Ontario's Environmental Review Tribunal (ERT) has allowed
another wind project Renewable Energy Approval (REA) appeal on the
basis of environmental concerns. In doing so, it has made findings
on the statutory test of "serious and irreversible harm to
animal life or the natural environment" with respect to
species at risk that could have significant impacts on future
renewable energy projects.
The case, Hirsch v. Ontario (Environment and Climate
Change), was an appeal of a 27 turbine project in Prince
Edward County east of Toronto. The issues raised included potential
impacts on the little brown bat, which is endangered in Ontario,
and the Blanding's turtle, which is threatened in Ontario.
There was no specific evidence of little brown bats in the
vicinity of the project. However, there was evidence that the
species was historically present in the county and the project area
did contain potential foraging habitat. The ERT was critical of the
proponent for failing to carry out surveys, which they stated was
"of particular concern when there is evidence of the historic
presence of what is now an endangered species", and found on
the balance of probabilities that the bats would likely be present.
Of greater concern to wind project proponents was the finding of
harm. Even though the evidence was clear that "few" bats
would be impacted by turbines, the ERT found that an increase in
mortality "of even small numbers of little brown bats
constitutes a serious impact." It then went on to find that
even small scale impacts would lessen the species' chances of
recovery and would therefore represent "irreversible
The ERT used similar analysis to find that there would be
serious and irreversible harm to Blanding's turtles on the
basis that improvements to local municipal roads could increase
fatalities and predation and found "because this is a
threatened species protected under the ESA, and because it cannot
easily recover from population declines ... these annual losses
from road mortality and nest predation represent irreversible harm
to the local population."
It is noted that the ERT invited submissions on appropriate
mitigation measures and as such it is possible that mitigation
measures will ultimately allow this specific project to proceed.
However, the ERT's interpretation of the legislative language
on "serious and irreversible harm" remains cause for
concern. The ERT has now interpreted "serious and irreversible
harm to animal life or the natural environment", which was
intended to present a very high bar to REA appellants, as any
mortality to a species at risk even in cases where the Ministry of
Natural Resources and Forestry, the ministry responsible for
endangered species, has permitted the activity. Renewable energy
developers in Ontario should take notice.
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