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The Environmental Review Tribunal (“Tribunal”) has for the first time concluded that a wind turbine project would cause serious harm to human health. The Tribunal also concluded, as it did in an earlier case, that the project would cause serious and irreversible harm to an endangered bat species, specifically the little brown bat.

The facts of this case are unique, as they dealt with whether the proposed locations of the wind turbines were too close to the takeoff and landing of two aerodromes. The appellants argued the turbine locations would cause airplane accidents resulting in serious injury or death. Ultimately, the Tribunal agreed. This is unlike most human health cases, which have been argued unsuccessfully on other factors, such as sound emissions causing serious harm at certain levels, chronic stress or sleep deprivation.

The Tribunal considered that when inadequate margins of safety are present, then accidents will occur. On reviewing all the evidence, the Tribunal concluded that the location of the proposed turbines would be inadequate to prevent collision, and therefore serious harm would occur. The concerns included that 90% of flights at the aerodromes are conducted by Visual Flight Rules; that a majority of pilots held recreational or private licenses, which require minimal on-ground and air flight training; that students at flight schools located at the aerodromes did their flight training there; and that special meteorological conditions exist that result in lake-effect snow storms. The turbulence from the turbines was also a concern. For purposes of the human health test, the Tribunal stated that even one incident of serious injury or death would satisfy the test.

The Tribunal concluded that the mitigation measures proposed were ineffective, as they involved approval from the federal Minister of Transportation to authorize non-standard procedures, which only 3 to 4% of aerodromes in Canada had received. And there was no evidence that either of the aerodromes involved planned to apply for this approval, or that there was any guarantee of getting the approval, even if they did. The Tribunal could not assume the Minister’s approval would be given and could not evaluate the effectiveness of the mitigation measures by determining itself that what was proposed was acceptable.

The Tribunal also found there would be serious and irreversible harm to the endangered little brown bat. The Tribunal found that these bats are susceptible to wind turbine strikes, and therefore the project would cause fatalities over the project’s lifespan.

While all experts agreed that wind turbines are not the primary threat to the bats, the evidence was that these populations are vulnerable due to the decimation of populations by white nose syndrome (“WNS”). The remaining breeding adults that have survived WNS could potentially carry resistance and therefore their protection from harm was considered critical.

While it was a requirement of the renewable energy approval that the project proponent obtain the necessary approvals under the Endangered Species Act (ESA), the Tribunal indicated that those authorizations don’t necessarily meet the test under the Environmental Protection Act (EPA) regarding serious and irreversible harm. Without an issued permit to review, the Tribunal could not determine that the mitigation proposed would meet the test under the EPA. As we’ve blogged before, at risk species in the context of renewal energy appeals now seem to have a second level of protection in Ontario.

The Tribunal has left the question of an appropriate remedy to a future “remedy hearing”. The Tribunal has the power to revoke the decision of the Director, order the Director to take such action as it considers appropriate, or alter the decision and substitute its own opinion.

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