'Express lane' approvals for turbines tramples residents' rights, lawyer argues

Ontario’s Green Energy Act violates the constitutional right of turbine neighbours to live in a place free from the “reasonable prospect of serious harm,” their lawyer says in a case that could have province-wide ramifications.

It’s the first constitutional challenge of the turbine approval process to hit the Ontario Court of Appeal.

Potentially at stake are billions of dollars worth of turbine projects, both planned and in the ground, and the green policies that have been a foundation of Liberal governance of the past decade.

The whole approvals process “doesn’t allow people to protect their own health,” lawyer Julian Falconer argued Monday before the three-judge divisional appeal court in London.

That, he said, violates their rights to live free from harm.

Falconer said the government operates in a state of “express-lane” approvals that have led to the erection of thousands of turbines.

“The (government) priority is to get the turbines up, come hell or high water, and the question becomes, ‘When does it reach a state of constitutional impermissability?’”

He said that health harm doesn’t have to be acute to breach residents’ rights to safeguard their health. “It just has to be greater than ordinary stress or anxiety.”

About 70 people crowded the courtroom, behind a cluster of 16 robed lawyers and tables laden with dozens of thick binders.

Lawyers for the defendants — the provincial Ministry of the Environment and wind-energy companies planning to build turbines in Bruce and Huron counties — are expected to present their arguments Tuesday and Wednesday.

They’ve argued in other venues that their turbines are safe and that turbines built and operated to Ontario standards don’t have any adverse health effects.

Falconer is representing four families battling wind projects approved in Goderich, Seaforth and Kincardine.

They include Shawn Drennan, who is opposing a 140-turbine project, 12 turbines of which will be within two kilometres of his home near Goderich.

Falconer said the approvals and appeals processes so far have placed the onus on Drennan and other objectors to prove the turbines will have an adverse effect on their health. But, he argued, that’s an “Alice in Wonderland” reasoning that says the turbines have to be spinning before there’s recourse to stop them from starting.

Instead, he said, the Environmental Review Tribunal that should be protecting the public interest is granting turbine approvals even as it says the health effects are still unclear.

“If we don’t know how they affect people, then why are we building them? Frankly, it defies logic...

“How do you find it’s in the public interest to surround Shawn Drennan with 140 turbines when you don’t know what it’s going to do to him?”

Wind opponents say the prospect of health harm from turbines — headaches, dizziness, sleeplessness and irritability that they say are caused by turbines’ low-frequency vibrations — are all enough to challenge the province’s requirement that there be proof actual harm has taken place.

Falconer likened turbines to the “nightmare neighbours” who are “constantly noisy, constantly in your face.”

Their annoyance isn’t enough to call the police or to break eardrums, “but that neighbour slowly drives you crazy.”

Lambton County is seeking intervenor status. Lawyer Breese Davies said the Green Energy Act unreasonably usurps the county’s responsibility to help safeguard the health of its residents.

The Coalition Against Industrial Wind Turbines of Ontario also is seeking intervenor status, lawyer Richard Macklin describing it as “an application that is as important to the surrounding community as any in recent memory.”

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Appellants (represented by Julian Falconer):

Jennifer and Scotty Dixon – live on farm with two children, one of whom has ultra-sensitive hearing and whose bedroom is within the minimum setback area allowed by the province. Two turbines planned within 600 metres of home near Seaforth.

Ryans – family has farmed same property for 150 years; two turbines are planned within 800 metres of their home near Seaforth.

Shawn and Tricia Drennan – fourth-generation farmers near Goderich; will be surrounded by turbines, including 12 within two-km radius of their home.

Kenneth and Sharon Kroeplin – live near Kincardine, 92 turbines proposed, 44 within 4-km radius of home.

Defendants:

– K2 Wind Ontario building 140 turbines in Ashfield-Colborne-Wawanosh north of Goderich (planned to be in operation mid-2015).

– St. Columban Energy planning 15 turbines near Seaforth.

– Armow Wind Company, 92 turbines planned near Kincardine.

– Ontario Ministry of Environment, responsible for regulating Green Energy projects including turbine applications.