Anti-Wind Appeal Ends With a Whimper

12/18/2012 05:48 EST | Updated 02/16/2013 05:12 EST

The Environmental Review Tribunal continues to grind through its list of anti-wind appeals. On December 5, it rejected an appeal against the Renewable Energy Approval for another wind farm, Pattern Energy's South Kent Wind facility, 127 turbines between Tilbury and Ridgetown. In each of the appeals, the opponents have argued that approval of the wind farm will cause serious harm to human health. In each case, the Tribunal has found that this allegation has not been proven.

In the South Kent Wind case, (Environmental Review Tribunal Decision: 12-071 Chatham-Kent Wind Action Inc. v. Director, Ministry of the Environment) the appellant Chatham Kent Wind Action Group Inc. offered no other evidence at all. Two individuals gave evidence about their opposition to the wind farm. According to the Tribunal, neither gave any evidence that approval of the wind farm will cause serious harm to human health.

Mr. Erhard, an engineer, testified that the Ministry of the Environment's Renewable Energy Approval regulation misuses ISO 9613-2, a voluntary international standard on Attenuation of sound during propagation outdoors ("ISO 9613-2"). According to Mr. Erhard, the Ministry uses the standard in ways for which it was not designed, and outside its scope of reliability. (If so, this would hardly be unusual. Regulators often stretch benchmarks to fit the problem at hand, on the theory that an approximately good method or benchmark is better than none at all.) Therefore, he said, the Ministry was issuing Renewable Energy Approvals without any reliable information about the noise levels they will produce.

Mr. Erhard had no expertise in applying this ISO standard to wind turbines. However, even if he were correct, this, the Tribunal ruled, does not prove that the approvals will cause serious harm to human health.

Mr. K. Ternoey took a remarkable (if widely held) tack. He seemed to accept that, based on scientific evidence, turbine noise (loudness, pitch, intensity and rhythm) is not likely to cause serious harm to human health. However, he argued that this should not be what matters. Just as wind proponents have noted for years, people's health effects are based on their opinions about the turbines:

"any negative human response to wind turbines, grounded in imaginary or real beliefs and/or rational or irrational thinking is supported by pragmatic premises grounded in the empirical knowledge of everyday human experience... Here the potential cause for harm is internally grounded in the mind, not external as rooted in the object turbine.... the level of noise is not as important as the attitude or reaction to the noise."

Therefore, he said, if an individual believes that a turbine will harm him or her, that should be sufficient evidence that the turbine "will cause" such harm, and should prevent such turbines from being built.

He further submits that if a person has an emotional response to an object, it would fall outside the "logical and rational scope of science to confirm or deny any tangible quality of the response," and, hence, the health effect from an emotional response is subjective. In the case of wind turbines, he maintains that "the belief and truths of the person with respect to their mental or physical health is again acquired through response to the object, not as caused by the object."

After all, how can mere science deny his feelings?

"Science does not consider the whole of the human condition and specific qualities such as response to scratching finger nails on a chalk board or an A-minor chord with an F sharp overlay."

(Personally, I have a strong belief that climate change will adversely affect my health. I even have strong science to back me up. I wonder if I can get the government to stop approving the use and export of coal?)

Fortunately, the Tribunal did not find this science-free argument persuasive:

At this point, it is important to note that Mr. Ternoey did not present any evidence with respect to health issues and no evidence that the human health issues are related to wind turbines in the area. Even if the Tribunal accepted Mr. Ternoey's submission as to how to interpret and apply the statutory test, which it does not, there is no evidentiary basis whatsoever for the Tribunal to find that there will be serious harm to human health from the operation of the Project.