Canada: ERT Releases Decision Approving Amherst Island Wind Project

Last Updated: September 12 2016
Article by Pavle Levkovic, Student-at-Law

On August 3, 2016, the Environmental Review Tribunal (ERT) released its decision in Association for the Protection of Amherst Island v. Ontario (Environment and Climate Change) (the Decision). The Decision relates to the Renewable Energy Approval (REA) granted to Windlectric Inc. for a 74.3 megawatt wind farm (the Project) located primarily on Amherst Island, approximately 10 kilometres west of Kingston, Ontario. The appellant, the Association for the Protection of Amherst Island (APAI), appealed the issuance of the REA on the grounds that the Project would cause serious harm to human health and serious and irreversible harm to animal life and the natural environment. The ERT dismissed the appeal and confirmed the issuance of the REA, holding that APAI had not proven that engaging in the Project in accordance with the REA would lead to serious or irreversible harm.

In August 2015, the Ministry of the Environment and Climate Change issued the REA to Windlectric Inc. granting approval for the Project, which was to include the construction, installation, operation, use and retiring of a Class 4 wind facility with a total nameplate capacity of 74.3 megawatts, consisting of 26 wind turbines, a transformer substation and a temporary ready-mix concrete batching plant. In September 2015, APAI appealed the REA to the ERT.

The ERT held a preliminary hearing in October 2015 to deal with procedural matters regarding the main hearing, as well as grant participant and presenter status to various interested individuals and organizations. At the main hearing, the ERT heard evidence from the parties, participants and presenters over twenty-five hearing days. The final submissions at the main hearing were held on June 7, 2016.

APAI's allegations at the main hearing were two-fold, and were made pursuant to sections 142.1 and 142.2.1 of the Environmental Protection Act (EPA) which permits a person to require a hearing in respect of the granting of an REA. First, APAI alleged that engaging in the Project in accordance with the REA would cause serious harm to human health. Second, it alleged that engaging in the Project in accordance with the REA would cause serious and irreversible harm to plant life, animal life (birds, bats and Blanding's Turtle in particular), or the natural environment.

On the first issue, APAI alleged that emissions from the operation of the wind turbines would cause serious harm to human health. APAI also supported the allegation of one of the participants, Ms. Caughey, that emissions from the concrete batch plant, to be used primarily for the construction of the turbine foundations, would also cause serious harm to human health.

With respect to the wind turbines, the ERT held that APAI had not brought sufficient evidence to meet its statutory onus under the EPA of proving that the operation of the Project's wind turbines would cause serious harm to human health. The ERT noted that there is an extensive body of ERT decisions, and some Ontario court decisions, on the issue of wind turbines and whether they cause serious harm to human health. Those decisions cross-reference, and to some extent build upon, one another. However, the ERT re-affirmed that each case must also be decided on the basis of its own evidence. In this case, there was no evidence about specific sound levels or other emissions from the operation of the Project and how those emissions might be expected to impact the health of the residents of Amherst Island.

With respect to the concrete batch plant, the ERT found that Ms. Caughey, whose arguments were supported by APAI, had not established that the operation of the concrete batch plant as part of the Project and in accordance with the REA would cause serious harm to human health. On this point, the ERT found that the fact that the concrete batch plant would be used temporarily, would meet or exceed provincial air quality requirements, and was not shown to produce noise or other emissions which would harm local schoolchildren, were among the factors sufficient to address all of Ms. Caughey's concerns.

On the second issue, whether there would be serious and irreversible harm to plant life, animal life or the natural environment, the ERT also found that there was no evidence to support APAI's allegations. The ERT reviewed the voluminous evidence presented at the hearing and concluded – after a discussion that spanned some 260 paragraphs – that there was no evidence to support the allegation that engaging in the Project in accordance with the REA would cause serious and irreversible harm to the Bobolink bird, bats, various species of owls or the Blanding's Turtle.

Earlier in the year we commented on a ruling by the ERT which revoked an REA granted to Ostrander Point GP (Ostrander) for the installation of nine wind turbine generators and supporting facilities, including new access roads and upgrades to existing roads. In the Ostrander Point GP ruling the ERT chose for the first time to exercise its remedial powers in relation to the successful appeal of an REA on the grounds that it would cause serious and irreversible harm to the environment. At issue was the Blanding's Turtle. The ERT found that Ostrander and the Director of the Ministry of the Environment and Climate Change had not proven, on a balance of probabilities, that proposed mitigation measures would actually protect the Blanding's Turtle from serious and irreversible harm caused by the project due to road mortalities, predation and poaching.

Ostrander Point is approximately 20 km southwest from Amherst Island on the north shore of Lake Ontario, in Prince Edward County. Although they appear to share some geographic similarities, it appears from the Decision that the ERT believed that Amherst Island did not present the same set of unique circumstances as Ostrander Point did. The ERT found that – unlike at Ostrander Point – it would be very rare for a turtle to be present on any particular access road during the Project. However, the ERT did make two recommendations in the Decision in case a Blanding's Turtle did nest on an access road during the Project, including that no access roads be used during any flooding events during the active season for Blanding's Turtle, and that no road grading take place during the nesting season for Blanding's Turtles.

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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Pavle Levkovic, Student-at-Law
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