A Free-Market Energy Blog

Wind Power vs. Ontario Environmentalism (ERT says no)

By Sherri Lange -- June 8, 2016

“This decision not only protects the Blanding’s turtle but also the staging area for millions of migrating birds and bats and the Monarch butterflies.” – Cheryl Anderson, PECFN 

In an unprecedented decision, Ontario’s Environmental Review Tribunal (ERT) ruled against the nine-turbine Ostrander Point project sited for a prime sensitive and environmentally rich area. Cheryl Anderson, the lead appellant on behalf of Prince Edward County’s Field Naturalists (PECFN), stated:

The Tribunal in the Ostrander Point ERT hearing has found that “the remedies proposed by Ostrander [Gilead] and the Director are not appropriate in the unique circumstances of this case.  The Tribunal finds that the appropriate remedy under s.145.2.1 (4) is to revoke (emphasis, Ms. Anderson) the Director’s decision to issue the REA [Renewable energy Approval]”.

The Tribunal decision says that no matter how important renewable energy is to our future it does not automatically override the public interest in protecting against other environmental harm such as the habitat of species at risk.  This was the basis of PECFN’s appeal.

This decision not only protects the Blanding’s turtle but also the staging area for millions of migrating birds and bats and the Monarch butterflies. 

The Tribunal decision reminds the Ministry of Environment and Climate Change of its Statement of Environmental Values that “As our understanding of the way the natural world works and how our actions affect it is often incomplete, [government] staff should exercise caution and special concern for natural values in the face of such uncertainty.”

Ontario has perpetuated its goals of pushing industrial wind by placing in front of objecting communities, virtually all, a wall of near impossibility: overriding the goals of the ERT, which is essentially to facilitate industrial wind, and comply with the renewables goals of the Province. The odds to date have been insurmountable. The costs to communities to fight the tight timelines, enormous. The Tribunal at times has been chastised for lack of clarity, and lack of objective standards, and even charged by lead lawyer, Eric Gillespie, with conflicts of interest; the Tribunal process is now seen widely as tainted, a mere puppet for Liberal policies, and in the public’s view, not anywhere near to compliance with the Province’s statement of Environmental Values.

So the years’ long battle to protect this prime sensitive area met its conclusion today, with celebrated news: a celebration for some tarred by their own inability to master the ERT’s circular and Kafkaesque manners and rules; communities already gouged with massive turbines and loss of health. Imagine looking down the throat of an approved project, facing a 15 day deadline to register an objection with the ERT, and then enormous legal costs, and until now, a rubber stamp process with zero compassion or logical conclusions.

The Decision

Years of wrangling and a preliminary decision by the Tribunal that the Blanding’s Turtle would be negatively impacted, brought about the second layer of developer led proposals for “mitigation” or an Impact Plan. The Tribunal under the REA (Renewable Energy Act) could supervise implementation of this Impact Monitoring Plan and address the risk of harm to the Blanding’s Turtle, including “road mortality and cumulative risk of harm, and harm to Blanding’s turtle habitat.”

Replete with language suitable for a Ministry of the Environment (and Climate Change), MOECC, the decision reminds the province that the public good must be served in applying or denying approvals, and that also,

“…the Tribunal should have regard to the broader considerations of the “environment” as defined in the Environmental Assessment Act (this term and its definition are specific to the purpose of Part V.0.1 of the EPA which governs renewable energy approvals by the Director). The Director further submits that these considerations include: the impact of the proposed remedy on Blanding’s turtle.”

The language within the decision provides insight as well: possibly a reflection of things to come with other related projects such as White Pines, and Amherst Island, where Blanding’s Turtles are also in prime habitat.

“The SSC (South Shore Conservancy) argues that in balancing public interest considerations, the Tribunal may legitimately consider the consequences of uncertainty of the results of the proposed mitigation measures. It submits that, if it is not clear on the evidence that the proposed mitigation measures will sufficiently protect the local population of Blanding’s turtle, then the Tribunal may consider that the risks to the population outweigh countervailing considerations, such as the claimed “importance of renewable energy”. (Our emphasis)

Important conclusions of this decision will resonate with Lakeside communities both sides of the border, and beyond. The implications are that the LEEDCo (Lake Erie Icebreaker) project, 6-9 exploratory turbines in Lake Erie, fraught with environmental obstacles, as well as other projects (Galloo) for perimeter migration routes, as well as the universal recognition of the importance indeed, of “at risk” or endangered species, humble as the turtle, will use this decision fruitfully. Two more Ontario nearby projects, White Pines and Amherst, have already seriously impacted the soon to come Tribunal decisions as they have Blanding’s Turtle viewings and identical likely findings.

(Enumeration below is ours and is a selection of key points.)

  1. “This is the first renewable energy approval appeal proceeding in which an appellant has met the environmental harm test in s. 145.2.1(2)(b) of the Environmental Protection Act (the “EPA”) and, therefore, this is the first case to engage the Tribunal’s statutory discretionary remedial power under s. 145.2.1(4). “
  2. …. Mr. Taylor states that it may be important to inhibit turtles from nesting on the shoulders of the access roads, which can “best be accomplished” through fencing the roads. However, neither of the Blanding’s turtle experts, Dr. Beaudry or Mr. Crowley, recommends exclusionary fencing as a means of keeping the turtles off the roads in this location, nor did the road expert Ms. Gunson. They observed that the access roads form a circle located entirely within high quality Blanding’s turtle habitat that Blanding’s turtles may criss-cross in every direction for their various life cycle requirements. There are temporary wetlands scattered throughout the Project Site, permanent wetlands in the south-east corner of the Project Site and to the north, and connected wetlands along the west side, with Lake Ontario to the south (see para. 337 of the APPEC decision).   Fencing was not recommended by the experts in the 2013 hearing because it would fragment this high quality habitat, creating more harm than good. For these reasons, the Tribunal concludes it is not an acceptable mitigation measure in this location.  (Our emphasis)
  3. The experts disagreed on the likely “success” of creating artificial nesting habitat in discouraging Blanding’s turtles from nesting on roadsides. Much of the disagreement originates from their different definitions of success.
  4. On the question of the definition of “success”, Mr. Taylor noted in his witness statement that in the USA, “wetland construction success is deemed to be acceptable by the US Corp of Engineers, and, therefore, deemed successful by the proponents, if the plants simply remain alive after three months.” Nonetheless he recognized that “the key to the preservation of this species … is to plan for their longevity,” and that Blanding’s turtles “are thought to live to an age of about 65-75 years, perhaps longer”. For this reason he opined that the 20-year conservation recommendation for the compensation property in the ESA permit may be inappropriate.
  5. The Project Report states that access roads are to be composed of “granular A” gravel material, which all experts acknowledge is often used by Blanding’s turtles for nesting. The experts agreed that turtles are less likely to nest on hard road shoulders, or in areas with dense vegetation. No evidence was adduced, however, to indicate how these measures could successfully be implemented at this Site.
  6. ….much of the Ostrander Point area is an MNRF-designated “significant” alvar, or an alvar landscape, which is “characterized by a mosaic of distinctive plant associations adapted to extreme environmental conditions, including periodic flooding and severe drought, mediated by shallow soil depths, variable water tables and dramatic runoff patterns” (APPEC decision, paras. 546, 558). The Tribunal found that engaging in the Project will cause “serious harm” to the alvar, although it found that the evidence did not establish that the harm would be “irreversible”.
  7. With respect to predation, the experts agreed that nest cages are effective in increasing hatchling survival, although nests may be difficult to find, even for experts. On the other hand, cages identify turtle nests, and thus increase the risk of poaching. The IMP’s Adaptive Management appendix states: “the increased risk of poaching from members of the public will be addressed by restricting public access to the road network.”
  8. PECFN relies on Dr. Beaudry’s evidence to submit that at this site, “there is simply no practical or effective way to exclude the public or personnel associated with the Project,” and that the only effective mitigation measure is to not build the roads.  
  9. For the above reasons, the Tribunal finds that Ostrander and the Director have not demonstrated, on a balance of probabilities, that the measures outlined in the IMP dated November 15, 2013, including the Road Access and Control Plan, together with the pre-existing REA conditions, will prevent serious and irreversible harm to the population of Blanding’s turtle at the Project Site and surrounding area, as was found in the 2013 APPEC decision.
  10. Having weighed all of the relevant considerations, the Tribunal finds that the remedies proposed by Ostrander and the Director are not appropriate in the unique circumstances of this case. The Tribunal finds that the appropriate remedy under s. 145.2.1(4) is to revoke the Director’s decision to issue the REA.   (Renewable Energy Approval)


In short, high quality habitat for an endangered species, access road contentions, inability to ensure sustainability of the turtle over a 20 year permit, and the fact that poaching will be facilitated, not remediated by the proponent’s mitigation plan, has led to protection of an at risk species. The first Tribunal decision in favor of wildlife in Ontario.

Years ago, noting that the bar to cross for irreversible harm is very high for the ERT, objectors crowded the hall at Demorestville, likely yet unaware of how high a hurdle. For a tattered wind-torn province, this ERT decision is long overdue.

We congratulate the PECFN (Prince Edward County Field Naturalists) and APPEC (Alliance to Protect Prince Edward County) as well as SSC (South Shore Conservancy) and CCSAGE (County Coalition for Safe Appropriate and Green Energy) and all their supporters everywhere, for their tenacity literally over years. This is a universal win: impacts will be applied quickly.

Groups around the province are now calling on the Premier and Ministers to revoke all environmentally inconsistent approvals, where potential for harm exists: that would be, everywhere. 


  1. Suzanne Albright  

    This decision is the most powerful statement of support for defenseless (against human activity) wildlife we share this planet with in a long time. Thanks to the PECFN and APPEC, as well as all others for their persistence and endurance over the past years. How sad, however, that the Ontario government put these well intended people through a living hell for so long, causing such an expenditure of resources, both financially and otherwise. If not for the commitment of these groups and supporters (including those of us in the U.S.), this project would have come to fruition.

    Let’s hope that the lesson has been well learned, and White Pines and Amherst Island are scrapped as well. Further, we will use this example here on the north shore of Lake Ontario as we continue to fight similarly environmentally destructive wind projects- Lighthouse Wind, Galloo and LEEDCo.

    Thanks as well to Ms. Lange for sharing the news of this success with all of us!


  2. Sherri Lange  

    Thanks, Suzanne. I believe this project, also as you note within a perimeter Lake migration route, will deeply impact other environmental considerations for projects like LEEDCo, Galloo, and any others that ignobly pop up.

    I also believe that bats are about to become a MAJOR force in the fight, as numbers plummet, and as many now know, turbines are killing more than White Nose Syndrome.


  3. Tom Wasilewski  

    Thank you Sherri Lange for writing this article and informing us about what has happened at this Ostrander Point project. Why did it take the ERT over a decade or more to arrive at such a decision when so many built wind projects had dramatic effects on other endangered and threatened species. Readers should realize that this project was proposed along or near the the Lake Ontario shoreline. These birds, bats, monarch butterflies, dragonflies mentioned in the staging area migrate around and over Lake Ontario and into or out of New York and other states depending on the season.

    Death by wind turbine blade adds up for all of these animal species. It is called the cumulative effect of having so many such projects to avoid. As Sherri points out accurately industrial wind turbines are now killing more bats than the dreaded white nose syndrome disease which has been getting almost all the media attention. The destruction of necessary wildlife habitat for the Blanding’s Turtle was part of the reasoning for this decision but it is occurring for many species facing the onslaught of IWTs in prime habitat in the Great Lakes region.

    This decision is important because it will shine light on the Steelwinds IWT project (14 giant wind turbines) built along the Lake Erie shoreline in Lackawanna, NY and constructed without adequate independent, science based environmental studies. Even now the state and federal governments have still failed to monitor this project to determine the bird, bat, beneficial insect killing that is occurring there. And this decision will shine light on what is happening at the many IWT projects that have been built and are being built along the Lakes Erie, St.Clair and Huron lakeshore areas in southern Ontario. Also the NY state government should require indepth, independent, scientific multi-year wildlife studies at the Apex proposed IWT project near the Lake Ontario shoreline in Niagara and Orleans Counties, NY. This is the so-called Lighthouse project that Apex wants to build 70 or more 620 ft. high IWTs. An environmental diaster in the making.


  4. Sherri Lange  

    Yes, Tom and thank you for your comment. You are one of the most persistent in spreading the word about wildlife and turbines ever. Thank you deeply.

    Dr. Robert McMurtry told us his brother wrote the other day that: “the B-turtle is only one expression of entire ecosystem shock of the monster turbine towers which are forces (equivalent to a hurricane force). Everything is affected in the surrounding ecosystem by the physical forces transmitting through surrounding habitats of air, wind and ground of all sentient life…. the B-turtle is only ONE SYMPTOM of the many ADVERSE EFFECTS from irritation to illness to death BY THESE ENVIRONMENTALLY UNTESTED MASSIVE INDUSTRIAL CONSTRUCTIONS OF MOVING PARTS.” The emphasis is his.

    Between your analysis and his, I think that about covers the depth and horror of the environmental damages.


  5. Jim Wiegand - Wildlife Biologist  

    To comment on this Proposed rule that would allow the wind industry slaughter of 6200 bald and golden eagles each year, visit this site before July 6th:

    https://www.regulations.gov/#!documentDetail;D=FWS-R9-MB-2011-0094-… and hit the comment button

    When commenting keep in mind that the approval of this rule will give amnesty to a highly destructive industry that has been lying to America for decades, rigging wind industry research and using corrupt politicians to sell these terrible turbines to America. Even a simple sentence letting .gov know how you feel about a government agency lying to its citizens is important and certainly appropriate.

    If readers remember nothing else, they should remember this about this fraudulent industry……………

    The wind industry and USFWS have never told the truth. If the industry and USFWS had been telling the truth all these years about turbine impacts, these newly proposed regulations allowing a wind turbine “harvest” of up to 4,200 bald eagles and 2,000 golden eagles would never have been issued. Instead, the industry would be asking for permission to kill only a “handful” of eagles each year, and paying significant fines for doing so.

    The American Wind Energy Association falsely claims that wind farms impact very few eagles – that “only a handful of bald eagles have been lost in the history of the industry in the U.S.”

    This is a blatant lie. The truth is that nothing on this planet slaughters our eagles like wind turbines spinning in their habitat. Large numbers of Bald eagles and White-tailed eagles (European Bald Eagle) being killed by wind turbines can be traced back many years, but this slaughter to our National Symbol and the White-tailed eagles has been routinely covered up.


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