Making it easier to tilt at windmills 

Behind every new wind farm that has popped up across Ontario lies an often-bitter fight with local residents – some of whom claim the massive modern windmills affect their health – and a Byzantine maze of local and provincial approvals.

So Ontario’s Liberal government created the Green Energy Act in May, 2009, with new rules meant to streamline the process that allows wind farms to go ahead.

But one lawyer who represents the wind-power industry warns that the new rules contain a significant loophole – a loophole that allows the growing anti-wind-power movement to automatically appeal every new project the province approves, even if no local opposition exists.

“Even though I expect the wind farms … to win in almost every case, the problem is, it’s going to drive up the cost of the projects, for sure, for no good reason,” said Aaron Atcheson, a partner in Miller Thomson LLP’s office in London, Ont.

“The way the [Act] is written right now, someone can sit in their house in Toronto and can fire off appeals for something anywhere in the province. It just doesn’t make any sense to me.”

Until now, companies wanting to build the massive windmills that increasingly dot Ontario’s rural landscape had to win a number of permits and approvals from various provincial departments and local municipalities. The new process centralizes the approval process, taking power away from local authorities.

Under the new rules, however, anyone anywhere in Ontario can launch an appeal of any approval handed out for a wind (or other renewable energy) project, taking the plan before the province’s environmental review tribunal, a quasi-judicial body.

Mr. Atcheson warns this will mean that wind power’s vocal and well-organized opponents can be expected to appeal every project that comes forward.

Appeals are time-limited to six months after a project is approved, but will still require companies to hire lawyers and prepare cases before the tribunal, he said. This will make wind power more expensive, he warns, undermining the goals of the Green Energy Act. He argues the rules should contain a test that forces opponents to seek permission to appeal a decision.

Mr. Atcheson also warns that the province’s environmental review tribunals may not have the staff to deal with the coming gale of wind appeals. He plans to present his concerns in a paper at a Canada Wind Energy Association industry conference in Montreal next month.

Dianne Saxe, a Toronto environmental lawyer, said she agreed that the new process might spark a rash of appeals from wind opponents – at first. Once the tribunals begin to issue rulings, the scope of just what arguments will work in an appeal will become clearer, and the number of appeals will fall off, she said.

“He’s right that given that you have some very determined wind opponents, you’re likely to see appeals,” she said. “… In the short run, it is a concern. But in the longer run, it should work.”

Kate Jordan, a spokeswoman for the Ontario Ministry of the Environment, said the tribunals would only grant appeal hearings if opponents show the project could do serious harm to the environment or to human health. She said that while the public would be involved in consultations during the planning process for wind farms, opponents would have only 15 days to request an appeal once a project was given the go-ahead.

“There is strict criteria in place in terms of whether an appeal can be heard,” Ms. Jordan said.

However, Toronto lawyer Eric Gillespie – currently representing a farmer fighting an Eastern Ontario wind farm – points out that the new appeal process replaces the multiple opportunities to appeal – under the Environmental Assessment Act, before the Ontario Municipal Board – that wind critics used to have.

Still, he said, there are other ways for critics of wind farms – which some activists believe can harm the health of those who live nearby – to press their case. In his fight on behalf of Ian Hanna, a farmer opposed to a proposed wind farm in Prince Edward County, Mr. Gillespie has demanded a judicial review of the province’s rules governing wind farms.

The case, although called a long shot by some observers, is still being watched closely. Mr. Gillespie argues that the government failed to follow the “precautionary principle” in devising a requirement that wind turbines only need to be 550 metres from neighbouring homes. It is scheduled to be argued before a three-judge panel of Ontario’s Divisional Court in January.

The stakes for the wind industry are high. A preliminary ruling allowing the Canadian Wind Energy Association to intervene by Madam Justice Katherine Swinton noted that if the case succeeds, the construction of new wind turbines in Ontario “will be effectively halted for an indeterminate period of time.”

Mr. Atcheson said that while the wars over wind power in Ontario are likely to heat up during the upcoming provincial election, the legal battles are going to be concentrated in those appeals before the environmental review tribunal.

He said while medical science has not linked wind turbines with any health effects, he understands some of the opponents’ concerns.

“At the base of things, it comes down to people’s worries about property values,” Mr. Atcheson said. “… And it’s a legitimate concern. Nobody likes to have something that brings their property values down. I think it’s a combination of that and fear-mongering.”