Wood Bull Blog

Expert Evidence in Renewable Energy Approval Appeal

Dec 09, 2013

On November 12, 2013, the Environmental Review Tribunal issued a decision, Lewis v. Director, Ministry of the Environment, approving a 45 turbine wind farm with the recommendation that the proponent, Bornish Wind Energy Centre, defer or relocate two turbines within 800 metres of a bald eagles’ nest.

Robert Lewis filed an appeal on the basis of harm to the environment, including the bald eagles’ nest, while the Municipality of North Middlesex filed based on harm to human health.  The Tribunal dismissed the human health argument as it has done in all other Renewable Energy Approval appeals.  The Tribunal also dismissed Mr. Lewis’ argument for failure to satisfy the statutory test, i.e., the proposed project must be found to cause “serious and irreversible harm to plant life, animal life or the natural environment”.  However, the Tribunal stated that there was good reason for concern about the potential effect of the proposed wind farm on the nest and recommended that turbines not be built within the vicinity of the nest.

Among other things, this case illustrates the importance of expert evidence.  Unlike in Alliance to Protect Prince Edward County v. Director, Ministry of the Environment in which the appellants successfully argued serious harm to the Blanding’s Turtle (although this decision has been appealed to the Divisional Court), Mr. Lewis did not rely on any expert evidence in support of his submissions.  While it is not clear whether his argument on serious and irreversible harm would have been successful with the support of an independent expert, it was certainly weakened without it.

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