The challenge, brought by Prince Edward County resident Ian Hanna, argues that Ontario's minimum setback distance of 550 metres does not take account of the possible negative impacts of wind turbines on human health. He says there is no medical evidence that the setback is safe.
By enacting the regulations without that proof, Hanna claims the province failed to take into account the precautionary principle contained in its own Environmental Bill of Rights, according to which if there is uncertainty around whether an action or policy will have an adverse impact, it should not proceed.
The government, for its part, argues there is no conclusive evidence that wind turbine noise has any impact on human health, and that the setback distance is "clearly conservative" given existing studies. The judges reserved their decision following a one-day hearing on January 24, but when they do rule it won't be on the question of whether wind turbines harm human health.
"The court is absolutely not being asked to rule on whether or not there are adverse health impacts from wind turbines," says Andrew Lord, an associate with law firm Davis.
What the Hanna case deals with is the process the government used in arriving at its setback regulations, says Lord. "The government conducted very extensive public consultations on all aspects of the Green Energy Act concept, and specifically on the regulations for renewable energy approvals. Lots of people were invited to the table to express their views before the regulations were enacted, and certainly people of Hanna's view had their chance to present their objections," he explains.
"I certainly can't predict what the court will do, but it does seem that given the extent of the consultations the government undertook, Hanna probably has an uphill battle against him."
If he loses, Hanna will have to decide whether to appeal the decision. Should the court rule in his favour and strike down the regulations, however, it could have a significant impact on wind farm construction in the province. "I would assume that the government would be asked to go back to the drawing table in terms of determining what setbacks would actually protect human health," says Lord.
"That may be a time-consuming process. If they came up with a number that is bigger than 550 metres, that might kill certain developments that just can't squeeze enough turbines in to the area available to make them economically viable."
It could also have an effect on potential investors in the market. Lord adds: "Developers may say this just isn't the market for us anymore because there is too much uncertainty. There may also be lenders to projects that say: 'We're not comfortable with the uncertainty.'"
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