Saturday, August 23, 2014

Wind Health Impacts Dismissed in Court?

By Eric Rosenbloom, President, National Wind Watch:

At the pro–renewable energy industry Energy & Policy Institute, dead-ender Mike Barnard claims that whenever concerns of health impacts from industrial wind turbine noise are raised at law, they are rejected. In the 49 cases from English-speaking countries that he presents, however, only 2 involved an operating wind energy facility. And in both, the facility was found to be in violation of the law. The rest involve only the existing legal framework for approving industrial wind facilities, which involves the weighing of often competing interests — and the evidence shows most clearly that national, state, or provincial interests generally trump local concerns in the matter of energy development.

Almost all of the remaining 47 (or 44, since 2 of them are duplicates and 1 is the transcript of the hearing for one of the listed cases) involve appeals of project approvals, and the issue concerns only the possibility of health impacts despite the government’s judgement and the developer’s reassurances. Oddly, 11 of them do not even consider health effects or they consider them only very narrowly (eg, shadow flicker, autism). And several of them recognize that should health effects occur, they should indeed be taken seriously. One of the rulings (Heritage Wind Farm Development Inc., Decision on Preliminary Question, Decision 2011-239, Alberta, 2012) dismisses the developer’s wish to operate the turbines at night, in violation of the conditions of the project approval. Another ruling (Hulme v. Secretary of State for Communities and Local Government & Anor, 2011) upholds amplitude modulation (“whooshing”) noise conditions that have prevented the developer from proceeding despite project approval.

As stated in Fata v. Director, Ministry of the Environment (Ontario, 2014), “Tribunals are creatures of statute.” The laws guiding the permitting of large wind energy facilities are narrow and virtually arbitrary regarding setbacks and noise limits. Until the facility is actually operating, the developer’s word is golden and the regulations are generous. After construction, the resulting impacts are weighed against the burden on the developer to mitigate them. Nonetheless, as noted above, in both post-construction cases presented by Barnard, the courts ruled in favor of the plaintiffs.

Furthermore, Barnard completely ignores the many cases that have been settled out of court, the energy company buying the plaintiff’s property rather than defending the charges of adverse health effects in public. Such settlements also typically impose gag orders on the sellers. Two examples are the purchase of several homes in Ontario and the home of Jane and Julian Davis in England.

Then there is the non–English-speaking world. One pertinent example is from Portugal, where the Supreme Court in 2013 ordered the shutting down and removal of 4 turbines near a farm because of sleep disturbance and other health effects. In late 2011, Denmark added limits of indoor low-frequency noise to its regulations, recognizing one of the unique characteristics of wind turbine noise and its health impacts.

Far from exhaustive, Barnard’s list is also not representative of legal opinion, ignoring planning decisions and regulations that consider the adverse health effects of wind turbine noise. Just one example is a North Lincolnshire project that was “rejected because of the ‘serious effect’ it would have on eight-year-old autistic twin boys living nearby”, based on the evidence from an existing project behind their home.

In the tables below, only the last columns have been added to the originals.

Australia

Case Project Location Year Type Decision comments
Cherry Tree Farm Pty Ltd. v. Mitchell Shire Council Cherry Tree Victoria 2013 Civil In favor of developer [bad link in original] permit application (allowed, with conditions, including noise limits) – “The Tribunal has no doubt that some people who live close to a wind turbine experience adverse health effects … there is not sufficient evidence to establish that the proportion of the population residing in proximity to a wind farm which experiences adverse health effects is large enough to warrant refusal of a land use that is positively encouraged by planning policy. … This view is strengthened when the proximity is required to be no less than 2 kilometres.” [emphasis added]
Paltridge and Ors v. District Council of Grant and Anor Allendale East South Australia 2011 Environment Against developer (visual amenity) appeal of planning consent (upheld)
Cherry Tree Farm Pty Ltd v. Mitchell Shire Council Cherry Tree Victoria 2013 Civil In favor of developer [bad link in original; apparently duplicate entry of Cherry Tree Farm Pty Ltd. v. Mitchell Shire Council (2013), above]
Quinn & Ors v. Regional Council of Goyder & Anor Hallett South Australia 2010 Environment In favor of developer appeal of planning consent – ‘[T]he framers of the Development Plan must have known that, even in a sparsely populated rural area such as the locality of the proposed wind farm, there will be residents who will be able to hear the turbines, and a small percentage of those residents are likely to be annoyed.’ (ie, tough)
King & Anor v. Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v. Minister for Planning; Gullen Range Wind Farm Pty Limited v. Minister for Planning Gullen Range New South Wales 2010 Environment In favor of developer 3 appeals of project approval, none regarding health
The Sisters Wind Farm Pty Ltd v. Moyne SC Sisters Wind Farm Victoria 2010 Civil Against developer (exceeds updated noise standards) appeal of permit refusal (dismissed) – ‘It is our view that actual adverse health effects aside from the annoyance aspects of noise impact remain unproven. We do however accept that certain individuals have a much higher sensitivity to noise than others, but the impact of noise from the turbines, which is a fluctuating rather than a steady noise, does cause significant distress even at a low noise level.’
Acciona Energy Oceania Pty Ltd v. Corangamite SC Newfield Victoria 2008 Civil In favor of developer appeal of permit refusal (upheld) – ‘There is no evidence of health impacts that persuades us that rejection of the permit application is warranted given the proposal’s compliance with the applicable standards. [emphasis added] If there are significant issues arising then there needs to be some independent assessment and documentation leading, if required, to variations in the standards applied in Victoria.’
Perry v. Hepburn SC Hepburn Wind Victoria 2007 Civil In favor of developer appeal of permit approval (dismissed) – ‘There is no evidence of health impacts that persuades us that rejection of the permit application is warranted given the proposal’s compliance with the applicable standards.’ [emphasis added]
Synergy Wind Pty Ltd v. Wellington SC Yarram Victoria 2007 Civil In favor of developer appeal of permit refusal (dismissed), health concerns raised only in reference to shadow flicker
Thackeray v. Shire of South Gippsland Toora Victoria 2001 Civil In favor of developer appeal of permit approval (dismissed), health concerns not raised
Hislop & Ors v. Glenelg SC Cape Bridgewater Victoria 1998 Civil In favor of developer permit application (approved), health concerns not raised


Canada

Case Project Location Year Type Decision comments
Fata v. Director, Ministry of the Environment Bow Lake Ontario 2014 Environment In favor of developer appeals of project approval (dismissed) – ‘Tribunals are creatures of statute.’
13-124 Kroeplin v. MOE Armow Ontario 2014 Environment In favor of developer [bad link in original] appeals of project approval (dismissed)
13-096 Platinum Produce Company v. MOE South Kent Ontario 2014 Environment In favor of developer appeal of project approval (dismissed)
Drennan v. Director, Ministry of the Environment K2 Wind Huron County Ontario 2014 Environment In favor of developer appeals of project approval (dismissed)
Ostrander Point GP Inc. and another v. Prince Edward County Field Naturalists and another Ostrander Point Ontario 2014 Higher In favor of developer [bad link in original] appeal of revocation of project approval (upheld), appeal of dismissal of appeal regarding harm to birds and alvar (dismissed), and appeal of dismissal of appeal regarding harm to human health (dismissed)
1646658 Alberta Ltd., Bull Creek Wind Project Bull Creek Alberta 2014 Utility In favor of developer [bad link in original] application for project approval (approved)
Wrightman v. Director, Ministry of the Environment Adelaide Ontario 2014 Environment In favor of developer appeals of project approval (dismissed)
Bain v. Director, Ministry of the Environment Ernestown Wind Farm Ontario 2014 Environment In favor of developer [no link in original] appeals of project approval (dismissed)
Bovaird v. Director, Ministry of the Environment Melancthon Extension Ontario 2013 Environment In favor of developer appeal of project approval (dismissed)
Alliance to Protect Prince Edward County v. Director, Ministry of the Environment Ostrander Point Ontario 2013 Environment Against developer due to endangered turtle appeals of project approval (dismissed regarding human health; allowed regarding plant life, animal life or natural environment) – overturned in Ostrander Point GP Inc. and another v. Prince Edward County Field Naturalists and another (2014), above
Monture v. Director, Ministry of the Environment Haldimand Summerhaven project Ontario 2012 Environment In favor of developer appeals of project approval (dismissed)
Monture v. Director, Ministry of the Environment (Monture 2) Haldimand Grand Renewable Wind Ontario 2012 Environment In favor of developer appeals of project approval (dismissed)
Chatham-Kent Wind Action Inc. v. Director, Ministry of the Environment South Kent Ontario 2012 Environment In favor of developer appeal of project approval (dismissed)
Heritage Wind Farm Development Inc., Decision on Preliminary Question, Decision 2011-239 Heritage Wind Farm Alberta 2012 Utility Against developer application for variance of approval condition to shut down turbines at night (dismissed)
Erickson v. Director, Ministry of the Environment Chatham Kent Suncor Ontario 2011 Environment In favor of developer appeals of project approval (dismissed) – ‘While the Appellants were not successful in their appeals, the Tribunal notes that their involvement and that of the Respondents, has served to advance the state of the debate about wind turbines and human health. This case has successfully shown that the debate should not be simplified to one about whether wind turbines can cause harm to humans. The evidence presented to the Tribunal demonstrates that they can, if facilities are placed too close to residents. The debate has now evolved to one of degree. The question that should be asked is: What protections, such as permissible noise levels or setback distances, are appropriate to protect human health? … Just because the Appellants have not succeeded in their appeals, that is no excuse to close the book on further research. On the contrary, further research should help resolve some of the significant questions that the Appellants have raised.’
Hanna v. Ontario (Attorney General) Wind farm enabling legislation Ontario 2011 Higher In favor of industry challenge of provincial setback requirements (dismissed) – ‘[U]nder s. 11 of the EBR, the minister must take every reasonable step to consider all ten principles, a process which involves a policy-laden weighing and balancing of competing principles. … The health concerns for persons living in proximity to wind turbines cannot be denigrated, but they do not trump all other considerations. … It is not the court's function to question the wisdom of the minister's decision, or even whether it was reasonable. If the minister followed the process mandated by s. 11 of the EBR, his decision is unassailable on a judicial review application.’
McKinnon v. RMs Martin and Moosomin, Red Lily Wind Red Lily Saskatchewan 2010 Civil In favor of developer motion for injunction (dismissed)


New Zealand

Case Project Location Year Type Decision comments
New Zealand Wind Farms Limited v. Palmerston North City Council Te Rere Hau Palmerston North 2013 Higher In favor of developer [link same as Palmerston North City Council v. New Zealand Windfarms Limited (2012), below]
Meridian Energy Limited v. Hurunui Bistrict and Canterbury Regional Councils Hurunui North Canterbury 2013 Environment In favor of developer application for project consent (granted)
Palmerston North City Council v. New Zealand Windfarms Limited Te Rere Hau New Zealand 2012 Environment Against developer challenge of noise compliance (granted)
Mainpower NZ Limited v. Hurunui District Council Mt. Cass Canterbury 2011 Environment In favor of developer appeal of consent refusal (upheld) – ‘we accept that there can be no guarantee of absolute protection for the health and wellbeing of their child [with autism]’ (only health concern raised)
Rangitikei Guardians Society Inc v. Manawatu-Wanganui Regional Council Project Central Wind Taihape 2010 Environment In favor of developer [no link in original] appeal of project consent (dismissed)


United Kingdom

Case Project Location Year Type Decision comments
South Northamptonshire Council & Anor v Secretary of State for Communities and Local Government & Anor Spring Farm Ridge Northamptonshire 2013 Higher Against developer appeal of upheld appeal of planning refusal (upheld), health concerns not raised
Hulme v. Secretary of State for Communities and Local Government & Anor Den Brook Devon 2011 Higher In favor of developer appeal of conditions of redetermined planning approval (upheld appeal of dismissed appeal of upheld appeal of planning refusal (dismissed) – upheld amplitude modulation noise condition, health concerns not raised
Barnes & Anor v. Secretary of State for Communities and Local Government Crosslands Farm Cumbria 2010 Higher In favor of developer appeal of upheld appeal of planning refusal (rejected), health concerns not raised
Tegni Cymru Cyf v. The Welsh Ministers & Anor Gorsedd Bran Denbighshire 2010 Higher In favor of developer appeal of rejected appeal of planning refusal (upheld), health concerns not raised
Hulme, R (on the application of) v. Secretary of State for Communities & Local Government Den Brook Devon 2010 Higher In favor of developer [hearing of Hulme v. Secretary of State for Communities and Local Government & Anor (2011), above]
Tegni Cymru Cyf v. The Welsh Ministers & Anor Gorsedd Bran Denbighshire 2010 Higher Against developer appeal of Tegni Cymru Cyf v. The Welsh Ministers & Anor (2010), above, health concerns not raised
The Friends of Hethel Ltd, R (on the application of) v. Ecotricity Lotus Cars Norfolk 2009 Higher In favor of developer appeal of planning permission, health concerns not raised
North Devon District Council, R (on the application of) v. Secretary of State for Business, Enterprise & Regulatory Reform & Anor Fullabrook Down Devon 2008 Higher In favor of developer appeal and application for judicial review of planning permission (appeal dismissed, permission to apply for judicial review granted), health concerns not raised
CRE Energy Ltd Re: A Decision Of The Scottish Ministers [2006] ScotCS CSOH_131 (29 August 2006) Borrowston Scotland 2006 Higher Against developer appeal of planning refusal, health concerns not raised


United States

Case Project Location Year Type Decision comments
Town of Falmouth v. Town of Falmouth Zoning Board of Appeals & others Falmouth Massachusetts 2013 Higher Against developer motion for injunction (allowed) – turbines off 7pm-7am Mon-Sat, Sun, Thanksgiving, Christmas, New Year's
Lawrence J. Frigault et al., Respondents-Appellants, v. Town of Richfield Planning Board et al., Apellants-Respondents, et al., Respondent. Monticello Winds New York 2013 Higher In favor of developer appeal of upheld appeal of permit approval (upheld), health concerns not raised
The Blue Mountain Alliance; Norm Kralman; Richard Jolly; Dave Price; Robin Severe; and Cindy Severe, Petitioners, v. Energy Facility Siting Council; and Site Certificate Holder Helix Windpower Facility, LLC. Respondents. Helix Wind Power Facility Oregon 2013 Higher In favor of developer appeal of certificate approval ignoring country setback ordinance, health concerns not specifically raised
Friends of Maine Mountains v. Board of Environmental Protection Saddleback Ridge Maine 2012 Higher Against developer appeal of permit approval (upheld) – ‘Because the Board is responsible for regulating sound levels in order to minimize health impacts—and because when doing so it determined that the appropriate nighttime sound level limit to minimize health impacts is 42 dBA—the Board abused its discretion by approving Saddleback's permit applications.’
Concerned Citizens to Save Roxbury et al. v. Board of Environmental Protection et al. Record Hill Maine 2011 Higher In favor of developer appeal of permit approval (dismissed)
Application of Buckeye Wind, LLC., for a Certificate to Construct Wind–Powered Electric Generation Facilities in Champaign County, Ohio; Union Neighbors United et al., Appellants; Power Siting Board et al., Appellees Champaign County Ohio 2010 Higher In favor of developer appeal of project approval (dismissed), health concerns not raised – ‘the board acted in accordance with all pertinent statutes and regulations’
Arthur and Elke Plaxton, Appellants v. Lycoming County Zoning Hearing Board and Laurel Hill Wind Energy, LLC. Laurel Ridge Pennsylvania 2009 Higher In favor of developer challenge of county zoning amendments (dismissed), health concerns not specifically raised
Aroberts v. Manitowoc County Board of Adjustment Twin Creeks Wind Park Wisconsin 2006 Higher In favor of developer appeal of permit approval (dismissed), health concerns not specifically raised

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