ERT Ruling - Kent Breeze Wind Farm Appeal

On July 18, 2011, the Ontario Environmental Review Tribunal (ERT) issued its decision in the appeal brought by residents in Chatham, Ontario (the Appellants) relating to the issuance of a Renewable Energy Approval (REA) by the Ministry of the Environment for the 20 MW Kent Breeze wind farm (the Project). The Project is owned by Suncor Energy Services Inc. The decision follows 17 days of hearings that began in February 2011. The ERT's ruling is available at http://www.ert.gov.on.ca/english/decisions/index.htm.

Decision

The central issue raised by the Appellants was whether engaging in the Project in accordance with the REA will cause serious harm to human health.

In short, the ERT dismissed the appeal and concluded that the Appellants failed to convince the ERT that the Project will cause serious harm to human health.

Findings

The Appellants argued during the hearing that the ERT should apply the “precautionary principle” such that the Appellants should only have to establish the threat of serious damage to human health. The ERT ruled that the specific statutory test stated in the Environmental Protection Act, R.S.O. 1990 is a higher burden – that it “will cause serious harm”.

With respect to the issue of the admission of expert evidence, the ERT's ruling featured a broad and inclusive approach. The ERT stated that the fact the issues being appealed involve emerging areas of inquiry, coupled with the statutory time limit within which to complete the appeal, necessitated a broad and inclusive approach to allowing expert evidence to be entered into evidence.

With respect to the possibility of wind turbine tower collapse, blade failure/throw, and ice fall/throw, the ERT stated that these risks, collectively or individually, do not occur commonly enough to lead to the conclusion that serious harm to human health from such risks will occur at this Project. With respect to shadow flicker (the Appellants submitted that wind turbine shadow flicker has the potential to induce photosensitive epileptic seizures), the ERT found that there is no evidence of particular factors or a convergence of factors to suggest that shadow flicker will cause serious harm to human health from the Project.

With respect to noise, which was a key issue in the appeal, the ERT considered both direct and indirect effects on human health. With respect to direct health effects (i.e., hearing loss), the ERT stated that the evidence does not show that engaging in the Project will cause serious harm to human health. With respect to indirect health effects (i.e., sleeplessness), on the totality of evidence, the ERT ruled that there is insufficient evidence to show that serious harm to human health will be caused by exposure to noise below 40 dB – the limit established by the Ministry of the Environment for wind power projects. The ERT did note, however, that the evidence upon which this finding is based is evolving quickly.

Overall Conclusion

The ERT ruled that the Appellants did not present evidence which was sufficient to conclude that the Project will cause serious harm to human health. The ERT noted, however, that the hearing served to advance the debate about wind turbines and human health. The ERT stated clearly the ruling should not be interpreted that wind turbines cannot cause harm to humans. The ERT stated the evidence presented indicated that they can and so the debate is properly characterized as one of degree, not absolutes.