Ostrander Point Wind-Farm Case Goes Back To Tribunal

The decision is here.  Put briefly, the case will now get bounced back down to the Ontario ERT, where Ostrander Point Wind Energy will have a chance to convince the tribunal that their proposed remedy, a series of fences and gates that will block public access to the roads around the wind-farm, are enough to prevent "irreversible" harm to the local population of endangered turtles.

Some background can be found here, here, and here.

Wind Energy In Ontario: The State Of Play

The controversy around Ontario's Green Energy Act has faded since the OLP won their majority.  Konrad Yakabuski can whine as much (and as inaccurately) as he wants, but Ontario anti-wind activists are basically left to pound sand for the next couple of years, losing in court and before the Ontario ERT and handing lawyer Eric Gillespie their hard-earned money for leading them into folly over and over again.  Furthermore, given that repealing the act was placed front and center of the Hudak Tories' disastrous election platform, I wouldn't be surprised if the next leader of that party doesn't just quietly file the whole issue away as "not helpful".

But there are still a few new twists to be added to the saga.  For example,  I've written about the various Ostrander Point decisions on numerous occasions. Originally, the wind farm there was shot down because its attendant road network might threaten the local population of Blanding's turtle.  This decision was later overturned, and that decision was in turn appealed.

While the appeal has not yet been heard, nevertheless  the bill for legal actions to date has come due for the appellants.  The Prince Edward County Field Naturalists and the Alliance to Protect Prince Edward County, who have led the charge against the project, have been ordered to pay the wind development company $50,000 all told.  Some of the factors considered in this decision:

1 Nature of the unsuccessful litigant – The PECFN and APPEC are not public advocacy groups pursuing a broad public policy mandate. As residents of Prince Edward County, they have a "direct and personal interest" in the outcome of the litigation.

[...]

5 Final consequences to the parties – While Ostrander is better suited to absorb costs associated with the litigation, that alone is not a reason to deny costs. One function of awarding costs is to ensure that all parties "consider the wisdom of pursuing litigation and understand that there are consequences for doing so".

It will be interesting to see what next steps are taken by the province's various anti-wind groups. Given that the court/ERT decisions have been going against them for years, and that political salvation in the form of a PCPO government ready to repeal the GEA is years away, if ever,  I wouldn't be surprised to see some fall-off in activity.

Ostrander Point ERT Decision Overturned!

Ontario's Superior Court court has overturned the provincial Environmental Review Tribunal's decision to kill a proposed wind-farm at Ostrander Point.  The court doc can be found here.   I've written about that earlier decision in a number of places, primarily here.

Below is a quick summary of the superior court's justification:

I'll just touch briefly on point (iv) and (v).  Re (iv), the judge writes:

This basically accepts a Ministry of Environment argument contra the ERT  that I discussed briefly here.  The argument still confuses me, so I'll repeat what I wrote on that earlier occasion:

If the province's stock of endangered turtles is parceled out into discrete sub-populations, of which only one or two would be effected by a particular development, how could you stop any development?

The court seems to be suggesting that while the local population might be negatively effected, the mitigation efforts required by the apellants might lead to actions elsewhere that would enhance the health of the Blandings Turtle populations in Ontario generally.  That's strikes me as very doubtful.

Fortunately, part (v) of the decision is enough to give one hope.  Of course the main problem for turtles living near the wind-farm was not the presence of turbines, but the presence of a road network designed to bring workers and equipment to and from them.  It was felt that increased traffic on this public network might lead to increased mortality among female turtles (who like to make their nests in the gravel at roadside).

Fortunately, Gilead Power Corporation, who are behind the Ostrander Point project, have already agreed to gate both the main access road and a number of points where preexisting trails intersect with that road, if the project is allowed to go forward.  This will mean that the danger to the turtles will come almost exclusively from ATV-ers avoiding the gates.  If the numbers of local oiks can be minimized, this measure just might do the trick

Ostrander Point Update

Gilead Power Corporation's Ostrander Point Wind Project was the first one to be rejected on appeal by the Ontario Environmental Review Tribunal (ERT).  This was not due to human health issues, or worries about the effects of nine proposed turbines on migratory birds, though the project is located near an Important Bird Area (IBA).  No.  It was due to the presence on site of a population of humble Blanding's Turtles:

...the problem lay with a road network that would have been built in order to construct and maintain [the project].  This network would have been smack dab in the middle of the turtle's habitat; the beasts would have been forced to cross these roads on multiple occasions and at multiple points during their life cycle.  Since the network would have been publicly accessible, more ATV and other traffic would have been drawn to the area.  Furthermore, available mitigation measures were judged ineffective.  Nobody obeys road signs, for example.  And culverts where the turtles might safely cross under the road depend on the species having crossing "hot spots"--preferred road crossing points--where these devices might be installed.  Unfortunately, Blanding's Turtles do not use their habitat in the appropriate manner.

Gilead Power has appealed the rejection, making what I thought were some rather weak arguments. However, now they are proposing some extra measures to protect the turtles:

On January 20 the developer will seek to present new evidence to the appeal hearing. Specifically it will ask the court to consider a plan to erect a series of gates securing access to the road network it wants to build on Crown land at Ostrander Point.

“Restricting public access to the access roads would also provide enhanced protection for wildlife, including species at risk, from traffic mortality,” wrote Mike Lord to the Ontario Ministry of Resources (MNR) in August.

In September a MNR official agreed it would issue a lease of the Crown land to the developer to enable it to build the fence, pending the approval of the project. The MNR also sought a “Project Access and Control Plan” for the access roads. That plan calls for six double swing gates to be erected at key points, one at the entrance and at five other locations where preexisting trails intersect with the proposed access road. The gates would be locked from May 1 to October 15. Gilead staff will monitor and enforce access restrictions.

I'm not sure this will do the trick.  It sounds from a cursory read that off-road vehicles coming from local trails will be able to avoid the gates and abuse the project's access roads, although Gilead Power staff will be monitoring the area.  Important to note, however, that the danger is not from the turbines themselves but from local Oiks and their ATVs.

Appeals Of The Ostrander Point Windfarm Decision

There are three of them, which you can read about through the link.  The one that most concerns me is:

The appeal by MOE could not likely have occurred without approval from the Ontario government of which it is a part, specifically of the Cabinet which includes the Premier. It is unlikely that any Ministry or Minister would act on its or his/her own initiative without such approval on a matter of major delicacy and importance. The only implications to be drawn seem to be that the Premier’s efforts to distance herself from her predecessor and her assurances of more cordial relations and cooperation with rural municipalities on Green Energy Act matters are spent.

The author of this is a wind-farm opponent, and so hardly unbiased.  However, the MOE action is troubling; the Environmental Review Tribunal's reasoning and ultimate decision relating to Ostrander Point seemed pretty clear.  The standard package of mitigations designed to protect endangered species in the presence of a wind-farm was not adequate for the Blanding's turtle population near Ostrander Point.   On the other hand, the most clearly stated MOE counter-argument (assuming this is an accurate account of it) strikes me as bizarre:

 The proponents now say that the serious and irreversible harm test applies province wide and that it was the responsibility of PECFN [Prince Edward County Field Naturalists] to prove that the project would cause serious and irreversible harm to the turtle population province wide.

If the province's stock of endangered turtles is parceled out into discrete sub-populations, of which only one or two would be effected by a particular development, how could you stop any development?

In any case, I am trying to get hold of the legal documents behind the appeal.  We shall see what sense they make.