In a unanimous three judge decision, the Ontario Superior Court of Justice (Divisional Court) dismissed the application for judicial review of the applicant, Hanna, in Ian Hanna v. Attorney General for Ontario.1 Hanna brought an application to challenge the promulgation of Sections 35, 53, 54 and 55 (the Sections) of the Renewable Energy Approvals Regulation2 made under Part V.0.1 of the Environmental Protection Act (the EPA). Hanna has applied for leave to appeal to the Ontario Court of Appeal.
The Sections concern the minimum setback conditions for wind energy facilities which require that many industrial wind facilities generating over 50 kW must be set back at least 550 meters from residences.
Environmental Bill of Rights and Statements of Environmental Values
Hanna alleged that the Minister failed to take every reasonable step to ensure that the ministry's Statement of Environmental Values (the SEV) was considered when promulgation of the Sections was recommended. Pursuant to section 11 of the Environmental Bill of Rights3 (the EBR) a minister is required to consider the SEV when decisions are made in the ministry that might significantly affect the environment.
Under Section 1 of the General Regulations4 made under the EBR, over a dozen separate ministries are required to develop and produce an SEV that meets the standards specified in section 7 of the EBR. Section 7 requires an SEV to:
- explain how the purposes of the EBR are to be applied when decisions that might significantly affect the environment are made in the ministry; and
- explain how consideration of the purposes of the EBR should be integrated with other considerations, including social, economic and scientific considerations, that are part of decision-making in the ministry.
Scope of Court's Jurisdiction
Before the Court weighed the evidence and analyzed the legal issues, it discussed the scope of its jurisdiction in relation to ministerial decisions of this nature. The Court noted two privative clauses (Sections 37 and 118 (1) of the EBR) that greatly limited its ability to review ministerial decisions.
Section 37 provides that failure to comply with Part 2 of the EBR (which contains the sections relevant to SEVs) does not affect the validity of any policy, act, regulation or instrument, except as provided in Section 118. Section 118(1) provides that no action, decision, failure to take action, or failure to make a decision by a minister or his or her delegate under the EBR shall be reviewed in any court. However, Section 118 (2) allows judicial review in situations where a minister has "failed in a fundamental way to comply with the requirements of Part II [of the EBR] respecting a proposal for an instrument." The term instrument as defined by the EBR includes permits, licenses, and approvals, but does not include regulations. As Hanna's application was in regard to a regulation, the exception to the prohibition of judicial review under Section 118 (2) did not apply.
As a result of the Court's interpretation of these privative clauses it only had scope to review the Minister's decision regarding the Renewable Energy Approvals Regulation if the regulation was made without authority or if it was deemed unconstitutional.
Position of the Applicant (Hanna)
Hanna submitted that consideration of the Ministry of Environment's SEV was a condition precedent to the Minister's decision, and that the Minister's failure to consider the SEV rendered his decision to adopt the Renewable Energy Approval Regulation ultra vires.
Hanna referred to principles set out in the SEV that the ministry was to follow when developing Acts, regulations and policies. Specifically, he alleged that the Minister failed to consider the "precautionary, science-based approach" as set out in the SEV.
Hanna put forth evidence from three medical doctors who were in agreement that there was medical uncertainty regarding the safety of the 550-meter setback. The ministry had conducted a scientific literature review, but had not had the information reviewed by a medical expert. Due to the medical uncertainty regarding the appropriate distance for the establishment of the minimum setback, Hanna argued that consideration of the precautionary principle required resolution of the scientific issue before regulatory standards could be set.
Analysis by the Court
In dismissing the application, the Court noted that while the applicant was concerned only with the consideration of the precautionary principle, under section 11 of the EBR "the minister must take all reasonable steps to consider all 10 principles, a process which involves a policy laden balancing of competing principles." In balancing the precautionary principle with the remaining principles found in the Ministry of Environment's SEV, the Court made specific reference to the principle that required priority to be placed on preventing and minimizing pollution.
The Court stated that while the health concerns of residents living close to wind turbines was important, their concerns would not necessarily trump other interests. Additionally, residents have the power under the EPA to challenge the approval of an industrial wind turbine by appealing to the Ontario Environmental Review Tribunal (the Tribunal). The Tribunal has the mandate to determine, on a case-by-case basis, whether the issuance of a renewable energy approval would cause serious harm to human health or serious and irreversible harm to the environment. Determining the appropriateness of the 550-meter setback on a case-by-case basis is an example of a task intended for the Tribunal and, in appropriate cases, the Court noted that the Tribunal could increase that distance. The Court also said that in a situation like this it is not the court's function to determine the wisdom or reasonableness of the Minister's decision but merely to review whether the process mandated by the EBR was followed.
The Court concluded that the Minister had complied with the requirements under the EBR when making his decision to promulgate the minimum setback requirements. In support of its decision the Court cited the extensive public participation process that was conducted, the review of scientific literature by Ministry staff, the balanced consideration of all 10 principles of the SEV and the availability of the Tribunal to address the concerns of residents on a case specific basis.
This is a positive decision for the energy industry as it provides greater certainty regarding governmental decisions and plans. The decision is also important as it upholds the intention expressed in Sections 37 and 118 of the EBR to significantly limit the jurisdiction of courts to review decisions made by the Minister in this context.
The full decision of the Divisional Court can be found here.
1 2011 ONSC 609
2 O. Reg. 359/09
3 S.O. 1993, c. 28
4 O.Reg. 73/94
Daniel Kirby focuses on environmental law. Richard Wong practice specializes in the development of major infrastructure works and commercial and industrial construction projects. Raphael T. Eghan practice encompasses a broad range of civil litigation,
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.