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Renewable Energy and Clean Technology Group e-LERT - Divisional Court Dismisses Wind Turbine Challenge

Published: 03/10/2011

The Green Energy Act, 2009 (the “Act”), passed by the Ontario Legislature on May 14, 2009, is arguably one of the most progressive pieces of climate legislation in the world. The Act was passed partly in response to Ontario’s commitment to phase out its aging, polluting coal powered generating plants, and reduce Ontario’s carbon emissions, and partly in response to the need to shore up Ontario’s sagging manufacturing sector by replacing lost manufacturing jobs with new green economy jobs.

The Act attracted interest from investors, corporations (foreign and local), farmers, and individual property owners. The aim was to create an environment favourable to developing a green economy and clean energy by reducing bureaucratic hurdles and offering incentives for designated renewable energy projects approved under the Renewable Energy Approvals Regulation under the Environmental Protection Act (the “REA Regulation”). The REA Regulation encourages the development of renewable energy in four main sources: solar, anaerobic digestion (biogas), thermal (biomass), and wind (other sources may be designated by regulation in the future).

In Ontario, by far the most controversial renewable energy source has been the generation of energy using wind turbines. Specifically, grassroots opposition has arisen, claiming that Part V of the REA Regulation, which imposes a setback standard for industrial wind turbines of 550 metres from any residence, does not sufficiently consider the possible negative impact of the turbines on human health. Opponents also criticize the Province’s decision to exempt any renewable energy approval issued by the Ministry of Environment (“MOE”) from the need to obtain Planning Act (land use) or Environmental Assessment Act approval. Indications of discontent with energy generated from wind turbines can be seen in different parts of Ontario where citizens have put up signs claiming: “Wind Energy is not Green Energy.”

In late January 2011, a panel of the Ontario Superior Court of Justice (Divisional Court) agreed to hear a challenge by a Prince Edward County resident who argued that the setback regulation is unlawful. (See Hanna v. Attorney General for Ontario, 2011 ONSC 609, court file no. 491/09.) Specifically, the challenger argued that, in enacting the minimum set back standard, the MOE did not consider any medical evidence and therefore failed to adhere to the “precautionary principle” set out in the MOE’s Statement of Environmental Values (“SEV”) under the Environmental Bill of Rights (“EBR”). The SEV directs the MOE to exercise a precautionary approach in its decision-making. Specifically, under this approach, when there is uncertainty about the risk associated with an undertaking or pollutant, among other things, the MOE should exercise caution in favour of the environment.

On March 3, 2011 the Divisional Court dismissed the challenge. The court’s basis for doing so was that it was satisfied that the Minister complied with the process mandated by the EBR. The court also found that the Ministerial Review included science-based evidence, such as reports of the World Health Organization and the opinions of acoustical engineering experts, and that the Minister made the decision knowing the minimum setback standard could be challenged in a case before the Environmental Review Tribunal through the Renewable Energy Approvals process. The court also ruled that the precautionary principle does not preclude the Minister’s decision.

It is interesting to note that while the challenge was pending, the Ontario government remained undaunted and continued to enter into renewable energy production contracts, including the latest award of $3 Billion worth of contracts to solar and wind companies. Critics, however, claim the government is sending mixed signals, given its moratorium on energy produced by off-shore wind turbines and its decision to halt or stall some small solar projects because of the lack of capacity and the inability to tie these projects into the transmission grid.

As Ontario heads toward a mandated fall election, it seems certain that opponents and proponents alike will crank up the political heat surrounding these issues in the coming months.

For further information regarding this matter, please contact James Ayres or any member of our Renewable Energy and Clean Technology Group.