Anti-wind litigation: is there an end in sight?

After nearly two years of vigorous anti-wind litigation in Ontario, anti-wind activists have failed to satisfy any court or tribunal that wind energy development in accordance with government standards will cause serious harm. Many wind projects have been approved, and wind-based electrical generation is growing fast. However, the same concerns keep being raised, and we know of no Ontario wind farm that has obtained its approval without the cost and delay of litigation.

Renewable energy approvals in Ontario

Ontario was the first Canadian jurisdiction to set up a special approvals regime for renewable energy, through the Green Energy Act. To generate and sell commercial scale wind power in Ontario, the proponent must obtain a Renewable Energy Approval (REA) under the Environmental Protection Act from the Director of Approvals, Ministry of the Environment.

Because of the social, environmental, and political importance of reducing carbon emissions and switching to renewable sources of energy, the REA cannot be easily overturned. Any Ontario resident may appeal the decision to issue the REA, or its terms and conditions, to the Environmental Review Tribunal (ERT). To succeed, however, they must prove that, on the balance of probabilities, the wind project will cause:

1. Serious harm to human health, or
2. Serious and irreversible harm to plant life, animal life or the natural environment.

This is very difficult. Repeated studies around the world have shown that wind energy does not directly cause these harms¹; while no form of electricity generation is free of adverse effects, wind power is relatively benign compared to coal, nuclear, heavy petroleum, major dams, etc.² Nor has harm been proven in countries, such as Denmark and Germany, which have a dense network of turbines and a high level of wind energy generation. Even in other parts of Canada, there is much less concern about wind than there is in Ontario.

However, some people do find turbines sufficiently annoying to interfere with their sleep, especially if they do not receive any financial gain from the turbines. Persistent sleep loss can be devastating, as many young parents and other caregivers can attest. There is also a powerful nocebo effect, in which can people experience real, distressing symptoms if they believe that the source of their concern is harmful.

All decisions to date have held that these effects do not meet the legal test of harm, and are not sufficient to block the development of wind energy.

Harm to health, plants, wildlife or the environment?

The first case was a challenge to Ontario’s regulatory regime governing REAs. In Hanna v. Ontario (Attorney General),³ Mr. Hanna sought to invalidate the Renewable Energy Approvals Regulation because, he argued, its minimum setback requirements for wind turbines were inadequate. He claimed that the 550 meter minimum setbacks from nearby homes were inconsistent with the MOE’s “Noise Guidelines for Wind Farms” and the province’s Statement of Environmental Values. The SEV calls for a precautionary, science-based approach to decision-making. Therefore, he said, the province should not be able to issue REAs if there is still uncertainty about turbines’ full effects.

The Superior Court dismissed his application, finding that there had been a full public consultation, and a ministerial review of science-based evidence. Further, the adequacy of a minimum setback in a particular case can be challenged before the ERT, so those who are concerned have an alternate remedy.

Erickson v. Ontario (Director, MOE),⁴ was the first of the anti-wind appeals to reach the ERT. The ERT heard evidence from experts from around the world on the cutting edge of scientific inquiry. In a very lengthy decision, the ERT found that interference with sleep can cause harm to human health, and that there are “some risks and uncertainties associated with wind turbines that merit further research.” However, it could not conclude that the Kent Breeze Wind Farm turbines would significantly harm either human health or the environment, and the REA was upheld.

Aboriginal rights?

In Monture v. Director, MOE (Monture 1)⁵, a Six Nations appellant tried to use the same issues plus aboriginal rights and claims to block the Summerhaven wind project REA. Mr. Monture claimed that the REA failed to respect the Treaty rights of the Onkwehonwe, would affect their hunting and fishing rights, and would harm birds, wildlife, trees and agricultural land. However, the Tribunal ruled that aboriginal claims and consultation issues could not expand its jurisdiction, which was limited by the EPA to whether the project would cause serious harm to human health or the environment.

The Tribunal acknowledged that Mr. Monture’s evidence was informed by the “accumulated knowledge of the Onkwehonwe people as traditionally passed down through the generations, as well as cultural values that emphasize the importance of respecting the natural environment.” However, this evidence made only “general reference to the issues of habitat loss, fragmentation, avoidance of resting and foraging grounds, and sensory disturbances.” Mr. Monture’s other submissions regarding cumulative effects, bird mortality, and plants with medicinal value were too general to establish that this particular project would cause serious harm to animal life, plant life or the natural environment. A mere possibility of harm was insufficient to meet the legal test; Mr. Monture’s appeal was dismissed.

Mr. Monture, Haldimand Wind Concerns (a citizen’s group), and others were similarly unsuccessful in their appeal of a second REA⁶: Monture v. Director, MOE (Monture 2).⁷ The ERT did, however, recommend changes to the terms of the REA regarding natural heritage pre-construction and post-construction monitoring; reporting and review of results; Community Liaison Committee; and aboriginal consultation.

Embracing the nocebo effect?

In Chatham-Kent Wind Action Inc. v. Director, MOE⁸, the appellant offered no evidence, and the case was left to two individual participants. Mr. Ternoey based his opposition to the turbines on the real power of the nocebo effect.⁹ He explained: “Here the potential cause for harm is internally grounded in the mind, not external in the object of the turbine… the level of noise is not as important as the attitude or reaction to the noise.” He argued that the ERT was wrong to demand scientific evidence of objective causation of harm, since some people can experience a health impact due to his or her belief that the turbines are harmful. Since this nocebo effect can cause serious harm to human health, the legal test is met and the turbines should not be built.

The ERT rejected this argument; the Environmental Protection Act test for overturning a REA requires objective causation of harm, not just a subjective belief, however sincere. (Imagine what would happen if a nocebo effect test could block other forms of power generation or of other infrastructure: sewage plants, landfills, highways, transmission lines, cell towers, airports….)

Property value?

Opposition to wind energy may be driven, in part, by concern about nearby property values. In the only case decided to date, Kenney v. Municipal Property Assessment Corp., the Assessment Review Board found no such evidence. The Kenneys’ waterfront home on Wolf Island was assessed at $357,000. The Kenneys appealed, arguing that their assessment failed to take into account the negative effect of the Wolf Island Wind Project, then the second largest wind farm in Canada. Although the Kenneys believed that the wind farm threatened their health, their enjoyment of their property, and its value, the Board found there was no credible evidence of loss in value.

The Charter?

Since wind opponents cannot meet the legal test, i.e. prove serious harm to their health or the environment, they are now attacking the legal test itself. In Drennan v. K2 Wind Ontario Inc., Shawn and Trisha Drennan are seeking $4 million in damages plus an injunction to prevent K2 Wind Ontario Inc. from obtaining a renewable energy approval from the Ministry of the Environment for its proposed wind farm in Ashfield-Colborne-Wawanosh. 90 local landowners have leased their land for the project; much of it between 650 metres and 2 km from the Drennan home. Mr. and Mrs. Drennan claim that the wind farm will create a nuisance, make them ill, and reduce their property values.

The Environmental Protection Act puts the onus of proving such harm on wind opponents, instead of requiring each wind proponent to prove that their project will be safe. This, the Drennans claim, violates their right to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. They are seeking an interim injunction to stop all wind turbines within 2 km of their home, without having to prove that the turbines will cause them serious harm, and without providing the usual undertaking as to damages.

And in 2013?

Thus, it seems that anti-wind litigation will continue to be active in 2013. As the ERT is permitting appellants to relitigate the same issues for each new wind farm, three more REA appeals including similar grounds are also scheduled on the Environmental Review Tribunal’s Hearings List for this year: Gilead Power’s Ostrander Point wind project, located in the heart of the Prince Edward Point Important Bird Area; Northland Power’s Manitoulin Island wind farm, and Capital Power’s Port Dove and Nanticoke Project. Decisions are pending in Manitoulin Coalition for Safe Environment v. MOE and Haldimand Wind Concerns v. MOE.

And motions will be argued in the Drennan case. The injunction hearing is scheduled to be heard in February. The province is seeking summary judgment to dismiss the action. Meanwhile, the REA application has been filed and presumably is being processed.

This article was written for, and may also be found on, the excellent legal blog SLAW.

¹ Although wind turbines on bat migration routes should not run at night during bat migration. Bats do not have mobile ribs, and their lungs are easily injured by the pressure wave near the blades. And the Environmental Commissioner has wisely recommended that no turbines be built in Important Bird Areas

² Health Canada is conducting another study, which seems designed to be swamped by the nocebo effect

³ March 3, 2011

⁴ July 18, 2011, Environmental Review Tribunal

⁵ September 28, 2012, ERT

⁶ approval of a 67 turbine facility on the shores of Lake Erie

⁷ December 24, 2012, ERT

⁸ December 5, 2012

⁹ A second participant argued that the MOE was not properly calculating turbine noise, because it was using an international standard, ISO 9613-2, in a way it had not been specifically designed for

¹⁰ Ostrander Point is an Important Bird Area.