tribunal,” says Hamilton, a partner at McCarthy Tetrault LLP in Toronto.
Doug Hamilton, counsel for Ostrander Point developer: the legislative framework doesn't sit well with the Endangered Species Act
Doug Hamilton, counsel for Ostrander Point developer: the legislative framework doesn’t sit well with the Endangered Species Act

In its ruling that sent the matter back to the tribunal, the Court of Appeal upheld the original decision that the project will cause serious and irreversible harm to the turtles. But it also permitted Ostrander to present fresh evidence at the new hearing and for the panel to address the issue of remedy. Hamilton says Ostrander is asking for the project to be approved, with conditions.
The tribunal’s ultimate decision could result in protections to the Blanding turtle far beyond that of a road sign on a heavily travelled route in one of Ontario’s popular vacation destinations.
*Editor’s Note: “annoyance” is a medical term denoting distress, and is itself an adverse health effect.
What's your reaction?


    Posted September 9, 2015 5:31 pm 0Likes

    Thanks for the Editor’s note pointing out that “annoyance” is a medical term that denotes distress, and is in itself an adverse health effects. What’s the matter these lawyers not recognizing this? No doubt it’s a fact inconvenient to their narrative (racket).

  • Barbara
    Posted September 9, 2015 10:55 pm 0Likes

    The OP project never should have even been planned for this location. An internet search on Blanding’s turtle should have revealed this to the developer.
    And this should have been obvious in the approval process as well. And was ignored?
    It’s unknown how much a pension fund has invested in this project but losing pension money in a failed project such as this would not sit well with the employees and retired workers whose money was lost.

    • NIABY
      Posted September 10, 2015 2:47 pm 0Likes

      When I visited the Ostrander Point site, it was a wetland. As in, some of it was underwater.
      But then I read a Toronto-dwelling environmental lawyer arguing that wind energy projects bring benefits in the form of “greenhouse gas emissions reductions”, and the absurdity of it all is mind-numbingly painful.

    • Wind Concerns Ontario
      Posted September 10, 2015 4:32 pm 0Likes

      The issue is, the MNR knew, and should never have granted a permit.

    • NIABY
      Posted September 10, 2015 8:14 pm 0Likes

      Thanks for re-iterating some of the issues.
      Hope some others are beginning to see the risks of “overall benefit” calculations..

  • wgulden
    Posted September 10, 2015 9:27 am 0Likes

    At my site I’ve just posted (in What is at Risk) the links to my maps of birds and turtles on Amherst. All the yellow dots are documented sightings of Blanding’s. Pretty much covers the island.

    • Barbara
      Posted September 10, 2015 11:25 am 0Likes

      Amherst Island is a location where one would expect to find Blanding’s turtles given their species range and habitat.
      Internet searches on them would have led to more detailed information/sources on Blanding’s. So how could this information not have been known when decisions about IWTs siting were made?
      It was easy to find this information on Blanding’s turtles.

      • Barbara
        Posted September 10, 2015 1:22 pm 0Likes

        On the New York side, New York does not reveal Blanding’s turtles locations due to poaching issues and issues related to the preservation of this turtle species.

      • Wind Concerns Ontario
        Posted September 10, 2015 4:32 pm 0Likes

        In the words of Sylvia Davis, lawyer for the MOECC at the appeal in Toronto at Osgoode Hall, January 2014: “So a few turtles die…wind power is important public infrastructure…” She actually also said, “so a few people get headaches…”

  • wgulden
    Posted September 10, 2015 2:44 pm 0Likes

    Barbara – you’re assuming they care about Banding’s turtles. They don’t. They don’t care about eagles, bobolinks, meadowlarks. They don’t seem to care about anything, except getting more money to their friends in the wind business.

    • Barbara
      Posted September 10, 2015 8:07 pm 0Likes

      No, they don’t care and am not assuming that they do care.
      Scientific information was available on Blanding’s turtle since the beginning of this whole affair. So why was this information ignored and questions about this situation not brought up in the first ERT?
      It took me some time to look up this information a couple of years ago.
      When internet searches are done, you may need to go as far as 20 pages in on a topic and then links have to be followed but a scientific education makes this easier to do. Or you can go in person to a university library and do the same kind of a search.

    • Barbara
      Posted September 10, 2015 9:33 pm 0Likes

      A herpetologist with the MNRF has given recent testimony on Blanding’s turtles. So it can be assumed this person is familiar with the scientific literature on this issue?
      Let the questions begin about this situation!

      • Barbara
        Posted September 10, 2015 11:07 pm 0Likes

        Canadian Herpetologist Society
        CHS Executive:
        Secretary: Joe Crowley, Ontario MNR, Peterborough, ON

      • Wind Concerns Ontario
        Posted September 11, 2015 7:55 am 0Likes

        All the news reports state Mr Crowley is an MNR species-at-risk reviewer, with special credential in herpetology. The questions are about the PROCESS, not Mr Crowley.

        • Barbara
          Posted September 11, 2015 12:08 pm 0Likes

          True indeed! It’s about the process. And this person does have credentials in this scientific field.

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