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Thursday, July 22, 2010

Application for judicial review of wind turbine setbacks before Ontario Divisional Court

Ian Hanna has made an application to the Ontario Divisional Court challenging the validity of wind turbine setback regulations made under the Environmental Protection Act.  The setbacks relate to the Ministry of the Environment (MOE) Noise Guidelines for Wind Farms, and were prescribed on October 1, 2009 following a period of public consultation.

In the application, the applicant will argue that the regulation was not properly adopted. Section 11 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 requires the Minister of the Environment to “take every reasonable step to ensure that the ministry statement of environmental values is considered whenever decisions that might significantly affect the environment are made in the ministry”.  In the Statement of Environmental Values (“SEV”), the Ministry sets out principles it will apply in developing Acts, regulations and policies. Ten bullets follow, one of which is “The Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment”.  The applicant will argue that the provisions under challenge do not comply with the precautionary principle. The affidavits in support of his position set out concerns about the adverse health effects of wind turbines and the uncertainty surrounding this issue. They are meant to show the government’s lack of compliance with the precautionary principle, as established in the SEV and in international law and the common law.

A recent interlocutory decision (i.e. a decision made during the course of the proceedings rather than a final decision at the end of the proceedings) concerning the admissibility of expert evidence to be submitted by the applicant is available at : Hanna v. Attorney-General for Ontario.