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Why should endangered species protection in Ontario be different for roads to wind turbines, as opposed to roads leading anywhere else?

Ontario has an elaborate system that allegedly protects endangered species. Under the Endangered Species Act (ESA), endangered, threatened or extirpated species and their habitats cannot be harmed or destroyed, except by permit or if authorized under the regulations.

Leaving aside the massive exemption regulations for industry and agriculture, endangered species and their habitats are supposed to be harmed only with the personal permission of the Minister of Natural Resources and Forestry (MNR). Most regulatory permits in Ontario are issued by civil servants; requiring that endangered species permits be issued by the Minister personally underscores that such permits are to be issued rarely and only for strong reasons.

Precisely because these permits are issued by the Minister personally, after presumably exhaustive review, they are not appealable by either the permit holder or third parties. The only way to legally challenge them is by judicial review, and even that is rarely successful. Since the permit is based on the opinion of the Minister, the court will not interfere unless the Minister has made a clear error of law, or his/ her Minister’s decision is unreasonable.
That is, that is the system of regulation for endangered species everywhere in Ontario, except those that may be adversely affected by a wind farm.
Wind farms in Ontario have met an extraordinary wave of public fear and opposition that is not found anywhere else in the world. The Ministry of Environment and Climate Change must issue a Renewable Energy Approval (REA) for every wind farm, based on a lengthy and stringent list of conditions. Every one of these REAs has been opposed and appealed to the Environmental Review Tribunal (Tribunal); some have been further challenged in the civil courts. Most of the opposition has been based on fears that wind turbines adversely affect human health. The Tribunal has rejected all of the appeals on this ground, holding that these fears are not backed up by medical evidence to the standard required by the Environmental Protection Act.

However, the Tribunal did reject the REA for one project, a wind farm at Ostrander’s Point, on the ground that the long road to the wind farm will cause serious and irreversible harm to an endangered species, the Blanding’s Turtle. This decision has now been upheld by the Ontario Court of Appeal (OCA).

What is odd about this is that the Minister of Natural Resources had personally issued a permit to the Ostrander Point wind farm, allowing them to disrupt Blanding’s turtles in this particular area, on the ground that the project as a whole (including mitigation measures for the turtles) would benefit the species in Ontario. This is called an “overall benefit” permit. Yet while the courts give great deference to a Minister’s permit for endangered species in any other context, the Tribunal gave it no deference in the REA appeal. According to the Tribunal, it does not matter whether there would be an overall benefit to the species in the province as a whole; the only thing that matters to an REA is whether any of the species would be harmed in the particular location of the wind farm and its access road.

I have to confess that the decision of the Divisional Court (the first level of appeal) makes more sense to me than the decision of the Court of Appeal on this point. The Divisional Court concluded (at paragraph 91) that the Tribunal failed to give proper weight to the Minister’s ESA permit, and failed to adequately explain the conflict between the Minister’s permit and its own conclusion to revoke the REA.

But the Court of Appeal got the last word, and decided differently. In an REA appeal, they said, the ESA permit is not binding, and can be rejected based on other evidence.

From a policy point of view, this seems perverse, especially when we consider that renewable energy projects, unlike most other kinds of development, protect the natural environment by reducing greenhouse gas emissions. Why should species on the brink of extinction get less protection as against a bridge, mall, airport or gas station than they do against a road to a wind farm? Whether one’s priority is protecting endangered species or fighting climate change or both, the current system seems illogical.

The actual result at Ostrander’s Point is still to be determined. The OCA sent the matter back to the Tribunal to consider if amendments to the REA could adequately protect the turtles. The wind farm has already reportedly arranged to close the proposed road to public access. Other conditions can easily be imagined, such as requiring all vehicles on that road to have a designated turtle spotter, to travel at a very slow rate of speed, and to drive on the road only when there is sufficient visibility to avoid running over any turtles. Perhaps specially designed turtle crossing culverts under the road? Very high financial penalties if any turtle is killed? If these conditions, or others, allow the turtles to flourish indefinitely at Ostrander’s Point, they should be part of the rules for the new wind farm. But they should also be part of the rules for other types of projects everywhere in the province, not just the wind farms.

This article was originally written for the excellent legal magazine, SLAW.

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