On March 3, the Ontario Divisional Court released its decision in Hanna v. AGO.

In a strongly worded decision, the Divisional Court rejected Mr. Ian Hanna’s challenge to the renewable energy approval process for onshore wind turbines established pursuant to the Green Energy and Green Economy Act.

Arguing that there was no scientific basis for choosing the 550 meter set back requirement for onshore wind energy turbine siting applicable pursuant to the Renewable Energy Approvals Regulation made pursuant to the Green Energy Act, Mr. Hanna had sought a curtailment of all further wind energy development in the province until the provincial government could demonstrate to the court that the wind turbine setback requirements were indeed safe.

The basis of Mr. Hanna’s argument was that the Ministry of the Environment failed to follow the ‘precautionary principle’ –a principle contained in the Environmental Bill of Rights, requiring the Minister to use a “precautionary science-based approach in its decision making to protect human health”.

To our knowledge, no Ontario environmental regulation has ever been struck down on the basis of a conflict with the precautionary principal. Noting that there had been public consultation before the regulation was enacted, and the government had considered “science-based evidence” the court observed that “[G]overnment policy, expressed through a regulation, is not subject to judicial review unless it can be demonstrated that the regulation was made without authority or is unconstitutional.”

This decision, though subject to appeal, reduces uncertainty for onshore wind energy developers operating in Ontario.