On March 3, 2011, the Divisional Court of Ontario dismissed an
application for judicial review of the minimum setback requirements
for large wind energy facilities under Ontario's Renewable
Energy Approval (REA) Regulation (O. Reg. 359/09).1
Under the regulation, to be eligible for a REA, large wind turbines
(LWTs) must conform to the Ontario Ministry of the
Environment's Noise Guidelines for Wind Farms and be
situated at least 550 metres from the nearest residence that has
not agreed to "participate" in the project.
The applicant, Ian Hanna, argued that the Minister of the
Environment had violated Ontario's Environmental Bill of
Rights, 1993 (EBR) when recommending the regulation's
promulgation. In particular, the applicant submitted that there is
medical uncertainty about the health impacts of LWTs on nearby
residents and that this uncertainty should be resolved before
setting regulatory standards. According to the applicant, the
process that preceded the Minister's recommendation of the
regulation did not settle this uncertainty and therefore his
recommendation violated the EBR's requirement that the Minister
use "a precautionary science-based approach in its decision
making to protect human health and the environment."
The Court dismissed the applicant's arguments, finding that
the Minister had complied with the EBR. According to the Court, in
deciding on the setback, the Minister had considered not only
health impacts but also the regulation's role in preventing and
minimizing greenhouse gas emissions and other environmental
impacts. In addition, the Court held that its jurisdiction was
quite circumscribed by provisions of the EBR and found that the
Minister engaged in a thorough process before recommending the
regulation. The government held a full public consultation on a
draft version of the regulation and a ministerial review of more
than 100 scientific studies and articles. In addition, the Minister
made his decision knowing that the Environmental Review Tribunal
could determine the adequacy of the minimum 550 metre setback to
prevent serious harm to human health in any particular case. For
additional information, please see the court's decision:
Hanna v. Attorney General of Ontario, 2011 ONSC 609 (Div.
1. The authors represented the Canadian Wind Energy
Association, which intervened in the case to support the validity
of the regulation and to submit that the Minister complied with all
requirements in validly enacting the regulation.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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