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January 13, 2012

Turbine opponents whistling in the wind?

There’s been some good news and some bad news for proponents of wind energy in Ontario.

First, the good news: last summer, the Environmental Review Tribunal dismissed the first appeal of a renewable energy approval (REA) for a wind turbine project in its decision Erickson v. Director, Ministry of the Environment. The tribunal acknowledged the appellants presented evidence about the risk of wind turbines in general, but did not provide enough evidence about the risks posed by the project in question.

The bad news: the tribunal left the door open for future appeals, ruling wind turbines can cause harm to humans if situated too close to human receptors.

It didn’t take long for the next opponent of wind power to take up the challenge, backed by a new set of health-related arguments. On Nov. 15, 2011, Middlesex-Lambton Wind Action Group Inc. filed its appeal of the REA issued to Zephyr Farms Ltd. for a four-turbine wind farm near Watford in southwestern Ontario.

The appellant claims that industrial wind turbines cause a range of serious health effects in certain individuals at sound levels “lower than levels prescribed and at distances greater than the setbacks prescribed” in the REA. These effects are “more likely than not caused by exposure to infrasound and/or low frequency noise and/or audible noise and/or visual impact and/or shadow flicker produced by industrial wind turbines.” Further, the appellant says that the approval authority has no reliable method of predicting, measuring or assessing exposure to these emanations or effects.

In addition to the potential health effects, the appeal claims that the Ministry of the Environment did not consider the project’s economic impacts on property values, nor did it use “a precautionary, science-based approach in its decision-making to protect human health and the environment” in accordance with its Statement of Environmental Values. The hearing is scheduled to begin in January and the tribunal must issue its decision within six months of the date the appeal was filed. To better gauge the chances of the Middlesex-Lambton group, let’s review the original tribunal decision.

On Nov. 29, 2010, Katie Brenda Erickson and Chatham-Kent Wind Action Inc. filed a notice of appeal of the REA issued by the Ministry of the Environment to Kent Breeze Corp. and MacLeod Windmill Project Inc. for the construction and operation of eight wind turbine generators near Thamesville, in the Township of Camden. Seventeen days of hearings were conducted in February, March and May of 2011. Then, in a detailed decision issued on July 18, 2011, the tribunal dismissed the appeal and confirmed the approval of the project.

The streamlined REA process serves as a “single-window” approval, replacing separate environmental assessments, air and noise approvals, waste approvals, sewage works approvals, water permits and planning act approvals for designated renewable energy projects in Ontario. However, s. 142.1 of the Environmental Protection Act (EPA) allows members of the public, including corporations, to appeal REAs before the tribunal. The right to appeal is automatic and no leave is required from the tribunal.

The appellant must establish that the REA should not have been granted on one of two grounds: the project will cause serious harm to human health; or the project will cause serious and irreversible harm to plant life, animal life or the natural environment. The appellants argued that the REA for the project should be revoked because of a variety of health problems that could affect nearby residents. These fell into three general categories:

  • direct hearing loss;
  • physical injury or death from tower collapse, turbine failure or other accident; and
  • a range of “indirect” and chronic health effects, such as sleep disturbance, headache, tinnitus, dizziness, vertigo, nausea, tachycardia, irritability, memory problems and panic episodes.

Although the precise mechanism for such indirect effects is as yet unknown, the appellants claimed that in its entirety, the evidence is “compelling.” After hearing what it called “cutting edge scientific evidence” presented by “an impressive array of leading experts from around the world,” the tribunal ruled that the Kent Breeze Project, if operated in accordance with current Ontario standards, would not cause serious harm to human health. The appeal failed the statutory test set out in s. 145.2.1(2)(a) of the EPA, and the director’s original REA was confirmed.

The tribunal did conclude the “evidence shows that there are some risks and uncertainties associated with wind turbines that merit further research. In that regard, the Tribunal hopes that future debate focuses on the most appropriate standards rather than ‘yes or no’ arguments about whether turbines can cause harm.”

The tribunal says further research is needed to determine whether the permissible noise levels and setback distance are appropriate to protect human health. Just because the appellants had failed to prove the current Ontario standards wrong in the context of the Kent Breeze project, the tribunal concluded “that is no excuse to close the book on further research.”

Parties appealing REAs face an uphill battle. The grounds are difficult to satisfy and the burden of proof lies upon the party alleging the harm. Parties bringing an appeal have a high evidentiary threshold to meet because they must prove the approved project will (as opposed to may) cause the harm prescribed. As more appeals are brought before the Environmental Review Tribunal, it will be interesting to observe how appellants deal with these challenges.

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