Turtle v Wind: When Environmental Concerns Collide

Environmental litigation often brings in the popular imagination a battle between some big polluting corporations and marginalised people abandoned by the state (the movie Erin Brockovich comes to mind). Those cases do exist, but the majority of environmental law is operationalized by government agencies balancing competing interests, usually economic development with environmental protection. This often results in a compromise: allowing a polluting activity, but with some mitigation measure to limit the environmental effects. But what happens when the two competing interests in front of the executive are environmental protection? This is what the Environmental Review Tribunal of Ontario (ERT) had to deal with in the case Alliance to Protect Prince Edward County v Director, Ministry of the Environment, ultimately largely upheld by the Court of Appeal.[1] This case presents the interesting issue of balancing the need for renewable energy and the impacts such a project can have on the environment, such as the endangered Blanding’s turtle.

The Facts and the ERT Appeal

In December 2012, Ostrander Point GP Inc, the proponent of a wind energy project in Prince Edward County, received a Renewable Energy Approval (REA) from the Ministry of the Environment pursuant to Part V.0.1 of the Environmental Protection Act (EPA).[2] Several groups appealed the decision to issue the REA to the ERT through section 142.1 of the EPA, which gives a right of appeal to any resident of Ontario. On such appeal the ERT is however limited to determine if the project will cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment.[3]

The appellants in Alliance to Protect Prince Edward County claimed that the proponent’s project would be damaging to human health through the noise of wind turbine, which they argued could cause such effect as head ache, insomnia, nausea, and dizziness. The ERT found no causal link between the alleged health effects and the operation of wind turbines, and thus rejected the first ground of appeal. The second ground argued was that the project would cause irreversible harm to the Blanding’s turtle, a variety of bird and butterfly species, Stantec’s bats, and alvar (a type of plant ecosystem). The ERT found the evidence inconclusive for the second ground of appeal except for the Blanding’s turtle. On that issue, the ERT found 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.”[4]

To arrive at its conclusion, the ERT determined that the law required it to approach the problem from an ecosystem point of view. It paid special attention to the fact that the Blanding’s turtle was a threatened specie and that consequently a decline in its population would be both serious and irreversible.[5] The tribunal’s findings were based on expert evidence which established that the problematic aspect of the project were the construction of roads, situated in the turtles’ critical habitat, that would subsequently remain open after the completion of the project. Such road would increase morality due to motor vehicle collision, poaching (as the road increase access to their habitat) and predation of nests (as the turtles are attracted to the road’s gravel for nesting even though it offers little cover from predators). The evidence showed that the Blanding’s turtle in the project’s region could not sustain an increase in mortality. Having found that the project would cause serious and irreversible harm to the Blanding’s turtle, the ERT allowed the appeal and revoked the REA.

Reasonableness Review and the ERT

Divisional Court: A De Novo Review?

The proponent appealed the decision of the ERT to the Divisional Court pursuant to section 145.6 of the EPA. The appeal was circumscribed by the fact that such statutory appeals are only on questions of law and are to be treated, as the Supreme Court recently reminded us, as judicial review based on administrative law principles.[6] Nevertheless, the Court, under the pen of Nordheimer J, allowed the appeal in Ostrander Point GP Inc v Prince Edward County Field Naturalists on substantive and procedural grounds. It found that the ERT interpretation of the EPA and the Endangered Special Act was subject to reasonableness review,[7] while issues of procedural equity were to be accorded no deference.

The procedural ground was fairly straightforward: the parties did not have an opportunity to make submission on the remedy. Substantively, the Divisional Court found that the ERT erred in not considering serious harm and irreparable harm as separate branch of the harm test. It also found that the ERT did not have any evidence on current vehicular traffic on the project site, and on the population size of the Blanding’s turtle. It also found that the ERT did not properly consider the Endangered Species Act permit obtained by the proponent, and its potential enforcement by the Ministry of Natural Resources. Finally, the Court found that the conclusion of the ERT that it could only revoke the REA and not modify it was clearly wrong. The Court also rejected the appeal of the ERT findings on the other issues (this part of the judgement was not appealed further).

The Divisional Court’s approach to judicial review in Ostrander Point GP Inc was problematic to say the least. While the Court did recognize it owed the ERT deference, its analysis doesn’t reflect this recognition. The Court looked at the evidence and came to its own conclusion without actually considering whether the decision as a whole was a possible outcome given the mountain of evidence reviewed by the tribunal and given its expertise on environmental issues. It is therefore no surprise that the decision was appealed to the Ontario Court of Appeal in Prince Edward County Field Naturalists v Ostrander Point GP Inc.

Ontario Court of Appeal: What Reasonableness Review Looks Like

The Court of Appeal recognized at the outset the importance of the issue and the prima facie problematic approach of the Divisional Court in its order granting a stay of the lower court decision.[8] On the merit, Juriansz JA, writing for the Court, found unnecessary to address the nuances of reasonableness review. A correct approach in my view as this case actually presented a fairly straightforward and simple example of reasonableness review. In fact, the Court of Appeal demonstrated exactly what a judicial review of a specialised tribunal should look like in most cases.

On the serious and irreversible harm test, the Court stated that the reason as a whole clearly showed that the ERT was aware of the two part nature of the test and that it found the harm to the Blanding’s turtle both serious and irreversible (especially considering the specie’s inability to take an even small increase in mortality). The parsing and hair splitting approach of the Divisional Court did not consider the reason as a whole and gave no proper weight to the fact findings of the tribunal which were not open to reconsideration.

The Court of Appeal further found that the ERT conclusions on mortality was reasonable since the expert evidence showed that it was not necessary to known the size of the population or the extent of vehicular traffic to come to the conclusion that any increase in mortality rates would be serious and irreversible. These were findings of facts which the tribunal was entitled to make. Whether the courts agreed with them was irrelevant.

Juriansz JA then applied the same logic to the Endangered Species Act permit. He found that the permit was not binding on the ERT (the permit states that the proponent is not released of other legal obligations) and that since the ERT did consider the permit’s mitigation measures but found them insufficient in this case considering the evidence (mainly that the permit application considered the Ontario population as a whole while the REA was concerned with the local population) the courts were not entitled to interfered with the tribunal’s findings.

On the issue of remedy, the Court of Appeal agreed with the Divisional Court that it was not realistic to expect the parties to make submissions on remedy without first knowing the ERT findings and that therefore the ERT should have given the parties an opportunity to address remedy after the decision was rendered. The Court of Appeal disagreed with the Divisional Court’s conclusion that the ERT erred in law in finding it did not have jurisdiction to alter the REA. Juriansz JA, however, found the reasoning of the ERT on why it could only revoke the REA in this case to be obscure and thus unreasonable. The ERT’s conclusion that the project would cause serious and irreparable harm to the Blanding’s turtle was restored while the issue of remedy was sent back to the tribunal.

Conclusion: The Delicate Balance of Environmental Interests

As a matter of law, the Court of Appeal decision was the correct one in my opinion. The ERT factual conclusions were detailed and comprehensible. The ERT was clearly aware of the REA appeal test, and clearly found that the appeal was warranted on the issue of the Blanding’s turtle. Overall, the decision was comprehensive, well-reasoned and intelligible, thus reasonable. On the other hand, the ERT reasons on remedy were far from clear and it was impossible to determine how the tribunal arrived to its conclusion. That conclusion was clearly unreasonable. The Divisional Court’s judgement is an example of what not to do in reasonableness review: searching details in the reasons of the tribunal that the courts dislike and presenting them as unreasonable findings. Reasonableness review is a holistic approach to tribunals’ reasons with due regards to the circumstances of the case, not a dissection of every sentences taken out of their context.[9] While there are cases where the reasonableness of a decision will not be clear (and therefore the meaning of reasonable), this was not such a case.

As a matter of principle, I also believe the decision was the correct one. The ERT decision is a product of the REA regime which permits appeal by any Ontario residents on broad environmental issues (a provision of the EPA that should be expanded to other issues in my view, but that point is for another post). The regime has the particularity of pitting environmental concerns against each other. Climate Change is without a doubt a problem of monumental proportion and renewable energy is bound to play a part in its mitigation. Nonetheless, the Prince Edward County Field Naturalists saga raises the question of how far we are willing to go to promote renewable energy. Should we prioritise its development to the point where we dismiss other environmental concerns? I think not, and I believe, at least in part, that’s why the regime was adopted by the legislature in the first place.

The Court of Appeal decision reflects the delicate balancing exercise REA appeals pose. The Court, like the ERT, emphasized the endangered nature of the Blanding’s turtle. Given the ERT strong finding of harm, it was clear that the REA could not stand as it was issued. Nevertheless, given the circumstances, the remedy was not appropriate. It is not the end of the project, however, it was simply sent back to the drawing board to see if it can be accomplished without jeopardising the survival of the Blanding’s turtle in Prince Edward County.

While in the end this was a judicial review and therefore the Court of Appeal’s reasons cannot be taken as a policy dictate, Prince Edward County Field Naturalists serves as a reminder that we cannot promote one aspect of environmental protection to the detriment of another. If we are to pursue progressive development of renewable energy, it can only be accomplished by ensuring that human and ecosystem health are not negatively impacted in the process. Otherwise, renewable energy projects would be no better than the industrial development that led us to the current environmental situation.

[1] Alliance to Protect Prince Edward County v Director, Ministry of the Environment, 3 July 2013, Case Nos 13-002/13-003; Ostrander Point GP Inc v Prince Edward County Field Naturalists, 2014 ONSC 974; and Prince Edward County Field Naturalists v Ostrander Point GP Inc, 2015 ONCA 269.

[2] Environmental Protection Act, RSO 1990, c E.19; see also Green Energy Act, 2009, SO 2009, c 12, Sch A.

[3] Environmental Protection Act, s 145.2.1

[4] Alliance to Protect Prince Edward County, at para 630.

[5] Alliance to Protect Prince Edward County, at paras 203 to 209; Endangered Species Act, 2007, SO 2007, c 6 at Schedule 4 under reptiles; and Species at Risk in Ontario List, O Reg 230/08, Schedule 3, item 39.

[6] Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, at para 38; see also Prince Edward County Field Naturalists, at paras 39 & 40.

[7] For those unfamiliar with administrative law, a reasonable decision is a decision that is justified, transparent and intelligible; one that fall within the range of possible outcomes considering the facts and the law: Dunsmuir v New Brunswick, 2008 SCC 9, at para 47.

[8] Prince Edward County Field Naturalists v Ostrander Point GP Inc, 2014 ONCA 227.

[9] See Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62; Canada (Minister of Transport, Infrastructure and Communities) v Jagjit Singh Farwaha, 2014 FCA 56; Pastore v Aviva Canada Inc, 2012 ONCA 642; and Paul Daly, The “Range” of Reasonable Outcomes: a Spectrum or an Accordion?, Administrative Law Matters (blog), 31 March 2014.

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