Copyright 2011, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Environmental, July 2011

On July 18, 2011, the Ontario Environmental Review Tribunal (ERT) released its first decision regarding an appeal of a Renewable Energy Approval (REA), which is issued by the Ontario Ministry of the Environment (MOE) under the Environmental Protection Act (EPA). Appeals of REAs are significant to those opposing renewable energy projects, such as wind farms, because they constitute the last opportunity under the EPA to block a project. From the perspective of proponents, these appeals constitute the final roadblock on the way to lucrative Feed-In-Tariff (FIT) contracts provided for under the Green Energy and Green Economy Act, 2009. The case provides the first insight into how the ERT, which hears appeals of MOE decisions to issue or not issue REAs and other environmental approvals or permits, views the special appeal rights provided for REAs in the EPA.

At issue in this appeal was the approval by the MOE of Suncor's Kent Breeze Project, which involves the construction and operation of eight wind turbine generators in southwestern Ontario in the Municipality of Chatam-Kent. The appellants, Katie Brenda Erickson and the local citizen group Chatham-Kent Wind Action Inc., alleged that the REA for Suncor's wind energy project should be revoked because the project, as approved, will cause "serious harm to human health," which is the special and more onerous standard of review established for REAs by the Ontario government when it amended the EPA in 2009 to facilitate the rapid development of "green" energy.

The appellants also argued that in issuing the REA, the Director failed to comply with the precautionary principle and the MOE's Statement of Environmental Value (SEV), which was developed pursuant to the Environmental Bill of Rights (EBR). The SEV lists a number of principles related to the protection of the environment and environmentally sustainable development that are intended to guide the MOE in decision-making to ensure that it complies with the purposes of the EBR. The precautionary principle, which is included in the MOE's SEV, suggests that where the effects of an activity on the environment are not entirely known, one should err on the side of caution and prevent the activity from taking place so as to avoid potential damage until there is more certainty about the effects of the activity.

The MOE Director, who issued the REA, and Suncor argued that the appellants had failed to show that the Kent Breeze Project would cause serious harm to human health or the natural environment and argued further that the project, operating in accordance with the REA, would in fact not cause such serious harm. While the MOE Director acknowledged that sound from a turbine may be annoying to a small percentage of exposed persons and that this annoyance may cause stress in a few highly sensitive individuals, it argued that such annoyance is not equivalent to serious harm to human health, as required by sections 142.1 and 145.2.1 of the EPA. Suncor added that the scientific literature does not support a conclusion that the project poses risks of direct health effects to residents and that any indirect health-risk effects of the noise levels approved for the project were minor.

The ERT agreed with the MOE Director and Suncor, and dismissed the appeal. The ERT adopted a strict view of its role and jurisdiction in hearing an appeal of an REA. The ERT stated that its legislative mandate pursuant to the 2009 amendments to the EPA, which accompanied the enactment of the Green Energy and Green Economy Act, 2009, was to conduct a narrow, expedited hearing to determine whether the project will cause the specified harm. It was not authorized to engage in a wider inquiry regarding the potential benefits, advantages or disadvantages of a specific renewable energy project or, indeed, renewable energy in general.

The ERT found that the totality of the evidence adduced by the appellants, which was mostly "exploratory" in nature, fell short of establishing on a balance of probabilities that the Kent Breeze Project will cause serious harm to human health, even when potential health effects, both direct and indirect, are considered cumulatively. Interestingly, the ERT held that the evidence of an absence of serious indirect harm was also limited. However, as the EPA clearly places the onus upon the appellants, the Director and Suncor did not have to establish the absence of serious harm to human health, and this finding was of no consequence on the appeal.

In interpreting the test set out in section 145.2.1 of the EPA, the ERT found that the precautionary principle constitutes an important source of guidance and that the SEV is an important principle of decision-making, and that both were relevant to the issues on the appeal. The ERT expressed concern with the manner in which the Director had interpreted and applied the SEV and, in particular, the apparent lack of a detailed review of potential indirect health effects in granting the REA. Nevertheless, this finding was insufficient to justify a revocation of the REA, as the appellants failed to satisfy the demanding test that the project will cause serious harm to human health, plant life, animal life or the natural environment.

The consideration of the precautionary principle and SEV in this case is interesting in light of the Ontario Divisional Court's recent decision in Hanna v. Ontario (Attorney General).1 In that case, the court dismissed a legal challenge to the Renewable Energy Approvals Regulation enacted pursuant to the EPA, where the challenge alleged that the regulation was invalid due to the MOE's failure to consider its SEV and the precautionary principle. Of particular relevance here, the court noted that any person resident in Ontario could challenge the approval of an industrial wind turbine in the form of an appeal to the ERT, "which has the mandate to determine, on a case-by-case basis, whether a renewable energy approval would cause serious harm to human health." 2

This appeal is unlikely to be the last legal challenge to wind farm projects. Indeed, the ERT left the door open to further appeals, citing the need for additional research into the effects of turbine noise on human health. The ERT noted that some of the expert witnesses who provided evidence did not have the degree of impartiality one would normally expect in an expert witness, which may have been a significant factor in the ERT's decision to dismiss the appeal.

On the other hand, the ERT made it clear that it will not necessarily be satisfied as to the appropriateness of a wind energy project simply because the MOE noise guidelines have been met. The ERT indicated that the noise guidelines established and adopted by the MOE are not determinative and that it is open to future appellants to establish that serious harm to human health will occur at noise levels below those set out in the guidelines. The ERT hinted that future appellants may have a better chance of success if they allege harm to receptors (specific locations where noise is received) and provide evidence about the circumstances facing those receptors, for example, whether a specific receptor has particular sensitivities to noise.

The bottom line is that the Ontario government's decision to throw caution to the wind (no pun intended) and fast-track renewable energy projects has now survived two major legal challenges and placed the onus squarely on ordinary citizens to prove that these projects will cause serious environmental harm. Whether these relatively new environmental appeal rules and the Green Energy and Green Economy Act, 2009 survive the upcoming provincial election this fall remains to be seen.

To view the decision, click here.

We wish to acknowledge the contribution of Sabrina Wong to this publication.

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