Erickson v. Director, Ministry of the Environment: The Environmental Review Tribunal Releases its Decision in the Kent Breeze Wind Farm Case
On July 18, 2011, the Environmental Review Tribunal (“ERT”) released its decision in the first appeal of a Renewable Energy Approval (“REA”). Erickson v. Director, Ministry of the Environment (the “Kent Breeze REA Appeal”) concerned the appeal of an REA that was issued for the Kent Breeze Wind Project in the fall of 2010. The applicant, Suncor Energy Services Inc., was granted an REA under the Environmental Protection Act (“EPA”) for eight 2.5 MW wind turbines making up the Kent Breeze Wind Project located in the Township of Camden, Ontario. The issuance of the REA was appealed by Chatham-Kent Wind Action Inc. and Katie Erickson (the “Appellants”).
The ERT's decision was released following an extensive hearing process (seventeen hearing days) during which numerous experts (twenty-five in all) were called to testify by the Appellants, Suncor and the Director, Ministry of the Environment (“MOE”). The ERT found that “the Appellants have failed to show that Suncor's Kent Breeze Project, as approved, will cause serious harm to human health”1 and upheld the REA issued for the project. However, the ERT stated that “the evidence shows that there are some risks and uncertainties associated with wind turbines that merit further research”, thereby leaving the door open for future REA challenges to raise the potential effects of wind turbines on human health. An appeal of the ERT's decision to the Divisional Court or the Minister of the Environment is still possible.
Unlike Certificates of Approval issued under the EPA, there is no requirement to apply for leave to appeal a REA. A hearing in respect of a REA can be required by any person who is resident in Ontario simply by serving notice on the MOE Director and the ERT within 15 days of the REA being issued. However, the grounds for requiring a hearing are limited to the following, as specified in section 142.1(3) of the EPA:
Grounds for hearing
(3) A person may require a hearing ... only on the grounds that engaging in the renewable energy project in accordance with the renewable energy approval will cause,
- serious harm to human health; or
- serious and irreversible harm to plant life, animal life or the natural environment.
In the Kent Breeze REA Appeal, the Appellants argued that the project would cause serious harm to human health; issues related to serious and irreversible harm to plant life, animal life or the natural environment were not raised. The following is a brief description of the Appellant's sub-arguments on the human health issue and the ERT's findings:
- The project would cause serious harm to human health of non-participants ( i.e . persons who did not have wind turbines located on their property).
The Appellants submitted that serious harm to human health would result from tower collapse, blade failure/throw, ice fall/throw, as well as from shadow flicker and direct and indirect noise impacts from the wind turbines.
With respect to tower collapse, blade failure/throw, ice fall/throw, the ERT found that the evidence did not establish that serious harm from such risks “would” occur at this project, and that the risk of such effects was very low. The ERT also found that the Appellants did not provide any evidence to show that shadow flicker was a concern at the Kent Breeze Project site.
With respect to noise, the ERT found that the evidence did not show that engaging in the project would result in serious harm to human health from direct impacts, such as hearing loss. The ERT acknowledged that indirect impacts, such as inadequate sleep due to noise, “are a complex matter and that there is no reason to ignore serious effects that have a psychological component”2. However, the ERT found that “there is insufficient evidence to establish that noise predicted to be produced at the Kent Breeze Project will cause indirect harm to such a serious degree that will cause serious harm to human health.”3
The ERT also concluded, with respect to the potential impacts of the project on non-participating receptors, that the “[a]ppellants have not demonstrated that any one risk or any combination of one or more risks is likely to occur at a rate where it can be said on a balance of probabilities that at least one type of serious harm to human health will be caused.”4
- The project would cause serious harm to human health of participants ( i.e. persons who had wind turbines located on their property).
The ERT noted that the statutory test of serious harm is not subject to an exception for participating receptors. However, the Appellants did not provide adequate evidence regarding the participating receptors involved in this project, and, therefore, serious harm to human health was not established.
- There are uncertainties in the ability to properly predict, measure or assess noise from wind turbines and such uncertainties would result in serious harm to human health.
The Appellants argued that current technology does not allow the precise measurement of all types of noise emanating from wind turbines, and that the noise impacts of the Kent Breeze Wind Project would not be accurately measured following its construction. The ERT found that:
At best, one may conclude that the predictions of noise levels will not be completely accurate and that measurements and assessments will be hampered by the technology available and the very nature of sound and noise. However, it is a large leap to state that these challenges and uncertainties mean that the Project will cause serious harm. In this regard, the Appellants have simply provided evidence that rises to the point of raising concerns but not to the point of proving that serious harm will be caused.5
- The project would cause serious harm to human health because it does not comply with the MOE's Statement of Environmental Values.
The argument regarding non-compliance with the MOE's Statement of Environmental Values is a procedural argument premised on the basis that the MOE did not comply with these values in issuing the REA. However, the test for appealing an REA is clearly stated in section 142.1 of the EPA. The ERT referred to the test in section 142.1 of the EPA and stated that “[u]nder the new REA provisions, it is clear that any argument about a procedural failing has to also prove that the harm listed in [the EPA] will result.”6 In this case, serious harm to human health was not proven.
In its overall conclusion, the ERT stated that it
... cannot find that the Kent Breeze Project operated according to the current Ontario standards ‘will cause serious harm to human health'. That is the test in the statute, but the evidence presented in this Hearing is insufficient to meet it. What the Tribunal can state is that the need for more research came up several times during this Hearing. Time will tell as to what the research will ultimately demonstrate. The Tribunal is hopeful that, whatever the results, further research will help answer some of the concerns and uncertainties raised during this Hearing.7
While this decision is a victory for the project developer and the wind industry in Ontario, it does not close the door on the issue of the impacts wind turbines may have on human health, especially the impacts of noise on human health. If new evidence regarding noise impacts arises, we may see further REA appeals on the issue of serious harm to human health. Also, the Kent Breeze REA Appeal did not consider impacts that could cause “serious and irreversible harm to plant life, animal life or the natural environment”. There is a good chance that we will see REA appeals involving environmental impacts as the central issue at some point in the near future.
1 Erickson v. Director, Ministry of the Environment (July, 2011) Case Nos.:10-121/10-122 (Environmental Review Tribunal) at page 6.
2 Ibid ., at page 190.
3 Ibid ., at page 197.
4 Ibid .
5 Ibid ., at page 199.
6 Ibid ., at page 206.
7 Ibid ., at page 6.