Canada: First Appeal Of Renewable Energy Approval Dismissed

On July 18, 2011, Ontario's Environmental Review Tribunal (ERT) issued its highly anticipated decision in Erickson v. Director, Ministry of the Environment, finding that the appellants who had challenged the issuance of a renewable energy approval (REA) for the Kent Breeze Wind Project (the Project) had failed to show that it will cause serious harm to human health. The decision comes after a hearing that spanned months in which experts from around the world testified on the potential health impacts of wind turbines.

The 20-megawatt Project proposed by Suncor Energy Services Inc. consists of eight wind turbines located in the Municipality of Chatham-Kent, Ontario. On November 10, 2010, it became one of the first renewable energy projects in the province to obtain a REA (which is now the primary environmental approval for many such projects following the promulgation of the Green Energy and Green Economy Act, 2009). On November 29, 2010, Chatham-Kent Wind Action Inc. and Katie Brenda Erickson (together, the Appellants) appealed the Ministry of the Environment's (MOE's) decision to issue a REA for the Project on the grounds that engaging in the Project in accordance with the REA will "cause serious harm to human health" – a statutory test that, if satisfied, can result in the ERT's altering the MOE's decision.

In dismissing this appeal, the ERT found that the burden was on the Appellants to show, on a balance of probabilities, that the test for serious harm had been met. According to the ERT, although the Appellants presented evidence on the risks and uncertainties of wind projects in general, this evidence was insufficient to prove that the Project itself will cause serious harm to human health. For example, the ERT found there was insufficient evidence that the risk of turbine tower collapse, blade failure or throw, ice fall or throw and shadow flicker related to the Project will cause such harm.

The ERT noted that much of the evidence focused on whether the Project will cause any indirect effects on the health of nearby residents. In this regard, the ERT acknowledged that the indirect effects of turbine operation (such as noise-induced stress that causes other symptoms) may cause serious harm to human health in some circumstances. In addition, the ERT found that the Appellants did not need to establish the specific mechanism that caused the alleged health effects. However, the statutory test must still be met; in other words, appellants must show that the noise predicted to be produced at a wind project will cause sufficient indirect harm in turn to cause serious harm to human health.

In considering this issue in the context of the Project, the ERT found that the Appellants had shown only that there may be an association between exposure to noise from wind turbines and certain indirect health effects. This "largely exploratory" evidence did not establish a sufficient causal connection between exposure and indirect health effects at the distances and noise levels relevant to the Project. In this regard, the ERT found that satisfying the statutory test "requires more than exploratory evidence."

Acknowledging that further research on the direct and indirect health effects of wind turbine operations may ultimately be necessary to satisfy the evidentiary burden, the ERT also stressed that future proceedings should focus on whether the approved project will cause serious harm to human health, not on whether turbines can cause such harm.

The ERT also dismissed the Appellants' arguments that the Project will cause serious harm to the one noise receptor (the Participating Receptor) on whose land part of the facilities would be located. That receptor is apparently located approximately 332 metres from the nearest turbines and may be exposed to a maximum noise level of 45.8 dBA. Although the ERT suggested that the test for serious harm may be satisfied even if a person voluntarily absorbs the harm, the Appellants provided no evidence on whether the Participating Receptor would actually be living at this location and, if so, whether the Project will cause that person any harm. Rather, the ERT found that the Appellants brought a more general challenge to the required turbine setbacks without focusing on the impacts of the current turbine placement on specific individual receptors. This presented difficulties in proving the statutory test of serious harm. The ERT indicated that if appellants allege such harm to specific receptors (whether or not they are participating in a project), they should provide detailed evidence about the circumstances facing those receptors.

In its decision, the ERT also rejected the Appellants' argument that the MOE's alleged inability to adequately predict, measure and assess sound from the wind projects will cause serious harm to people living near the Project. Even recognizing that the available technology limits the accuracy and precision of such measurements, the ERT said "it is a large leap to state that these challenges and uncertainties mean that the Project will cause serious harm."

Similarly, the ERT rejected the Appellants argument that the Project will cause serious harm to human health because the MOE allegedly did not comply with its Statement of Environmental Values (SEV) when issuing the REA. The SEV lists a number of principles that the MOE must consider in deciding whether to issue an approval, one of which is that the MOE must use a precautionary, science-based approach in its decision making. In its decision, the ERT expressed some concerns about how the Director understood the obligation to incorporate this precautionary principle into the MOE's decision making. However, the ERT again found it "a large leap to state that any deficiencies in how the SEV was considered mean that the Project will cause serious harm." Importantly, the ERT decided that even valid concerns about how the MOE assesses a REA application do not, on their own, satisfy the serious harm test and require the ERT to overturn an MOE decision to issue a REA. Rather, any argument about such a procedural failing must also show that the issuance of the REA will cause serious harm to human health (or a serious or irreversible harm to plant life, animal life or the natural environment, which is another basis for challenging a REA).

The Appellants have 30 days within which to appeal the ERT's decision on a question of law to Ontario Divisional Court. For further information, please see the ERT's Decision.

Torys has offices in Toronto, New York and Calgary

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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