Canada: Turtles Topple Turbines: Six Lessons From Alliance To Protect Prince Edward County V Director, MOE

Last Updated: July 17 2013
Article by Laura Bisset and Andrew Lord

For the first time, Ontario's Environmental Review Tribunal ("ERT") has revoked the Ministry of the Environment's ("MOE") decision to grant a Renewable Energy Approval with its decision in Alliance to Protect Prince Edward County v Director, Ministry of the Environment. The ERT determined that the wind farm would cause serious and irreversible harm to the endangered Blanding's turtles that live in and around the project site. The decision is of consequence for proponents and opponents of wind, solar and other renewable projects and for anyone else with an interest in Ontario's growing renewable energy sector.

The Case

The case arose when two community groups appealed the MOE approval of a nine-turbine, 22.5 megawatt wind farm and all its requisite infrastructure on Crown land along the south shore of Prince Edward County. The property is a recognized area of interest for the natural environment and home to numerous plant and wildlife species, including the protected Blanding's turtles, various birds, bats, and alvar.

The community groups challenged the decision on each of the two grounds the ERT is empowered to consider: that the project will cause serious harm to human health, and that the project will cause serious and irreversible harm to plant life, animal life, or the natural environment (see Environmental Protection Act, section 142.2.1(2)). They failed on the first (including with respect to issues of harm from noise) but succeeded on the second and the ERT exercised its discretion to revoke the MOE decision.

It remains to be seen whether the proponents will appeal the decision.

The Turtles

Blanding's turtle played a leading role in this case because of the roads the project would construct through its habitat. Individual turtles in this threatened and endangered species, described by the ERT as an "attractive and good-natured" animal, move overland between different habitats over the course of the year. The proposed roads threatened the population of Blanding's turtles in and around the project site with increased mortality due to vehicle traffic, poachers, and predators. Given the vulnerability of the turtles on this site and its assessment that mitigation measures would be insufficient, the ERT was convinced that this project would cause serious and irreversible harm to the animal life.

Key Lessons

There are a number of key elements to take away from the decision.

  • REA appeals are case-by-case analyses. The relevant factors to be considered, and their respective importance and weight, will be determined on a case-by-case basis and not subject to a set list of criteria. This means that expert evidence will remain a central component of these hearings.
  • Damage to a population or habitat of species at risk warrants greater protection. Negative consequences for a species at risk "will generally be factors with considerable weight when considering 'serious and irreversible harm' and applying the test" (at para 208). This is consistent with the October 2012 decision denying the Mt. Nemo quarry because of concerns about protecting the Jefferson Salamander.
  • The decision is not specific to wind projects. The decision turned on harm to endangered species, not wind-specific grounds like noise (which the ERT again rejected). The principles in this decision could be applied to other types of renewable energy projects, including solar fields.
  • Mitigation measures will be probed for their effectiveness. They are insufficient if they do not prevent serious and irreversible harm. Specific measures that were deemed unsatisfactory in this case included most measures to reduce vehicle speed, and creating nesting habitat and providing "compensation property" when both were already within the species' habitat. When applying for REAs, developers should therefore ensure that the mitigation measures they propose are supported by science that is specific to the species found in the vicinity of the project. 
  • This was not a blanket approval of wind farm opposition. The ERT dismissed claims for damage to human health, birds, bats, monarch butterflies, and alvar plant life. This decision was a narrow win for the field naturalists. 
  • Parties have to argue for relief as well. The ERT has discretion to revoke or alter the decision, or order the MOE to take certain actions, but neither side provided any argument. The ERT viewed the balancing of whether to allow public access to the roads as a value judgement beyond its purview. Without the benefit of argument on this point, its only option was to revoke the decision.

Going Forward

This decision is a departure from a line of cases that had dismissed REA appeals for wind farms. For project proponents, opponents, equity investors, lenders and environmental consultants, this is a notable decision that warrants closer examination. However, it is still the case that these appeals are highly fact-specific and neither proponents or opponents should expect future hearings to be strictly bound by the outcome in this case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions