The Environmental Review Tribunal ("ERT") has again
demonstrated its willingness to allow appeals of renewable energy
approvals ("REA") for wind project on the basis that
it will cause serious and irreversible harm to animal life, plant
life or the natural environment.
In Hirsh v Director, Ministry of the Environment and
Climate Change–a 123-page decision–the ERT allowed
in part an appeal of REA for a proposed project that would
have seen the establishment of 27 wind turbines, and various
associated infrastructure, in Prince Edward County. The REA was
appealed by an individual and a community group.
Predictably, the Tribunal dismissed the appellants' claim
that the project would cause serious harm to human health due to
noise and other non-acoustic factors such as "individual
attitudes toward wind turbines." As it has unfailingly
done in the past, the ERT concluded that there were no grounds in
credible science to support a link between adverse human health
effects and proximity to wind turbines.
The applicants asserted that the project would seriously and
irreversibly harm a variety of animals (the Little Brown Bat,
Bobolink, Eastern Meadowlark, Eastern Whip-poor-will,
Blanding's Turtle, and unspecified migratory birds); they also
claimed it would affect hydrogeology and hydrology.
While rejecting claims in regards to the rest, the ERT found
that the project would cause serious and irreversible harm to the
Little Brown Bat. The bat is both present in the proposed project
area and already in significant decline in Ontario due
to "white nose syndrome," and it was
anticipated that scientifically significant bat mortality would
occur with the project. Given the population's
precarious numbers and ongoing decline–indeed, the bat is in
danger of becoming extirpated–even the small number of bats
anticipated to be killed as a result of the project were
anticipated to have a proportionally serious impact. These
circumstances, the ERT reasoned, distinguished this project from
previous projects where it determined that potential impacts to
bats were not serious and irreversible.
This appears to be the third time that a REA has successfully
been appealed on the grounds that a proposed project will likely
seriously and irreversibly harm animal or plant life. Previously,
the ERT allowed in part an appeal of a wind turbine project on the
basis that as proposed it would cause serious and irreversible harm
Blanding's Turtle, a threatened species in Ontario. More
recently, in December 2015, the ERT allowed an appeal of
a wind farm due to the serious and irreversible harm it
would cause to a
woodlot located within the Oak Ridges Moraine.
Meanwhile, the ERT has yet to allow a REA appeal on the basis of
human health concerns.
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