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Tribunal allows PECFN appeal, revokes approval of Ostrander project

Blandings-Turtle600The endangered Blanding’s turtle has helped the Prince Edward County Field Naturalists take down turbines. The Environmental Review Tribunal has allowed the appeal of the Ostrander Point Project by PECFN on grounds of serious and irreversible harm to the natural environment, and has revoked the approval of the project by the Director, Ministry of the Environment.

Lawyer Eric Gillespie represented the PECFN and the Alliance to Protect Prince Edward County (APPEC). The two citizen-based groups, on Jan. 4, 2013 – appealed the Ministry of the Environment’s approval of Gilead Power’s nine turbine Ostrander Point industrial wind project. The approval of the project by the MOE came under fire as it was issued Dec. 20, 2012 – just before the Christmas holidays.

The tribunal decision was announced Wednesday after 40 days, 185 exhibits and testimony of 31 expert witnesses appeared before the panel of lawyers Robert Wright and Heather Gibbs in Demorestville and Toronto.

The tribunal concluded “that engaging in the project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment. This is on the basis of findings that such harm will be caused to Blanding’s turtle.”

The PECFN appeal hearing took place over 24 hearing days and the APPEC appeal hearing took 16 days. The tribunal heard from nine witnesses for PECFN, 15 for  APPEC, 10 for the Director and 13 for the approval holder.

The two citizens’ groups submissions had to prove the project will cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment.

The tribunal concluded APPEC did not meet the first branch of the test regarding harm to human health “because no causal link has been established between wind turbines and human heath effects at the 550m setback distance required under this renewable energy approval.”

PECFN argued the Crown land on the south shore of Prince Edward County “is a highly sensitive ecological area and the wrong location for a wind farm because it is particularly susceptible to serious and irreversible harm, and that as Crown land, it ‘is a resource that belongs to all Ontarians.’ PECFN submitted that if wind turbines can be erected in this location, then they can be erected anywhere in Ontario. PECFN further submitted that the proposed “mitigation technologies are untested, unproven and unreliable.”

From the Summary of Findings:
Issue No. 1: Whether engaging in the Project in accordance with the REA will cause serious harm to human health.
[627] 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.
[628] 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.
[629] 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, and dismisses APPEC’s appeal.

Issue No. 2: Whether engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment.
Sub-issue 1: animal life
[630] The Tribunal finds that mortality due to roads, brought by increased vehicle traffic, poachers and predators, directly in the habitat of Blanding’s turtle, a species that is globally endangered and threatened in Ontario, is serious and irreversible harm to
Blanding’s turtle at Ostrander Point Crown Land Block that will not be effectively mitigated by the conditions in the REA.
[631] The Tribunal finds that the appellant has not established that engaging in the Project in accordance with the REA will cause serious and irreversible harm to birds or their habitat.
[632] The Tribunal concludes that PECFN has not established that engaging in the Project in accordance with the REA will cause serious and irreversible harm to bats.
[633] The Tribunal finds that PECFN has not established that engaging in the Project in accordance with the REA will cause serious and irreversible harm to Monarch butterflies.
Sub-issue 2: plant life
[634] The Tribunal finds that PECFN has not shown that engaging in the Project in accordance with the REA, (i.e., including the minimum mitigation measures outlined in s. I17 of the REA that must be included in a future ARMP), will cause serious and irreversible harm to alvar plants or the alvar ecosystem at the Ostrander Point Crown Land Block.

Click here for the full, 140-page report

Tribunal participants celebrate victory, and prepared to continue battle

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  1. Barb county says:

    Maybe the Blanding Turtle can be the County mascot? It certainly deserves a thank you!

  2. County Steve says:

    Lots of great comments.We can never change poor Donna’s mind, but she might find it peculiar that the IWTs were rushed ahead at breakneck speed, before the federal study on health issues was complete. The Tribunal, as Mark says, was not intended to be a complete study of human health issues. But it was a current peek at the problems that are yet to come. If you choose to ignore the ‘canaries in the cage’, then you’re willing to watch others die in the mineshaft. For all of your careful health research, reports are coming in from all over the world that there could be big problems here. Should we rush ahead before the problems are known? You would say ‘Absolutely’! I say no.
    And don’t give me that cat kill thing … it’s simply idiotic. Nature is nature, and nature does what it does. But when man intentionally kills, that’s a different thing. For example, if you accidentally hit a man (or bird) with your car, it is treated completely differently in court than if you intentionally killed a man with your car, with intent to kill. You seem to be up on the legal fine print … do you condone the premeditated intentional death of wildlife, because it serves your purpose?

  3. Chris Keen says:

    Donna – the Tribunal ruled that:

    “[627] 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.

    [628] 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.”

    The Tribunal did NOT rule that there is no direct or indirect harm to human health.

    It ruled that the evidence presented during THIS ERT did not allow them to make a ruling of cause and effect. A BIG difference!

  4. Dayton Johnson says:

    Donna,,the horse is DEAD!! Stop already.

  5. Donna says:

    Mark, you obviously haven’t read the ERT notes that dealt with the self-reported health symptoms. The discussions of Dr. Baines, Dr. Moore, and Dr. McCunney were very thorough in discrediting APPEC’s witnesses.

    The medical records of the witnesses showed that many suffered their symptoms long before turbines were installed. Also, in many cases their symptoms did not correspond to the times of wind turbine operation. Even their medication could cause the same symptoms. In general, their complaints relate to aging, poor lifestyle choices, and issues common to the general public.

    Read ALL of #142 of the ERT Decision:

    “[142] The Tribunal finds that it cannot rely on the testimony of the post-turbine witnesses to make the link between their health complaints and the wind turbines.”

    “In conclusion…APPEC has NOT established that the alleged health effects are caused either by direct exposure to wind turbine noise or indirectly though some other mechanism.”

  6. Mark says:

    I don’t think it reiterates the truth. The truth of the matter is that there are persons who have become ill due to the placement of Industrial Turbines near to them. They have testified but the tribunal couldn’t or wouldn’t confirm. Much like many discounted smoking as a link to lung cancer for so many years. It is just a matter of time and the truth will be yours.

  7. Donna says:

    At least this decision reiterates the truth about supposed health concerns:

    8] For the reasons given below, the Tribunal concludes that the appellant citizen group APPEC has not met the first branch of the test regarding harm to human health because no causal link has been established between wind turbines and human health effects at the 550 m setback distance required under this REA.

    *NO CAUSAL LINK BETWEEN WIND TURBINES AND HUMAN HEALTH AT THE 550M SETBACK!

  8. Olmanonthemtn says:

    unfortunatlely the ombudsman’s office does not oversee Hospitals despite Mr. Moran’s
    concern that Hospitals, Bds. of Ed. and CAS should have such oversight his efforts have been stonewalled by YOU GUESSED IT! There was also an effort to replace him by YOU GUESSED IT!

    The Ombudsman’s Office oversees and investigates the provincial government, including about 500 provincial ministries, Crown corporations, tribunals, agencies, boards and commissions. The Ombudsman receives more than 18,000 complaints a year from individuals looking for help with a particular Ontario government service. Browse our full listing of government services that fall under the jurisdiction of the Ombudsman.
    The Ombudsman CANNOT investigate complaints about private companies or individuals, doctors, lawyers, decisions of judges or courts, the Ontario Cabinet or the federal government. The Ombudsman also does not oversee the MUSH sector – municipalities (except for some closed-meeting complaints), universities, school boards, hospitals, nursing homes and long-term care facilities, police, and children’s aid societies.

  9. Dayton Johnson says:

    In my opinion I think the Ont. Liberals are looking for any excuse to back away from this unpopular and super expensive means to produce power. They know they made a mistake and it’s finally sinking in! So this is their means to bow out gracefully and not have to admit their mistake. They can’t accept the health issue argument or the bird kill arguement….that would affect all of the turbine builds in Ontario. So, the near extinct Blanding Turtle is a safe choice that no other County has used.Indirectly it takes the focus off of the Prov. governments poor judgement and gives them an out.
    To Leslie K: have you contacted the Ontario Ombudsman,get this story in the press,take/send pictures and contact a councillor and your MPP.Many loud,angry voices sometimes get results.

  10. Wolf Braun says:

    Argyle says:
    Thursday, July 4th, 2013 at 4:21 pm

    QHC, your next!!!!

    YUP ! P.O.O.C.H. is looking into whether or not we have a case for using one of the government’s own tribunals. We need to get some legal help on our team. Any suggestions who might be able to help save our hospital? … Wolf

    http://www.facebook.com/CountyPOOCH

  11. Richard Mann says:

    I encourage everyone to look at the report. It is striking that human health concerns were dismissed entirely, in spite of health experts and a dozen people presenting with noise-related health effects (from other turbine sites in Ontario). Shame on the Ontario government for ignoring mounting evidence of health issues.

    There are so many reasons to oppose turbines, yet only the narrowest of issues (turtles) are “strong enough” to overcome the severe burden of proof. These tribunals are a farce. We need legal and/or direct action to stop this insanity. Meanwhile they are building turbines like crazy and still approving new ones.

  12. Donna says:

    Karen, it’s not ‘confusing the issue’ but clarifying the difference in the small number of bird kills by wind turbines vs predation by cats.

    From February, 2013:

    “Un-owned and owned free-ranging domestic cats kill between 1.4 and 3.7 billion birds and between 6.9 and 20.7 billion small mammals each year in the contiguous United States, according to Smithsonian Conservation Biology Institute scientists who have completed the first systematic review of publications that estimate cats’ predation rates. The findings in the study, published online in Nature Communications and since covered worldwide by the media, suggest that free-ranging cats may be the largest source of human-related mortality of U.S. birds and mammals.”

  13. Karen Empringham says:

    To Jack

    Let’s not confuse the issue with domestic cats killing birds! When was the last time Kitty killed an eagle, an owl, a swan, or a bat? The concern is which species of bird is being killed and whether that species is in decline.

    I am so tired of the smoke and mirrors constantly thrown out by the wind industry and its proponents!

  14. Jack says:

    Great news. Perhaps now the Prince Edward County Field Naturalist could turn their attention to investigating how many birds are being killed in county vineyard netting each year and educating people who allow their domestic cats to roam outside, to keep them inside. It is estimated domestic cats allowed to roam kill 250 million birds each year world wide.

  15. Argyle says:

    QHC, your next!!!!

  16. Mark says:

    This is tremendously embarrasing and a credibility fiasco for the Ministry of Environment which fought against it’s own endangered species act with taxpayers dollars. The minister should resign.

  17. Mike McGinnis says:

    Good for them. Windmills are nothing but a very expensive sop to the eco crowd. They don’t produce electricity when it’s needed, and it needs expensive gas fired back-up.

  18. Jack D says:

    What happens now?. Can this decision be reversed ? Does it have any implications for White Pines?

  19. Marnie says:

    Terrific news. The voice of the turtle has been heard on the land.

  20. Leslie Kaduck says:

    What brings tears to my eyes are the comments about Wolfe Island — now accepted to be the worst environmental wind disaster in Ontario. Over and over again in the report, even the proponents make reference to Wolfe Island as having the highest bird mortality rates of any wind installation in North America (even Stantec, ultimately responsible for the Wolfe Island environmental assessment and mitigation program, argued that Ostrander Point would not reach the 14-15 bird per turbine rate of Wolfe Island. And don’t forget that Tranalta and the MOE negotiated a monitoring program that effectively hides huge rates of purple martin and swallow fatalities by through smaller monitoring sites around turbines. And in terms of human health — again, the tribunal referred to the 550 m minimal setback. Wolfe Island enjoys setbacks of 350m in some circumstances.

    When CREC dumped shot rock and gravel into Little Sandy Bay Provincial wetland on Wolfe Island, the township, MNR and MOE conspired to cover it up as road improvements, when in fact it was done on the fly to facilitate the transport of turbines placed in the wetland. That “road expansion” was never maintained and precious turtle, fish and bird habitat was destroyed to facilitate a multinational coal company. No one cared about the turtles on Wolfe Island.

    So good for Ostrander, but very sad for Wolfe Island. Amherst Island is now the focus.

  21. Sue3 says:

    Very sad that they are still ignoring the human health issues and the bird issues, but still a major victory for the county!

    Congratulations and thanks to all who participated!

  22. Doris Lane says:

    Another excellent report by County Live, what did we ever do without you?

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