On February 20, 2014, an Ontario Court set aside the 2013 decision of the Environmental Review Tribunal over the Ostrander Point Wind Energy Project. That 2013 decision was notable for being the first decision to grant an appeal of a renewable energy approval (REA) under Ontario’s 2009 Green Energy laws, and basing its decision on endangered species concerns.

The 2014 Court decision is equally notable, but for different reasons than the Tribunal decision it reverses. The Court provides detailed guidance on how the Tribunal should apply the test of serious and irreversible harm to endangered species, what evidence on endangered species is needed, its jurisdiction to impose measures to mitigate any harm, and the process to be followed before the Tribunal grants an appeal that terminates a project.

This guidance suggests important changes to how the Tribunal should conduct its hearings and raises the bar on what is needed to challenge an REA in a Tribunal appeal.

Background

The Ostrander Point wind energy project (the “Project”) is a 9-turbine wind energy facility slated to be constructed on a 324 hectare parcel of Crown land located approximately 15 kilometers south of Picton, Ontario. After the project applicant obtained a renewable energy approval (REA) from the Ministry of the Environment, two local interest groups, the Alliance to Protect Prince Edward County (“Alliance”) and the Prince Edward County Field Naturalists (“Naturalists”), appealed to the Environmental Review Tribunal in January 2013. Following a lengthy hearing, the Tribunal decided on July 3, 2013 to revoke the REA for the Project.

The Tribunal revoked the REA over concern that the Project would cause serious and irreversible harm to the Blanding’s turtle, a “threatened species” under Ontario’s Endangered Species Act, 2007 (the “ESA”). The Tribunal made this finding even though the Project was previously authorized by an ESA permit. This permit acknowledged some harm to the Blanding’s turtle, but provided monitoring and mitigation measures to conclude there was an overall benefit to the species in Ontario. After acknowledging the ESA permit, the ERT nevertheless concluded that harm would result. It also concluded that it lacked the jurisdiction to impose mitigation measures to prevent the harm. As such, the ERT concluded it had no other option but to revoke the REA for the Project.

See Gowlings’ article on the ERT’s July 3, 2013 decision: Click Here.

Both the Ministry of the Environment and the project applicant appealed the Tribunal decision to Ontario’s Divisional Court. The Alliance and the Naturalists cross-appealed, on the basis that the Tribunal was wrong to dismiss the issues of harm to birds/alvar and harm to human health.

Reasons from the Court

We focus on the Court’s reasons for reversing the Tribunal:

  • Serious and Irreversible Harm:  The Court was critical of the Tribunal decision to blend the statutory appeal tests of serious harm and irreversible harm into one standard, instead of two. The Court concluded that the question of whether harm was “serious” was distinct from whether harm was “irreversible”. Distinct consideration of both is necessary. Applied to the facts of the case, the Court accepted that increased turtle mortality due to road traffic may be serious harm, but observed that the Tribunal failed to specifically consider whether the increased turtle mortality was an irreversible impact. The Court concluded that this second determination required the Tribunal to consider species population data, which was not part of the evidentiary record during the proceeding. While the Court confirmed that an REA appellant need not establish scientific certainty in respect of the impacts on populations, “some level of data” is required.
  • The ESA Permit: The Court was also critical of the Tribunal's disregard for the ESA permit and the associated monitoring and mitigation plans. The Court did not say that the Tribunal had to make its decision consistent with the ESA permit, but did make two specific conclusions. First, an ESA permit is “relevant and significant evidence” that must be fully considered during an REA appeal. Second, in considering an ESA permit, the ERT should seek to apply its statutory mandate in a manner that would avoid conflict between the statutory regimes of the ESA and EPA. Thus, the ERT ought not to arrive at a conclusion that is directly at odds with the issuance of the ESA permit unless no other viable alternative is available. Following the Court’s recommended approach, the ERT ought to have “accepted the ESA permit at face value” and assumed that the management and monitoring plans incorporated therein would be implemented and adequately monitored and enforced by the Ministry of Natural Resources (“MNR”).

The Court also specifically concluded that the ERT ought to have considered the impact of the ESA permit on the issue of irreversible harm. In particular, to arrive at a conclusion directly at odds with the ESA permit, the Tribunal should have explained  how, on the one hand, the MNR could have concluded that the Project would have resulted in an overall benefit to the Blanding’s turtle, but, on the other hand, it reached the conclusion that the Project would also result in irreversible harm to the same species. The Court suggests that such a conflict could be resolved where, based on an analysis of population data, the Tribunal found that there was a province-wide benefit but a local irreversible harm. This conclusion highlights further the importance of population data in assessing irreversible harm to animal species.

  • Jurisdiction to Provide Additional Mitigation Measures: The third major criticism of the Tribunal decision was over the Tribunal’s suggestion that it lacked the power to alter the decision of the MOE Director. The Court pointedly advised the Tribunal that its statutory authority expressly authorized the Tribunal to substitute its opinion for that of the MOE Director, and to alter or insert any condition into the REA that was required to address its opinion.
  • Remedy Imposed and Procedural Fairness: The fourth major criticism of the Tribunal decision by the Court was over the Tribunal decision-making process. As set out in the Tribunal decision, the parties were not provided the opportunity during the REA appeal to make submissions on remedy after the Tribunal found there was serious and irreversible harm. The Court concluded that procedural fairness required the Tribunal to provide the parties with an  opportunity to make submissions on the appropriate remedy to be imposed in light of its finding on harm.

Conclusions

Taken together, the Court’s reasons suggest important changes to the Tribunal process for hearing REA appeals.

Virtually all of these changes appear to impose increased obligations and costs on those seeking to successfully appeal an REA to the Tribunal. The Court’s attention to population data and analysis suggests a need for greater scientific depth and sophistication from those appealing REAs on the basis of harm to plant and animal life. Similarly, the Court’s conclusions on remedies and fairness suggests that future hearings may need clear phases to distinguish between findings and outcomes. Lastly, the Court’s views on the importance of ESA permits suggests that, where such permits have been issued, appellants will need to add specific regard to Permit conditions in their REA appeals.

It is rumoured that this litigation is not over. The next step would be the Ontario Court of Appeal.