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In Clarington Wind Concerns v Ontario (Director, Ministry of the Environment and Climate Change), 205 CanLII 51503 (ON ERT), the Environmental Review Tribunal (“ERT”) has dismissed the latest twists in anti-wind litigation. This time, wind opponents raised concerns about spooked horses, tornados and radio communications.

In January 2015, the Director of the Ministry of Environment and Climate Change (“MOECC”) issued a Renewable Energy Approval (“REA”) to Ganaraska Nominee Ltd, to construct and operate 9 wind turbines. The facility is to be located on the Oak Ridges Moraine, (“ORM”), an ecologically important area protected by provincial statute.

A local anti-wind group, Clarington Wind Concerns (the “Appellants”), appealed the REA to the Environmental Review Tribunal (“ERT”). Initially, the Municipality of Clarington also filed a notice of appeal with the ERT, but subsequently withdrew its appeal.

The ERT can only overturn an REA if opponents prove that the project would cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment- see section 145.2.1 (2) of the Environmental Protection Act.

Most of the Appellants’ arguments had already been made, and dismissed, in many other cases. They alleged, for example, that the facility would cause serious harm to human health through the creation of noise, shadow flicker, visual pollution, and ice and debris throw. The ERT rejected these claims, as it has consistently in the past. Once again, for example, the ERT was not convinced that enough evidence exists to establish a connection between annoyance associated with noise or visual impacts that would cause serious harm to human health.

The more novel arguments were that the facility could threaten public safety by spooking horses a kilometre away (e.g. by flickering light, shadows, or turbine movement), or should a turbine be hit by a tornado (a weather event that occurs in the area once every 5,000 to 10,000 years per square kilometre). Opponents also argued that the turbines would interfere with radio communication devices used at a local ski resort to coordinate emergency responses. All of these claims were dismissed as unsubstantiated.

The Appellants also argued serious and irreversible environmental harm on the basis that the facility would be located in the ORM. They had somewhat more success with this line of argument, although the ERT ultimately rejected this basis for revoking the REA. However, because no hydrogeological study had been conducted for the project, and although none was statutorily required, the ERT recommended that the MOECC “consider having a qualified Ministry groundwater reviewer sign off on all REA applications in the [ORM] area” (para 9).

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