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The Environmental Review Tribunal (“ERT”) has again demonstrated its willingness to allow appeals of renewable energy approvals (“REA”) for wind project on the basis that it will cause serious and irreversible harm to animal life, plant life or the natural environment.

In Hirsh v Director, Ministry of the Environment and Climate Change–a 123-page decision–the ERT allowed in part an appeal of REA for a proposed project that would have seen the establishment of  27 wind turbines, and various associated infrastructure, in Prince Edward County. The REA was appealed by an individual and a community group.

Predictably, the Tribunal dismissed the appellants’ claim that the project would cause serious harm to human health due to noise and other non-acoustic factors such as “individual attitudes toward wind turbines.” As it has unfailingly done in the past, the ERT concluded that there were no grounds in credible science to support a link between adverse human health effects and proximity to wind turbines.

The applicants asserted that the project would seriously and irreversibly harm a variety of animals (the Little Brown Bat, Bobolink, Eastern Meadowlark, Eastern Whip-poor-will, Blanding’s Turtle, and unspecified migratory birds); they also claimed it would affect hydrogeology and hydrology.

While rejecting claims in regards to the rest, the ERT found that the project would cause serious and irreversible harm to the Little Brown Bat. The bat is both present in the proposed project area and already in significant decline in Ontario due to “white nose syndrome,” and it was anticipated that scientifically significant bat mortality would occur with the project. Given the population’s precarious numbers and ongoing decline–indeed, the bat is in danger of becoming extirpated–even the small number of bats anticipated to be killed as a result of the project were anticipated to have a proportionally serious impact. These circumstances, the ERT reasoned, distinguished this project from previous projects where it determined that potential impacts to bats were not serious and irreversible.

This appears to be the third time that a REA has successfully been appealed on the grounds that a proposed project will likely seriously and irreversibly harm animal or plant life. Previously, the ERT allowed in part an appeal of a wind turbine project on the basis that as proposed it would cause serious and irreversible harm to Blanding’s Turtle, a threatened species in Ontario. More recently, in December 2015, the ERT allowed an appeal of a wind farm due to the serious and irreversible harm it would cause to a woodlot located within the Oak Ridges Moraine.

Meanwhile, the ERT has yet to allow a REA appeal on the basis of human health concerns.

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