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Ontario court dismisses challenge to wind farm setback standards

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An Ontario Superior Court has dismissed a legal challenge to the province’s wind farm siting standards, which call for 550 meter (1800 foot) setbacks in most cases. The Court ruled that it could only judge whether the process of coming up with the regulations followed proper protocols, including public consultation and the use of science-based evidence in coming to its conclusions. That lifts a cloud of uncertainty from developers of wind farms, says the president of the Canadian Wind Energy Association. “We’re expecting this to be a record year for wind development in Ontario,” Robert Hornung said in an interview. “This decision just helps everybody put their head down and focus on the work.”

“It is not the court’s function to question the wisdom of the minister’s decision, or even whether it was reasonable,” the court ruled Thursday. “If the minister followed the process mandates by the Environmental Bill of Rights, his decision is unassailable on a judicial review application.”

The Court pointed out that the province’s Environmental Review Tribunal (ERT) can consider whether setbacks are reasonable, on a case-by-case basis.  In fact, an ERT review is currently underway, challenging the standard setbacks at a wind farm in Chatham-Kent, the first new wind farm to be permitted under the new law. “If the tribunal is persuaded by evidence that the 550-metre minimum setback is inadequate to protect human health from serious harm, the tribunal has the authority to revoke the decision of the director (of environment ministry approvals) or at the request of the applicant increase the minimum setback,” said Eric Gillespie, lawyer for Wind Concerns Ontario, which is mounting the ERT challenge. See more in this Sun Times article.  Interestingly, the Ministry of Environment (which includes the ERTs) had advised that the ultimate legal challenge to the setback rules should be heard in the Ontario courts which have now returned the decision to the ERTs.

“We in the trenches know, without a shadow of doubt, that perfectly healthy people become seriously ill after turbines start up nearby and that the numbers of people getting ill is significant,” said Lorrie Gillis of WCO. “We also know that what these people have experienced has been vigorously denied and dismissed in favour of a political agenda of the perceived ‘greater good.'”

The court case, filed by Ian Hanna of Prince Edward County, argued that Ontario did not take proper account of the possible negative impact to human health when it established the minimum turbine setback. Essentially, he argued, there is no medical evidence that the setback is safe, and that by publishing regulations without sufficient proof, the province breached the “precautionary principle” in its own environmental bill of rights. That principle says the government has to show an activity is safe before it is approved. But the judges disagreed, saying that “the health concerns for persons living in proximity to wind turbines cannot be denigrated, but they do not trump all other considerations.” See CTV story for more.

See earlier AEInews coverage of the case here.

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