The Environmental Review Tribunal (ERT) recently issued its
first major decision of a renewable energy approval appeal related
to human health concerns since Erickson v Director, Ministry of
Environment (see our post on that decision here). In Chatham-Kent Wind Action Inc v Director,
Ministry of the Environment, the
ERT found that there was no evidence before it that the South Kent
Wind Project (Project) will, cause serious harm to human
The appeal challenged the Minister of the Environment's
(MOE) approval of the planned 270 megawatt wind generation farm in
the Municipality of Chatham-Kent. The MOE issued the Project's
Renewable Energy Approval on June 15, 2012, which prompted
Chatham-Kent Wind Action Inc. to launch the appeal. One individual
was granted status to participate and another individual to make a
The ERT found that the decision in Erickson has settled
the evidentiary test that appellants must meet to demonstrate that
a project will cause serious harm to human health. A participant in
the appeal challenged the test because of the difficulty in
demonstrating some alleged harm from wind turbines, such as harm to
emotional and mental health. The ERT rejected this challenge and
found that there was "no evidentiary basis whatsoever"
presented to find that the Project will adversely affect human
Also at issue was the methodology that the MOE requires REA
applicants to use to predict noise from a planned wind project. A
presenter argued that the MOE's guidelines led to inaccurate
results. However, the ERT was clear that it requires evidence of
what the impact of a project could be and that the project would
harm human health. A challenge of the testing approach in the
absence of evidence is insufficient on an appeal.
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Directors and their corporations may be at a loss to understand what they must do to minimize their risk of environmental liability in light of the recent Ontario Ministry of Environment order and settlement agreement concerning Northstar Canada.
In the aftermath of the Northstar case, it is more important than ever for directors and officers to manage environmental issues proactively and implement policies to help minimize their risk exposure.