AgriLaw: “Serious and Irreversible Harm” – Wind Turbine Remedy

Ontario’s Environmental Protection Act requires that, before interfering with a Renewable Energy Approval (REA) issued by the Ministry of Environment and Climate Change, the Environmental Review Tribunal must first be satisfied that the REA will cause “serious and irreversible harm to plant life, animal life or the natural environment”.  Where the Tribunal is so satisfied, what is the scope of the Tribunal’s remedial powers?  Is the Tribunal limited to only consideration of the “serious and irreversible harm” in question, or can the Tribunal consider more broadly the public interest?

In a recent decision of the Environmental Review Tribunal the Tribunal had determined that a proposed nine turbine wind farm would cause serious and irreversible harm to the Blanding’s turtle, an endangered species, and that the REA issued by the Ministry should be revoked. While the Tribunal’s decision with respect to “serious and irreversible harm” was eventually upheld by the Court of Appeal, the Court of Appeal remitted the issue of remedy back to the Tribunal to decide.

Noting that this case was the first renewable energy approval appeal proceeding in which an appellant had satisfied the Tribunal of “serious and irreversible harm”, the Tribunal also commented that this was therefore the first case to engage the Tribunal’s statutory discretionary remedial power under the Environmental Protection Act to revoke the Director’s decision, require the Director to take such action as the Tribunal considers necessary, or alter the Director’s decision, including substitution of the Tribunal’s opinion for that of the Director.

With respect to the exercise of its discretionary remedial powers, the Tribunal rejected the position of both the Ministry and the project proponent that the primary consideration in the determination of public interest is promotion of renewable energy and that the Tribunal should limit its review to whether the precise type of identified harm could be mitigated so that it is no longer “serious and irreversible”. The Tribunal stated:

“Once the stringent environmental harm test of … the EPA has been satisfied at the project level, as in this case, the policy goals of promoting and streamlining renewable energy projects lose their primacy and become one of many factors to consider within the broader legislative framework and the public interest in energy generation that mitigates harm to the environment … The Tribunal finds that the precautionary principle … applies to decisions of the Director and the Tribunal’s choice of the appropriate remedy.  On the same basis, the Tribunal further finds that the principle of an ecosystem approach to environmental protection is also a relevant consideration to the Tribunal’s … remedial powers.”

Applying these broader considerations with respect to the determination of public interest, the Tribunal held that additional mitigation measures proposed by the Ministry and proponent would not be successful in preventing the identified “serious and irreversible harm”. In revoking the ERA, the Tribunal concluded:

“The Tribunal finds that a small number of individual adult turtles will be killed annually, that poaching will not be reduced but rather facilitated, and that there will be no measurable change to the impacts of predation. The Tribunal finds that these harms cumulatively over the lifetime of the Project will cause irreversible harm to the local population, and lead to the eventual loss of the population …

“In regards to the general application of the precautionary principle … Blanding’s turtle has not been the subject of extensive scientific study generally, and in this location in particular. This is evident from the disagreements among the expert biologists at both the [previous] hearing and in this remedy hearing.  Proceeding with the Project where there is the threat of serious and irreversible harm to a species at risk, including its habitat, and a lack of full scientific certainty regarding the species, would not be consistent with the precautionary principle. 

“In summary, and although the promotion of renewable energy and its related benefits, and streamlining approvals, are important factors in consideration of the public interest, the Tribunal finds that not proceeding with this nine wind turbine Project in this location best serves the general and renewable energy approval purposes in … the EPA, the public interest … and the precautionary principle and ecosystem approach.”

Where an appellant satisfies the Environmental Review Tribunal that a proposed wind turbine project will cause “serious and irreversible harm”, in the exercise of its discretionary remedial powers, the Tribunal is not limited simply to consideration of whether mitigation measures may reduce the identified harm. In determining whether or not to revoke the REA, the Tribunal may more broadly consider the public interest apart from the promotion of renewable energy, including the precautionary principle and ecosystem approach.

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