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Ontario Environmental Review Tribunal Finds Serious and Irreversible Harm to Blanding’s Turtle Despite Endangered Species Act Permit Authorizing Harm

Aug 20, 2013

On July 3, 2013, the Ontario Environmental Review Tribunal (the “Tribunal”) issued a landmark decision revoking a renewable energy approval (“REA”) for the development of a wind farm in Prince Edward County.  The Tribunal revoked the REA on the grounds that the wind farm would cause “serious and irreversible harm” to the Blanding’s turtle, a Species at Risk (“SAR”), under the Endangered Species Act, 2007 (the “ESA”), as a result of access road fatalities.

The Tribunal reached this decision despite the fact that the proponent had received a permit from the Ministry of Natural Resources (the “MNR”) under section 17(2)(c) of the ESA, otherwise known as an “overall benefit permit” (the “ESA Permit”).

Outside the renewable energy context, others may argue that the Tribunal’s decision in Alliance to Protect Prince Edward County v. Director, Ministry of the Environment could impact any developer whose proposed project is caught under both the ESA and another piece of legislation that includes protections for SAR and SAR habitat, depending on the requirements of that other piece of legislation.  As noted below, this decision is under appeal.

REA

All renewable energy projects in Ontario require a REA from the Ministry of the Environment (the "MOE").  A REA allows the proponent to develop a particular renewable energy project subject to various conditions.  A proponent cannot apply for a REA until it receives MNR sign-off on natural features, including wildlife habitat.  Where there are SAR and SAR habitat, typically this sign-off takes the form of an ESA Permit.

Any Ontario resident can appeal a REA to the Tribunal within 15 days of the MOE’s issuance of the REA.  There are two grounds for the appeal of a REA under the Environmental Protection Act.  An appellant must allege (and to be successful must prove) that a renewable energy project is likely either to cause:  (1) serious harm to human health; or (2) serious and irreversible harm to plant life, animal life, or the natural environment. 

ESA Permit

In order to issue the ESA Permit, the MNR had to conclude that the proposed project would result in an “overall benefit” to Blanding’s turtle (and to Whip-poor-will, which were also threatened by the proposed project).  The ESA Permit includes conditions requiring the proponent (a subsidiary of Gilead Power Corporation) to minimize adverse effects on both species through mitigation measures.  The proponent also committed to managing a property outside the project area for habitat preservation, rehabilitation and/or improvement for Blanding’s turtle and Whip-poor-will, and to conduct research, monitor, record and report on both species.  In return, the ESA Permit allows the proponent to “kill, harm and harass Blanding’s turtle and Whip-poor-will as well as damage and destroy the habitat of Whip-poor-will for the purpose of the development and operation of Ostrander Point Wind Energy Park”.

REA and ESA Permitting Processes

Even though the MNR was satisfied that the wind project, subject to the conditions of the ESA Permit, would provide an overall benefit to Blanding’s turtle, the Tribunal was not satisfied.  In its decision, the Tribunal notes that the proponent was required to consider potential impacts to SAR and SAR habitat under the ESA.  However, the Tribunal concludes that this permitting process is “completely separate” from the REA process and falls outside the MOE’s jurisdiction.  The Tribunal also appears to consider the MOE’s REA and its own REA appeal as distinct processes.  In the appeal, the Tribunal allowed expert evidence on Blanding’s turtle that was not before the MOE when it issued the REA (nor was it provided to the MNR during the ESA permitting process).

ESA Permit Test and REA Appeal Test

The Tribunal also makes a distinction between the test required to obtain the ESA Permit and the REA appeal test, and concludes that the former does not address the serious and irreversible harm test required under a REA appeal.

The Tribunal explains that when the MNR came to its conclusion that the project would be of overall benefit to Blanding’s turtle under the ESA Permit, it considered the welfare of the species as a whole in all of Ontario.  On the other hand, under the REA appeal test for serious and irreversible harm, the Tribunal does not consider Blanding’s turtle in all of Ontario, it only considers harm to Blanding’s turtle at the project site and in the surrounding area, i.e., in the local ecosystem, where high road fatality rates cannot be outweighed by benefits elsewhere.

The Tribunal also looks at the role of compensation under the two tests.  Under the test for the ESA Permit, a proponent can address the impacts to SAR and SAR habitat by providing new habitat as compensation for harm.  However, under the REA test, the Tribunal concludes that such compensation would not prevent serious and irreversible harm to Blanding’s turtle at the project site and in the surrounding area.

As a result, the Tribunal concludes that the project will cause serious and irreversible harm to Blanding’s turtle and revokes the proponent’s REA.

Appeal to the Divisional Court

Both the MOE and the project proponent have appealed the Tribunal’s decision to the Divisional Court.  In addition, one of the two original appellants, Alliance to Protect Prince Edward County, has appealed the dismissal of its appeal (the successful appellant was Prince Edward County Field Naturalists). 

In the proponent’s notice of appeal, the proponent claims that the Tribunal “erred in law and/or acted unreasonably and/or exceeded its jurisdiction by ignoring or, in the alternative, failing to give proper consideration or sufficient weight” to the MNR’s decision to issue the ESA Permit.  The proponent also claims that the Tribunal “failed to give effect to the basic principles of statutory interpretation in its consideration of the significance” of the ESA Permit, and improperly applied the test for serious and irreversible harm to animal life under the Environmental Protection Act.

This will be an important appeal to follow as it may have implications for all types of development where there are SAR and SAR habitat considerations, not just renewable energy projects.  At this time of this blog post, appeal dates have not yet been set.


March 2014 Update: Divisional Court Overturns ERT Decision Re Blanding’s Turtle

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