The Ontario Court of Appeal has stayed the Ostrander Point wind approval pending an appeal by the Prince Edward County Field Naturalists.
The Ostrander Point wind farm is the only one in Ontario whose Renewable Energy Approval (REA) has been overturned by the Environmental Review Tribunal. As for all other Ontario wind farms, the ERT rejected claims that the wind farm would cause serious harm to human health. What is different about Ostrander Point is its habitat for the endangered Blandings Turtle. The ERT ruled that the wind farm, and more particularly, the road to it, would pose an unreasonable risk to the turtles who live in the area.
The Divisional Court overturned the ERT decision, and reinstated the Ostrander wind approval (REA). The court noted that the Ministry of Natural Resources had issued a permit for the project under the Endangered Species Act, and that there was no good evidence of how many turtles lived in the area, nor of the likely impact of the project (when conducted as required by the ESA permit) on the relevant population. The court upheld all other parts of the ERT decision, including their dismissal (again) of the perennial allegations about human health impacts.
The wind farm developer immediately announced its intention to start removing vegetation and if possible constructing the read.
The Prince Edward County Field Naturalists, who are trying to protect the turtles, brought a motion for leave to appeal to the Court of Appeal and a request to stay the REA pending the appeal. The Court of Appeal promptly granted the stay, on the ground that disrupting the turtles’ habitat could cause irreparable harm. The court also noted that this is the first case in which it has been asked to opine on Renewable Energy Approvals, and that there are important questions of public policy to be decided:
“[15] In addition – something of relevance as well in the context of the balance of convenience – the issues raised on the proposed appeal are issues of broad public implication in the field of environmental law. These issues include: (i) the proper interpretation and application of the term “serious and irreversible harm” to plant life, animal life, or the natural environment – the test to be met by a person seeking to have the Minister’s decision to issue an REA reviewed – and the evidentiary standard required to meet it; and (ii) the nature of the remedy to be provided by the ERT and by the Divisional Court on review – here, the Divisional Court substituted its own remedy rather than send the matter back to the ERT for reconsideration. These are issues of first impression because the review in the Divisional Court and, if leave is granted, the appeal to this Court, constitute the first time that either the Divisional Court or this Court will have dealt with an appeal from an REA.
[16] The parties spent much time debating whether irreparable harm will result if a stay is not granted.
[17] Clearly the moving party must meet this criterion, but in my view this type of case is not one in which the evidence is to be parsed and fine distinctions drawn. Once a habitat is destroyed, it is destroyed – for at least short-term purposes, in any event – and the species sought to be protected here is a vulnerable and endangered species.”
Construction of the wind farm has to wait until the Court of Appeal makes its decision on these important issues about protecting species at risk.