Green Energy: First Appeal of Renewable Energy Approval

Written By Karen Beattie

On November 10, 2010, Suncor Energy Services Inc.'s Kent Breeze 20 MW eight-turbine wind farm in Chatham-Kent, Ontario, received the first Renewable Energy Approval (REA) pursuant to Ontario's Green Energy Act. The REA has been appealed to the Ontario Environmental Review Tribunal (ERT), and the hearing is scheduled to begin February 1, 2011. We will provide updates to you about the appeal.

Background

To succeed, the applicants (local residents) must meet an onerous test under the Ontario Environmental Protection Act. Specifically, the applicants must establish that it is more likely than not that the wind farm will cause (i) serious harm to human health, or (ii) serious and irreversible harm to plant life, animal life or the natural environment.

The applicants will be presenting evidence to show that serious harm to human health will occur because of exposure to the infrasound and/or low frequency noise and shadow flicker from wind turbines. There may also be evidence regarding the impact to human health resulting from the visual impact of wind turbines, as well as exposure to ice throw and turbine failure.¹ The applicants have indicated they intend to call nine witnesses from around the world, including the United States, Australia, New Zealand and the United Kingdom.

In response, we understand that Suncor Energy and the Minister of the Environment's Director will present evidence from experts in the United States and the UK.

If the ERT were to conclude that serious harm to human health will result from the wind farm, it could: revoke the REA; direct the Director to take such action as the ERT considers appropriate; or substitute its own decision for that of the Director. If the ERT were to conclude that no such harm will be caused, it would have to confirm the Director's decision.

The appeal hearing is scheduled to start on February 1 in Chatham, Ontario, and is expected to conclude by March 31 (with 16 hearing days scheduled). Pursuant to the Environmental Protection Act, the ERT is required to issue its decision by May 30, 2011 (i.e., six months from the date of the notice of appeal).

Commentary

The six-month timeframe for issuance of the ERT's decision may impact the ERT's obligation to ensure that its process is fair for all parties. In this regard, the Director's counsel has already mentioned that the condensed process, in combination with an alleged lack of timely disclosure of evidence on the part of the applicants, has hampered her ability to prepare for the hearing.

Fairness in the process may be further impacted by the applicants' request for confidentiality over their main expert's study. Confidentiality has been sought by the applicants to protect the expert's ability to preserve the rights to future publication in peer-reviewed journals. We are not aware of any such claim being made in the past, and would be surprised if the ERT were to grant this request. If the ERT were to grant the confidentiality request, it would likely need to hold portions of the hearing in camera (i.e., in private, without public access).

Regardless of what happens, we expect that this matter will not end at the ERT. An appeal to the Divisional Court is available for questions of law, and judicial review is always a possibility.

Despite the appeal, Suncor Energy commenced construction on November 11, 2010, which it had (and has) the right to do. Construction is ongoing and is expected to be complete by May 2011, about the time the ERT's decision may be released.

It is noteworthy that there is an unrelated challenge at the Ontario Divisional Court, currently ongoing, regarding the setback requirements for wind projects.

Notes

1. These topics are listed in the Applicants' Notice of Appeal, but only William Palmer, who has been granted Presenter status, intends to speak to these issues. The Minister of the Environment's Director and Suncor Energy are of the view that Presenters do not have the legal authority to broaden the scope of the hearing (beyond the topics that will be addressed by the Applicants' witnesses). No ruling by the ERT has been made on this issue yet.