On January 4th, 2019, the Ontario Environmental Review Tribunal (“Tribunal” or “ERT”) issued another decision in the long list of dismissed appeals of wind turbine approvals (“Renewable Energy Approvals” or “REAs”).
The crux of the 143 page decision in Concerned Citizens of North Stormont v. Ontario (Environment, Conservation and Parks), 2019 CanLII 287 (ON ERT) is that the appellants failed to meet the very strict tests set out in s. 142.1 of the Environmental Protection Act (“EPA”). A successful appeal under s. 142.1(2) requires a showing that the wind turbine will cause:
(a) serious harm to human health (“Health Test”); or
(b) serious and irreversible harm to plant life, animal life or the natural environment (“Environment Test”).
The Health Test has been found to be extremely onerous, but has survived a Charter challenge with a finding in the Ontario Divisional Court that the test does not violate sections 7’s protection of security of the person (see Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404 (Ont. Div. Ct.). No appeal has been successful to date on this ground.
There has been one successful REA appeal under the Environment Test. In Prince Edward County Field Naturalists v. Ostrander Point GP Inc. (2015), 2015 ONCA 269, the court of appeal upheld the finding of the ERT that the wind turbine project presented a serious and irreversible risk to the endangered Blanding’s turtle.
In this case, the appellants advanced arguments under each test.
Human Health Test
With respect to the Health Test, the appellants focused on linking turbine noise to adverse health effects and proving that there is a public safety risk from turbine failure and ice. The Tribunal rejected both grounds. The ERT held at para. 138 that:
[T]he current body of medical scientific research does not indicate that noise, including infrasound and low frequency noise, from the Project, operated in accordance with the setback distances provided for in the REA, will result in serious harm to the health of the community members, including those with pre-existing conditions.
With respect to public safety risks, the Tribunal (at paras. 145-146) accepted the project proponent’s evidence that “the Project will not pose a significant risk of blade failure or ice throw”, and that evidence of risk or harm only establishes that it “may” occur, while the test would require a showing that it “will” occur.
Environment Test
Concerning the requirement to show serious and irreversible harm to plants, animals or the environment, the appellants argued three grounds: harm to birds, harm to bats, and groundwater-related matters.
In relation to birds and bats, the Tribunal found that the “monitoring and mitigation measures” required by REA conditions “will be sufficient to protect bird species in the Project Area” (para. 189) and “will reduce the low risk to bats” such that the Project presents no “serious and irreversible harm to bats” (para. 191).
The appellants’ argument with respect to ground-water impact was that construction and operation of the wind turbines would cause fine soil and rock particles to be transmitted in groundwater to adversely impact local drinking water wells (para. 288). On this issue, the Tribunal preferred the evidence of the Proponent’s experts that “there are no plausible contaminating mechanisms for fine soil and rock particles” where the turbines will be installed “over 500 m from the nearest wells” (para. 292). The Tribunal was further satisfied that conditions of the REA that require monitoring of wells were adequate to address any potential issues.
The takeaway from this decision is confirmation, once again, that proving “serious” harm to human health or “serious and irreversible” environmental harm is an extremely onerous test.