The Environmental Review Tribunal (ERT) dismissed an appeal filed against the approved Armow Wind project, rejecting claims the project will cause serious harm to human health.
But instead of backing down, a local group of anti-wind activists – Huron-Kinloss Against Lakeside Turbines (HALT) – will take the fight to divisional court and beyond.
“We have always seen this as having the potential to go all the way to the Supreme Court,” said HALT’s Kevin McKee in a telephone interview on May 2.
McKee said the group never expected to win at the ERT, but had to file the appeal before divisional court would consider their legal challenge.
“We weren’t surprised by the result,” he said. “Citizen groups like our own have been 0-for-25 at these ERT hearings. It is nearly impossible to win.”
“By their standard, it would be hard to prove asbestos would cause harm,” he said.
Barring intervention from a court, the April 22 decision clears the way for Samsung-Pattern to erect a 92-turbine, 180-megawatt wind farm in the Municipality of Kincardine, on land northeast of the North Line and Highway 21.
The appeal was organized and funded by HALT and its partners, but filed on behalf of Ken and Sharon Kroeplin – whose 100-acre family farm is located within 600 metres of one of the planned turbines.
The ERT dismissed their claims, writing in its lengthy decision that the Kroeplins “failed to establish, on a balance of probabilities” that the project “will cause harm to human health.”
In its findings, the ERT wrote that it wasn’t enough for the Kroeplins to show “the potential for harm,” but the onus was on them to “prove that a project will cause harm.”
The ERT wrote that so-called “post-turbine witnesses” – people who have reported health conditions and symptoms they believe have been caused or exacerbated by living near wind turbines – did not prove that turbines were the cause of their ailments during their testimony at the nine days of hearings held on Kincardine.
“Because there may be a number of potential causes of their medical conditions and symptoms, there is also the need to prove the causal link between exposure to wind turbines and those conditions,” the ERT wrote, noting “it cannot just assume that link to be there because the post-turbine witnesses sincerely believe it to be so.”
“The medical records put into evidence from these witnesses, in some cases, confirmed serious medical conditions, but none of their records included a physicians’ note stating an opinion that the cause, or the worsening, of their conditions was due to exposure to wind turbines,” the ERT wrote.
The panel was convinced by evidence presented by counsel for the Ministry of the Environment (MOE) and Samsung-Pattern that “many of the symptoms experienced by the post-turbine witnesses are common and that some of them suffer from serious health conditions or take medications that could cause them to experience such symptoms.”
“[The MOE and Samsung-Pattern] also discussed research showing that factors such as attitude toward turbines or economic impact may influence the reactions people report with respect to living near wind energy projects.”
Further, the ERT wrote that even if the [Kroeplins] had proved a causal link between other wind turbine projects and the health of the post-turbine witnesses, they would still have to “prove that this project will result in serious harm to health.”
On that point, the ERT sided with the evidence of noise experts presented by the MOE and Samsung-Pattern over the testimony of American sound engineer Rick James, who argued that current noise guidelines were inadequate and failed to account for inaudible infrasound.
“The evidence as a whole shows that [infrasound] is an area of active research internationally but that there is, to date, little if any scientific support for Mr. James’ position,” the ERT wrote.
The ERT also rejected the argument that will form the premise of HALT’s legal challenge in the courts: that the director of the MOE infringed the Kroeplins’ right to security of the person under section seven of the Canadian Charter of Rights and Freedoms by issuing the project approval.
HALT will now reintroduce its case in a London court, with plans to ask that it be considered alongside similar Charter challenges filed against the K2 Wind Power Project in the Ashfield-Colborne Wawanosh and the St. Columban Wind Project in Huron East, Morris-Turnberry, and Howick.
“We have the ability to stop [turbine developments] with a precedent setting case in the courts to protect people’s right to security of the person under the [Canadian Charter of Rights and Freedoms] until the government can prove what a proper setback is,” McKee said, referring to regulations currently limiting the distance between a turbine and a residence to 550 metres.
He said the community was facing a “David and Goliath” struggle against the government and the wind companies and they need continued support if they were going to win – noting they were holding a country auction and social to support the group’s legal fund.
“Every dollar we have raised has gone towards legal costs,” he said. “We have probably spent close to $100,000 so far, and I suspect the next step will cost us at least another $50,000.”
But the expensive road may be the only way to stop the turbine developments, he said, because even if the Liberals are defeated in the upcoming provincial election, a new government would have difficulty breaking contracts already signed because of the costs that would incur.
McKee pointed to a recent interview with Ontario Premier Kathleen Wynne published in the Kincardine News to demonstrate the necessity to take the fight to court.
When asked if the government had considered a moratorium until health studies could be completed – including one by Health Canada investigating the impact of low-frequency noise and vibrations from wind turbines – the premier said that “there isn’t conclusive evidence one way or the other in terms of the science that would suggest there are health hazards.”
McKee said that the premier was making the case for a moratorium by acknowledging there was an ongoing question whether the turbines were safe or not.
“I think the way [the Liberals] have done it is to put the cart before the horse and shove them in, forcing communities to fight them and draining them of money,” McKee said. “And trust me, that ERT appeal was expensive.”
“This case could set a precedent,” he said. “Not only on Armow, K2 and St. Columban, but it would have precedent on turbine projects that are already running and those coming down the pipeline.”
“We don’t want anyone else to be human guinea pigs.”
HALT is hosting a Friday Night Social on May 9 at the Whitney Crawford Community Centre in Tiverton, with supper and refreshments catered by the Bruce Steakhouse, live music, a silent auction and homemade butter tarts. Tickets ate $10 and can be reserved by email: firstname.lastname@example.org.
On May 17, a Country Auction Sale will be held at the Armow Community Hall at 10 a.m., with tools, furniture, lawn, yard and farm items being auctioned alongside collectables and “miscellaneous good stuff.” Call Kevin Mckee at 519-396-8110, or Mike Blake at 519-396-5170 for more information.