For the first time, Ontario's Environmental Review Tribunal
has allowed an appeal of a renewable energy approval
("REA"). Taking the most activist approach possible, the
Tribunal revoked the REA for the proposed wind energy project on
July 3, 2013. While the appeal was determined on specific issues
related to the location of the project, the decision highlights the
extensive evidence required to support renewable energy development
in environmentally sensitive areas.
The proposed Ostrander Point Wind Energy Park was to be located
in Prince Edward County, in an area designated as important for
birds, with wetlands throughout. After 24 days of evidence with
respect to environmental issues, the Tribunal found that expert
opinions diverged with respect to the effectiveness of mitigation
measures to protect an endangered turtle species identified in the
project area. The Tribunal determined that it was not obliged to
consider impacts to the turtle population on a provincial or even
regional basis. Instead, the appeal was granted on the basis that
the undefined population of the turtles in the project area would
suffer serious and irreversible harm due to the development and use
of roads in the project area and the ineffective protection offered
by mitigation measures during operation of the project.
The Tribunal did not consider imposing additional conditions
under the REA or modifying the location or number of turbines, but
simply revoked the whole of the REA.
It is noteworthy that other environmental issues and health
impacts alleged by the appellants were not accepted by the
Tribunal. It is not yet known whether the project proponent will
challenge the Tribunal's decision.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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