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Anti-Wind Cases Lose Constitutional Challenge

According to the Energy & Policy Institute, Ontario is a world-wide hot-spot for litigation opposing wind energy. Opponents of wind power often have a heartfelt and deeply held belief that wind farms threaten their health and property values. But they have lost all Ontario legal cases based on concerns about human health, now including a constitutional challenge.

Wind farms have been actively expanding in Ontario since the Ontario Green Energy Act, 2009, took away municipal power to block wind farm development, and a Feed in Tariff for selling the resulting power provided a solid economic case. Such farms require a Renewable Energy Approval (“REA”), from the Ministry of Environment and Climate Change under the Environmental Protection Act (“EPA”). Each REA can be appealed to the Environmental Review Tribunal (ERT), but only on limited grounds including serious harm to human health.

Numerous anti-wind appeals to the ERT were rejected, because they did not meet this test. Anti-wind litigants then appealed to the courts, arguing that the statutory test was itself unconstitutional and contrary to their right to security of the person, guaranteed by the Canadian Charter of Rights and Freedoms. The Ontario Divisional Court has now definitively rejected that argument.

The anti-wind constitutional appeals

In Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404, the Divisional Court heard appeals from three decisions of the ERT, each of which upheld an REA for an Ontario wind farm in Huron and Bruce counties:

a 33 MW, 15 wind turbine farm operated by St. Columban Energy LP (“St. Columban Wind Project”); the 270 MW, 140 turbine wind farm owned by K2 Wind Ontario Limited Partnership (“K2 Wind Project”); and the 180 MW, 92 turbine wind farm of SP Armow WindOntario LP (“Armow Wind Project”). 

Under the EPA s. 145.2.1(2), the ERT hears appeals from REAs, but can turn them down only if “engaging in the renewable energy project in accordance with the renewable energy approval will cause (a) serious harm to human health…” The onus of proving such harm rests on those opposed to the REA. EPA s. 142.2.1(5) requires the Tribunal to confirm the Director’s decision if it “determines that engaging in the renewable energy project in accordance with the renewable energy approval will not cause [serious harm to human health]”.

No scientific evidence for fears about wind turbines

Study after study around the world has shown that, contrary to what many fear, wind farms at the Ontario minimum setbacks do not cause serious harm to human health, even though some people find them stressful and annoying.

“73….There is no sufficient evidence that the biological effects observed at the level below 40 dBLnight,outside are harmful to health…”

A recent study by Health Canada confirmed that some people find wind turbines stressful and annoying, but reached no conclusions as to why they do. In particular, they reported no evidence that the wind turbines cause the stress, as opposed to people’s fears about turbines.

The opponents’ evidence at these hearings revolved around the fears and beliefs that many wind farm neighbours have about adverse health effects from wind farms. The appellants argued that it was a breach of their Charter rights to the security of the person to expose them to the possibility of these harms:

“66….They contend that unlike the certainty of scientific knowledge which surrounds the effects of the discharge of a contaminant such as mercury, when dealing with the effect of noise and vibrations from commercial wind farms we are dealing with “known unknowns”. The uncertainty of the state of scientific knowledge about the effects on human health of commercial wind farms, according to the Appellants, materially informs the analysis of the Charter adequacy of the review tests found in EPA ss. 142.1(3) and 145.2.1(2). Which leads, then, to the question of whether the statutory test adopted by the Legislature materially departed from the consensus scientific view about the impact of commercial wind turbines on human health.”

But, the Court said, the opponents did not provide a scientific foundation for those fears:

“75…the Tribunals did not have before them expert evidence which seriously called into question the principle underpinning the EPA’s renewable energy project regulatory regime – i.e. that wind turbines which are set back 550m from a dwelling house and which do not generate noise levels in excess of 40 dBA at the lowest specified wind speed do not cause serious harm to human health based upon the current state of scientific knowledge.”

The Court agreed that the Tribunal had acted lawfully in rejecting the testimony of some wind farm neighbours, who testified that the wind farms are causing them adverse health effects, because of the lack of scientific support for these witnesses’ subjective belief in the cause of their symptoms.

Accordingly, the special EPA rules for approval of renewable energy projects, including wind farms, do not contravene the Charter:

“[88] …the statutory review test adopted by the Ontario Legislature in EPA ss. 142.1(3) and 145.2.1(2) in respect of the impact on human health of contaminants, such as sound and vibration, discharged from commercial wind farms does not, on its face, depart from the jurisprudential test for establishing a state violation of a person’s security of person under Charter s. 7.

[89] We also conclude that that statutory test did not depart from the consensus scientific view on the impact of commercial wind turbines on human health.”

The Court also rejected other procedural complaints raised by the wind opponents, who complained that they had been unfairly denied adjournments or other procedural requests during the Environment Review Tribunal hearings. Accordingly, all three appeals were dismissed and the renewable energy approvals given to the three wind farms were upheld.

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