The Ostrander Decision
The slowest doesn’t always finish last. At least that was one lesson learned in July 2013 when the Environmental Review Tribunal (“Tribunal”) delivered an unprecedented decision in Alliance to Protect Prince Edward County v. Director, Ministry of the Environment. The Tribunal revoked the decision of the Director of the Ministry of Environment (“MOE”) that had originally granted a Renewable Energy Approval (“REA”) for a wind turbine project. Why? Turtles.
Two groups appealed the Director’s decision to originally grant the REA. The first group, Alliance to Protect Prince Edward County (“Alliance”), focused on the potential adverse effects of wind turbines on human health. The other group, the Prince Edward County Field Naturalists (“Naturalists”), concentrated on the project’s alleged serious and irreversible harm to plant life, animal life or the natural environment.
Alliance was unable to convince the Tribunal of its position despite calling expert testimony on the potential adverse health effects arising from proximity to wind turbines. There was insufficient evidence establishing that the alleged health effects were caused either by direct exposure to wind turbine noise, or indirectly through some other mechanism. This issue is not new to opponents of wind turbines and has yet to be successfully argued in any Ontario wind turbine appeal to the Tribunal.
The Naturalists took a different route, focusing on the conservation status of the Blanding’s Turtle as an endangered species. Blanding’s Turtles are ranked S3 vulnerable in Ontario and designated as a threatened species on Schedule 1 of the Endangered Species Act. The Naturalists argued that engaging in the project in accordance with the REA would cause serious and irreversible harm to the turtles’ natural habitat. The parties disagreed over the meaning of the phrase “serious and irreversible harm”. The applicants submitted that harm should be assessed according to the decline of the species at risk. The opponents argued for a focus on the impact to the overall environment, rather than the protection of an individual plant or animal.
The Tribunal partially rejected both interpretations and stated that it would interpret the phrase on a case-by-case basis, depending on whether the plant life, animal life or feature of natural environment was at risk or not. If there was a risk, the Tribunal would focus on the broader test regarding the decline of the specific species’ population. Where there was no risk, the vulnerability of the species would be assessed instead. This seems on its face to be far outside the intended role of the REA process.
Since the Blanding’s Turtle is considered a species at risk, the Tribunal employed the broader test and found that the turtles would suffer serious and irreversible harm. The wind project, which required road construction, would be dangerous for turtles that would have to cross the roads to access different areas of their habitat. The turtles would also be exposed to increased poaching and predation, and mortality rates would significantly increase. The Tribunal was not convinced that mitigation measures included in the REA were sufficient to offset these risks. They found that the measures only protected parts of the turtles’ habitat, and did not address issues that could arise post-construction. This point, in our view, is the key – the proponent’s plan did not provide mitigation measures relating to the road construction and the Tribunal essentially felt it could not insert mitigation measures that were not already approved by the Director. Finding that the development of nine wind turbines would cause serious and irreversible harm to the Blanding’s Turtle, the Tribunal revoked the REA. This came as somewhat of a surprise to the developer (and other developers watching the outcome of the appeal) that they needed to provide that level of detail in the REA process.
The Tribunal observed that:
“The Approval Holder was required to consider potential impacts on species at risk pursuant to theEndangered Species Act. This process is completely separate from the renewable energy approval process and falls outside of the MOE’s jurisdiction.”
How then do renewable energy developers plan for the approvals process? Under the Environmental Protection Act, Renewable Energy Approval Regulation (“REA Regulation”), applicants are required to conduct an Environmental Effects Monitoring Plan (EEMP) and notify the Ministry of Natural Resources (“MNR”) of any and all mortality of species at risk within 24 hours of observation or the next business day.  A significant limit of this process is that the EEMP is only required for birds and bats. The REA Regulation does not contain any specific requirements relating to the Blanding’s Turtles or related species but a developer must be aware of ‘supplementary’ legal provisions contained in the Endangered Species Act. It requires REA applicants to submit a management plan for each species at risk when projects are undertaken. The Endangered Species Act regulations also mandate a number of procedures for operating a wind facility, such as submitting a mitigation plan. The Approval Holder is required to consider potential impacts on species at risk, a process that is governed by the MNR. So while the MOE does not require a management plan for species, the MNR does.
Developers, in our experience, have been generally complying with requirements under the Endangered Species Act, but they have been negotiating matters and reporting to the MNR, and not the MOE. The Tribunal has essentially created a turf dispute when none previously existed, finding the MOE lacking for not having addressed species at risk more in their REA process. Prior to this hearing, the MOE and the MNR seemed to be comfortable with developers dealing with the MNR on species at risk issues, and there was no expectation that details of mitigation measures be resubmitted for comment to the MOE. Whether that remains the case now is a viable question.
The result is uncertainty and inconvenience for wind developers. Although they may believe they have followed applicable regulatory procedures under the REA Regulation that directly govern the approval process, the Ostrander case suggests that any myriad of considerations under the authority of a different ministry may throw the process off kilter. Ultimately, wind developers are left to navigate a maze of environmental regulations between different ministries to ensure a renewable energy project complies with all the requirements.