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Wind power foes lose legal challenge

Anti-wind power activists in Ontario have suffered a major legal setback, as a panel of judges ruled the province has the right to determine how closely turbines may be placed to homes.

In a decision released Thursday, three judges of the Ontario Superior Court of Justice said the provincial government’s regulations that spell out the minimum distance – usually 550 metres – are legitimate.

Lawyers for Ian Hanna, a resident of Prince Edward County, 200 kilometres east of Toronto, had argued at a hearing in January that regulations in Ontario’s Green Energy Act that govern how far turbines must be from dwellings are illegal. If the court had agreed, new wind development in the province could have come to a standstill.

The ruling was a relief for the wind power industry. If it had gone the other way, “it would have created a tremendous amount of uncertainty, ” said Robert Hornung, president of the Canadian Wind Energy Association.

He said the turbine setbacks were determined through an extensive consultation process, and they are among the most stringent in North America. The association’s position is that there is no direct link between wind turbines and human health.

Mr. Hanna’s argument was based on the premise 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.”

Ontario’s Environment Ministry correctly followed the process outlined in the environmental bill of rights, and conducted sufficient consultation before coming up with its regulations, the ruling said.

The judges also noted that anyone in the province can challenge specific proposed wind projects in front of an environmental review tribunal, and if they can prove that the 550-metre setback is not sufficient, the tribunal can stop the project or increase the setback.

Mr. Hanna said Thursday that he will consider an appeal of the ruling and will continue to fight on behalf of those who think more research must be done into the health effects of wind turbines. “I’ve met too many people who are really suffering from living too close to turbines,” he said. “I’ve seen what it can do to them … I couldn’t walk away.”

Mr. Hanna’s lawyer, Eric Gillespie, said there are some positive aspects to the court ruling. The decision made it clear that Ontario’s environmental bill of rights must be taken into account when regulations are set, he said, and it opens the door to other legal challenges to government decisions related to wind energy. “Given the amount of public interest and concern around this issue, it would be very surprising if this was the last legal challenge,” he said.

Ontario’s Environment Minister John Wilkinson said the province’s setback rules are based on 40 years of peer-reviewed science. But he said the ministry “is always open to new research.”