On Monday January 24th, 2011, a panel of Ontario Divisional Court Judges began hearing the case of Hanna v. Minister of the Environment, a legal challenge to the Green Energy Act regulations that define how far wind turbines must be from houses. Mr. Hanna is arguing that the current setback of 550 metres does not allow for a consideration of possible negative impacts of turbines on human health. He relies on the Environmental Bill of Rights, which requires that the province employ the "precautionary principle' in its decision making. This principle, Mr. Hanna argues, requires that the government be able to prove the safety of the current setback in order for the regulation to be legal.
If the challenge is successful, it will significantly impede wind development in Ontario until the province can provide satisfactory evidence that there is no evidence of negative health impacts associated with wind farms, an issue that has been the subject of much debate. So much so, in fact, that the Council of Ontario Universities appointed Siva Sivoththaman to the Ontario Research Chair in Renewable Energy Technologies and Health with a mandate to study and report on the potential health effects of renewable energy technology, including wind turbines. For its part, Ontario's Chief Medical Officer of Health issued a report in May 2010 definitively stating that there is no direct causal link between turbine noise and adverse health effects. Mr. Hanna relies, however, on evidence from physicians who say the noise and vibration caused by wind turbines can lead to stress, sleep deprivation and headaches.
The Court has already been confronted with a motion to exclude certain evidence of Dr. Robert McMurtry. Dr. McMurtry is a prominent physician, whose accomplishments include acting as Dean of Medicine at the University of Western Ontario and servingo n the Romanow Commission (he is also the brother of former Ontario chief justice and Attorney General Roy McMurtry). According to the Ottawa Citizen, Dr. McMurty also owns property in Prince Edward County and is the founding member of an anti-wind group there. In a decision released on July 19, 2010, the Divisional Court found that references in Dr. McMurty's affidavits to studies that post-date September 30, 2009 should be struck. September 30, 2009 was the date the applicable regulations came into effect. Ontario government lawyers renewed their challenge of Dr. McMurty's evidence this week, suggesting that he should not be viewed by the Court as a reliable or impartial witness.
While the Court is unlikely to express an opinion about the safety of wind turbines to human health, whatever the result, the decision of the Court will have an influence on the continuing implementation of the Green Energy Act, and clarify the level of scientific certainty the government is required to have as they outline regulations governing the use of new technologies.