Press Release – April 14, 2014 – PECFN Files for Leave to Appeal
PECFN Files for Leave to Appeal Divisional Court Ruling
For immediate Release
Picton: PECFN has filed their submission to the Court of Appeal asking for leave to appeal the Divisional Court reversal of the decision of the Environmental Review Tribunal. Last July the Tribunal revoked the approval of a Gilead Power wind turbine project at Ostrander Point Crown Land Block in the centre of the Prince Edward County South Shore Important Bird Area. There have been more than 20 appeals of Renewable Energy Approvals since the Green Energy Act came into effect in 2009. All but the PECFN appeal resulted in dismissals. In allowing PECFN’s appeal, the Tribunal rendered a landmark and precedent-setting decision.
Soon after the Divisional Court decision Gilead Power announced its intention to start construction in April. PECFN brought an urgent motion for a Stay of construction and leave to appeal the Divisional Court decision to the Court of Appeal. In his decision submitted on March 25, Judge Blair of the Appeal Court held that he had “no hesitation in granting the Stay” because the issues raised on the proposed appeal are of “broad public implication in the field of environmental law”. Further he found that the irreparable harm criterion had been satisfied on the basis that “once a habitat is destroyed, it is destroyed – for at least short-term purposes, in any event – and the species sought to be protected here is a vulnerable and endangered species.”
On April 4, the Divisional Court found that Gilead’s demand for $120,000 legal costs from PECFN was too high and lowered it to $40,000. More importantly, the reason given is that “clearly the case is of important public interest”. It is significant that two judges have based decisions on the importance of the case to the public interest. “We see this as a positive indicator that permission to appeal will be given” commented, Myrna Wood, PECFN president. “We will also be able to use this argument for an appeal against paying any legal costs to Gilead or the Ministry”. “The notice of intention to seek leave to appeal has attracted increasing expressions of support for PECFN’s opposition to industrialization of the South Shore IBA. We believe that this important test of Ontario environmental law encourages other environmental and legal organizations to apply to intervene in the appeal.” Wood continued.
The struggle to save Ostrander Point has gained a broader dimension since two other wind turbine projects in the area have been submitted to the government Registry (EBR) for public comment. The White Pines proposal includes 29 turbines spread across private lands within the IBA surrounding Ostrander Point. Windlectric Inc. proposes 36 turbines spread across the Amherst Island’s natural areas. Residents of Amherst Island have applied to the Superior Court of Justice in Toronto for a judicial review of the Ministry of Environment’s approval of the application. They challenge the company’s claims that their plan has mitigated any harmful effects to wildlife and people prior to construction.
The cumulative effect of proposed turbine projects surrounding eastern Lake Ontario creating a barrier across the eastern flyway of migrating birds and bats is a concern for all naturalists. If approved, these projects will displace wildlife from shorelines, the most important staging and resting habitats for many species. Renewable energy will not be ‘green’ if it destroys significant wildlife habitats. Recognition of this fact is demonstrated by two recent project cancelations.. British Petroleum has cancelled a project on Cape Vincent across from Wolfe Island. On the Lake Erie Pelee flyway two proposed projects in Ohio have been cancelled due to the threat of a lawsuit by Black Swamp Bird Observatory and the American Bird Conservancy.
The Appeal Court’s decision on our request to appeal may not be made until June. In May, everyone will be enjoying one more spring migration and searching for emerging Blanding’s turtles along the South Shore firmly resolved to continue in the struggle to Save Ostrander Point.
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