News & Updates

Ontario Environmental Review Tribunal – First Appeal

July 25, 2011

On July 18, 2011 the Ontario Environmental Review Tribunal (“ERT”) issued a Decision (the “Decision”) in respect of the first appeal under Section 142.1 of the Environmental Protection Act (“EPA”) with respect to a Renewable Energy Approval.

The Decision found that the Appellants failed to show that the Kent Breeze Wind Farm project, as approved by the Renewable Energy Approval issued November 10, 2010, would cause serious harm to human health and dismissed the Appeal.

The Decision states that the evidence on the Appeal shows that there are some risks and uncertainties associated with wind turbines that merit further research and the Decision expresses the hope of the ERT that future debate will focus on the most appropriate standards rather than upon whether turbines can cause harm.

The Decision holds that under Section 142.1 of the EPA a person has status to appeal if he/she is “a person resident in Ontario” who is not entitled to require a hearing by the ERT under Section 139 of the EPA but notes that because of the limited scope of appeals under Section 142.1 of the EPA persons with concerns about a proposed project should fully engage in the public consultation process because of the wide scope of that process and in order that their issues about human health, plant life, animal life and the natural environment are on the record prior to an appeal being initiated.

As the first decision in respect of an appeal of a Renewable Energy Approval, the Decision has relevance beyond the specifics of the appeal which it decided, particularly with respect to matters of statutory interpretation of the new sections of the EPA applicable to Renewable Energy Approvals, procedures with respect to Renewable Energy Approvals and appeals therefrom and with respect to technical matters in relation to wind turbines.