Wind industry holds breath over case

Ontario Wind Turbine Setback Lawsuit challenges Green Energy Act rules, citing the precautionary principle, health impacts, turbine noise, and 550-metre setbacks in Ontario; a court ruling could pause renewable projects and shift siting standards.

A panel of Ontario Divisional Court judges has begun hearing a challenge that, if successful, could throw a wrench into the province's burgeoning wind power industry.

The case, brought by Ian Hanna, a resident of Prince Edward County, 200 kilometres east of Toronto, argues that regulations in Ontario's Green Energy Act, governing how far turbines must be from houses, are illegal. If the court agrees, a legal challenge could bring new wind development to a standstill.

The case will also be an opportunity to air the views of those who feel wind turbines are unhealthy. Mr. Hanna's argument is based on the premise that the minimum setback in Ontario - 550 metres - does not take into account the possible negative impacts to human health that turbines may cause.

Essentially, he argues, there is no medical evidence that the setback is safe, and that by publishing its regulations without sufficient proof, the province has 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.

Indeed, Mr. Hanna's court filings say, the government knew there was literature that raises growing health concerns about turbines, and spells out that not enough was known to settle the setback issue.

A court victory, said Mr. Hanna's lawyer Eric Gillespie, would essentially put a moratorium on building any new wind farms in Ontario. That would be a huge victory for wind farm opponents, who say turbines make them sick and that there need to be far more studies done on health impacts. "If the court determines that [Ontario] has insufficient science to support its decision, then governments, the wind industry and communities will have to look very closely to determine in a more scientific way where industrial wind turbines should be located," Mr. Gillespie said.

Increasingly, opponents have been protesting the spread of wind turbines, insisting that they cause health problems and calling for more detailed studies before the devices become even more ubiquitous. Both sides have cranked up the rhetoric recently last week, one anti-wind group complained that a wind farm developer had called it a "group of terrorists."

To support his client's case in court, Mr. Gillespie will present evidence from three physicians who say turbine noise and vibration can harm human health, causing high stress, sleep deprivation and headaches among people who live near them.

The government argues, in a document filed with the court, that the doctors' conclusions are suspect, and that it reviewed all the literature available on the issue, and held public consultations before creating the guidelines.

It also says that complaints about possible health effects from turbines come from a small number of people, while the government's role is to try to clean the air for all residents of Ontario by not backing down on wind power as it shifts to renewable power.

There is "no conclusive evidence that wind turbine noise has any impact on human health," the government filing states. Available information suggests, as a court has upheld current turbine setbacks, a 550-metre setback is adequate, it adds, and that that distance is "clearly conservative," given the existing studies. It dismisses the data about health problems as "anecdotal hearsay."

The government also argues that a new environmental review tribunal set up under its Green Energy Act is the right place to air health issues, not the provincial court.

Dianne Saxe, a Toronto lawyer who specializes in environmental issues, said she would be very surprised if Mr. Hanna wins his case. She said he is stretching the precautionary principle beyond what it actually covers. And the government "should have no trouble at all proving that it considered the health concerns of the anti-wind activists, because they were very vocal," even appearing at legislative committee meetings, she said.

Ms. Saxe thinks it is likely the court will deal only with the narrow legal aspects of the case and not make any substantial ruling on the health effects of wind turbine placement.

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