Ontario Environmental Review Tribunal Upholds Another Wind Turbine Approval

On January 4th, 2019, the Ontario Environmental Review Tribunal ("Tribunal" or "ERT") issued another decision in the long list of dismissed appeals of wind turbine approvals ("Renewable Energy Approvals" or "REAs").

The crux of the 143 page decision in Concerned Citizens of North Stormont v. Ontario (Environment, Conservation and Parks), 2019 CanLII 287 (ON ERT) is that the appellants failed to meet the very strict tests set out in s. 142.1 of the Environmental Protection Act ("EPA"). A successful appeal under s. 142.1(2) requires a showing that the wind turbine will cause:

(a) serious harm to human health ("Health Test"); or

(b) serious and irreversible harm to plant life, animal life or the natural environment ("Environment Test").

The Health Test has been found to be extremely onerous, but has survived a Charter challenge with a finding in the Ontario Divisional Court that the test does not violate sections 7's protection of security of the person (see Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404 (Ont. Div. Ct.)). No appeal has been successful to date on this ground.

There has been one successful REA appeal under the Environment Test. In Prince Edward County Field Naturalists v. Ostrander Point GP Inc. (2015), 2015 ONCA 269, the court of appeal upheld the finding of the ERT that the wind turbine project presented a serious and irreversible risk to the endangered Blanding's turtle.

In this case, the appellants advanced arguments under each test.

Human Health Test

With respect to the Health Test, the appellants focused on linking turbine noise to adverse health effects and proving that there is a public safety risk from turbine failure and ice. The Tribunal rejected both grounds. The ERT held at para. 138 that:

the current body of medical scientific research does not indicate that noise, including infrasound and low frequency noise, from the Project, operated in accordance with the setback distances provided for in the REA, will result in serious harm to the health of the community members, including those with pre-existing conditions.

With respect to public safety risks, the Tribunal (at paras. 145-146) accepted the project proponent's evidence that "the Project will not pose a significant risk of blade failure...