On March 3, 2011, the Divisional Court of Ontario dismissed an application for judicial review of the minimum setback requirements for large wind energy facilities under Ontario's Renewable Energy Approval (REA) Regulation (O. Reg. 359/09).1 Under the regulation, to be eligible for a REA, large wind turbines (LWTs) must conform to the Ontario Ministry of the Environment's Noise Guidelines for Wind Farms and be situated at least 550 metres from the nearest residence that has not agreed to "participate" in the project.
The applicant, Ian Hanna, argued that the Minister of the Environment had violated Ontario's Environmental Bill of Rights, 1993 (EBR) when recommending the regulation's promulgation. In particular, the applicant submitted that there is medical uncertainty about the health impacts of LWTs on nearby residents and that this uncertainty should be resolved before setting regulatory standards. According to the applicant, the process that preceded the Minister's recommendation of the regulation did not settle this uncertainty and therefore his recommendation violated the EBR's requirement that the Minister use "a precautionary science-based approach in its decision making to protect human health and the environment."
The Court dismissed the applicant's arguments, finding that the Minister had complied with the EBR. According to the Court, in deciding on the setback, the Minister had considered not only health impacts but also the regulation's role in preventing and minimizing greenhouse gas emissions and other environmental impacts. In addition, the Court held that its jurisdiction was quite circumscribed by provisions of the EBR and found that the Minister engaged in a thorough process before recommending the regulation. The government held a full public consultation on a draft version of the regulation and a ministerial review of more than 100 scientific studies and articles. In addition, the Minister made his decision knowing that the Environmental Review Tribunal could determine the adequacy of the minimum 550 metre setback to prevent serious harm to human health in any particular case. For additional information, please see the court's decision: Hanna v. Attorney General of Ontario, 2011 ONSC 609 (Div. Ct.).
1. The authors represented the Canadian Wind Energy Association, which intervened in the case to support the validity of the regulation and to submit that the Minister complied with all requirements in validly enacting the regulation.
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