Canadian Lawyer InHouse

43 CANADIANLAWYERMAG.COM/INHOUSE SEPTEMBER 2015 I n d u s t r y S p o t l i g h t other environment-related statutes. "What is different is that the Ontario government has created legal tests that are almost impos- sible to meet. The test requires you to show that there will be harm, unlike almost any other area of environmental harm," he says. For opponents of wind projects, the legal test is more diffi cult than that of pipelines, says Stephen Hazell, general counsel for Nature Canada, which was an intervener in the Ostrander case at the Court of Appeal. Section 52 of the National Energy Board Act requires consideration of whether a pipeline project is desirable in the public in- terest. "It is a totally different standard," says Hazell of the Ontario renewable energy test. "It is the toughest standard I have ever seen." It is not that Nature Canada is opposed to wind developments, says Hazell. It is the process in place if there are objections that is the problem. "We need more wind projects. But it depends on where they are located," he says. The opposition to the Ostrander Point project is because "it is right on an important wetland" and could impact wildlife beyond that of the Blanding's turtle, says Hazell. Albert Engel, a partner at Fogler Rubinoff LLP in Toronto, who has represented a number of developers in the renewable-en- ergy sector, agrees it is a "high test" for op- ponents of the projects. "It is a test that the legislature has decided is appropriate," says Engel. At the same time, he explains there is a rigorous process to receive approval from the province and there are other provisions, such as setbacks of 550 metres from any dwelling that is not part of a wind project. There is also an automatic right of appeal to the ERT, which a resident can fi le once a wind project permit has been granted, En- gel explains. As well, "costs have never been awarded" against an unsuccessful party be- fore the tribunal, he adds. For opponents, the process is relatively inexpensive to take a case to the tribunal, suggests Engel. Opposition to wind projects has been loudest in rural communities in Ontario and is potentially a political issue for the provincial Liberal government. It is also facing an ongoing $500-million legal action related to a moratorium it put in place in 2011 on offshore wind developments. In terms of the framework in place for challenges to approval of onshore projects, though, that is unlikely to be changed. "There are no plans to amend the EPA to expand the scope of issues that can be raised," says Lindsay Davidson, a spokes- man for the Ministry of the Environment and Climate Change. Last fall, a study released by Health Can- ada concluded the noise from wind turbines could be an "annoyance" to nearby residents but stated there was not suffi cient evidence to link it to other conditions such as stress, nausea, or fatigue. The health implications "are a matter of great debate," says Gil- lespie, although he agrees these arguments have not been successful in tribunal cases. Still, he questions whether wind projects are a good economic choice. "There are CONNECT WITH IN-HOUSE COUNSEL COLLEAGUES AT LEXPERT.CA/CCCA Check out in-house counsel's best networking tool! The 2014/15 Lexpert CCCA/ACCJE Directory & Yearbook online edition is a user- friendly, outstanding key resource for all in-house counsel. Along with immediate access to more than 4,000 listees at more than 1,900 organizations, you'll DOVR´QGIUHVKHGLWRULDOFRQWHQW information on deals and links to important resources. Directory listees and CCCA members can also receive log-in credentials for access to detailed contact information to be able to connect with colleagues or research the in-house bar. ANYWHERE. ANYTIME. ON ANY DEVICE. Untitled-4 1 2015-03-02 9:12 AM

• Cover