Comments by Ostrander Point ERT presenter / expert

[Following is a comment (slightly edited) submitted to the Whig Standard recently by Ian Dubin, who was qualified as a presenter and expert witness in the Ostrander Point ERT appeal. He is a civil / geotechnical engineer with additional qualifications in law and environmental impact assessment, and with decades of experience in the field of environmental protection.]

I was very pleased to see the Ostrander Point Environmental Review Tribunal Appeal decision. I am especially happy that my small contribution apparently helped the ERT to determine that the proposed Industrial Wind Energy project will cause unacceptable harm to the natural environment, in particular the Provincially threatened Blanding’s Turtle. This is a milestone decision – and I can only hope it helps open the door to more successful appeals against Industrial Wind Energy in Ontario.

However, this is a very narrow victory and I was less pleased that appeal evidence of other serious potential impacts was not allowed by the ERT.

On reflection this is not surprising, since the grounds for a successful appeal against projects approved under the so-called Green Energy Act are extremely onerous. Under section 142 (1) of the Environmental Protection Act, in order for an appeal against a GEA approval to succeed, the appellant must show that the project will cause ‘serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment’. Any uncertainty as regards the potential for serious and irreversible harm and the appeal is likely to be dismissed.

Never mind that the impacts are incontrovertible. Never mind that the Environmental Impact Assessment carried out under the terms of the GEA and OReg 359/09 has serious technical shortcomings. Never mind that Federal siting guidelines have been ignored. Never mind that if this were under Federal jurisdiction the public concerns raised would warrant a public hearing on the project. Never mind that the Provincial approval process by the MOE appears to be a rubber-stamp: glossing over important social, environmental, economic and health issues, sweeping public comments under the rug – once that rubber stamp comes down (as it did for Ostrander Point on 20 December last year – arguably a cynical manipulation of a short statutory appeal deadline by the MOE) the onus of proof shifts to the very stringent requirements under the EPA. I submit this is not good law and more importantly is not good environmental policy.

For many years Canada and Ontario have attempted to promote an international reputation as clean and green jurisdictions and as shining examples of successful environmental protection regimes. When I started my career nearly 40 years ago this may have been true, or at least it may have been a goal we worked for. Nowadays, however, the tarnish is showing through the shine.

The Feds are not innocent. The 2012 budget omnibus bill included measures to ‘streamline’ environmental approval processes and a great many commentators have been critical of the removal of many protective measures. I have lots of issues with the Federal environmental assessment regime – in particular the lack of transparency and the woeful neglect of follow-up and audit measures.

However, despite the problems with Federal environmental controls, and with many other aspects of the Provincial environmental assessment requirements, the Green Energy Act is in a class by itself, a control regime that is worthy of the worst third world dictatorships.

During the public comment period on the Stantec Environmental Assessment Report on the [Ostrander Point] project, I (and many other stakeholders including other experts and interested members of the community) raised numerous issues with regard to the assessment and particularly with Stantec’s reports. According to the Ontario Environmental Bill of Rights website, a total of (from memory) about 1500 public comments were received. The EBR website listed about 400 of those comments and included replies to those from the Ministry of Environment. But what happened to the other 1100 comments? There is no record that anyone at MOE even bothered to read them. The comments and responses are no longer available on the EBR website.

My own comments, which were not recorded nor dealt with in any way, were technical in nature and called the conclusions of the Stantec EIA Report into question. It was on this basis that I filed a witness statement with the ERT. As I set out in that submission, the primary issue I was concerned with was that the MOE approval had ignored potentially important criticisms of the Stantec Report. Therefore the Provincial EIA Process failed to demonstrate that all relevant environmental issues had been dealt with. I pointed out that the Minister of the Environment had therefore not fulfilled his primary duty under the Environmental Protection Act which is (S 3 (1) EPA) ‘to provide for the protection and conservation of the natural environment.’

I referred in my ERT submissions to the Precautionary Principle. This principle – a corollary of the Hippocratic Oath and one of the precepts of modern medical ethics: ‘first, do no harm’ – has been one of the keystones of environmental protection legislation worldwide, since Richard Nixon – yes, that Richard Nixon – signed the National Environmental Protection Act (NEPA) into US law in 1969. It was expressed succinctly during the Second International Ministerial Conference on the Protection of the North Sea in 1987 and codified in Principle 15 from the Rio Declaration put forward at the 1992 United Nations Conference on Environment and Development.

Under the precautionary principle it is the responsibility of a proponent to establish that the proposal will not (or is very unlikely to) result in significant harm.

The precautionary principle denotes a duty to prevent harm, when it is within our power to do so, even when all the evidence is not in. This principle has been codified in several international treaties to which Canada is a signatory. Domestic law makes reference to this principle but as a number of authorities have pointed out, implementation remains limited. As regards the Green Energy Act the precautionary principle is roundly ignored and that was part of the basis of my submission to the ERT.

This is also the problem with the ERT process. Once the approval has been given, no matter how flawed the approval process was, the onus shifts to an appellant to ‘prove’ that the project will cause serious and irreversible harm. This violates the precautionary principle and is an important reason why the Green Energy Act needs to be repealed.

During the public review and comment period on the Stantec EIA report for Ostrander Point, interested parties commissioned several independent studies on various environmental issues. Amongst these was Dr. Beaudry’s report on the Blanding’s Turtle, which was submitted to MOE as a response to the Stantec Report. Because of the slipshod MOE approval process there appears to be no record that anyone at MOE read or considered Dr. Beaudry’s report. I raised that omission in my ERT submission and the Prince Edward County Field Naturalists subsequently called Dr. Beaudry as a witness.

It was Dr. Beaudry’s evidence that turned the tide of the appeal.

Again, I am pleased at the outcome, but it does not go far enough. It is high time that McGuilty’s – oops, I mean McGuinty’s – so called ‘Green Energy’ fiasco is brought to a richly deserved and long overdue end.

As a final comment, it disgusts me to see the MOE committing taxpayers dollars to an appeal of the ERT decision. The people that don’t want this project will pay for the MOE appeal.

Signed.... Ian Dubin