Law Times

Page 10 November 17, 2014 • Law Times www.lawtimesnews.com FOCUS Wind litigation Challenges continue despite dismal record By arshy mann Law Times espite an almost win- less record, opponents of wind turbine proj- ects continue to bring new challenges to the Ontario Environmental Review Tribunal. In October, the tribunal dis- missed an appeal regarding the Jericho Wind Energy Centre, a proposed wind farm in Lamb- ton County. A few months ear- lier in July, it dismissed two ap- peals concerning the proposed Bow Lake wind farm near Sault Ste. Marie, Ont. Opponents of wind turbines generally claim they have a seri- ous deleterious impact on human health but have also advanced ar- guments that they can be damag- ing to nearby wildlife, can inter- fere with weather forecasts, and may even be a danger to skydivers. A recent $2.1-million Health Canada study found no association between ex- posure to wind turbine noise and sleep disturbance, stress or illnesses such as heart disease or chronic pain. It did, however, find that some people experienced annoy- ance due to wind turbines that increased when the noise from them went up. Researches examined 1,238 households in On- tario and Prince Edward Island for the study. Lawyer Dianne Saxe says that while the scientific evi- dence shows the symptoms people feel are real, they don't have a biological cause. "Every study by credible scientific folks with relevant expertise shows that people can be annoyed by things they don't like," she says. "And if they're sufficiently an- noyed and frightened of it, it can interfere with their sleep and if you can't get enough sleep, you can feel ill." Dozens of challenges against wind turbine devel- opments have made their way to the Environmental Review Tribunal since the Green Energy Act became law in 2009. The law set out a process by which projects could receive renewable en- ergy approvals. Individuals or companies can then chal- lenge the approval at the En- vironmental Review Tribu- nal if they believe the project will cause "serious harm to human health" or "serious and irreversible harm to plant life, animal life or the natural environment." So far, of the many challenges to wind turbine projects at the tribunal, only one has succeeded. Last year, the Environmental Review Tribunal revoked the ap- proval of a wind turbine project in Prince Edward County after finding it would do serious and ir- reversible harm to the Blanding's turtle. The decision arose from the fact that the project would require new roads that would sig- nificantly increase the mortality rate for the turtles. It was a short-lived victory, however. In February, the On- tario Divisional Court reversed the decision. "It seems unquestionable from the evidence that was placed be- fore the Tribunal that there was a risk of serious harm to Blanding's turtle from the Project," wrote Justice Ian Nordheimer. However, the three-judge panel found there wasn't enough evidence to deter- mine whether the harm would also be irreversible and therefore found in favour of the applicants. The case is under appeal. Eric Gillespie, an environmen- tal lawyer who has represented opponents of wind turbines in many of these cases, says it ap- pears virtually no one can win a hearing in front of the tribunal when it comes to wind power. "A very logical conclusion is that the government of Ontario has essentially created a test that is impossible to meet," he says. Along with local citizen groups going after wind turbine projects at the tribunal, many municipalities have also been joining the fight. According to Ontario Wind Resistance, more than 80 town- ships and counties have passed resolutions expressing their op- position to wind farms in their ar- eas. Some of them have also gone further by not providing permits to wind turbine operators. The question of how far a mu- nicipality can go in frustrating a wind turbine project that has obtained provincial approval has also come up in the courts. In October, the Ontario Divi- sional Court released its judgment in East Durham Wind Inc. v. The Municipality of West Grey. The applicants had received an approval from the province but weren't able to obtain vari- ous operational permits from the municipality that has de- clared itself "not a willing host for any further industrial wind turbines." The municipality had also amended a bylaw to require a $100,000 bond for every new wind turbine built in the area. The court found the munici- pality's bylaws were inoperative to the extent that they frustrated the intention of the Green En- ergy Act. "The court said that basically if there was a bona fide require- ment for permits and so on, the municipality couldn't use that power to frustrate the renewable energy approval that had been issued," says Saxe. Introducing the new CriminalSource ™ on WestlawNext ® Canada. Nothing else compares. The new CriminalSource™ is home to Canada's largest collection of case law, annotations, and commentary from criminal law experts – all presented to you in every search. So you spend less time searching and more time finding. • Never miss a case using the unmatched collection of reported and unreported Criminal and related cases exclusive to CriminalSource™ – including the Canadian Criminal Cases (the CCCs) • Get relevant Criminal Law expert insight and analysis in minutes to help you interpret the law – and build a legal strategy in less time and with more confidence • Link directly from any section of the Criminal Code to detailed commentary and annotations from Canada's leading criminal law experts – including Martin's Annotated Criminal Code, Martin's Annotated Related Criminal Statutes, Tremeear's Annotated Criminal Code and Tremeear's Annotated Related Criminal Statutes With so much at stake, every case deserves the best research. See for yourself. Watch a demo at westlawnextcanada.com/criminalsource Call 1-866-609-5811 00223AX-A46861 D See Municipalities, page 12 Wind turbine opponents haven't had much luck in court. 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