Ontario tribunal denies health effect appeal, urges further study

An Ontario Environmental Review Tribunal has ruled that the Kent Breeze Wind Farm can be built, denying an appeal by the Society for Wind Vigilance that challenged the wind farm’s permits, largely on the basis of health effects that it may cause among nearby residents. Since Kent Breeze is the first wind farm to be approved under Ontario’s new green energy development rules, this was seen as a key to near-term wind development in the province.

The Tribunal’s 223-page ruling provides a fascinating, in-depth look at the state of current wind farm science and policy; many pages are devoted to the testimony of each of the witnesses, which included well-known researchers with a wide range of viewpoints, including Rick James, Geoff Levanthall, Christopher Hanning, Robert Colby, and many others.  I highly recommend that anyone interested in these issues download the full report and give it a look.

An article in the Windsor Star includes predictable responses from all concerned. “We are pleased with the decision of the tribunal,” said Jennifer Lomas, spokesperson for Suncor, the developer. “In terms of the alleged health concerns, we are committed to understanding the interaction of our operations and the environment. We meet all operating standards for these projects, this includes strict compliance to regulatory (rules).” Meanwhile, John Laforet, head of Wind Concerns Ontario, stressed that “(The tribunal) said there were risks and uncertainties. We aren’t debating whether there is a problem or not, but whether there is responsible development. We want believable studies and setbacks based on the outcomes of those studies…We are hopeful this ruling, while it’s a battle lost, it’s a step toward winning the war provincewide.”

Indeed, the Tribunal stressed in its ruling that “It is hoped that the legitimate debates surrounding the effects of turbines will spawn further independent research to the point that some of the challenges posed in this Hearing will be reduced over time.”   Futher, “The Tribunal accepts that indirect (health) effects are a complex matter and that there is no reason to ignore serious effects that have a psychological component.” This is a stark contrast to the CanWEA/AWEA health effects study, which focused nearly solely on direct health impacts, dismissed indirect effects triggered by annoyance, stress, or sleep disruption as insignificant or subjective, and concluded that there was scant reason to look deeper at the issue.

Click on through below the fold for AEI’s in-depth summation of the key points made in the full ruling.

The heart of the decision revolved around the question of whether the planned wind farm “will” cause “serious harm.”  The Appellants (Wind Concerns Ontario) cited some precedents from chemical pollution cases in which harm to just one or a few people could qualify as serious harm, while the Director (defense) urged an interpretation that called for more widespread and/or concrete effects, more than a complaint of mild or moderate harm, discomfort, annoyance, or nuisance. The Tribunal ruling noted that “there is apparent agreement that many of the medical conditions discussed by the witnesses are serious” (while noting that there is some disagreement about where to draw that line), but that it is not clear that the wind farms as planned “will” cause the harms, whether they are considered serious or not.  In particular, the Tribunal noted that equating “annoyance” with “serious harm to human health” is not something that it was ready to agree with.  As the bottom line, the Tribunal ruled there was insufficient evidence to suggest that there will be serious harm to human health if the MOE noise guidelines (40db maximum) are followed.

However, they noted that “This is not to say that the MOE Noise Guidelines should remain static. As the science continues to evolve with respect to wind turbines and noise, guidelines should be routinely reviewed and revised, if necessary. As mentioned already, the scientific issues pertaining to wind turbine noise are evolving. Therefore, the regulatory responses to that evolving science must keep pace. Doing so may assist in addressing some of the ongoing concerns regarding the effects of wind turbines. Persons who wish to propose a limit that is lower than 40 dB are entitled to make that case in the regulatory and policy contexts, where proof of harm is not necessarily a condition precedent to taking action.”

A large part of the testimony addressed whether the sound models used by Suncor, the developer, are accurate.  Appellant witnesses suggested that a 3db uncertainty factor should be added, as well as a correction for night time stable atmospheres; either or both of these adjustments (or errors) would expose dozens of homes to sound levels over the regulatory limit of 40dB.  The Tribunal was convinced by Suncor’s testimony that conservative, worst-case estimates were used in the models, so no adjustment was needed.  However, the Tribunal also stressed that “Nevertheless, if the modeling does end up being inaccurate (recognizing the general point that pre-operation modeling has limitations as compared to accurate post-operation field measurements), then adjustments will have to be made to ensure ongoing compliance. The 40 dB limit is a real limit that Suncor must abide by regardless of its modeling exercises.”

An interesting and important legal footnote was a segment of the argument and decision that considered whether many of the expert witnesses called by the appellants were qualified to be witnesses, or whether their testimony should be given full weight, because of their prior testimony urging more caution in wind farm siting, or their membership in community groups perceived to be anti-wind.  The Tribunal refused to discount any of the witnesses on these grounds, and noted that some of the witnesses for the defense could also be seen to have an opinion on the issues at hand. At root though, the Tribunal stressed that no one denied that there were potential risks; rather, the question is how much of a setback is necessary to minimize such risks.  While noting that some witnesses strayed from their areas of expertise and provided evidence beyond their specialty, the Tribunal held that it could then “separate the wheat from the chaff;” further, they noted that “some aspects of the testimony appeared to be less than objective and strayed somewhat towards advocacy. The Tribunal adds that such issues arose with respect to witnesses from all Parties.”

In the findings section of the ruling, there is a very interesting and extended discussion about the state of the current science (see pages 192-197).  Here, the Tribunal notes that while much of the evidence presented by the Appellants was “exploratory” rather than conclusive, there was much value in following the train of thought and logic, even if the final conclusions were not considered to be solid enough to require overturning the wind farm’s permits:  ”The evidence presented by the Appellants, in totality, establishes that there may be an association between exposure to noise from wind turbines and certain indirect health effects, but the evidence is not sufficient to establish a causal connection at the distances and/or noise levels for this Project. The Tribunal finds that the evidence marshalled by the Appellants, such as the Nissenbaum Study and Dr. Aramini’s application of it, is exploratory in nature, not confirmatory. The legal test, however, imposes a standard that requires more than exploratory evidence.”  Elaborating on the evidence submitted by the Appellants, the Tribunal notes that “This is not to be taken as a criticism of any of the researchers in this area. It is obvious that new ground is being broken and that important questions are being raised. While the questions are being raised, they are not yet being answered conclusively one way or the other.”  And further, “The Tribunal points out, however, that this is not a situation in which the Appellants’ non-peer reviewed science was conclusively negated by peer-reviewed science that has found no association between turbines and serious health effects. There is actually a lack of peer-reviewed science on both sides of this debate…Further peer-reviewed science on the association and causation questions would be a welcome development in the debate. More informed decisions will no doubt be possible if further study is undertaken.”

The final interesting observation was that, “For the most part, the Tribunal has found the evidentiary gap among the Parties to be not nearly as wide as would appear. For example, as the evidence was put in, the Tribunal noted that unequivocal statements of harm or no harm became modified….The Tribunal appreciated the frank comments from witnesses who admitted that a particular study was not “the” study, but just “a” study or that some aspects of the evidence raised questions rather than conclusively answered them. The Tribunal also appreciated the fact that some witnesses, in their oral testimony or supplementary statements, added qualifications to previously stark opinions, such that it was recognized that other witnesses had made important points. These developments give the Tribunal hope that the scientific debate can proceed in a reasonable manner from this point on.”