Dear APPEC Members,
Regrettably the Ministry of the Environment has seen fit to issue a renewable energy approval (REA) to wpd White Pines Wind Inc. to construct 27 wind turbines in South Marysburgh and part of Athol.
Once again the Ministry has chosen to put the health and welfare of County residents (or using the Ministry’s terminology “receptors”) in jeopardy. For the second time in as many years the Ministry has ignored the expert advice of conservation experts that a wind project on the County’s south shore will cause serious harm to wildlife. Not even the finding of an Environmental Review Tribunal that a wind project at Ostrander Point will cause serious and irreversible harm to the Blanding’s turtle was enough to deter the Ministry.
While we had hoped this day would not come APPEC has been preparing for it for some time. We are presently reviewing the REA document and arranging to meet this weekend with our legal counsel to discuss the health and environmental ERT challenge as well as examine other options for a successful legal case against wpd.
Some comfort can be taken in the fact that there is considerable expertise in the County and many allies in PECFN, SSC and CCSAGE Naturally Green, in the media and in the municipal government who will contribute their expertise, time and efforts to protect the south shore. We also have a strong ally in the provincial government, Todd Smith MPP. In this regard we have enclosed Todd’s letter to the Minister of the Environment Glen Murray on wpd’s approval (click here to view letter).
Above all, your support is needed and appreciated to ensure a successful fight.
APPEC’s case is being heard by Justices Nordheimer, Linhares de Sousa and Whitaker of the Ontario Superior Court of Justice (Divisional Court).
To give some background APPEC appealed the Environmental Review Tribunal’s Decision of last July (2013) to dismiss APPEC’s appeal based on its findings that:
 The evidence in this proceeding did not establish a causal link between wind turbines and either direct or indirect harm to human health at the 550 m set-back distance required under this REA.
 The evidence in this hearing did not establish that engaging in the Ostrander Point wind turbine project in accordance with the REA will cause serious harm to human health.
 For these reasons the Tribunal finds that the Appellant has not established that engaging in the Project in accordance with the REA will cause serious harm to human health
The grounds for appeal are narrow: the Court will only consider whether errors of law were committed by the Environmental Review Tribunal (Robert Wright and Heather Gibbs) in arriving at their decision to dismiss APPEC’s case. Continue reading …
This was the final day of the 3-day hearing. The morning began with a submission from South Shore Conservancy which has Intervenor Status at the hearing followed by the Prince Edward County Field Naturalists’ Counter-Appeal on migratory birds and alvar.
The report below covers the morning session. Please see APPEC Report (Part 2) for a report on the proceedings for our counter-appeal on health. Continue reading …
Day Two of the 3-day hearing before the Divisional Court focused on the finding of the Environmental Review Tribunal that if allowed to proceed Gilead Power’s wind project at Ostrander Point in Prince Edward County will cause serious and irreversible harm to Blanding’s Turtles. Continue reading …
The following is an APPEC report for the first day of the Ostrander Point ERT Appeal hearing. Paula Peel of the APPEC Board will be reporting on the proceedings trough the week.
Report on Jan 21, 2014 Ostrander Point ERT Appeal Hearing
by Paula Peel, APPEC board
It was hard to find an empty seat on this first day of the hearing. County residents and supporters of the Prince Edward County Field Naturalists (PECFN) once again showed their resolve to protect Ostrander Point from wind turbine development. And once again they face stiff opposition. At least 8 lawyers from Gilead Power, the Ministry of the Environment and CanWEA are representing Gilead ’s interests.
The hearing began with Gilead introducing its game-changing motion to bring in new evidence. According to Gilead lawyer Doug Hamilton, the facts have changed since July 4, 2013 when the Environmental Review Tribunal revoked Gilead ’s REA approval. Gilead is now in possession of a revised permit from the Ministry of Natural Resources (MNR) that requires that the access roads be closed to the public and the installation of gates. As reasoned by Gilead these mitigations address the Tribunals’ concerns that the wind power project will cause serious and irreversible harm to Blanding’s Turtles.
PECFN lawyer Eric Gillespie noted that Gilead and the MNR were having discussions about fencing and the leasing of crown land for the access roads back in 2010. If these issues were so important why was not one word said about any of this at the ERT hearing? As noted by Mr. Gillespie, there are also disclosure requirements: Gilead had every opportunity to bring these issues up at the ERT hearing and chose to withhold it. Mr. Gillespie argued that Gilead should not be rewarded by the Court at this time with an opportunity to bring “new” information forward.
The attempt by Gilead’s lawyers to enter this new evidence fell flat with the Court dismissing the motion. The Court noted that reasons for the dismissal will be given at the same time reasons are given for the main appeal.
Gilead lawyers will now attempt to argue three issues: (1) that the Tribunal misunderstood the terms and provisions of the Overall Benefit Permit (2) that the Tribunal committed palpable and overriding errors in coming to a conclusion not supported by evidence, for example in drawing conclusions about turtle mortality without any evidence of number of turtles on site and (3) that the Tribunal failed to exercise its jurisdiction in rescinding REA approval and failed to provide natural justice and fairness.
The hearing resumes on Wednesday and is set to conclude on Thursday.
There was some great news today for the Prince Edward County Field Naturalists (PECFN) from the Ontario divisional court panel, headed by Justice Ian Nordheimer. The 3 judge panel ruled that Gilead Power could not introduce new evidence in the appeal. New evidence is not permitted during the appeal process. The arguments continue tomorrow on the ERT legal findings. Gilead continues the appeal on the Blanding’s Turtle ERT findings and PECFN’s appeals to protect the Important Bird Area and the Alvar wildlife habitat at Ostrander Point.
Our MPP Todd Smith sends some timely words of support and encouragement as we take our case to the Ontario Superior Court of Justice next week. Mr. Smith has indicated to us that he will be monitoring the proceedings closely. We are fortunate to have Mr. Smith as our provincial representative and also as one of our staunchest allies.
In his letter Mr. Smith points out that “We have pushed a major wind developer, the Ministry of the Environment and the wind power lobby as far as anyone in Ontario has ever pushed them.” Indeed this is the first time in the province that a decision by an Environmental Review Tribunal has been challenged in a higher court.
The grounds for APPEC’s appeal are narrow: the Court will only consider whether errors of law were committed by the Environmental Review Tribunal (Robert Wright and Heather Gibbs) in arriving at their decision to dismiss APPEC’s case on health. However APPEC’s grounds are solid. As Eric Gillespie will argue, the demands of the Environmental Review Tribunal far exceed the legal test that wind victims are “more likely than not” suffering serious harm to health from wind turbines.
Click here to read Mr. Smiths letter: Gilead Appeal Letter
Posted on January 15, 2014
The Ontario Superior Court of Justice (Divisional Court) will be hearing the appeals of last July’s Tribunal decision for Gilead Power’s wind project at Ostrander Point. During the week lawyers representing APPEC, the Prince Edward County Field Naturalists (PECFN), South Shore Conservancy, Ontario’s Ministry of the Environment (MOE), Gilead Power Corporation and the Canadian Wind Energy Association (CanWEA) will be presenting their cases.
The South Shore Conservancy and CanWEA have Intervenor Status and are able to make brief verbal and written presentations.
The hearing will be held in Osgoode Hall, 130 Queen St. W., Room 3 and is open to the public. Osgoode Hall is accessible from the Osgoode subway station on the University line. There is parking nearby at the Toronto City Hall Parking Garage.
The hearing is set to start on Tuesday, January 21 at 10 a.m. Members of APPEC and PECFN and other interested people will be in attendance at the hearing.
The schedule below is our best estimation at this time of what will occur on a day to day basis. However it is only a preliminary guide and should be treated as such. As the hearing proceeds the panel may be making adjustments to allow some aspects to go faster or slower.
- Jan 21 (Tuesday) Attempt by Gilead Power Corp to introduce new evidence.
- Jan 21 & 22 (Tuesday / Wednesday) will deal with the Environmental Review Tribunal decision to revoke REA approval issued by the MOE to Gilead Power.
- Jan 23 (Thursday) PECFN appeal on migratory birds and alvar.
- Day 4 (Friday) APPEC appeal on health.
BARNSTABLE (Nov. 22) In a major victory for homeowners living near a wind turbine in Falmouth, Barnstable Superior Court Judge Christopher J. Muse issued a preliminary injunction today to sharply reduce the turbine’s hours of operation.
The Court found that the defendants in the case face “a substantial risk (that they) will suffer irreparable physical and psychological harm if the injunction is not granted.”
Under today’s ruling, Falmouth’s two turbines must shut down from 7 p.m. to 7 a.m. Monday through Saturday, and all day on Sundays, Thanksgiving, Christmas, and New Year’s, effective immediately.
Continue reading … WWMA Press Release on MA Superior Court Ruling
APPEC News – August 6, 2013: Alliance to Protect Prince Edward County appeals Environmental Tribunal Decision on health
Picton, Ontario / The Alliance to Protect Prince Edward County (APPEC) announced today they have filed an Appeal to the Ontario Divisional Court of the recent Environmental Review Tribunal Decision (ERT) on serious harm posed to human health by a wind turbine development at Ostrander Point, in Prince Edward County.
According to APPEC legal counsel, Eric Gillespie, this Appeal is based on alleged errors in law found in the ERT July 3, 2013 Decision on APPEC’s Appeal of the Renewable Energy Approval issued to Gilead Power by the Ministry of the Environment.
For more information please contact: Gord Gibbins (613) 476-0219