Canada: More Anti-Wind Power Appeals Dismissed

Last Updated: August 6 2014
Article by Jennifer Kalnins Temple

Ontario's Environmental Review Tribunal (ERT) recently dismissed two more anti-wind power appeals, this time relating to the same project. One of the appeals had a new feature: whether wind turbines interfere with weather forecasting radar. July 9, 2014, Fata v. MOE, ERT Registry Nos.: 13-145/13-146.

Saxe Law Office previously chronicled the history of anti-wind litigation since Ontario set up its rules for approving renewable energy under the Green Energy Act of 2009. There we outlined some of the challenges that have been made to date, including those made on the bases of alleged harm to human health or the environment. More recently, we reviewed the dismissal of an appeal that a proposed wind project would injure skydivers.  The challenges continue.

This past month the ERT has had to consider weather radar for the first time, in addition to the usual concerns. The project, the Bow Lake Wind Farm, involves a proposed Class 4 wind facility that has 36 wind turbines (with a total nameplate capacity of up to 58.32 MW) on Crown land 80 km northwest of Sault Ste. Marie, Ontario.

On December 31, 2013, James Fata, a seasonal resident of the area, and 2401339 Ontario Ltd. (a corporation resident in Ontario) each filed an appeal with the ERT. Mr. Fata appealed under s. 142.1(3)(a) of the Environmental Protection Act ("EPA"), on the ground that the project as approved will cause serious harm to human health.  2401339 Ontario Ltd. ("240") appealed under s. 142.1(3)(a) of the EPA on the ground that the project will cause serious harm to human health through interference with the Montreal River Weather Radar Station ("MRWRS"), and s.142.1(3)(b) on the ground that the project will cause serious and irreversible harm to birds and bats.

The hearing took place over ten days in March 2014.

Appeal by James Fata (Tribunal Case No. 13-145): Human Health

Mr. Fata argued human health would suffer for several reasons including sound vibrations, electromagnetic fields, low frequency sound, property access and fire risk.

The ERT decision noted that, "[a]ll of the participants and presenters testified to their sincere and significant concerns that the project will result in negative health impacts to them and to their community," but as "has been consistently noted by the Tribunal, mere speculation or concern will not satisfy the legal test, and the Tribunal must have reliable evidence upon which to base its findings, on a balance of probabilities."  The Tribunal noted that it has considered allegations of human health impacts caused by wind turbines several times before and the appellants have never been able to establish any harm would be caused, much less serious harm.

In this case, Fata actually gave no new evidence whatsoever since he offered the opinion of a public health nurse who could not be qualified as an expert witness on the subject.

Appeal by 2401339 Ontario Ltd (Tribunal Case No. 13-146): Bats, Birds & Weather Radar

The Ontario corporation argued the project would harm bats and birds, as well as cause "serious harm" to human health by interfering with weather forecasts.

No Harm to Bats

As for bats, the Tribunal saw no evidence of harm to bat habitat or danger of "serious and irreversible harm" to bats.

Migratory bats pass through and may roost in the Bow Lake area during the summer.  Hibernating bats, including the endangered little brown bat, have summer roosting locations nearby.  Experts who testified at the hearing estimated there could be one or two bat maternity colonies in the area and that each would have about 70 bats.

The Tribunal acknowledged mitigation measures already incorporated into the REA for bats: bat mortality is to be monitored at 12 turbines for at least three years. If 10 bats per turbine die per year, various steps must be taken including feathering the turbine blades between sunset and sunrise from July 15 to September 30 during the life of the project.

No Harm to Birds

As for birds, no evidence was found that the wind farm would cause serious harm to birds.

Current Ministry of Natural Resources Bird Guidelines for wind power projects provide mortality thresholds at which point mitigation measures must be undertaken, e.g., 14 birds per turbine per year at individual turbines or turbine groups.

The focus of the evidence and submissions with respect to birds was on harm through collision mortality, but the Tribunal found that there were no geographic features in the area that would cause a higher number of birds to collide with the turbines.

Serious Harm to Human Health by Interference with Weather Radar?

The Appellant claimed that the project would cause serious harm to human health due to interference with the Montreal River Weather Radar Station ("MRWRS") which is located 3 to 10 km away from the turbines.  The potential impact of a wind turbine on weather radar had never before been considered by the ERT.

The issue was first raised by Environment Canada ("EC") in 2009.  EC communicated its concern that the farm's close proximity to the MRWRS could significantly impact forecasters' ability to produce timely and accurate weather warnings.  After the current proponents took over the project, EC identified mitigation strategies, but recommended against approval "unless a workable solution for acceptable co-existence was found."

In 2013, EC retained Dr. Robert Palmer, Ph.D. in electrical engineering and Associate Vice President for Research and the Tommy C. Craighead Chair and Professor at the University of Oklahoma's School of Meteorology.  He was qualified by the Tribunal as an expert in weather radar and in the interaction of weather radar systems with wind turbines.   Dr. Palmer addressed the potential for "wind turbine clutter" and "multi-path scattering."  Wind turbine clutter occurs when radar signals are scattered by unwanted targets (in this case, wind turbines), and multi-path effect occurs with the extension of the contaminated radar data beyond the area of the turbines.  He noted that there would be "exponentially more energy in the backscatter from a wind turbine 5 km from a weather radar station, than from a turbine 50 km away."

The Tribunal also considered the evidence of Mark Seifert, who is a Lead Meteorologist and Program Supervisor at EC's Ontario Storm Prediction Centre.  He has a B.Sc. degree and a Diploma in Meteorology, and 15 years of experience as a meteorologist.

Seifert provided evidence about the likely impacts of the wind turbine clutter and multi-path scattering.  He testified that "during the summer, degraded low level radar data would affect a forecaster's ability to discern the severity of a thunderstorm occurring directly over the wind turbine locations; and during the winter, multi-path scattering would reduce a forecaster's understanding of snow squall intensity if occurring in the area to the southeast of the turbines."  He stated that, in each of these cases, "a forecaster would likely err on the side of caution and issue a severe weather warning that could constitute an over-warning, which would have a negative impact on the accuracy of Environment Canada weather forecasts for these areas."

However, the Tribunal accepted Mr. Seifert's evidence "that, generally, weather radar is not used to initiate weather warnings for large-scale events, but is used to: forecast weather in the short term (up to six hours); monitor precipitation in large-scale weather events once they are occurring; verify previous warnings; and initiate a weather warning for small-scale weather events, such as snow squalls and thunderstorms."

Based on proposed mitigation measures, EC ultimately determined it could support the proposed location of the Project, and the Tribunal was satisfied with the evidence on lack of serious harm.  The Tribunal held "it is possible but not likely that receiver saturation will affect the MRWRS due to the Project, and also accepts that saturation will not create problems even if it does occur."  Forecasting would be "impacted only in respect of radar data at ground level for thunderstorms occurring directly over the project and snow squalls occurring within a narrow wedge approximately 40 kilometres southeast of the project."  An exceptional weather event protocol would allow Environment Canada to ask for a temporary suspension of the wind farm "during weather events in which human life and property are significantly at risk."

In sum, wind turbine projects in Ontario have traveled a stormy path, but so far, neither skydivers nor stormy clouds have stopped them.

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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Jennifer Kalnins Temple
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