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Further fronts open in legal wars over Ontario industrial wind development

Toronto, Ontario – On November 12, 2010, the Ontario Ministry of Environment (MOE) issued the first ever Renewable Energy Approval (REA) under the current regulations for the Green Energy Act (GEA). The MOE approved Kent-Breeze Wind Farms, which consists of eight- 2.5MW wind turbines near Thamesville in Chatham-Kent. Though Kent Breeze Corp. and MacLeod Windmill Project Inc. are jointly cited as the proponent, the project is in fact principally owned by Suncor Energy.

In response, Chatham-Kent Wind Action Inc. and Ms. Katie Erickson, a non-participating resident within the project, have retained the legal counsel of Eric K. Gillespie Professional Corporation. The first ever appeal of the first REA was filed with the Environmental Review Tribunal (ERT) on Monday November 29, 2010.

The appeal is based chiefly on the issue of serious harm to human health from both noise and low-frequency sound. The appeal raises numerous issues including the MOE’s apparently admitted inability to predict, measure, or assess noise levels; the lack of regulations for low-frequency sound; and the seemingly double standard that permits wind turbines to be sited closer to project participants than non-participants.

It also challenges the MOE’s compliance with that Ministry’s own Statement of Environmental Values. As a result, the cumulative effects on the environment and the relationships between the environment, the economy and society, specifically, the economic impacts of the project on property values are also being raised.

The matters before the ERT will, therefore, be broader than in the Hanna case, a judicial review filed in the Ontario Divisional Court of the 550 metre setbacks established by the MOE in which Gillespie’s firm also acts. The ERT will have the ability to consider a greater range of evidence as well as additional medical and other studies conducted since the coming into force of the setback regulations under the GEA in 2009.

The Ontario government did not wait for a decision from the Divisional Court (hearing in January 2011) before authorizing further wind development. However, if the upcoming Hanna application is decided against the government it will likely affect most new wind projects in Ontario. The ruling in the Chatham-Kent Wind Action Inc. and Erickson appeals will also affect many if not all industrial wind turbine projects in Ontario.

Both the Hanna judicial review and the CKWA/Erickson ERT appeals send the clear message rural Ontario will not accept either proponents or the MOE’s apparent lack of compliance with the legal, statutory and regulatory requirements already in place.