Canadian Lawyer InHouse

41 CANADIANLAWYERMAG.COM/INHOUSE SEPTEMBER 2015 I n d u s t r y S p o t l i g h t residents, usually in rural areas, have been unsuccessful in meeting the legal test to re- voke or change the terms of a permit issued by the province for a wind energy project. The one exception is the Ostrander Point plan to construct nine wind turbines in an area on the south shore of the county. The Ontario Court of Appeal earlier this year overturned a Divisional Court decision that would have approved the project. The appeal court sent the matter back to the tribunal for a second hearing because of concerns about threats to the safety of the Blanding's turtle. The case has also highlighted a statutory framework in Ontario that makes it difficult to stop a wind-energy project because of health and other concerns by local residents yet is arguably easier to block if certain spe - cies of wildlife are threatened. Eric Gillespie, a Toronto lawyer who is representing the Prince Edward County Field Naturalists in the Ostrander hearing and has acted for many residents' groups in other wind cases, says the circumstances are somewhat unique in Ontario. Wind developments in other provinces have generally been constructed in areas without any nearby communities. In On - tario, most of the projects so far have been along the "highway 401 corridor," says Gillespie, near a number of small munici- palities. "When you mix wind projects with people, you get litigation," he explains. Many of the court cases have involved residents' groups in rural communities. They have argued about the potential health hazards as a result of the sounds from wind turbines and other issues, including decreased property values. As well, there are concerns about what will happen to the large structures when they must be decom - missioned in the next 20 or 25 years. The provincial Environment Protection Act states that once a renewable energy ap- proval has been granted by the government, the ERT's jurisdiction is limited to decid- ing if the project will cause "serious harm to human health" or "serious and irreversible harm to plant life, animal life or the natural environment." The onus is also on the party challenging the project to present the evi - dence that shows the harm will occur. Gillespie says that, in terms of the re- quirements to gather the evidence, the re- newable energy provisions are similar to '' '' When you mix wind projects with people, you get litigation. ERIC GILLESPIE, Prince Edward County Field Naturalists.

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