Canada: The Ontario Environmental Review Tribunal Decision In Erickson V. Director, Ministry Of Environment

The Ontario Environmental Review Tribunal (the ERT) released its landmark ruling in the wind farm challenge case, Erickson v. Director, Ministry of the Environment (Erickson) on July 18, 2011. It is the first ERT decision addressing an appeal from the issuance of a Renewable Energy Approval (REA). This decision is important since it shows that the ERT is willing to strictly apply the wording of section 145.2.1(2) of the Environmental Protection Act (EPA) in deciding appeals from the issuance of REAs.

The applicant, Suncor Energy Services Inc. (Suncor), applied for and was granted an REA under section 47.5 of the EPA for eight wind turbines to be developed at a facility to be known as Kent Breeze Wind Farms, located in the Township of Camden, Ontario (the Project) by the Director, Ministry of the Environment (the Director). Local residents groups and a local resident (the Appellants) appealed the decision to the ERT. The ERT dismissed the appeal by the Appellants, but an appeal to the Divisional Court or the Minister is still possible.

At issue was section 145.2.1(2) of the EPA which sets out what the ERT must consider on an appeal of the granting of an REA:

(2) The Tribunal shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

In its overview of its decision, the ERT states:

This case is a reminder that energy facilities can generate more than electricity; they can also generate conflict. Though this case involves appeals of Suncor's Kent Breeze Wind Farm Project, the Appellants' approach to this proceeding has largely been a test of whether turbines in Ontario will cause serious harm to human health. The Parties called experts from all over the world to speak to the issue of whether this Project, which was approved according to Ontario's Ministry of the Environment Noise Guidelines for Wind Farms and Ontario Regulation 359/09 made under the Environmental Protection Act, will seriously harm humans living nearby. It is clear that this case is a novel case that not only involves new legislation but also new scientific research.

For the reasons that follow, the Environmental Review Tribunal finds that the Appellants have failed to show that Suncor's Kent Breeze Project, as approved, will cause serious harm to human health. However, the evidence shows that there are some risks and uncertainties associated with wind turbines that merit further research. In that regard, the Tribunal hopes that future debate focuses on the most appropriate standards rather than "yes or no" arguments about whether turbines can cause harm.

According to the evidence in this Hearing, where an impressive array of leading experts from around the world testified on cutting edge areas of scientific inquiry, the Tribunal cannot find that the Kent Breeze Project operated according to the current Ontario standards "will cause serious harm to human health." That is the test in the statute, but the evidence presented in this Hearing is insufficient to meet it. What the Tribunal can state is that the need for more research came up several times during this Hearing. Time will tell as to what that research will ultimately demonstrate. The Tribunal is hopeful that, whatever the results, further research will help answer some of the concerns and uncertainties raised during this Hearing.

The main issue before the ERT was whether the Project would cause serious harm to human health. Although there was no dispute on this issue among the parties, the ERT noted that it is clear from the wording of section of the EPA that the Appellants had the onus of proof. In this regard, the ERT examined the following four sub-issues:

(a) Will the project as approved cause serious harm to human health of non-participants?

In addressing this issue, the ERT found that there was no risk of direct harm (e.g. hearing loss) to human health and a very low risk of physical injury or death resulting from events such as tower collapse and turbine failure. The ERT did find, however, that there are indirect risks (such as chronic stress and sleep deprivation) that are worthy of further study. However, based on the available evidence, the ERT concluded that the Appellants failed to demonstrate that any one risk, or any combination of one or more risks, was likely to occur at a rate where it could be said on a balance of probabilities that at least one type of serious harm to human health of non-participants would be caused by the Project.

(b) Will the project as approved cause serious harm to human health of participants?

The ERT noted that that the statutory test of serious harm to human health is not subject to an exception for participating receptors, i.e. Project participants, or owners who provided their land for a turbine under agreement with the proponent, and on this basis found that the test could be satisfied if an Appellant demonstrated that serious harm would occur to a person who voluntarily exposed themselves to the potential harm. Nevertheless, because of a lack of evidence regarding the use of the participating receptor site and whether it would be regularly occupied, the ERT found that the Appellants failed to show that "serious harm to human health" would occur at the participating receptor.

(c) Will the project as approved cause serious harm to human health if the approval authority is unable to properly predict, measure or assess sound from the facilities including audible noise and/or low frequency noise and/or infrasound?

The ERT heard evidence on the challenges and uncertainties associated with predicting, measuring and assessing sound (including audible noise, low frequency sounds and infrasound) and found that challenges and uncertainties remain despite continuing advances in this area. Ultimately, the ERT found that the Appellants failed to show how these uncertainties would cause the type of harm specified in the EPA. While the ERT accepted the possibility that the predictions of noise levels would not be completely accurate and that measurements and assessments would be hampered by the technology available and the very nature of sound and noise, they found it too large a leap to conclude that these challenges and uncertainties meant that the Project would cause serious harm to human health. The ERT found that the evidence presented by the Appellants in this case was largely exploratory, not confirmatory, and to satisfy the legal test required more than exploratory evidence.

(d) Will the project as approved cause serious harm to human health because the approval does not comply with the Ministry of the Environment's Statement of Environmental Values?

The Appellants submitted that the protection of human health is one of the main purposes of the Environmental Bill of Rights, 1993 (the EBR). They refer to the purposes of the EBR set out in the Introduction to the Statement of Environmental Values (SEV), in particular: "to protect the right to a healthful environment by means provided in this Act." The Appellants submitted that "the SEV provides steps for the Minister (or Director in this case) to follow to ensure that the purposes of the EBR are met when decisions, such as the issuance of a REA, are made." The Appellants submitted that "a significant portion of the SEV requires the Ministry (here the Director) to consider, among other matters, human health."

The Appellants took the position that in issuing the REA, the Director failed to apply the precautionary approach required by the SEV. The Appellants argued that: (a) this failure stemmed from the fact that the Director only reviewed evidence dealing with the direct health effects of wind turbines, ignoring the "myriad of indirect effects" that the Appellants asserted are known to occur; (b) the failure to consider these indirect effects did not constitute proper consideration of human health and/or the precautionary principle as required by the SEV; and (c) "the non-compliance with the SEV, and specifically those parts of the SEV directed at the protection of human health, standing alone, provides sufficient evidence that, on a balance of probabilities, the Project as approved will cause serious harm to human health."

The ERT concluded that despite the apparent lack of a detailed review by the Director of possible indirect health effects, the Appellants faced the same issue in this respect as they did with the grounds for appeal relating to predicting, measuring and assessing sound. The ERT concluded that it was a large leap to state that any deficiencies in how the SEV was considered necessarily meant that the Project would cause serious harm to human health, especially where the hearing itself constitutes an independent assessment of the serious harm test. In essence, the ERT based its interpretation of the new statutory test on a substantive rather than a process basis.

On the application of the "precautionary principle", while the ERT agreed that the precautionary principle can have an important impact on the application of statutory provisions that provide more discretion to the decision-maker than does section 154.2.1(2), it did not over-ride the clear wording of the statutory test in this case. In this case, the legislative provision clearly established that a test different from that arising from the application of the precautionary principle must be met before the ERT could act. Since the Appellants failed to prove that the Project "would" cause serious harm to human health (as opposed to "might" cause such harm), the Appellants had failed to satisfy that statutory test and therefore the precautionary principle was irrelevant.

The ERT's Overall Conclusion

In its overall conclusion, the ERT found that the Appellants did not meet the legal test set out in section 145.2.1(2)(a) of the EPA and dismissed the appeals. The Director's decision on the REA was confirmed pursuant to section 145.2.1(5). The ERT went on to find that while there are concerns and uncertainties about the effects of wind turbines on human health, it could not conclude that engaging in the Kent Breeze Project as approved would cause serious harm to human health based on the evidence presented at the hearing. The Tribunal did however note that the research in this area will likely progress as further research and analysis is undertaken.

Jack Coop specializes in all aspects of environmental litigation: civil actions, prosecutions, class actions, administrative hearings, and judicial review applications, including advice work on how to avoid such litigation and successfully deal with regulators. Dan Kirby focuses on environmental law, including environmental assessment and approvals; civil litigation and alternate dispute resolution. Richard Wong's practice specializes in the development of major infrastructure works and commercial and industrial construction projects, with a special focus on the development of renewable and other power projects in Canada. Elliot Smith works extensively on major infrastructure projects, providing assistance with project development, procurement, contract negotiation and administration issues. Micah Vernon's practice focuses on energy, infrastructure and construction matters.

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.

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