To prove that a wind energy project will cause
serious and irreversible environmental harm, you will need an
expert and a scientifically solid case.
In a decision released November 12, the Environmental Review
Tribunal (ERT) said it will not overturn the approval of a large
wind energy facility in southwestern Ontario that, potentially,
could pose a threat to a pair of bald eagles nesting in the
immediate vicinity. This case underscores the requirement that the
evidence must show, on a balance to probabilities, that there
will be – versus potential – "serious and
In adjudicating Lewis v. Director, Ministry of the
Environment (ERT Case No. 13-044), the Tribunal found the
appellants had not met the statutory test set out in section
145.2.1(2)(b) of the Environmental Protection Act (EPA)
and failed to prove that the project "will cause serious and
irreversible harm to plant life, animal life or the natural
Opponents of the Bornish Wind Energy Centre did not present any
expert evidence, but relied on lay testimony and written
submissions about the project's potential harm to the eagles,
as well as mass bird kills, habitat loss and damage to other
species. The Tribunal was looking for evidence demonstrating that
there would be serious and irreversible harm caused to the bald
eagles. To that end, it pointed to an earlier case where the ERT
rejected the approval of the Ostrander Point Wind Energy Park south
of Picton, Ontario, over concerns that road traffic through the
site would likely cause "serious and irreversible harm"
to a population of the endangered Blanding's turtles found on
the project site.
On April 26, 2013, the Ministry of the Environment (MOE) issued
a Renewable Energy Approval (REA) to Bornish Wind LP on behalf of
the Bornish Wind Energy Centre for the construction, installation,
operation and retiring of 45 wind turbine generators in the
Municipality of North Middlesex, in southwestern Ontario. The REA
was appealed to the ERT by the municipality, on the basis of
potential harm to human health, and in a separate appeal by Robert
Lewis, on the basis of possible harm to an active bald eagle nest
in the area. North Middlesex's appeal was disposed of in a
separate decision of the ERT dated August 6, 2013.
During the hearing of evidence, Lewis and other parties focused
on potential harm to two bald eagles that have an active nest
adjacent to the project. Bornish stated that it would not be
removing the nest, but indicated that no turbines would be erected
with 800 metres of an active eagle nest. The Ministry of Natural
Resources had worked with the MOE in developing and adopting
several mitigation and monitoring conditions in the REA.
In determining whether the REA would cause serious and
irreversible harm to the bald eagles, the Tribunal noted that the
bird is considered to be in the "special concern"
category under the Endangered Species Act and this would be an
important factor in its assessment. The Tribunal also said that its
decision would be based on local circumstances – versus a
province-wide assessment – since the "death or
displacement of this pair would constitute a loss of bald eagles
from the immediate area, as there was no evidence of any other
documented nest near this site." Notwithstanding these
factors, the Tribunal found that Mr. Lewis had not provided
sufficient evidence to meet the test of serious and irreversible
Given the limited evidence offered by
Mr. Lewis on this question, it cannot be said that there has been
any proof that there will be harm to these eagles or their habitat,
regardless of whether the two proposed turbines nearest the nest
are in fact built. Taken at its highest, the evidence brought
forward by Mr. Lewis (largely through cross-examination) is that
there is some potential for harm to the eagle pair's habitat.
It does not rise to the level of proof required by the statute ...
an appellant must bring sufficient evidence to convince the
Tribunal that the appeal test has been satisfied on a balance of
probabilities. The test is not drafted in as precautionary a manner
as many other provisions in environmental statutes.
The ERT also concluded that direct bald eagle mortality –
including collision with turbines, electrocution from the
substation, or other contact with project infrastructure – is
not likely based on the evidence provided. Nor did it find
sufficient evidence to meet the EPA test with respect to other
birds and bats, as well as with respect to the project lands and
the adjacent lands.
Interestingly, even though the Tribunal found that the test for
"serious and irreversible harm" does not capture the
concept of the precautionary approach, it nevertheless went on to
recommend its application
Given the wording of the Bald Eagle
Guidelines (and especially the reference to an up to 800 m tertiary
zone if there is a direct line of sight), the most precautionary
approach would be to ensure that the turbines are located outside
the 800 m radius [from the nest]. The Tribunal recommends that the
Approval Holder examine all available options in this regard.
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.
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