Summary

On July 3, 2013, the Environmental Review Tribunal (“ERT”) granted the first successful appeal of a Renewable Energy Approval (“REA”) and revoked the permit issued by the Ministry of the Environment (“MOE”) to the Ostrander Point Wind Energy Project (“Ostrander”). The 9-turbine, 22.5 megawatt project was to be built on 324 hectares of provincial Crown land in Prince Edward County on the Ostrander Point Crown Land Block. The ERT found that the Minister of Natural Resources’ (“MNR”) Natural Heritage Assessment, included as part of the REA, failed to take adequate measures to protect the Blanding’s turtle; a species that is globally endangered and threatened in Ontario. Renewable energy developers should review their REAs to ensure that adequate mitigation measures are in place to protect endangered species.

Background

On December 20, 2012, the MOE granted Ostrander the REA and the MNR issued: Endangered Species Act, 2007 (“ESA”) permits, temporary land use and work permits and a crown easement. Subject to conditions which included the creation of a 37.64 hectare habitat, impact monitoring, road speed regulation, and a moratorium on construction from May to October of any year, the ESA permit allowed Ostrander to “kill, harm, harass, capture, possess and transport” the Blanding’s turtle.

The REA Appeal

The REA was appealed to the ERT by the Alliance to Protect Prince Edward County (“APPEC”) and the Prince Edward County Field Naturalists (“PECFN”) on January 4, 2013. The appeal was pursuant to s. 142.2(1) of the Environmental Protection Act1 (“EPA”) on the grounds that the proposed project would cause (1) serious harm to human health and (2) serious and irreversible harm to plant life, animal life and the natural environment.

The Decision

The ERT revoked the REA because the proposed project would cause serious and irreversible harm to the Blanding’s turtle under the second branch of the s. 142.2(1) test. The ERT concluded that serious and irreversible harm would result because of increased vehicle traffic and mortality due to roads, as well as an increased risk of poachers and predators directly in the habitat of the Blanding’s turtle. Critical to the ERT’s decision was that serious and irreversible harm to the Blanding’s turtle would not be effectively mitigated by the conditions of REA. With regard to serious harm to human health, the ERT found that there was insufficient evidence to satisfy the test. Likewise, the ERT found that the project would not cause serious and irreversible harm to birds, bird habitats, bats, the monarch butterfly, and the alvar ecosystem2 due to adequate mitigation measures and insufficient evidence.

In making their determination on the question of serious and irreversible harm to Blanding’s turtle, the ERT concluded that the importance and weight of relevant factors must be assessed on a case by case basis. In the present case, the ERT considered the following relevant factors for the Blanding’s turtle:

  • the conservation status of the species;
  • the species habitat on the site and in the area;
  • the vulnerability of the population;
  • the type and extent of harm caused by the project;
  • the vulnerability of the species to the particular type and extent of harm due to its life history traits;
  • the mitigation measures in the REA; and,
  • the demonstrated effectiveness of mitigation measures.

The Importance of Mitigation and Evidence

The decision highlights the importance of sufficient mitigation measures and the evidence required to support that sufficiency. The ERT agreed that any finding of serious and irreversible harm must be made after taking into consideration all mitigation measures. To determine the sufficiency of mitigation efforts in the case of the Blanding’s turtle, the ERT weighed the probable net benefit from mitigation with probable net harm. The ERT ultimately found that the mitigation proposed would be ineffective with respect to the seriousness and irreversibility of the harm to the Blanding’s turtle. The importance of adequate mitigation efforts is underscored by the fact that the negative finding on this issue led to the revocation of the REA.

Furthermore, developers need to be able to demonstrate that proposed mitigation measures are proportionate to the probable harm to endangered species. While perfect information is by no means required, the ERT will consider factors such as the conservation status of the species, the life history traits that make it vulnerable to harm, the precise type of harm that a project will cause, and the significance of this type of harm. The case of the Blanding’s turtle should act as a warming to developers for future projects but also as a guide to the mitigation measures required to achieve a favourable result at the ERT.

At the time of writing, there is no indication that the company or the province have decided to appeal the decision.

This alert was co-authored by Nalin Sahni, Associate and Danijel Augustinovic, Summer Student.