On September 28, 2012, the ERT released its decision dismissing the Summerhaven REA appeal. The appeal focused on allegations of serious and irreversible harm to plant life, animal life or the natural environment. The argument that one bird or bat mortality will always constitute such harm was rejected. Instead, the ERT acknowledged that it is anticipated that wind energy projects can be approved notwithstanding that some mortalities will occur. Ultimately, the appeal was dismissed because the appellant’s evidence was insufficient to meet its onus.
Summerhaven was only the second of eight REA appeals filed to date, to proceed through a full hearing. The Kent Breeze appeal was the first to be dismissed due to insufficient evidence. Three others were withdrawn after the ERT required disclosure of medical records and expert evidence to support allegations of serious harm to human health. Three additional appeals continue to proceed.
The ERT also released reasons for decision on motions in the South Kent and Grand Renewable Energy Park(“GREP”) appeals on September 28, 2012. In South Kent, the ERT reiterated the requirement that allegations of harm to health be supported by medical documents. In GREP, the ERT rejected an appellant’s adjournment request after it had failed to make timely and reasonable efforts to disclose the medical information to which its request was tied.
Albert is an Associate whose practice involves all aspects of Renewable Energy and Environmental Law. He joined Foglers in 2010 after 10 years with Ontario’s Ministry of the Environment. He is a graduate of York University’s joint MES/LLB program and also has a B.Sc. in Biology from York. He can be reached at aengel@foglers.com or 416-864-7602.
