The final arguments have been made. One lawyer against three. Not a fair fight but, then, that is the way it has been since that wintry day in March when hearings began in an appeal of the Ministry of Ontario’s approval of an industrial wind turbine project at Ostrander Point.
There have been times since then, that Eric Gillespie, the advocate for two County-based appellants, has had to fend off as many as eight opponents arrayed against him. Lawyers Sylvia Davis and Sarah Kromkamp have represented Ontario’s Ministry of Environment against these two County groups throughout the hearing. Meanwhile the developer, Gilead Power Corporation, has employed as many as six attorneys from the Bay Street firm of McCarthy Tetrault, swapping out teams of lawyers for each appeal—Doug Hamilton leading the team against the appeal to protect the natural habitat at Ostrander Point, and Darrel Cruz, arguing against claims the proposed project will harm human health.
The Prince Edward County Field Naturalists (PECFN) have led the fight to protect the threatened and vulnerable species of animals and birds that are at risk of being erased from the rugged bit of Crown Land at Ostrander Point.
The Alliance for the Protection of Prince Edward County (APPEC) took up the challenge to stop the development in a bid to protect human health. Building on a similar hearing in Chatham Kent 2011, the appeal panel in that case ruled it was not enough for the appellants to show harm was possible or even likely—but rather harm would with certainty result from an industrial wind project in that community.
So in this Environmental Review Tribunal (ERT) hearing Gillespie, with help from Dr. Robert Mc- Murtry, former dean of medicine at University of Western Ontario, assembled an array of residents from around the province who testified that their health has been diminished as a result of wind turbines erected near their homes and interfering with their lives.
Last week, after months of testimony, the panel consisting of experienced lawyers Robert Wright and Heather Gibbs heard final arguments in Toronto. About 75 sturdy folks from the County travelled to the city to support Gillespie in this uneven fight and to ensure the ERT members saw the faces—one more time—of the folks who will be affected by their decision.
Gilead’s lawyer Darrell Cruz kept things simple. He argued that because the project complies with Ministry of Environment regulations, and those regulatory setbacks were established to protect human, therefore no harm would ensue. He tried to narrow the panel’s consideration even further.
Since APPEC had not presented facts specific to the Ostrander Point project (such as model and size of turbines, engineering problems, etc.), they had, therefore, not proved that this particular project would cause harm, according to Cruz.
Gillespie countered the ERT had to learn from other hearings, such as the Erickson case in Chatham in 2011—if for no other reason than to avoid the onerous task of rehearing and litigating again the same evidence in every review. He suggested a lack of knowledge about the harmful effects upon humans compromises the regulations—that this lack of knowledge is hurting people. He argued the review process must be allowed to consider the cumulative knowledge rather than be narrowly constrained and risk making the same mistakes over and over again.
The MOE’s Sylvia Davis pointed to evidence given by Dr. Keiran Moore who testified that while Gillespie’s witnesses may be enduring health effects, the cause remains unclear and unproven.
Gillespie argued that the absence of a clinically recognized diagnosis related to exposure to industrial wind turbines does not diminish the harm his witnesses have endured, and continue to endure. He suggested the willingness of these witnesses to come forward, to share their experiences in this hearing and to be subjected to intense cross-examination by both MOE and developer’s lawyers made them both credible and compelling.
He argued that it is only the mechanism of the harm inflicted on people that continues to elude diagnosis. It is not responsible, he suggested, to allow industrial wind turbines to be erected with existing setbacks, knowing that humans will be affected—if not precisely how.
Panel member Robert Wright asked whether the fact the project was to be built on Crown Land—accessible by the public—posed additional constraints upon the project.
Gilead’s lawyer Cruz said the legislation makes no extra demand upon Crown Land. APPEC’s appeal didn’t look at issues of ice throw, blade breakage or tower fire or collapse hazard, focusing instead on the long-term health impacts. Should the ERT panel decide to uphold the appeal, it may be the issue related to Crown Land that gives them pause.
THREATS TO NATURE
In final arguments, over the risks of environmental damage much of the debate dealt with the quality of the field reports prepared in support of the project. Gilead’s co-lead lawyer Doug Hamilton argued that issues over field reports were irrelevant the project because Gilead was compelled to operate industrial wind turbine plant within the provisions of the Renewable Energy Approval. Gillespie countered that if the reports were irrelevant—Gilead couldn’t rely on them to make its case.
Hamilton noted that the legal test in the Green Energy Act requires Gillespie to prove harm will be done by this development and mitigations efforts won’t reverse the damage. Yet Gilead’s own expert witness, Dr. Doug Larsen, was skeptical that restoration efforts would actually work. Gillespie argued that this admission put the onus back on Gilead to prove they could undo the environmental destruction the project would inflict on this natural habitat and the species within it.
SERIOUS AND IRREVERSIBLE HARM
Then it was onto a debate about how much geography is implied in the appellant’s requirement to show serious and irreversible harm. Gillespie and PECFN would like to see this narrowly defined to the proposed property.
ERT member Robert Wright wanted clarification on the term “regional”. The MOE’s Sylvia Davis answered that in her view it was larger than Ostrander Point and smaller than the province.
It is a key question. This is because all sides acknowledge that the project will create havoc upon the project site—likely evicting species at risk and forcing them further afield. So does the obligation by PECFN to show serious and irreversible harm mean they have to demonstrate the total destruction of the species? Or just at Ostrander Point? Or some other, yet to be defined, region?
Gillespie argued the both the size of the project area and its “measurable impact on a species in decline,” had to be considered together—that the panel couldn’t just look at the impact on this bit of land but rather the impact on the species. Hamilton countered that it depends on range and vulnerability of the species.
Perhaps one of the more bizarre—yet for many who sat through the hearings, oddly typical—exchanges began as panel member Heather Gibbs asked about the developer’s Draft Alvar Management Plan. It was already established in the hearing that the shallow soil hard scrabble land at Ostrander Point is rare and possesses unique characteristics. And that these characteristics lend themselves to the nesting needs of certain specific species such as the Blanding’s Turtle and the whippoorwill.
Thus it is critical to understand how these species are to be accommodated, since they can’t simply go elsewhere. Gibbs wanted to know how we would know that the draft plan worked.
Sylvia Davis, said she and the ERT panel had to assume the plan would work.
Gillespie pointed to the higher-than-expected bird mortality being experienced on Wolfe Island as evidence of inadequacy of developer-driven mitigation measures.