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Lerners LLP: David Woodward

Blowing in the wind - wind projects and their unwilling host

Lerners LLP

By David Woodward

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:

  1. The project would cause serious harm to human health; or
  2. 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 appeal.

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.

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