There are few policies of the Ontario Government that are more
maligned in rural Ontario than the Green Energy Act and the
approval of wind farms in particular. These projects have been
approved by the Province without local input and, in many cases, in
the face of local objections.
The challenges confronting appeals of project approvals have
caused further frustration. There have been two (2) cases where
approvals were successfully appealed. In both cases, endangered
wildlife were very negatively impacted by the project. However, the
vast majority of these appeals have not been successful and have
left some very unhappy clients with substantial expenses.
Appeals are generally brought by community groups or
municipalities who have declared themselves unwilling hosts of wind
farm projects. Unlike other development within their municipal
boundaries, these communities have no say on whether these projects
will move forward. The Province made the decision to approve
renewable energy projects directly. No Ontario municipality has
jurisdiction to approve or reject these projects. This stands in
stark contrast to other developments which require either the
approval of the local municipality or alternatively, the Ontario
Municipal Board. Customary planning powers have effectively been
suspended or expressly taken away by the Province. The Province
does allow appeals of an approved renewable energy project but only
on the following limited grounds:
The project would cause serious harm
to human health; or
The project will cause serious and
irreversible harm to animal health or the environment.
Any other issues relating to the project are not grounds for an
The most recent successful appeal was Hursh v. Ontario on
February 26, 2016. This project was known as the White Pines Wind
Project in Prince Edward County. The approval was rejected because
of the project's impact on an endangered hibernating bat known
as the Little Brown Bat. This animal's population has declined
by 90% – 95% over the past six (6) years due to a fungal
disease that impacts the bat's skin. Although there was no
direct evidence that Little Brown Bats were in the vicinity of the
project, the Environmental Review Tribunal held that on balance the
Little Brown Bats' historic presence in Prince Edward County
and the existence of foraging habitat for bats was sufficient to
reverse the approval for the project. The Environmental Review
Tribunal held that the project would cause serious and irreversible
harm even if the Little Brown Bat fatalities were few in number and
there were small scale impacts.
This is a significant ruling given the potential presence of the
Little Brown Bat throughout Southern Ontario and the low threshold
applied by the Environmental Review Tribunal. It provides some hope
for wind energy opponents for future environmental review tribunal
appeals. For developers, it demonstrates the importance of acoustic
monitoring at sites to provide indications of bat activity. This
was not done in relation to the approval of this project and that
was a significant reason why the Environmental Review Tribunal
overturned the project's approval. It is possible that acoustic
monitoring in subsequent projects showing no bat activity will
result in this decision being an anomaly.
The other successful appeal related to the Ostrander Point Wind
Farm. The Environmental Review Tribunal held this project would
cause serious and irreversible harm to the Blanding's Turtle, a
species of turtle that is threatened in Ontario. In this case, the
Blanding Turtle's habitat was at the project site and the
turtles regularly used the site for their life cycle. Evidence was
also shown that even a small increase in the death of the adult
turtles on an annual basis could cause serious harm to the species.
In this case, the Environmental Review Tribunal determined that it
will not allow the project to proceed as no remedial efforts are
available to protect the turtles.
In both the Little Brown Bat and the Blanding's Turtle
cases, other grounds were raised that were not successful. In
particular, harm to human health was alleged and dismissed. This
concern seems to have no traction.
While these cases give some hope to wind energy opponents, the
decisions are fact specific and do not provide a general concept or
principle that wind energy opponents and unwilling host communities
can rely upon to overturn approved projects.
When confronted with these projects, we continue to advise our
municipal clients there remain very limited grounds for appeal and
most appeals will have little chance of success. Rather than invest
funds in lawsuits that have such a limited chance of success,
Ontario municipalities are well advised to negotiate the best deal
possible with wind farm developers.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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