Law Times

Law Times • November 19, 2012 Critics focusing on declining property values Environmental Law Wind power challenges FOCUS ON I BY MARG. BRUINEMAN For Law Times f there's one thing springing up faster s the issues surrounding them than alternative energy sources in On- tario, it' wind power developments. "Energy facilities can generate more as critics find new ways to challenge than electricity; they can also generate conflict," begin Jerry DeMarco and Paul Muldoon in a major 2011 Environmental Review Tribunal decision in Erickson v. Director, Ministry of the Environment. The hearing, they noted, was largely "a test of whether turbines in Ontario will cause serious harm to human health." The case examined the Ontario Minis- try of the Environment's noise guidelines for wind farms and the Environmental Protection Act. Experts from across the world presented information as the hear- ing delved into new scientific research. The panel noted there are some risks and uncertainties associated with wind turbines and encouraged further re- search and debate on the most appropri- ate standards. But ultimately, the panel dismissed the complaint against the Kent Breeze project. "The tribunal cannot find that the Kent basis. At this point, we haven't seen any- thing that' "Erickson was fought on a very general s changed." ther work and studies on the issue. At the same time, questions arose from the stud- ies presented during that case that indi- cated a possible impact. Lawyer Eric Gillespie, who acted for But Erickson did leave room for fur- appellants Katie Brenda Erickson and Chatham-Kent Wind Action Inc., says the case established the principle that there' There has been a wave of challenges since 2008 as companies move into the construction phase, says Patrick Duffy. appealed to date. Two are still at the hear- ing stage, one awaits a decision, four were withdrawn or settled without a hearing, and two decisions were rendered. Both upheld the ministry' Breeze project operated according to the current Ontario standards 'will cause se- rious harm to human health,'" the panel determined. "That is the test in the statute, but the evidence presented in this hearing is insufficient to meet it. What the tribu- nal can state is that the need for more re- search came up several times during this hearing. Time will tell as to what that re- search will ultimately demonstrate. continues to arise. The issue has also be- come the subject of a Health Canada study. But the push to press forward in the development of alternative power persists and applications for wind farms continue to face opposition. Ontario' The question of harm to human health " reports that nine wind projects have been s Ministry of the Environment says the Erickson case was the first appeal of a renewable energy approval for a wind project. "In Erickson, the [tribunal] found, in a lengthy decision, that the appellants had failed to show that the Kent Breeze project as approved would cause serious harm to human health. There was insufficient evi- dence to establish that the noise predicted to be produced by the wind turbines at Kent Breeze would result in harm that would be significant enough to be found to be serious harm to human health." Patrick Duffy of Stikeman Elliott LLP Ministry spokeswoman Kate Jordan s approvals. has been working on the energy file for several years with more of an emphasis on wind and renewable energy for the past five or six years. During that time, he has seen an increase in complaints to the courts, judicial reviews, and matters at other tribunals involving individuals, groups, and municipalities. "That' since 2008" as companies move into the construction phase aſter winning con- tracts, he says. And with that, he adds, come "nuisance claims" for yet-to-be- built wind farms from property owners fearing a drop in real estate values. He figures there are half a dozen cas- s a wave we've seen coming on es in litigation in Ontario, all of them launched this year. Currently, he' senting the German company wpd Can- ada Corp. in three of those and hopes to have them dismissed on a summary basis in the new year. There have also been judicial reviews. s repre- In Hanna v. Ontario (Attorney General), the challenge at the Ontario Divisional Court focused on the issue of setbacks. And other tribunals, including the On- tario Energy Board, have weighed in. The Municipality of Grey Highlands, for ex- ample, unsuccessfully challenged Plateau Wind Inc.' "We have these claims that are fairly general in nature," says Duffy. s access to its road allowances. AVAILABLE ONLINE AND IN PRINT REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Untitled-1 1 www.lawtimesnews.com 12-11-08 1:56 PM a detriment to human health. The case is being cited worldwide and the body of scientific and technical knowledge intro- duced in Erickson continues to build. "Given the size and the alleged impact of some of these projects, it's reasonable to s potential for wind farms to cause PAGE 9 anticipate there will be further steps taken in a number of these cases," says Gillespie, whose firm Eric K. Gillespie Professional Corp. employs four other lawyers who are also busy on the environmental file. "The next step is . . . to bring additional evi- dence that the current Ontario regulatory standards are inadequate. "Our firm has been retained and has appealed every single renewable energy approval that has been granted in On- tario." Health concerns and property de- valuation are the primary concerns men- tioned in the challenges. In the meantime, Health Canada an- nounced this summer that it's focusing its study on the health and noise impacts of wind turbines using a sample size of 2,000 dwellings. Spokesman Stephane Shank says the department has expertise in the area of noise and its impact as a form of radiation. " wanting to study and focus on a sample of 2,000 dwellings" involving eight to 12 wind turbine installations in Canada. Re- searchers, he adds, will take physical mea- surements and will discuss the impacts. The department expects to publish its conclusions in 2014. LT At this point we still have a scope . . .

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