A victory for APPEC and Prince Edward County
An ERT appeal panel has concluded that wpd’s 27-turbine White Pines wind project, if built as approved by MOECC, will cause serious and irreversible harm to animal life, specifically to Little Brown Bat and Blanding’s Turtle.
This is a HUGE victory for appellants APPEC and John Hirsch, and for the whole Prince Edward County community. We are now well positioned to push wpd out of the County for good.
BUT it’s going to take more time, and more money for legal costs. Please read on, and then consider making a contribution to the South Shore Appeal Fund to help ensure victory.
Here is a summary ERT panel’s decision, plus information on how things may develop in the coming months. Note: This is our interpretation, not that of APPEC or its legal counsel, or John Hirsch.
Standard of proof
The panel used a standard of proof that can be described as “balance of probabilities” – i.e. more likely than not, which is the standard for civil lawsuits. It is more stringent than “precautionary principle”, often used when dealing with human health, but less stringent than “beyond a reasonable doubt”, which is applied in criminal cases.
Little Brown Bat
Evidence was presented that the population of Little Brown Bat in southern Ontario has declined rapidly in recent years by 90% to 95%, due to White-nose Syndrome. It was added to Ontario’s Species at Risk list on January 4, 2013 as “Endangered” — i.e. facing imminent extinction or extirpation.
The panel concluded that additional deaths due to collisions with wind turbines will result in serious and irreversible harm to the local population of Little Brown Bats over the lifespan of the project.
Blanding’s turtle is categorized as “Threatened” on Ontario’s Species at Risk list – i.e. likely to become Endangered if steps are not taken to address factors threatening it.
This turtle likes to nest on gravel – e.g. the shoulders of roads. The panel was concerned about the effects of upgrading municipal roads near the project to allow the transport of large, heavy components. The upgrading will result in increased traffic throughout the year, at increased speeds, by drivers not trained to avoid turtles, and will lead to additional deaths of nesting turtles due to vehicle collisions. Given that the turtles reproduce at a low rate (starting at age 20+), with low hatchling survival rates, the panel found that even a small percentage increase in deaths per year could result in extirpation of the local population.
The panel was also concerned about the construction of crane pads, turbine bases and access roads (15+ km), all of which provide new and attractive nesting sites on gravel, in addition to those on upgraded municipal roads. These sites leave Blanding’s Turtle highly visible and accessible to predators (foxes, raccoons, skunks) and, in the opinion of the panel, will result in additional deaths.
The panel concluded that there will be serious and irreversible harm to the local population of Blanding’s Turtle.
There will be a remedy hearing, at which all parties will make submissions on mitigation of the harms to Little Brown Bat and Blanding’s Turtle. Depending on the ERT panel’s review of the evidence presented, the project’s approval status will either be confirmed or revoked. This process will likely extend over several months
Other environmental issues in the ERT appeal
The panel considered other environmental issues, but did not receive sufficient proof of serious and irreversible harm as regards any of the following:
- Bird species at risk, specifically Bobolink, Eastern Meadowlark and Easter Whip-poor-will.
- Migrating birds, but the panel did state: “Clearly, the Project site is poorly chosen from a migratory bird perspective”.
- Hydrogeology and hydrology.
Serious harm to human health
The panel also considered the issue of serious harm to human health. This is a complex issue, with major differences of opinion among experts, additionally hampered by a lack of definitive published research.
The panel concluded as follows: “In summary, the Tribunal finds that the evidence does not support a finding that engaging in the Project in accordance with the REA will cause serious harm to human health.”
Any party can appeal any of the above decisions to Divisional Court, and it is likely that there will be one or more appeals.
Where from here?
This is the ultimate David v. Goliath situation. Wpd will generate $400 million* of revenues from the White Pines project over its 20-year contractual period. So, spending a million dollars (or two) on high-priced legal counsel is chump change for them. And, of course, the Wynne government has unlimited funds (our taxes) to spend. We suspect that the developer believes that they can outspend us on legal challenges, and ultimately outlast us. So far, we have proven them wrong. [* Corrected from $1.3 billion.]
Taking account of the Byran, Ostrander Point and White Pines legal challenges, generous donors have contributed at least $800K to date, virtually all from individuals. So far, we have been 100% successful: there are no wind turbines in Prince Edward County.
We need to continue defending our ground, which means maintaining our legal challenges of this project. Please consider making a donation to the South Shore Appeal Fund — whatever you can afford. If 1000 people give $50 each, that’s $50K. If 50 people give $1000 each, that’s another $50K. Whatever you can manage.
You can donate online or by cheque — information HERE .