By Tamara Farber Miller Thomson, LLP
ENGINEERS & THE LAW Wind Turbines and HealthEnergy Green, Alternative Energy Power generation
Hanna v. Ontario (Attorney General) was at the centre of some controversy amongst those in the Ontario environmental and renewable energy industries.
What seemed to start out as an attempt by a local resident to potentially quell wind power development in his community, turned into a full blown assault by his legal team on how the Ministry of Environment came up with a policy for setbacks on wind turbine development. The case began as a judicial review in the Ontario Divisional Court challenging various sections of the Renewable Energy Approvals regulation under the Environmental Protection Act that sets out the minimum setback requirements for wind energy developments.
The heart of the challenge was that the government failed to abide by its own requirements to “take every reasonable step to ensure the Ministry of Environment’s Statement of Environmental Values (SEV) is considered whenever decisions that might significantly affect the environment are made by the Ministry.” Hanna claimed that the Ministry’s SEV required it to use a precautionary approach in decision-making to protect human health and the environment. He claimed that the Ministry had no medical studies in support of the recommended 550-m setback requirements for industrial wind facilities (generating power in excess of 50 kW), and that as a result, it did not have sufficient information to make a decision that was protective of human health.
The Divisional Court rejected Hanna’s application in March 2011, holding that the legislative requirements simply require a minister to “consider” the SEVs in decision-making.
The initiative of the Renewable Energy Approvals regulation1 itself, being the generation of clean energy and reduction of greenhouse gas emissions, seemed to qualify as a component for consideration for the Ministry of Environment’s SEV.
The Court also held that in this case it was not their call as to whether the approval was proper – redress could have been sought to the Environmental Review Tribunal to overturn or amend the approval.
Hanna sought leave to appeal to the Court of Appeal but was denied leave in late June 2011.
Next chapter in the story – Part I
In July 2011, the Environmental Review Tribunal (ERT) released a decision in another case involving wind turbines – specifically, whether an approval should have been granted in Erickson v. Director, Ministry of the Environment. The case involved an appeal of the Ministry of Environment’s decision to issue a Renewable Energy Approval to Suncor Energy Services to establish a 20-MW wind facility in Chatham-Kent (known as the Kent-Breeze Project).
The Kent-Breeze project was one of the first approved under the Green Energy Act, 2009. The appeal was sought by Chatham-Kent Wind Action and Katie Brenda Erickson on the grounds that the project would “cause serious harm to human health,” a statutory test set out in section 142.1 of the Environmental Protection Act. 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 Tribunal reasoned as follows.
Not enough evidence on serious harm
The issue was whether indirect impacts would be caused at a level that met the “serious harm to human health” threshold, as the appellants argued. The Tribunal noted: [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.” They 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;
- while it was true that sound measurements are not completely accurate, the appellants failed to show how these uncertainties would cause serious harm to human health;
- “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: (a) the number of studies already conducted in the U.K. and Europe showing no serious health effects; (b) turbine setback requirements in other jurisdictions are, in many cases, significantly closer to receptors than the current Ontario setback distance.
Postscript: Part II
Down but not out. On September 11, a family near the Kent Breeze wind farm have launched a civil suit against Suncor Energy Services alleging they have suffered health problems as a result of the turbines. They are seeking an injunction to shut down the operations, and damages of $1.5 million.
The wind cases in Ontario this past year seems to pave the way forward for more regional approvals but there are always provisos – results may differ after an election or litigation! cce
Tamara Faber is a certified specialist in environmental law and a partner with Miller Thomson LLP in Toronto.