Report on June 21st ERT Hearing

The final hearing of the Environmental Review Tribunal (ERT) consisted of oral submissions by Eric Gillespie, counsel for APPEC and PECFN; Darrel Cruz and Doug Hamilton, counsel for Gilead Power; and Sylvia Davis, counsel for the Ministry of Environment (MOE).  Each responded to arguments made in others’ written submissions delivered to the ERT panel on June 13.  These replies were followed by a series of questions from the panel.

For easier reading, however, this report is organized by major topics rather than by the back and forth of far-ranging debate.

APPEC’s Appeal on Harm to Human Health

  • Relevance of Erickson Decision

Darrel Cruz argued that the ERT decision in the Erickson appeal (2011) is relevant only in terms of the findings, not the evidence presented.  It is a precedent “that speaks only to what is possible.” This ERT is making a decision about only one wind project, not all wind projects.  The issue is whether the Ostrander Point project will cause harm.  The evidence in Erickson is not the same evidence as before this ERT, and it is improper to use such evidence as Dr. Leventhall’s. 

Eric Gillespie responded that reliance on the Erickson decision avoids an onerous and unmanageable process of re-litigation.  This ERT has to consider the principal findings, if not the detailed evidence.  Dr. Leventhall’s statements, though cited in the Erickson decision, were adopted by other expert witnesses, notably Dr. Robert McCunney, who testified for Gilead.  Ostrander Point and Kent Breeze have not been compared in detail because both projects are approved to operate with 40 dBA noise limits and 550-m setbacks. 

  • Medical Evidence and Standard of Proof

Darrel Cruz argued that biological plausibility is insufficient to meet the legal requirement.  It must be shown that wind turbines “will cause” harm, not just possibly cause harm.  Moreover, since no health evidence is specific to the Ostrander Point project, the appeal does not meet the conditions of proof related to the project.

Sylvia Davis added that Dr. Kieran Moore had said there is not enough information to determine the cause of witnesses’ health effects.  He also said it was not biologically plausible for a single cause to produce a multiplicity of symptoms.  Dr. McCunney’s remark about “some people” suffering “annoyance” did not refer to serious harm to health.

Eric Gillespie responded that the absence of turbine-related diagnoses by the Ontario medical community is due to the current state of knowledge; hence the ERT’s need to hear from experts.  Although the medical records may not have been thorough, witnesses had replied to 175 medical questions used as the basis for cross-examination.  There is no need to wait for an epidemiological study.  Further research would chiefly determine the mechanism of harm. 

Regarding the Biological Plausibility of harm, Gilead’s and MOE’s own witnesses had testified that there are always “some people,” or a “non-trivial percentage of the population,” affected by wind turbines. The medical term “annoyance” refers to a physical effect.  The range of reported symptoms is, in fact, limited.  Whether they are psychosomatic or physiological in origin, the scientific literature still regards them as serious health effects.  APPEC has shown probability, not just biological plausibility.  There is already enough evidence on the “balance of probabilities” for the ERT to make a decision.

  • Crown Land

Co-chair Robert Wright asked about the status of Ostrander Point as Crown land.  Darrel Cruz said that no health and safety issues had been raised related to public access to the project site, and no measures are required by the legislation.  (N.B. APPEC did not address matters such as ice throw, blade breakage, nacelle fire, and tower collapse because its appeal focuses on longer term health impacts.)  Eric Gillespie responded that the issues led to concerns about the project’s compliance with MOE regulations.

PECFN’s Appeal on Environmental Harm

  • Focus of Appeal

Doug Hamilton said that since the Ostrander Point project would operate “in accordance with the Renewable Energy Approval,” questions about the REA process and the adequacy of Stantec’s reports are irrelevant. 

Eric Gillespie responded that if the MOE’s process and Stantec’s field reports are irrelevant, then Gilead can’t rely on them either to make its case.

  • Burden of Proof

Doug Hamilton argued that the legal test is “will cause” harm, not harm “on the balance of probabilities.”  The calculation is up to the ERT panel.  “High probability” is not certainty.  It must also be proven that proposed mitigations would not work.

Co-chair Heather Gibbs asked about the onus of proof in terms of the Draft Alvar Management Plan.  Ms. Davis said one had to assume the Plan would achieve the stated results.  Mr. Hamilton added that not all mitigations have performance objectives.

Eric Gillespie responded that the proposed mitigations are questionable.  Bird mortality at nearby Wolfe Island exceeds anticipated thresholds. The Merlin radar system is not widely known, used, or regarded as effective.  Monitoring for species at risk is not likely to locate fatalities.  There is not enough evidence to support the Alvar Management Plan, which remains a work in progress.  In fact, Dr. Larsen, Gilead’s own witness, was sceptical of its success in restoration.  Gilead is therefore responsible for defending mitigation.  PECFN has to show only harm from the project.  When experts testified there is a “high probability” of harm, it indicates an excess of 51 percent—i.e., harm is “more likely than not” to occur on the “balance of probabilities.”

  • Definition of Serious and Irreversible Harm

Doug Hamilton said that the Green Energy Act does not contain any definition of, or guidance on, the meaning of serious and irreversible harm.   PECFN’s proposal of a “measurable impact on species in decline” is a new test without evidentiary support. It raises problems of the time, range, and number of species to which the test applies.  Harm to animals, plants and the environment must be determined at species population levels considered in terms of at least regional distribution.

Robert Wright asked for clarification of the term “regional.”  Sylvia Davis said it is not as small as Ostrander Point but not as large as the province.  Doug Hamilton added that it depends on the range of a species. He referred to a guide to wind project assessment that considers factors and thresholds for birds in 20 Natural Heritage Zones in Scotland and sets out tests for significant impact.

Eric Gillespie responded that the definition of irreversible harm as “harm at a species’ population level” is the wrong legal test because it is not reasonable—it permits total destruction of species at a single location such as Ostrander Point.  It would also permit destruction of all the Ostrander Point alvar because this environment is found elsewhere in Ontario, even though it is globally rare.  The alternative of a “measurable impact” relies on the Precautionary Principle by considering the adverse effect related to the conservation status of a species or the rarity of an environment.

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