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Reloading: PECFN readies for courtroom battle to defend Ostrander Point from MOE and developer  

Credit:  Posted by Rick Conroy | The Times | October 4, 2013 | wellingtontimes.ca ~~

It was an evening to celebrate—to recognize a most improbable win against two powerful adversaries. It was also time to begin preparations for the next battle to save Ostrander Point from the development of industrial wind turbines.

The Prince Edward County Field Naturalists (PECFN) gathered last week at a hall in Bloomfield for a feast of homemade casseroles, salads and squares to rejoice in the Environmental Review Tribunal decision to revoke the approval of a nine industrial wind turbine project on Ostrander Point on south shore of Prince Edward County. The Tribunal ruled that the impact of the project and the roadway necessary to access each 500-foot structure would cause ‘serious and irreversible harm’ to the Blanding’s turtle

“We won,” proclaimed Myrna Wood, PECFN chair. “We knew we could win. We knew that if anyone took an objective look at the sensitive nature on our south shore they would not allow this kind of development to happen here.”

PECFN was joined in their celebratory supper by their lawyer, Eric Gillespie, and associate lawyer, Natalie Smith. Gillespie told the jubilant gathering that their victory has inspired hope across the province for those working to protect their homes, communities and natural ecosystems from the harmful impact of industrial wind turbines.

“You have shown you can change what seemed inevitable,” said Gillespie. “No doubt in my mind there would be turbines on Ostrander Point right now if not for you.”

GIRDING FOR BATTLE
Gillespie reported that the next stage in this struggle was now set for January. It is then that the Ontario Divisional Court will, over four days, hear an appeal to the Tribunal’s ruling to revoke the approval given to Gilead Power Corporation by the Ministry of Environment.

Both the Ministry and the developer are challenging the Tribunal’s ruling. They are expected to argue the Tribunal panel overstepped its authority— that it was up to the Ministry of Natural Resources to determine how best to deal with the Blanding’s turtle, not the Tribunal.

They will argue that it was inappropriate for the Tribunal to hear new evidence on matters they contend were settled in the Renewables Energy Approval (REA). They will argue the Tribunal extended its reach beyond that of an appeal mechanism to that of a secondary review— and that if it ruling is upheld, it will fundamentally alter the REA process.

But Gillespie says it’s too late to rewind the clock.

“The time to raise this issue was over a year ago,” said Gillespie. “It is a little late now. Why did we sit there day after day listening to expert testimony?

He will argue that the MOE and the developer each understood that new evidence would be presented. In fact, both produced its own experts who testified in the many days of Tribunal hearings. Gillespie says that they can’t now challenge the Tribunal authority after they participated in the process without objection.

Myrna Woods believes the developer considered the Tribunal review a slam dunk. But now, with millions and millions invested in this project, Gilead had no option but to appeal.

For the Ministry of Environment the motivation is less clear. During the Tribunal, its lawyers were in the awkward position of arguing against an array of conservancy groups to allow a developer to devastate the ecosystem of endangered species. Now it must argue that its own review mechanism, the Tribunal, is faulty and broken.

In the wake of the notoriety around the fight to keep industrial wind turbines from Ostrander Point, and the Ministry of Natural Resources role in its approval, the provincial agency has quietly changed the name of its permit to harm, harass and kill and endangered species. According to Gillespie, Ministry officials didn’t like how it sounded in media reports, so they now refer to it as the overall benefit provision.

REACHING FURTHER
Gillespie will also argue in January that while the Tribunal’s decision was correct as it affects the Blanding’s turtle—it did not go far enough. PECFN will ask the Divisional Court to reconsider the Tribunal’s ruling regarding birds and the alvar habitat. The Alliance to Protect Prince Edward County will appeal its conclusion on the impact of industrial wind turbines on human health.

“If the Tribunal’s same principles are applied to other aspects of the evidence,” said Gillespie, “you could reach the same conclusion about harm in relation to birds, the alvar habitat and human health. The appellants are not disagreeing with the Tribunals findings—just that they be extended a bit.”

Gillespie says the evidence given by bird experts, alvar experts and human health officials was compelling.

PECFN will ask the court to look at these aspects again, and come to another conclusion.

But it is a seemingly contradictory exercise to defend the Tribunal’s decision while simultaneously challenging it before appeal court.

“The decision is 140 pages long,” Gillespie told the Times. “It would be surprising for anyone to read a book and agree with every word the author wrote. There were a number of very complex issues before the Tribunal. We believe their premise was correct—there should not be industrial wind turbines on that site. We are building on the Tribunal’s foundation—not undermining it in any way.

SHIFTING GROUND
Gillespie noted that the success on the legal front is being matched by a shifting political tone coming from the provincial government.

“Queen’s Park knows that something is wrong with these projects,” said Gillespie. “They have learned that from you. The decision made here in the County is the precedent. This Tribunal decision will be looked at and relied upon in every other such appeal.”

He suggests new renewable energy approvals now come with greater and greater risk.

“It was a historical and legal landmark,” said Gillespie. “The approval wasn’t modified. It wasn’t restricted. It was revoked. It is, we believe, the first time in North America that a approval for a wind turbine project has been taken away.”

PECFN used the celebratory dinner to make the final payment in Gillespie’s Tribunal appeal bill. So far the Field Naturalists have raised $111,617 much of that used toward the Tribunal appeal. But more will be needed to fund the January appeal. PECFN has estimated this will cost about $50,000. For more information about how you can contribute to this struggle go to saveostranderpoint.org

THE FINISH LINE?
Gillespie was asked if the decision of the Divisional Court, expected next spring, would be the final word on the fate of the Ostrander Point industrial wind turbine project.

“It might be,” said Gillespie acknowledging it wasn’t the answer the room wanted to hear. “Technically it could also go to the Ontario Court of Appeal and then the Supreme Court of Canada. But they would have to get leave to do so—and only a very small percentage of cases are permitted to do so. The odds and statistics are against it.”

Source:  Posted by Rick Conroy | The Times | October 4, 2013 | wellingtontimes.ca

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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