Wind’s legal storm may blow here

Arran-Elderslie Deputy Mayor Mark Davis said Friday he’s aware of more than 50 municipalities that have adopted or endorsed his township’s Bylaw 14/10. Gillespie, whose office “is in touch with individuals and community groups right across Ontario,” described Arran-Elderslie as one place to watch for the future of wind power litigation.

“The future of the bylaw will be very interesting to follow,” Gillespie said. It “reflects the concern that municipal councils have about their lack of involvement in the current process.”

The province’s Green Energy Act streamlined wind power approvals, but stripped planning control from municipalities.

Whether Arran-Elderslie’s bylaw will survive a challenge from wind developers remains “an open question” in Gillespie’s view. Unlike circumstances elsewhere that force objectors to act, the Arran-Elderslie law will force proponents to start legal actions. That has yet to happen, although Davis figures it’s just a matter of time considering the number of proposals under discussion locally.

The bylaw requires wind power proponents to obtain certification from Health Canada and several provincial agencies that the development will “benefit and not harm the health, safety and well-being” of residents.

Arran-Elderslie also has concerns about whether it can provide adequate fire and emergency services for large wind turbine structures, Davis said. The municipality doesn’t have equipment to conduct a high angle rescue such as might be needed for an injured worker high up in a turbine structure, he said.

“We’d need to see how they’re going to deal with that to our satisfaction,” Davis said. “The onus is on us to make sure that is provided.”

There are other legal questions as well.

In Ontario Divisional Court Monday, a panel of three judges agreed to consider Gillespie’s objections to Green Energy Act regulations about residential setbacks from wind turbines on behalf of Ian Hanna of Prince Edward County.

In a separate Chatham-area case before the province’s Environmental Review Tribunal, to begin Tuesday, Gillespie will argue the first appeal of a renewable energy approval for a wind development, which was proposed by Suncor Inc. The hearing is expected to wrap up in late March.

The challenge is to prove harm and damages.

Gillespie expects the Suncor hearing to deal with the question of potential harm turbines could do to human health. The list of witnesses includes 23 experts on that heavily debated question.

The Chatham case will not consider the impact from wind development on neighbouring property values, however, because the Environmental Protection Act limits the scope of such reviews. The tribunal may consider only issues of “serious harm to human health” and “irreversible harm to . . . the natural environment,” Gillespie said.

Regarding property values, however, it’s only a matter of time before judges are asked to adjudicate. And there are few decided cases to guide future litigation.

“This is still very much an emerging area of the law,” Gillespie said. “The issue will be proof of liability and, if liability is shown, how to calculate damages.”

Industrial-scale wind power installations have been around for 20 years in some jurisdictions, but in Ontario wind farms have been smaller or more remote until recently.

“We haven’t had the opportunity to do a lot of scientific research around the large-scale, very large-sized turbines that are generally the type most projects are installing,” Gillespie said.