Appeal of wind farm rejected by ontario environmental review tribunal

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Source: GLOBE Foundation

After a lengthy hearing extending between February 1st and May 26th of this year the Ontario Environmental Review Tribunal (ERT) issued its decision on July 18, 2011 regarding the appeal of the issuance of a Renewable Energy Approval (REA) by the Ministry of the Environment (MOE) for Suncor's Kent Breeze Wind Farm.

In this, the ERT's first hearing of an appeal of an REA, the Tribunal dismissed the appeals brought by Chatham-Kent Wind Action Inc. and Katie Brenda Erickson, holding that the Appellants had not shown that the project would cause serious harm to human health as is required by the Ontario Environmental Protection Act (EPA).

The decision is good news for developers of wind, solar and bio-energy generation facilities requiring an REA as it shows that the test to be met by appellants on such an appeal will be interpreted strictly by the ERT and that REAs will be difficult to overturn.

That said, the decision does contain comments regarding the current state of the science regarding the potential for wind turbines to cause harm to humans that may serve to maintain controversy on the issue.

The Conclusions of the ERT

In reaching its decision the ERT was explicit in finding that the Appellants had not met the legal test set out in the EPA and as a result the appeals were dismissed. This impact of the decision was to confirm the decision of the Director (a MOE official), effectively approving the REA for the project.

While acknowledging 'legitimate concerns and uncertainties about the effects of wind turbines on human health', the Tribunal found that given the evidence presented it could not conclude that the project as currently contemplated 'will cause serious harm to human health'.

Having made this important finding the Tribunal then went on to 'note' that the research regarding the impact of wind turbines on human health is at 'quite an early stage' and that knowledge and understanding of the impacts of wind turbines on human health will likely progress in the future as further research and analysis is undertaken.

While this statement may seem innocuous, it was followed in the decision by further statements regarding potential impacts of wind turbines on human health. These further comments suggest that potential impacts on human health, while not serious enough to meet the statutory test on appeal, are of a nature to require further study and to attract continued concern of stakeholders. Specifically, the ERT states in its conclusions that:

'This case has successfully shown that the debate should not be simplified to one about whether wind turbines can cause harm to humans. The evidence presented to the Tribunal demonstrates that they can, if facilities are placed too close to residents. The debate has now evolved to one of degree.

The question that should be asked is: What protections, such as permissible noise levels or setback distances, are appropriate to protect human health? In Ontario, recent regulations have provided guidance in that regard.

In cases such as this, where the Appellants have not sought to demonstrate any type of unique harm associated with the design of this Project and have not attempted to demonstrate the sensitivity of a particular receptor, it was essentially up to the Appellants to prove that the Ontario standards are wrong in the context of the specific Project under appeal (leaving aside the related question about possible non-compliance with the standards).

Just because the Appellants have not succeeded in their appeals, that is no excuse to close the book on further research. On the contrary, further research should help resolve some of the significant questions that the Appellants have raised.'

While the conclusions of the ERT above relate to the state of the current science of the potential impacts of wind turbines and are not incendiary, it is possible that opponents of wind generation may interpret or portray these comments as suggesting that wind turbines remain somewhat risky notwithstanding the evidence to the contrary.

Other Points Discussed in the Decision

The decision is notable as it is the first to deal with an approved REA. The REA was created by amendments to the EPA which accompanied the introduction of the Green Energy Act in support of the initiative to encourage the development of renewable generation in Ontario along with the implementation of the Feed-in-Tariff approach to contracting for the development of renewable energy generation.

Being the first appeal of an REA approval the decision includes discussion of several aspects of the approval process and the interpretation of the legislation and related regulations. Included in those discussions are some interesting findings.

One relates to the role of the 'precautionary principle' which is often cited as the rationale for avoiding any activity that may have a negative impact on the environment. This principle essentially suggests that where the effects of an activity are not entirely known, one should err on the side of caution until there is more certainty of the nature of the likely effects.

In this case, the ERT find that the precautionary principle can have a role in making decisions under the EPA regarding the appropriateness of an REA being granted. However, the Tribunal also goes on to state that:

'In light of the clear wording of section 145.2.1(2), the precautionary principle does not allow the Tribunal to exercise discretion if an appellant only establishes that there is a threat of serious damage (using the wording of the principle).

The statutory test has a higher burden, that is, 'will cause serious harm'. In this regard, section 145.2.1(2) is materially different from other more precautionary statutory tests in the EPA such as section 143(3).'

This is an interesting finding in the context of the limited jurisprudence on the precautionary principle in Ontario that will be of interest to those active in environmental advocacy, both in energy and other fields.

In the discussions and findings like that set out above, some of which may not have been required to make the decision, the ERT provides some interesting insights into the manner in which future Tribunals will consider REA appeals.

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