Wind challenge not over yet

The province recently celebrated a victory in a crucial Divisional Court case involving a challenge to requirements for wind turbine setbacks, but opponents to the regulations say the issue is still very much alive.

The application for judicial review in Hanna v. Ontario (Attorney General) came from Ian Hanna, a Prince Edward County resident who argued the government failed to comply with the precautionary principle when devising the renewable energy approvals regulation that came into effect in October 2009.

That principle, found in s. 11 of the Environmental Bill of Rights, states that the Ministry of the Environment must use a “precautionary science-based approach in its decision making to protect human health and the environment.”

Hanna offered evidence from three medical doctors who said the ministry’s backing of a 550-metre setback for industrial wind turbines from a residence was unsupported by scientific evidence.

“The gist of their opinion evidence is that there is medical uncertainty about the impact on human health of living in proximity to an industrial wind turbine and that the ‘precautionary principle’ mandates resolution of this scientific issue before setting regulatory standards,” wrote Justice David Aston on behalf of the panel that also included Associate Chief Justice Douglas Cunningham and Justice John Jennings.

As the panel noted, “The health concerns for persons living in proximity to wind turbines cannot be denigrated but they do not trump all other considerations.” It went on to explain that any Ontario resident has the right to challenge the approval of an industrial wind turbine at the Environmental Review Tribunal.

“Thus, if the tribunal is persuaded by evidence that the 550-metre minimum setback is inadequate to protect human health from serious harm, the tribunal has authority to revoke the decision of the director, or at the request of the applicant increase the minimum setback prescribed for the proposed wind turbines,” wrote Aston.

The panel noted the government undertook full public consultation before announcing the setback requirement. The review included scientific evidence, such as World Health Organization reports and the views of acoustical engineering experts.

“In the context of the broad policy issues at play, the alternative protections provided by the Environmental Review Tribunal and the absence of clear evidence the 550-metre setback requirement is necessarily insufficient, we find that the minister did comply with the requirement in s. 11 of the [Environmental Bill of Rights], notwithstanding the ‘precautionary principle’ in the statement of environmental values,” the panel concluded.

Hanna’s lawyer, Eric Gillespie of Cunningham & Gillespie LLP, says the outcome was clearly not what his client, who’s now seeking leave to appeal from the Ontario Court of Appeal, was looking for.

“The standard of proof and adequacy of evidence submitted by the minister of the environment is the issue,” said Gillespie in a prepared statement announcing the application for leave.

Despite the application, Gillespie believes there are positive aspects to the Divisional Court decision. He tells Law Times the 550-metre setback requirement remains a “completely open question” for the review tribunal to decide.

It’s currently hearing an appeal over a Class 4 wind facility in the township of Camden in the municipality of Chatham-Kent.

Gillespie, who represents the appellant in that matter, noted that as the Divisional Court didn’t issue findings on a motion from the attorney general to dismiss evidence, he suggests all of the information in Hanna will also be available to the tribunal.

In addition, Gillespie says the attorney general’s primary position was that the regulation and statement of environmental values weren’t justiciable issues but notes the court did review those matters.

“This appears to indicate that the statement of environmental values is legally binding on the minister and reviewable by the courts,” says Gillespie.

Torys LLP’s John Terry, who represented the Canadian Wind Energy Association in Hanna, notes a ruling against the province would have put the regulatory framework in question.

“The path that the court took in their decision is consistent with what we thought the court should have taken,” he says.

“The importance of the decision is really in reiterating that the policy and various regulations for the regulation of wind energy in Ontario in the building of wind turbines is consistent with appropriate standards being adopted with respect to health, environment, et cetera.”

In the meantime, the tribunal is expected to finish hearing submissions in the Camden wind project matter in early April. It must provide its decision no later than May 29, says Gillespie.

Robert Hornung, president of the wind association, says his organization is following those proceedings closely.

“It is something that we’re monitoring, and we’ll see where the decision comes forward,” he says. “At the end of the day, we remain quite confident that the balance of scientific and medical evidence clearly indicates that there’s no link between wind turbines and human health.”

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