This is the latest in series of legal challenges brought by opponents of Suncor Energy's 20MW Kent Breeze project.
Prince Edward County resident Ian Hanna went before Ontario's divisional court in January to argue the minimum 550-metre setback does not take into account possible negative impacts to human health. He wanted further wind development to be curtailed until the province could demonstrate the setback was a safe distance.
Vote of confidence
But the panel of three judges ruled the government acted properly in setting the regulation. "There was a full public consultation and a consideration of the views of interested parties. The ministerial review included science-based evidence, such as reports of the World Health Organisation and the opinions of acoustical engineering experts," the judges said in their decision.
The ruling helps bring certainty to the industry, says Robert Hornung, president of the Canadian Wind Energy Association (CANWEA) "The fact that the regulatory framework that everybody has been working within has been reaffirmed and remains in place is a very positive thing," he says. "It allows everybody to continue with the good work they're doing in terms of developing projects and creating economic benefits for communities across Ontario."
Wind project opponents, however, are still able to challenge the setback on a project-by-project basis. The court decision noted that the province's renewable energy approval process, implemented in 2009, allows anyone to challenge a wind farm permit. Ontario's ERT has the mandate to determine, on a case-by-case basis, whether a renewable energy approval would cause harm to human health, it says.
If the tribunal is persuaded by evidence that 550 metres is not enough to protect human health from serious harm, the court says, it can revoke the permit or increase the setback.
As a result, says Hanna's lawyer Eric Gillespie, the adequacy of the 550-metre threshold remains an open question. "It seems that really no decision was made and it will just be continuing on with the ERT process."
Gillespie is also acting on behalf of the parties appealing the Kent Breeze approval, the first wind farm to be challenged under the renewable energy approval rules. The importance of this first appeal, he says, is reflected in the resources being committed to argue both sides of the health issue.
Gillespie has brought in witnesses from Canada, the US, the UK, Australia and New Zealand to offer testimony on the negative health impacts of wind turbines. "The appellants are calling ten expert witnesses and the responding parties are calling at least 15," he says. "To the best of our knowledge, this hearing will represent the most comprehensive coming together of expertise that has occurred anywhere to date."
The decisions made in the Kent Breeze case will set a precedent for future appeals, he says. In the meantime, Hanna is seeking leave to appeal the divisional court's decision to dismiss his challenge of the setback regulations.
The ERT's hearing into the Kent Breeze appeal started in February, with testimony continuing until the end of March. Closing submissions were to be made early this month, with the tribunal required to issue its decision by May 29.