The Environmental Review Tribunal has dismissed another
anti-wind power appeal, holding that evidence to substantiate
claims of "serious and irreversible harm to animal life"
must be site-specific, species-specific, and quantifiable. The
Tribunal released its decision in Bain v. Director, Ministry of the
Environment, 2014 WL 888126 on February 27, 2014,
allowing the five-wind turbine Emestown Windpark in Lennox and
Addington County to proceed.
The appellants had based their argument on the second branch of
the appeals test, arguing that the project would cause serious and
irreversible harm to turtles, birds and cattle. Despite the fact
that the Tribunal preferred the evidence of the appellants'
turtle expert over that of the MOE and the approval holder (and
found the approval holder's turtle survey to be inadequate),
the appellants failed to satisfy the onus upon them by failing to
prove species, location and quantifiable mortalities.
First, the neighbours testified that they had observed
threatened species (musk turtles and Blanding's turtles), and
species of special concern (snapping turtles) on their own
properties and other lands bordering the project site (
in a past decision, currently pending appeal, the ERT had
previously held that the presence of the threatened Blanding's
turtle on a wind farm site was sufficient to quash the
project's approval). The Tribunal also accepted that the site
contained turtle habitat. However, neighbours were only able to
give limited evidence regarding the presence of turtles they had
personally seen on the site itself (since it was privately owned).
As a result, the Tribunal found that the site was likely used by
snapping turtles (which were much more common and most frequently
seen by witnesses), but that there was insufficient evidence to
make a finding that musk and Blanding's turtles were present on
the project site.
Second, the appellants' turtle-expert failed to back up his
views that the project would cause serious and irreversible harm to
turtles by degrading habitat, increasing opportunities for poaching
and predation, and increasing road mortalities with studies or any
quantifiable data. After noting the absence of any population
estimates or mortality figures, the Tribunal ruled that
"general concern" over harm that "could occur,"
even by an expert, is not sufficient to meet the serious and
irreversible harm part of the test.
Similarly with respect to birds, The Tribunal held that evidence
that neighbours had observed purple martin and loggerhead strike on
their own properties nearby the site was not sufficient to indicate
that the site itself was also used by those birds.
And lastly, the evidence that stray voltage such as that that
might emanate from the base of a turbine or power lines can disrupt
dairy cattle was not sufficient to demonstrate that the project
would cause serious and irreversible harm to the cattle in the
vicinity of the project when the cattle nearby were all beef
Another wind appeal dismissed; another lesson learned.
Appellants of renewable energy permits must be prepared to provide
evidence that speaks directly to what species are found where
(which may be difficult, as in this case, where the approval
holder's studies were flawed), and what the impact of the
project will be on any given species in terms of mortality
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