GODERICH – Shawn and Trisha Drennan have a reasonable fear that their health will be harmed by 12 industrial wind turbines proposed to be built within two kilometres of their home just north of Goderich, argued lawyer Julian Falconer in superior court today.
He asked Justice A. Duncan Grace to dismiss a motion by K2 Wind Project and the provincial government, represented by the Ministry
of the Attorney General, to either dismiss or stay a bid for an injunction that would stop the K2 Wind Project from proceeding until a $4 million lawsuit is dealt with. If the judge were to stay the motion, the lawsuit would not proceed until all administrative processes are exhausted, including the Renewable Energy Approval process in which the director of the Ministry of the Environment (MOE) reviews a mandated list of about a dozen reports and public comments before deciding whether to allow a project to proceed, and an Environmental Review Tribunal, which could be triggered by a concern that the project will cause serious harm to human, plant or animal health or to the natural environment.
“No Canadians, including the Drennans, have to wait to be injured by the state before taking steps,” Falconer said, saying the couple’s rights under the Charter of Rights and Freedoms have been breached because the wind energy company isn’t required to prove that its project won’t cause adverse health effects. He argued on the basis of the precautionary principle that states when there’s a possibility of health risks and no scientific evidence, the burden of proof that it won’t be harmful rests with whoever is taking the action or establishing policy.
He said the Drennans are seeking recourse through superior court now because the harm to their health begins with the REA process, what he called the “on-ramp” to wind turbines being built. No wind energy project has been shut down during the administrative process.
“It’s pretty good odds that it’s going to happen, that the REA is coming down the pipes,” he told the court.
Spectators filled the courtroom, even sitting in jury chairs at the invitation of the judge, after complaints that an inadequate sound system made proceedings difficult to hear. Earlier, anti-wind turbine supporters rallied on the courthouse steps, carrying signs that read: ‘Stop the Wind Turbines’ and ‘Health Studies Before Wind Turbines.’ A woman carried a homemade replica of a wind turbine, with a mangled bird hanging from its blade.
Justice Grace has reserved his decision until he has reviewed a foot-high stack of written submissions and about five hours of verbal arguments from lawyers.
Hart Schwartz, counsel for the Ministry of the Attorney General, argued the Drennans’ challenge should take place within the REA process, rather than taking up time in superior court. He said the MOE director has to consider the question of harm before deciding whether to deny, approve or approve with conditions an REA. As well, the same questions of law and arguments about whether it’s unconstitutional can be made to the Environmental Review Tribunal, and on appeal in divisional court.
“The Drennans can make their arguments to the director, to the tribunal, and to the divisional court on appeal of the Tribunal,” he said. “There is adequate remedy.”
He said the first decision to emerge from an Environmental Review Tribunal, which was the 200-plus-page decision in Erickson v. Director, Ministry of the Environment with regards to the Kent Breeze wind project was comprehensive.
As well, he said it is “hypothetical” and “premature” to claim harmful health effects at a time when the wind turbines haven’t been approved and aren’t yet operational.
Christopher Bredt, counsel for K2 Wind Ontario Inc., and K2 Wind Ontario Partnership, agreed, saying the Drennans’ claim is “speculative.”
“The claim is premature and should be struck in its entirety on that basis,” he said.
Bredt said the project could be altered along the way or may never go ahead, depending on what happens during the REA process. As well, he said the plaintiffs will have to suffer the harm they allege will occur.
“There are about eight ‘ifs’ before we get to the potential harm, which is the wind turbine,” he said.
In an interview outside the courtroom, Falconer said, “I think it’s not an overstatement to say this is frankly where the buck stops on the ability of citizens to fight back against wind turbines. Unfortunately these kinds of proceedings are very difficult for the plaintiffs because they’re novel.
“The Drennans are trying to empower themselves by getting control of the process, by taking steps that are novel, by attempting to fight back,” he said.
The K2 Wind Project is a partnership of Capital Power Corp., Pattern Renewable Holdings Canada ULC and Samsung Renewable Energy Inc. and includes 140 2.3-MW Siemens turbines, a substation and a transformer station on land leased from 90 farmers in Ashfield-Colborne Wawanosh. However, only four will operate at full nameplate capacity while the remainder will be factory de-rated to ensure the provincially regulated noise thresholds aren’t exceeded at people’s homes.
The project lies north of Kingsbridge I, a 39.6-MW project that went into operation in 2006. The project area is bound by Hwy. 21 to the west, County Road 86 to the north, Golf Course Road and Blyth Road to the south, and Halls Hill Line with a diagonal jog eastward between the Dungannon Road and the Blyth Road to the east.
The partnership, K2 Wind Ontario Inc., has a power purchase agreement with the Ontario Power Authority, which was signed in 2011 separate from the Feed-In Tariff program. On Feb. 15, 2013, the MOE posted the proposed renewable energy approval for the project on the Environmental Registry, starting the 45-day public comment period. The project is currently under technical review, according to a listing of renewable energy projects on the MOE’s website.
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