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To date, every Renewable Energy Approval for a wind farm has been appealed to the Environmental Review Tribunal. The Environmental Review Tribunal rejected the first appeal, for the Kent Breeze wind farm, but ruled that it will allow the same or similar evidence in subsequent cases.11-208 MIDDLESEX-LAMBTON WIND ACTION GROUP INC. Essentially, the claim is that noise from turbines interferes with sleep and thus causes harm to human health.The ERT described Zephyr’s argument as:

Zephyr asks that the Tribunal rule on the correct interpretation of sections 142.1, 145.2(2) and 145.2.1 of the EPA with respect to the scope of a hearing of a REA appeal. Zephyr submits that these sections define the scope of permissible evidence and takes the position that this evidence is limited by the fact that a REA hearing is not a new hearing. As a result, Zephyr argues that the Tribunal may only review the decision of the Director, and to do that may only review the record that was before the Director and any evidence that meets the test for new evidence.

The effect of this argument would have been to prevent the appellants from bringing new evidence at the hearing, such as the evidence already led in the Kent Breeze case. The ERT rejected this attempt to limit its jurisdiction:

The Tribunal finds that the role of the Tribunal in a REA hearing under section 145.2.1 is to “review” the Director’s decision and “consider only” whether the listed harms will be caused by the approved project. Thus, the hearing is not a full new hearing but is limited to the consideration of a restricted set of issues. To carry out its mandate, the Tribunal must make independent findings of fact about the specific harms an appellant claims will be found in the circumstances and must reach a conclusion that could very well differ from that of the Director. … The Tribunal finds that the legislative scheme for an REA hearing required by a non-applicant creates neither a “new hearing” nor a “true appeal”. The nature of the REA hearing fits somewhere on a spectrum between these two types of proceedings, and has elements of both. ..

Members of the public making comments on a proposal do not see themselves necessarily as “potential appellants” and, given the short time period in which they have to make comments, it would be unfair to require them to marshal all their appeal “evidence” at that stage. This means that information relevant to the issues in appeal can be brought before the Tribunal at the hearing as evidence even if that information was not submitted to the Director at an earlier stage. … The key determinant of admissibility of evidence at the hearing should be the relevance of the material to the issues under consideration, as defined in the Notice of Appeal and limited by the statute….

The Tribunal, therefore, finds that the scope of permissible evidence in an appeal of a REA pursuant to sections 142.1 and 145.2(1) and (2) of the EPA is not limited to the following two classes of evidence:  (i) evidence that was before the Director during his decision-making process that lead to his decision under section 47.5 of the EPA; and (ii) new evidence that was not in existence during the Director’s decision-making process, or for reasons beyond the Appellants’ control, was not obtainable during the Director’s decision-making process, and which evidence is material to an issue to this hearing, is credible and could affect the result of the Hearing.

In response to the ruling, the Middlesex-Lambton Wind Action Group has announced that they will abandon their appeal against the REA granted to the Zephyr wind farm. Instead, opponents are gathering their forces to oppose the Mapleton Next Era wind farm REA, in ERT appeal 11-228 PRESERVE MAPLETON INCORPORATED V. MOE.

Meanwhile, renewable energy approvals that have been granted to build ground-level solar farms on agricultural land have NOT been appealed.

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