The Renewable Energy Approval (“REA”) for the Fairview Wind Farm (“Fairview”) in Clearview Township was revoked by the Environmental Review Tribunal (“ERT”) on the basis that the project would cause serious and irreversible harm to the endangered species of bat, the little brown bats. The ERT also concluded, for the first time, that there would be harm to human health due to close proximity of the project to the Collingwood Airport and the Clairview Field Airport.
The ERT granted a request from Fairview to address remedies with respect to the finding of serious and irreversible harm to the little brown bats through further submissions at a remedy hearing. Fairview did not request such hearing for the finding on harm to human health. In the remedy hearing, the ERT had to determine, under s. 145.2.1(4) of the Ontario Environmental Protection Act (1990) (“EPA”), whether to (a) revoke the decision granting the REA, (b) direct the Director to take such actions as the Tribunal requires in accordance with the EPA or (c) alter the decision granting the REA.
Following the remedy hearing, the ERT released its decision on August 16, 2017 noting that, with regards to the little brown bats, Fairview’s remedy plans would likely reduce little brown bats mortality significantly. However, the ERT ordered that the REA be revoked because Fairview was unable to propose effective means to mitigate the serious harm to human health. In light of this decision, the ERT concluded that an amendment to the REA to include the mitigation plan regarding little brown bats was not necessary.
Given that the Fairview Project decision was the first ERT decision to find harm to human health, it was unclear how Fairview would address remedy through further submissions. In the main hearing, the ERT had considered mitigation measures put forward by Fairview but ultimately decided that there was insufficient evidence that the proposed mitigation measures would be effective. In the remedy hearing, Fairview did not provide additional evidence supporting these mitigation measures nor did it propose new measures. In fact, Fairview did not make any submissions on this issue.
As noted, this was the first ERT decision to revoke an REA based on the finding of harm to human health. In this case, the harm to human health arose from the danger caused by the project’s proximity to the airport, and not from any concerns related to the general impact of wind farms on human health. It will be interesting to see whether this decision will have any impact on human health-related arguments made before the ERT in future REA appeals. The period to file an appeal expired on September 15, 2017.
About the authors
Joanna Rosengarten is Counsel and Brianne Paulin is an articling student with McCarthy Tétrault in Toronto.