I recently wrote an article on the Hanna v. Ontario (Attorney General) decision of the Ontario Divisional Court which appeared in the July edition of the Ontario Bar Association’s Environews1, and is re-printed below. In that case, the Divisional Court rejected an application for judicial review challenging the set back provisions of the Renewable Energy Approvals Regulation. The Court held that it was not their call, as redress could have been sought from the Environmental Review Tribunal (“ERT”).
Since then, the world of wind in Ontario has seen a few developments.
- Hanna sought leave to appeal to the Court of Appeal but leave was refused without reasons on June 20, 2011.
- The ERT released its decision in Erickson v. Director, Ministry of the Environment2, an appeal of the Director’s decision to issue a Renewable Energy Approval (“REA”) on November 10, 2010, to Suncor Energy Services Inc. to establish a 20 MW wind facility in Chatham-Kent (known as the Kent-Breeze Project). The Project was one of the first approved under the Green Energy Act, 2009.
Following the issuance of the REA, Chatham-Kent Wind Action Inc. and Katie Brenda Erickson appealed the Director’s decision to issue the approval on the grounds that the Project would “cause serious harm to human health,” which is the statutory test set out in s. 142.1 of the Environmental Protection Act (“EPA”). The ERT confirmed that the onus of proof was on the appellants, which if met on a balance of probabilities, would give the ERT jurisdiction to confirm, alter or revoke the Director’s decision on the approval. During the course of the hearing, the ERT heard evidence from more than two dozen expert witnesses on the subject of potential harm or unknown harms from wind turbines. The ERT reasoned as follows:
1. Not Enough Evidence to Support Claim for Serious Harm to Human Health
The parties agreed that the Project as proposed would not cause direct impacts to human health, such as hearing loss. The focus of much of the appellants’ case was on indirect impacts. The ERT found that the statutory test for serious harm includes both direct and indirect impacts.
The issue therefore was whether indirect impacts would be caused at a level that meets the “serious harm to human health” threshold, as the appellants argued. The ERT found that the appellants were not required to prove the mechanism causing harm. “What needs to be shown here, given the wording of the legal test, is that the effect is being caused by the Project, even if the exact mechanism is unclear.” On whether the appellants met the legal test, the ERT wrote:
[The appellants] provided evidence that the Tribunal finds to be exploratory in nature, even if given significant weight… It is, therefore, no surprise that the legal test, which requires proof of harm, has not been satisfied when the applicable scientific evidence is in such an early stage of development.
Nevertheless, the ERT was careful to note that “the science in this area is evolving and it is hoped that future studies will shed additional light as to possible impacts on human health.”
In addition to noise, the ERT concluded that there was insufficient evidence for a finding that serious harm to human health would occur due to tower collapse, blade failure/throw, ice fall/throw and shadow flicker.
2. Prediction, Measurement or Assessment of Sound from the Facility
The appellants called evidence about the challenges and uncertainties associated with predicting, measuring and assessing sound. The ERT concluded that the appellants failed to show how these uncertainties would cause serious harm to human health. The appellants were able only to demonstrate that predictions, measurements and assessments will not be completely accurate.
3. Compliance with the MOE’s Statement of Environmental Values (“SEV”)
The Ministry of Environment’s (“MOE’s”) SEV can play an important role in informed environmental decision-making. The appellants argued that the approval granted in this case did not comply with the MOE’s SEV, and in particular the SEV’s precautionary wording. Accordingly, it was argued, the approval will cause serious harm to human health. The Director testified about the role of precaution in his decision-making process. The ERT found that “based on [the Director’s] testimony, the Tribunal has some concerns about the Director’s understanding of the role and applicability of the [precautionary] principle… The impression left by some of the Director’s comments is that more work should be done within the MOE on putting the precautionary principle into practice.” Ultimately, however, the ERT found:
… the appellants have not proven that serious harm will be caused with reference to the approval’s alleged non-compliance with the SEV. Rather, they have simply raised valid concerns about the process by which the application was assessed in light of the SEV. This is not enough to satisfy the section 145.2.1 test and provide jurisdiction to the Tribunal to make changes to the approval decision.
The ERT considered the appellant’s arguments and experts’ opinions on the issue of whether wind turbines cause serious harm to human health. The Tribunal concluded that “the evidence shows that there are some risks and uncertainties associated with wind turbines that merit further research”, just not enough to satisfy the steep burden on the appellant in terms of overruling the approval granted to Suncor. Industry experts believe that this burden will never be met given the number of studies already conducted in the UK and Europe showing no serious health effects, and with turbines significantly closer to receptors than the current Ontario setback distance, in many cases.
1 Tamara Farber, In the World of Wind: Setback Shmetback – Divisional Court Says Not Their Call, online: Ontario Bar Association’s Environews, Volume 20, Number 4, July 2011.
2 Erickson v. Director, Ministry of the Environment (July 18, 2011), Case Nos. 10-121/10-122, per DeMarco and Muldoon, online: ERT.