Canada: Ontario Wind Energy Opponents Fail To Prove Serious Environmental Harm: Suncor’s Kent Breeze Project Gets A Green Light

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.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
26 Oct 2018, Other, Vancouver, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

30 Oct 2018, Other, Toronto, Canada

Please join us for discussions on recent updates and legal developments in pension and employee benefits as well as employment law issues.

12 Nov 2018, Other, Toronto, Canada

Stories aren’t falsehoods. Stories are the root of all effective human communications: they motivate, animate and clarify. If you aren’t telling stories, you probably aren’t getting your point across.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions