by Charles Birchall, Willms & Shier Environmental Lawyers LLP
To prove that a wind energy project will cause serious and irreversible environmental harm, you will need an expert and a scientifically solid case.
In a decision released November 12, the Environmental Review Tribunal (ERT) said it will not overturn the approval of a large wind energy facility in southwestern Ontario that, potentially, could pose a threat to a pair of bald eagles nesting in the immediate vicinity. This case underscores the requirement that the evidence must show, on a balance to probabilities, that there will be – versus potential – “serious and irreversible harm.”
In adjudicating Lewis v. Director, Ministry of the Environment (ERT Case No. 13-044), the Tribunal found the appellants had not met the statutory test set out in section 145.2.1(2)(b) of the Environmental Protection Act (EPA) and failed to prove that the project “will cause serious and irreversible harm to plant life, animal life or the natural environment.”
Opponents of the Bornish Wind Energy Centre did not present any expert evidence, but relied on lay testimony and written submissions about the project’s potential harm to the eagles, as well as mass bird kills, habitat loss and damage to other species. The Tribunal was looking for evidence demonstrating that there would be serious and irreversible harm caused to the bald eagles. To that end, it pointed to an earlier case where the ERT rejected the approval of the Ostrander Point Wind Energy Park south of Picton, Ontario, over concerns that road traffic through the site would likely cause “serious and irreversible harm” to a population of the endangered Blanding’s turtles found on the project site. Read article