Erickson Ruling Video with Dianne Saxe and Yves Faguy

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Recently, Yves Faguy, LLB of Nimonik sat down (virtually) with Dianne Saxe of EnviroLaw.com to discuss the recent Erickson ruling in Ontario (Envirolaw blog post here).  Let us know if you have any questions.

Environmental approvals are changing rapidly in Ontario as described by our recent updates on Three new regulations to tackle approvals and Even more regulations on the approvals process in Ontario.

Title: Erickson Ruling Video with Dianne Saxe and Yves Faguy
Length: 8:05
URL: http://www.nimonik.ca/2011/08/erickson-ruling-video-with-dianne-saxe-and-yves-faguy/

Note: Unclear word/s is/are time-stamped and highlighted.

Diane:
The Erickson decision is the first contested decision in Ontario on a renewable energy approval. The green energy act came in 2 years ago establishing a new regime to make it easier to build renewable energy projects in Ontario. There are 4 classes of renewable energy projects that are currently governed by renewable energy approvals. The biomass and solar facilities so far have not been particularly contentious. The thunder and lightning is all focused on major wind projects. Major wind projects are cost effective compared to new nuclear and therefore have the potential to grow rapidly in Ontario and other jurisdictions. In fact, most jurisdictions that are planning a rapid movement to reduce their carbon footprints are looking heavily to wind. There has been a significant amount of organized opposition to new wind facilities in Ontario and Erickson decision is the first decision of the Environmental Review Tribunal on noise and the health concerns have been raised about wind turbines.

There also was an attempt to prevent the tribunal from deciding the issue. There was an application to the divisional court to strike down the entire regulation but that application failed a few months ago and the court of appeals refused. So the responsibility for deciding whether we can have a significant increase in wind energy in Ontario fell to the Environmental Review Tribunal which came out with its decision last week.

Yves:
Do you think this is a win for people who want to see wind energy development or do you see possibly the seeds to future problems in terms of how we determine what is harmful to human health?

Diane:
Yes and Yes.

Yves:
Ok, and perhaps explain why.

Diane:
This case is a very important win for those who want to see a renewable energy future in Ontario for the reasons I’ve just explained. Wind energy is the most economic of the major alternative low-carbon sources. The argument that was being made in the Erickson case was that wind turbines could not be built in the locations that the ministry of environment has approved. The regulation under the environmental protection act establishes a minimum setback of 550 meters from sensitive receptors such as homes. The opponents in the Erickson case argued that that was not enough, that wind turbines had to be much farther away from people because they said they were dangerous to human health. And the tribunal decided that the turbines approved by the ministry of environment could go ahead and that based on the evidence there was no proof that the turbines would be harmful to human health at the distances provided for the regulation.

So that’s extremely important because it means that turbines can be built. It’s also very important because it means that the regulation which sets out the setbacks does govern in Ontario. In terms of the questions, what does it mean for the future? That’s a very interesting question. It’s a long decision; it’s more than 200 pages.

Yves:
Plenty to hang our hat off

Diane:
Well, there’s a lots of different things people can argue about. The case came down to a very large extent was the issue of annoyance. There is good strong evidence that wind turbines do not have any direct adverse effect to human health. There’s a small chance that a turbine can fall on you just like a plane can fall on you or a car can jump out of its lane. But other than that, there’s a good evidence as the medical officer of health decided last year that turbines do not have direct effects on human health. However there are people who find them annoying. There are people who find them very annoying. There is evidence that people who are very annoyed by things can have that annoyance interfere with their sleep, their concentration and if you can’t sleep there can be effects from that stress and annoyance.

Yves:
Could those be indirect effects?

Diane:
That’s what’s called indirect effect. If you find something annoying and that annoyance causes you stress and that stress interferes with your sleep, you will not be as healthy as if you are less stressed and get normal sleep.

Yves:
So what does the law say about indirect health effect?

Diane:
What the tribunal decided in the Erickson case was that they would at least consider indirect effect as being a kind of health effect but there wasn’t enough evidence that there would be such effects if you follow the regulation. The regulation and the permit given to the Kent Breeze wind farm required that they create no more noise more than 40 decibels. At the neighboring properties, 40 decibels is the same noise level as in a quiet office. It’s quieter than the noise level of most roads. It’s not perfectly quiet but it’s a very relatively low level of noise and the tribunal said there just isn’t any evidence that at 40 decibels and 550 meters is gonna be a health effect even an adverse effect. Now they did say that we need to have more research. Maybe when there’s research, we’ll know more things which is always true. That’s never been considered a health effect before. In the Erickson’s case, the tribunal said they would at least consider that you could call it a health effect. It’ll be very interesting to see where that goes from here.

Yves:
So it’s that they are opening the door to recognize the possibility of indirect health effects becoming a problem and an argument that would help people contest certain projects. That is a possibility and it’s something that we haven’t seen much until now.

Diane:
That’s right. The tribunal has opened the door to annoyance and stress from any kind of facility that people don’t like being considered a health effect and we don’t know where that’s going to go. I think it’s a very important decision in terms of the approvals that can be given to any unpopular facility.

Yves:
Ok

Diane:
Wastewater treatment plant, a landfill, a transfer site, any kind of public service that is unpopular – a jail, anything that people can have stress or annoyance from and now many of them of this same argument will apply.

Yves:
Ok with Diane Saxe, thank you very much. This has been a Nimonik interview and until the next time