Bruce McMeekin Law

The Divisional Court Upholds the Constitutional Validity of Renewable Energy Approvals

Section 7 of the Charter can be engaged in situations outside of the criminal law when policy supported regulatory legislation seriously threatens the security of the person. “Serious” in this context is something more than the ordinary stresses and anxieties that a person of reasonable sensibility suffers as a result of government action.  Measured objectively, the impugned state action must have a serious and profound effect on the psychological integrity of a person of reasonable sensibility.

In November 2014, the Divisional Court was required to review three decisions of the Environmental Review Tribunal (“ERT”) finding that the wind power licensing provisions of the Environmental Protection Act  (“EPA”) within the context of three commercial wind projects in southwestern Ontario did not offend section 7. The appellants – all landowners neighbouring the wind projects – had argued unsuccessfully before the ERT that licences – known as Renewable Energy Approvals  (“REAs”) – had been issued by the Ministry of the Environment (the “MOE”) permitting the projects despite the serious impact sound and vibration from the projects could cause to their security.

Sections 142.1 and 145.2.1 of the EPA permit the revocation of an REA when a person “proves” that a project permitted by a REA will cause serious harm to human health. Rather than prove harm in accord with ss. 142.1 and 145.2.1, the appellants argued that these provisions were offensive to section 7 in that they exceeded the section 7 threshold that a claimant need only show that the provision will cause interference with his/her bodily integrity or serious state-imposed psychological stress. Moreover, the deprivation was not in accord with the principles of fundamental justice in that it placed an arbitrary and impossible burden on the appellants because the effect of alleged wind turbine noise and vibration on human health was a known unknown. The appellants argued that this burden was inconsistent with the precautionary principle, a tenet of fundamental justice. The legislation should be read down to include the precautionary principle, meaning, that, in the absence of scientific consensus regarding the safety of commercial wind farms, a lower evidentiary threshold of harm should be applied.

In its December 29 judgement, the court rejected this argument. It did find that find the MOE’s authorization of the activity at issue provided the causal connection between the government activity and the alleged prejudice required before embarking on a review and consideration of the appellants’ Charter claim. However, the statutory language found in ss. 142.1 and 145.2.1 reflected the requirement that in order to establish a violation of security of the person a claimant must demonstrate “serious” harm. There was no evidence before the ERT seriously calling into question the principle underpinning the EPA’s renewable energy project regulatory regime – i.e. that wind turbines lawfully set back from a dwelling house and which do not generate excessive noise levels do not cause serious harm to human health based upon the current state of scientific knowledge.

Because of its conclusions about the quality and quantity of evidence going to harm, the court did not address the question of whether the deprivation – assuming there was one – was in accord with the principles of fundamental justice. Given that the appellants’ claim that the alleged deprivation was arbitrary, this is disappointing. A section 7 deprivation is arbitrary if it bears no relation to, or is inconsistent with, the state interest that lies behind the legislation. The state interest in this legislation – promoting increased reliance on renewable energy – is one that is of increasing if not vital importance from a public policy perspective. Absent clear and cogent evidence of serious harm, to many proceeding with renewable energy projects are an imperative.  Just as in the case of any enterprise (waste management, discharges etc.) licenced under the EPA, renewable energy projects that are, perhaps, a nuisance, but nothing more, remain exposed to liability under the substantive pollution prohibition.

Here is a link to the decision.