Ontario’s Green Energy Policy vs. Social Justice

Objectives: To explore the development and implementation of Ontario’s Green Energy Act and the outcomes on social justice and risk of harm to Ontario residents. To provide examples of government actions taken to achieve its goals and the occurrence of consequences, whether intended or unintended. Methods: In Ontario, many legal cases have been filed due to concern regarding the impact of industrial wind turbines on people and the environment. The contents of this article have primarily been taken from the documents filed during an Application for a Judicial Review that examined the process of approval of industrial wind turbines in Ontario. References to support the content of this article also include: evidence derived from other legal cases, government communications including records obtained by Freedom of Information requests, peer reviewed literature, and other sources. Results: Evidence is presented that suggests the government erred by creating an inflexible policy/statute that ensured that industrial wind turbines would be approved, erected and become operational at any cost. It provides examples of government actions taken to achieve this position that are contrary to widely held fundamental principles of administrative law and governmental legitimacy. Recommendations are provided for mitigating some of the outcomes of a government policy and preventing impacts on social justice from happening again.


Introduction
By 2000, climate change was increasingly becoming a concern and energy policy became a focus, with increased consideration of renewable energy such as wind turbines.
In 2009, the government of Ontario, Canada enacted the Green Energy Act (GEA) with the intention of making "Ontario a global leader in the development of renewable energy" through fostering the growth of renewable energy projects. The government sought to remove barriers and promote opportunities to stimulate renewable energy development and a green economy (A Green Energy Act for Ontario 2008; Green Energy and Green Economy Act, 2009). This policy resulted in several statutes of general application being amended or interpreted to reduce impediments to the approval and construction of wind turbine facilities. The government thought that these actions would lower electricity costs, lower carbon emissions, establish a manufacturing industry capable of exporting technology, and create 50,000 jobs (Runyon, 2009;Environmental Defence, 2016). These expectations have not been achieved (Gallant, 2016;Ontario Society of Professional Engineers Report, 2012).
Residents living in the areas where industrial wind turbine (IWT) projects were planned expressed concerns regarding the impact of the turbines on people and the environment; where they were operational people voiced complaints. This paper addresses the questions: How did such a noble policy of reducing a carbon footprint go so far amiss, and what have been the long-term impacts of these actions on citizens, businesses, and our legal framework? The approach taken was to explore why and how the Green Energy Act (GEA) came about, and what appropriate mitigation might be for those impacted by the more than 2600 IWTs (CanWEA, 2020) that are operational in Ontario. It includes a summary of governance issues and evidence of the extent of government efforts that were associated with the creation and enactment of the GEA and its guidelines. Examples of the harmful impacts of the impugned statutory test on human, plant and animal life, and on the social, economic and cultural conditions that affect the lives of residents in rural communities across Ontario are also discussed. This is the second article in which we explore Ontario's GEA. The previous one reproduced a letter from one of the authors, lawyer Alan Whiteley, to the government that was written to prevent future Acts and policy decisions from making similar mistakes. It provides recommendations of changes in order to modernize the justice system to avoid impacts on access to justice, citizen rights and animal protection. The GEA with associated changes to Acts and policies was used as an example (Whiteley et al., 2021). Similarly, McRobert et al. (2016) described unfairness in the approval system outlined in the GEA, and noted that such an process likely contributed to environmental, social and procedural injustices. The process has been characterised by other lawyers, social scientists and others as top-down, and centralized, causing complaint, conflict and problems (Broekel & Alfken, 2015;Colton et al., 2016;Krogh, 2011).

Methods
References to support the content of this paper include: documents derived from Energy Association, trade associations, developers, manufacturers and environmental groups (Canadian Institute for Environmental Law and Policy, 2009; Ontario Green Energy Act Alliance, 2009; The Ontario Sustainable Energy Association, 2003).
Soon after the passing of the GEA Ontario residents began expressing concerns (Legislative Assembly of Ontario, 2009d;Gallant, n.d.). Ontarians, particularly in rural areas where the wind turbines were to be erected, were vocal in their opposition to this policy. Many filed appeals of the government's Renewable Energy Approvals-the process that approved a wind turbine project. These appeals were held before an Environmental Review Tribunal (ERT), a restrictive requirement of the GEA (Green Energy and Green Economy Act, 2009a; Wilson et al., 2020;Krogh et al., 2019).
While there were over 50 appeals launched, very few were successful (Wilson et al., 2020). This was due to the high evidentiary threshold and the onerous legal test put in place by the government that required proving causality before the project was erected and became operational: appellants were required to prove in an ERT that in the future the project "will cause" serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment (Green Energy and Green Economy Act, 2009a). There were many obstacles in even filing an appeal, one of those being that appeals of Renewable Energy Approvals were cost-prohibitive, with legal fees ranging from several thousand to millions of dollars (Wilson et al., 2020). In fact, it has been suggested that participant and intervenor funding be available for participation in approvals, and policy and planning processes related to Ontario laws such as the Green Energy and Green Economy Act (McRobert, 2011). This would improve public access to justice.
Outside of the Tribunal hearings, Ontario residents expressed their concerns regarding other impacts including the infringement on the rights of rural property owner such as enjoyment of their property, and ability to develop their own land (Morrison, 2012;Spencer, 2015; and see Section 6.2).
It was not long before opposition to the GEA spread throughout the Province.
Not only Ontario residents were voicing concerns; analysts tracking energy production and hydro rates were also starting to take note of the increasing electricity costs (Gallant, 2016;Gallant, n.d., and Section 6.5). And there was evidence of increased carbon emissions resulting from the requirement for back-up generation due to the low capacity and operational intermittence of wind turbines (Ontario Society of Professional Engineers Report, 2012; Rosenbloom, 2004).
Any opposition or criticism was seen as an impediment to the development of energy projects, with some people characterizing these concerns as anti-environment, NIMBYism (Not in My Backyard) and bananas (Build Absolutely Nothing Anywhere Near Anything) (Clarke, 2012;Smith & Klick, 2007;Casey, 2019; Ontario Environmental Review Tribunal, Case Nos.: 10-121 and 10-122).

Implementation of the Green Energy Act
Evidence indicates that the GEA was implemented by a top-down approach, with the government dictating the direction and strategy in partnership with industry. Upper levels of government provided targets and priorities to senior managers who made clear to staff that implementation of the GEA was of the highest priority. A letter from the Minister of Natural Resources to an industry association obtained through a freedom of information request stated: The Ministry is also aligning its resources to provide support for renewable energy projects. MNR is focusing staff resources on reviewing and approving Feed-in-Tariff projects, resulting in the approval of over 75 per cent of natural heritage assessments submitted to the Ministry… I am pleased that MNR staff have been meeting regularly with representatives of Can-SIA and CanWEA and their member companies to work with the industry to satisfy the REA submission requirements. (Freedom of Information Request, 2010a) The review process became a box-ticking exercise for projects to which these ministries had inadvertently become promoters and partners. During a Remedy Hearing, evidence was presented that government staff commented to a pre-GEA proponent that having to complete an Environmental Assessment (EA) was a "regulatory glitch" that should not delay the proponent's schedule, and that the mandatory EA was an "administrative exercise", "just a formality" and "no big deal" (Freedom of Information Request 2010b).
Additional evidence of reviewing partiality was revealed when, although a staff expert herpetologist was hired to assist the government in the implementation of the Endangered Species Act and in the development of provincial policy and regulations for species at risk herpetofauna, including the Blanding's Turtle, neither the hiring of a government staff expert nor his advice was disclosed at any time during a Tribunal that was held in 2013. This information only came to light during the Remedy Hearing (August 2015), when a Tribunal Order revealed the extent to which the advice of this government expert was not considered during the review and approval of a proposed wind turbine project at Ostrander Point. During testimony under oath, when this government expert was asked what advice he gave to the ministry he stated: As such, it is reasonable to conclude that road mortality at the site could result in the eventual loss of the population (Crowley, 2015).
Appendices 1 and 2, derived from affidavits provided to the Supreme Court REAs to construct IWTs including those approved prior to enactment of the GEA, only two had not been approved and two were revoked by ERTs.
The government was acting as a protector of the environment while promoting and approving energy projects, a situation that lends itself to a conflict of interest.

Evidence of Governmental Preferential Treatment
There is evidence that the GEA and its associated regulations affected established policies, practices and procedural processes that were in place to protect the health of people and the environment. This created legal inconsistencies.

Improper Purpose
The creation of the GEA and the related changes subsequently made to established regulations demonstrated improper purpose, a legal term for an action whereby government alters results or prevents normal procedures from occurring (Law Insider).
For example, in 2009, the Premier of Ontario stated that the purpose of the proposed Act was to stop special interest groups and municipal governments from trying to block green energy projects for anything other than safety or environmental concerns (CBC News Report, 2009). Key components of the Act involved removing municipal governments from the decision making process, streamlining approvals and guaranteeing and prioritizing connection of wind energy facilities to the electricity grid, and allowing only restricted appeals of a wind energy project (Green Energy and Green Economy Act, 2009a). With the passing of the GEA, the Environmental Protection Act was modified to make exemptions for "green energy" projects. These established legal inconsistencies such as those related to a ministry's Statement of Environmental Values. (See 5.2 Regulatory Capture and Institutional Bias)

Regulatory Capture and Institutional Bias
Regulatory capture occurs when a public authority charged with regulating an industry in the public interest comes to identify the public interest with the interests of the industry, rather than the interests of the general public (Kenton, 2018). The GEA-related policies, practices, and procedures giving advantage to or favoring industry over the public demonstrated apparent institutional bias.
An early occurrence of regulatory capture was when Ontario moved towards a law promoting green energy, and the wind industry and its members took part in the formulation of the law by providing the government with their recommendations to shape the policy that would govern it.
By the end of 2008, some residents described harmful effects from operating wind turbines (Ontario Municipal Board, 2007). Community groups began forming to express the concerns that more health effects would appear if proper standards were not in place (Wilson et al., 2010). As noted by a renewable energy industry group, an Act was needed so that "the forces of status quo not be allowed to block wind projects." (Legislative Assembly of Ontario, 2009c). The proposed GEA and the use of wind power was being promoted by various groups (Canadian Institute for Environmental Law and Policy, 2009;Green Energy Act Alliance, 2009;The Ontario Sustainable Energy Association, 2003).
As well as giving input into the GEA, industry and associated member groups had provided recommendations that were incorporated into the technical guidelines that governed implementation of the GEA. For example, in October 2008, Ontario published its "Noise Guidelines for Wind Farms", that defined how far from a household or other structure a wind turbine could be sited. As described below, the draft guidelines were modified after the recommendations were received (A Green Energy Act for Ontario, 2008;Tomlinson, 2009). McRobert et al. (2016 commented that the implementation of the GEA is "…an Act that creates an unfair and incoherent process for renewable energy approvals".
Based on court documents, recommendations beneficial to industry but detrimental to rural residents were consistently applied by the authors of the Act.
On numerous occasions, Appellants perceived that health-related expert witnesses testifying on their behalf before the Environmental Review Tribunal were ignored or derided by government lawyers (Environmental Review Tribunal, 2011). Members of professional associations contributed to the forward movement of the industry by dismissing or discounting the complaints of serious harm to health from residents.
Documents show that the government referred to proponents rather than the public as their "clients". (Incident Reports obtained by WCO. Under CLIENT on the forms, the MOE/MOECC/MECP lists the power operator). There were also concerns regarding support of the wind power industry by insiders of the Liberal Party of Ontario (the elected provincial government) (Wind Concerns Ontario, 2020).
These actions indicate that the government considered "public interest" to be that of the wind turbine industry and perhaps voters in urban areas rather than those most affected.
The policies, practices and procedures related to and leading up to the GEA, that gave advantage to or favored industry over the public also demonstrated apparent institutional bias. Concerns about regulatory bias in the renewable energy sector by government agencies can be found as early as 2004-2005 in supplemental report by Ontario's Environmental Commissioner that commented that: …members of the public could question the independence of MNR in setting the policy in the first place and also question whether MNR is able to act as a legitimate rule enforcer and applicant elevator when it comes to reviewing applications for the use of Crown land for wind power purposes because it is also actively promoting this industry. (Environmental Commissioner of Ontario. Annual Report Supplemental 2004-2005 In 2009, the Ontario government issued Regulation 359/09, linked to EBR 01-6516, that set out the process for the Renewable Energy Approval (REA) under the Environmental Protection Act of Ontario. In the initial draft released for comment on June 10, setbacks of 550 metres from all receptors were proposed along with property line setbacks of turbine hub height plus blade length. The applicable setbacks would increase with the number of turbines and the sound level rating of selected turbines (Ontario Newsroom, 2009a, 2009b. The wind industry immediately objected to these guidelines, arguing that they would "jeopardize over three-quarters of all 'construction ready' wind projects in Ontario". In a letter sent to Ministers Smitherman and Gerretsen, the Canadian Wind Energy Association warned that "Of the 103 'shovel ready' wind projects in the province, 96-and fully 48 per cent of all proposed turbines-will be affected by the new rules". And 79 of the projects, representing 2591 MW, will be "rendered immediately non-viable" or require a "back to the drawing board redesign" (Hornung, 2009). As an alternative, they recommended a property line setback of the IWT blade length plus 10 metres, with the set-back only applying to "non-partici-pating receptors" (the terms of reference adopted by the wind industry and government to designate those not financially benefitting financially from hosting wind turbines on their property) (Environmental Commissioner of Ontario Annual Report, 2004Report, -2005. The adjusted guidelines met these recommendations. The wind industry also lobbied against proponents having to address lowfrequency noise and infrasound. A Minister of Environment proposed that as a condition of approval for wind turbine projects, proponents would be required to monitor and address any perceptible infrasound (vibration) or low frequency noise as a condition of the Renewable Energy Approval (Perry, 2009). The Canadian Wind Energy Association took exception to the proposed requirement (CanWEA Supplemental Submission, 2009). Despite the government's prior commitment to include requirements for low frequency noise (Hornung, 2009) and the evidence indicating that IWTs generate a broad spectrum of noise including low frequency noise (LFN) and infrasound that may be inaudible (Engel, 2011;Krogh et al., 2019;Wilson et al., 2020), the government removed the requirement to monitor and address LFN/infrasound. Ontario's noise guidelines are limited to monitoring of dBA audible noise. At the same time, communication from the Ministry of Environment in 2009 advised that regarding the ability to monitor compliance, there was: No scientifically accepted field methodology to measure wind turbine noise to determine noncompliance with a Certificate of Approval limits. (Bardswick, 2009) Both noise measurement companies and those living near IWTs raised concerns regarding emissions of LFN/infrasound (Ontario Municipal Board, 2007;Walker et al., 2012;Wilson et al., 2010).
By 2010, the government was aware that the setbacks were inadequate to avoid adverse health effects. Government records obtained through a Freedom of Information request stated that: It appears compliance with the minimum setbacks and the noise study approach currently being used to approve the siting of WTGs (wind turbine generators) will result or likely result in adverse effects contrary to subsection 14(1) of the EPA. (Hall, 2010) and that instead of the noise limit established by the noise guidelines: …the setback distances should be calculated using a sound level limit of 30 to 32 dBA at the receptor, instead of the 40 dBA sound level limit. (Jeffery et al, 2014) The content of the GEA and the associated regulations contains apparent inconsistencies with the Statement of Environmental Values (SEV) of various ministries. In Ontario, each ministry is mandated through the Environmental Bill of Rights (EBR), section 7, to prepare and adhere to their SEV. These represent promises made to the public that all actions and policies by each ministry will consider and integrate social, economic and scientific aspects in their decisionmaking processes. For example, the SEV of the Ministry of the Environment included directions to: • use a precautionary, science-based approach in its decision-making to protect human health and the environment (consistent with s. 11 of the Environmental Bill of Rights); • evaluate cumulative effects in decision making; • assess social and economic impacts to a community; • be transparent about decision making; • base decisions on best available science, in all decision making. (Statement of Environmental Values, 1993) While these values are consistent with the Environmental Protection Act, the GEA overrode many of the important protections. In order to enable IWT approvals and implementation when contrary to these principles, the government effectively gave IWTs an exemption by reducing the scope to which Environmental Review Tribunals (ERTs) could base decisions.
The GEA imposed a single legal pathway to appeal an REA: through an ERT that had limited jurisdiction that was inconsistent with the applicable SEVs. The legal test for health as defined in the GEA was that the wind turbines "will cause" serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment. The Tribunals were not permitted to consider health related or environmental cumulative effects, economic viability, social or economic impacts, the Precautionary Principle or the "more likely than not" provision. In effect the benchmark for a successful challenge was set so high as to make challenges almost impossible. Contrary to the provisions of the ERT, the following has been stated regarding "proof of causality" for human health and the environment: … prudent public health actions do not and should not require 100% proof of harm. In fact, precautionary and preventative actions are specifically justified at a point in time before scientific proof is established. If the growing weight of evidence is positive (although all studies need not report positive effects) then it may be essential to take preventative actions and implement policies that are protective of public health, safety and welfare rather than wait for absolute certainty.
… environmental quality acts… require that assessments use a standard of "potential for a significant impact on the environment which is a relatively low level of certainty (10% to 30%)" (Sage & Carpenter, 2012) The GEA required that an application to appeal a wind turbine project had to be filed within 15 days after the issuance of the Renewal Energy Approval, a very tight timeline for the public to organize a community appeal and to raise funding, hire legal representation and acquire expert witnesses-all the more so when the public had no way of knowing when the Renewable Energy Approval was about to be issued and for which project. Further, since government was a proponent of the process, challenges of an REA were considered a challenge to the government. As such, community groups were generally forced to legally challenge both their government and the industry provider as "partners". Government lawyers demonstrated having a collegial and close working relationship, with the lawyers representing their wind developer clients. These conditions for securing a hearing under the GEA scheme appear prejudicial to those who appealed the siting of the turbines and highly favourable to the proponents and their expert witnesses.
By 2009, the process was in place: the required burden of proof (causality) was established and the appeal timeline minimized. The government began rapidly approving IWT projects. Once started, the process continued unabated until just before the 2018 election: between 2010 and 2018, more than 50 appeals were held (Wilson et al., 2020). By then, government records obtained by Freedom of Information records documented the problems experienced by those living near IWTs (Wilson et al., 2020;Krogh et al., 2019). Many municipalities passed resolutions of being "unwilling hosts" to an IWT project after the Premier vowed to not impose such projects on places unwilling to take them (Martin, 2013) (The Premier pulled back on this vow). To ensure continuation of the "green" energy production, Bill 135 was proposed in 2015. It was intended to amend the GEA to prevent an incoming government from being able to cancel projects on a discretionary basis at a relatively low cost; the Bill did not pass.
To sum up, in the creation of the GEA, its regulations and guidelines, and modifications to related Acts, the government worked closely with the wind power industry. Policy makers failed to establish and apply rules and standards that were protective of residents and of the natural environment.

Evidence of Differential and Discriminatory Treatment
In addition to the indication of differential treatment provided above, there are perceptions of differential treatment related to the processing and awarding of IWT contracts. For example, the requirement to adhere to the commercial op- Discriminatory treatment is also built into the process. Due to large land use requirements for IWT projects (SaskWind, 2020), IWT projects in Ontario are located in rural Ontario, often against local by-laws and the will of the municipality and community (Martin, 2013). The statutory provisions and regulations effectively restrict IWTs to rural areas, and potentially create a divide between the residents of rural and urban/suburban Ontario. With the lower population density in rural compared to urban voting areas, this can hamper the rights of residents of rural Ontario to advocate for, enact, rely on and claim the benefit of sound land use planning principles or environmental protection legislation: these factors amount to a form of discrimination.
Urban communities have been able to resist electrical generating stations on political grounds. For example, when the government had two firm contracts to build gas-fired generating stations in the urban areas of Mississauga and Oakville, the urban residents objected loudly and the government relocated those gasfired stations to rural Ontario, at a change cost of an additional $1.1 billion (Morrow, 2015). When the government contracted to purchase power from a proposed IWT array to be erected in Lake Ontario off the Scarborough Bluffs (east of Toronto), they declared a moratorium when urban residents objected, exposing taxpayers to a damage award of $28 million (Jones, 2017;Talaga, 2011).
Despite the thousands of noise and other complaints and requests for government action (Krogh et al., 2019;Wilson et al., 2020) rural residents living near IWTs have not benefitted from a responsive government in the same way residents living in urban areas have benefitted.

Outcomes of the Green Energy Act
The implementation of the GEA in Ontario has resulted in reported negative outcomes related to a range of issues such as: effects on health, safety, social well-being and the economy, right to a fair tribunal, and loss of property rights,.
At the same time, there has been no evidence that the assumed benefit in reduction of greenhouse gases has occurred. Although Health Canada logs, analyses, interprets and acts on adverse reaction reports associated with medications and medical devices (Government of Canada), neither Health Canada nor the provincial health ministry have provided a similar vigilance monitoring program for IWTs. The regulatory authority for IWT complaints in Ontario is the Minister of the Environment (Stachura, 2018). There is no indication that these complaints are analysed or shared with the Ontario health ministry.

Incident Reports/Complaints and Gaps in Research and Knowledge
There were gaps in health protection. Prior to launching the GEA in 2009, the Ontario government did not conduct health studies to determine whether the 550 m minimum setback from residences would protect the health of people living near the IWTs. Setbacks were established using computer models based on dBA sound; excluded were other types of noise such as the tonal quality and cyclic variation of the IWTs (Hall, 2010) and low frequency noise/infrasound.
Limiting consideration of a single turbine rather than including all those that surround a home limits the ability to consider cumulative effects. These limita- tions were generally not supported by the government's field observations (Hall, 2010) or its Acoustic Consulting Report (Ramakrishnan, 2007 The Tribunal has found above that "serious harm to human health" includes both direct impacts (e.g., a passer-by being injured by a falling turbine blade or a person losing hearing) and indirect impacts (e.g., a person being ex- Despite the CMOH report having been produced 10 years ago, the Ontario government continues to rely on it. Yet the World Health Organization (1999), in a review funded by the Ontario government (Howe, 2010), an Australian Tribunal Decision (Krogh et al., 2011), and other literature (Abbasi et al., 2016;Jeffery et al., 2014) comment on IWT-related adverse effects on residents living near IWTs.
The CMOH report has been referenced during the issuance of REAs (Renewal Energy Approval, 2012, 2014, and during judicial proceedings. To date, there is no evidence an update to the CMOH report has been publicly released. In addition to complaints related to the components of noise/vibrations from IWTs, some individuals have reported being susceptible to electrical sensitivities due to high frequency ground current and transient and harmonic signals and electromagnetic/radio frequency energy related to IWT infrastructure and operational requirements (Havas & Colling, 2011;Krogh & Harrington, 2019).
The government has been aware that many adverse health complaints had been received from those living near IWTs (Krogh et al., 2019;Wilson et al., 2020), and that district officers were unable to demonstrate compliance with applicable standards (Hall, 2010;Krogh et al., 2019;Pearce, 2010;Wilson et al., 2020). The setbacks have not worked as expected and have not been altered to adjust for the increased size and capacity of newer IWTs. After years of complaints and submitted incident reports the government has failed to take any step to remedy the unauthorized pollution emitted by IWTs.

Abandoned homes
Some people living near wind energy facilities have reported adverse health effects and have left their homes (Krogh, 2011;Krogh et al., 2020;Le Coz & Sherman, 2017;Nicol & Seglins, 2011;Pearce, 2010); others contemplate doing so (Krogh et al., 2020). Some families have been billeted by, or have negotiated financial agreements with wind energy developers (Jeffery et al., 2014).
Although the government is aware that adverse effects resulted in people leaving their homes, no acknowledgement has been made or remediation given.

Contamination of Drinking Water
In some areas, well water supply at properties adjacent to IWTs has become depleted and/or unsafe as a result of their construction and vibration. Some wells are reported to have run dry or are producing turbid water (Di Maria, 2017;Wind Concerns Ontario, 2017). In one area, wells have become contaminated with black shale particles known to carry heavy metals such as uranium, lead, mercury and arsenic (RTI Laboratories, 1993a). The particles are smaller than one micron, such that they cannot be removed even by the finest filters and are easily absorbed through the skin. When the government required an IWT developer to perform an analysis on water contaminants, only those suspended particles large enough to be filtered were measured. An analysis commissioned by the well owners that included particles below 1 micron in size gave results many-fold higher than that of the company. It indicated that suspended solids increased 82 times, and that the number of black shale particles increased 14,500 times (from 47 particles/mL in the pre-construction sample to 681,939 particles/mL in the postconstruction sample), while that of the company showed that suspended solids increased only 5 times and turbidity increased 13 times compared to pre-construction samples (RTI Laboratories, 1993b). Despite acknowledging the corre-lation between the pile driving and the spike in well water turbidity (Jacobs, 2017), the government continues to rely on the flawed methodology of the proponent to assert that there was no causation.
Although the government has since made a requirement of an REA that the project "not utilize pile foundations for project infrastructure" (EBR number 013-1675), the vibrations from operating IWTs continue to pollute the ground water.

Risk of Collapses and Fire
In recent years IWTs have snapped in half or thrown blades and other components over 500 m, incidents that threaten both landowners and farm animals. Incidents in Canada that have occurred in Ontario include: Chatham-Kent, Kawartha Lakes, Newcastle, Sault Ste. Marie, Orangeville, and in Nova Scotia: Grand Étang, and Point Tupper (Caithness Windfarm Information Forum, 2020).
The wind industry's publication "WindPower Monthly" published that there were about 3800 blade failures annually (June 2015). Worldwide, there had been over 2000 accidents total and hundreds of IWT fires. Uadiale et al. (2014) commented that due to highly flammable materials within the nacelle and other factors, fire accounts for a "substantial fraction of accidents" in any year-about 10 to 30%. The authors also note that fire intervention cannot occur due to the height of the IWTs. Since fire crews cannot extinguish such fires, in certain conditions the fire can spread to abutting properties. Fire issues have been acknowledged by the Ontario Fire Marshal: training courses for 2013-2014 included training associated with wind turbines and firefighter safety (Sylvester, 2013(Sylvester, -2014. The Fire Protection and Prevention Act (s. 76) prevents the abutting landowner from recovering any damages for loss caused by turbines in Ontario.
Although there is an association between fire and industrial-sized turbines, and control of such fires is problematic, this safety issue has not been addressed.
This section describes issues that indicate a failure to regulate to the benefit of the wind industry. There is clear evidence that health protection from IWTs should be reassessed.

Depreciation, Limited Use, and Loss of Enjoyment of Property
As discussed, the GEA requires a minimum setback of 550m from the nearest "receptor" (i.e. centre of an occupied building) and 100m from the nearest nonparticipating property line. Even before construction of IWTs is commenced, this setback requirement can prevent owners of abutting lands from being permitted to construct homes on their own lands within 450 m of their property line. IWT manufacturers have advised that workers and children not be allowed within 400 m of an IWT, especially in icy or stormy conditions (Ragheb, 2011). This can leave the abutting lands unfit for purpose and potentially unsaleable.
The government has consistently denied that construction of IWTs has any impact on sale prices of abutting properties. This appears to be based on a report prepared in 2008 by four employees of the Municipal Property Assessment  (Gulden, 2014a(Gulden, , 2014b. Many professional real estate property appraisers have stated that IWTs cause substantial value diminution to nearby properties, and have conducted studies of actual values of specific properties within clearly identified distances from installed IWTs (Appraisal Group One, 2009;Lansink, 2012;McCann Appraisal, 2010). In Ontario, sellers of property have been required to provide full disclosure and must declare the potentiality for the presence of IWTs to the buyer.
The approval of IWTs within proximity to occupied homes can essentially "sterilize" abutting lands, leaving them unfit for purpose and have reduced value, or be unsaleable. The approval of IWTs within proximity to occupied homes is tantamount to a regulatory taking of private property rights.

Social, Cultural and Economic Effects on Rural Communities
In areas where the economy is dependent on cash flow from outside sources The government failing to investigate the social and economic conditions in approving turbine projects, failing to require the IWT developer to do so, and prohibiting its consideration in the statutory appeal to the ERT demonstrates that the impact of the REA and the IWTs on the local economy was ignored.

Protection of Heritage Conservation
In an application for Judicial Review, the Divisional Court held that the govern- The government did not apply the provisions of the Ontario Heritage Act when it conflicted with the GEA in approving the turbine generators.
IWTs are inefficient producers of electricity and provide intermittent supply that requires back-up power by carbon source factories. Electricity from carbonfree sources that can provide reliable base load is available at half the cost of that payable to developers of IWTs. Strong winds during periods of low demand create severe surplus base load in the grid. As generation and load must match up at all times to protect the grid, and as that electricity is not stored, the surplus is sold off or generation curtailed in order to avoid a blackout. Generators are paid to curtail production; surplus load is sold at a fraction of its costs (Ontario Society of Professional Engineers Report, 2012).
Nineteen gas-fired plants have been commissioned in Ontario since 2003. According to the Independent Electricity System Operator (2020) website, they operate at less than 5% of their potential. This activity appears to be largely when they are backing-up IWTs during windless periods. Similarly, in Germany eleven gas turbines are being installed even though they are generating record amounts of renewable energy in the north, as its grid is challenged to transport all the power down to load centres in the south and the grid requires stabilization (Hede, 2020).
It became clear soon after the GEA was implemented that instead of the pre- dicted reduction of electricity rates resulting from operation of industrial-sized turbines, costs were sky-rocketing and the requirement for gas was increasing. Yet the policy of approval continued. Ultimately, the government suspended expansion of its IWT program stating that there was no demand for the electricity and it would save $3.8 billion in electricity system costs (Ontario Newsroom, 2016). 2) At the technical decision stage, the government adopted technical assumptions that favoured the industry groups;

Summary of
3) At the enforcement stage, the government has failed to conduct inspections, monitor compliance and prosecute violators.
The damage inflicted includes affecting abutting properties by making them health hazards or blocking them from permissible development, ruining water tables, violating economic interests, and disrupting fragile rural economies. In particular, the impugned statutory provisions have imposed on rural Ontario thousands of IWTs that have: • been erected in breach of mandatory geographic setbacks and noise limits • emitted infrasound and electromagnetic pollution that are reported to cause illness in residents • rendered homes unfit for habitation • polluted waterways and ground water with soil, shale and toxic minerals • prevented building in adjacent lands within their setback shadow • vandalized habitat and species on abutting lands • opened gravel pits and erected cement batching plants without any environmental studies • incurred fires, tower collapses and other dangers to residents • depreciated market value of abutting lands or rendered them unsalable • prohibited municipalities from raising assessment revenue on the same basis as urban municipalities • disrupted rural economies and development plans.
The noble policy of reducing a carbon footprint clearly went far amiss. The Ontario IWT experiment has not been realised as expected. For all the costs of going "green", none of the alleged economic and social benefits, including the thousands of presumed permanent jobs, have materialized. There is clear evidence from the rural residents living within 10 km of IWTs reporting adverse health and other negative effects that allowable noise levels are too high and setback distances too close.

Repeal of the Green Energy Act: Is There Remediation?
On September 20, 2018 a newly elected government gave notice of the introduction of Bill 34 (2018) to repeal the GEA, stating that it was necessary because the GEA led to "the disastrous feed-in-tariff program and skyrocketing electricity rates…and …took away powers from municipalities to stop expensive and unneeded energy projects in their communities". The government admitted: "the GEA allowed the previous government to trample over the rights of families, businesses and municipalities across rural Ontario" (NetNewsLedger, 2018). The Bill cancelled most projects that were currently under review as well as one that had begun construction (Bill 2, 2018). Some sections of the GEA that gave privileged status to renewable energy projects were not rescinded, but were transferred to the Electricity Act.
Since introducing Bill 34, the government has taken no steps to put restrictions on the many turbines that are out of compliance (e.g. exceeding noise limits) or for which the noise audits are overdue. In some cases, companies have been out of compliance for several years-a situation unknown in other industries with reported health effects. Further, there is increased evidence that establishes that wind energy facilities emit acoustic infrasound and electromagnetic pollution that in animal subjects induce disturbances in the visual field, vascular changes in liver structure, hemorrhagic events in lungs and hippocampus morphology, and in humans cause pericardial and cardiac valve thickening and increased arterial stiffness, producing symptoms that include depression, cognitive dysfunction, sleep disorder, chest pain, nausea, vertigo, stress and heart palpitations (Alvez-Pereira et al., 2019;Bray, 2018;Havas & Colling, 2011;Krogh et al., 2011).
Although the GEA was repealed and the impacts acknowledged by the Ontario government, nothing has been done to alleviate the conditions imposed on those living adjacent to or within operational IWT installations. To date, there remains inadequate mitigation to address the concerns and complaints of the affected public who have lost faith in the government they believed would protect them. The government owes the public a duty of care to protect them from a health risk.

Conclusion
This paper presents evidence that the government erred in creating an inflexible With respect to the over 2500 IWTs already in operation across Ontario, the following legal implications must be considered: • Was the statutory scheme in violation of constitutional rights and international treaties? • Were the administrative procedures biased and in breach of natural law?
• Were administrative decisions illegally institutionally and operationally bi- Other jurisdictions can learn from these experiences to develop more balanced and effective approaches to addressing climate change and other challenges as we move forward.
believed the law to be wrong. He fought hard against an arbitrary policy that ignored the rights of citizens in the placement of turbines across the province. He argued for compensation for those suffering from living near them. He advised and managed the preparation of the more than 50 affidavits, and prepared the related legal documents supporting the CCSAGE case, met with and advised those concerned and affected across the province, all on a pro bono basis. Prior to his death September 2020, he had concurred with a draft of this paper.
We acknowledge all of the Ontario residents and groups that provided sworn statements, shared their records, and contributed towards this endeavour. We also acknowledge suggestions by Carmen Krogh and Paula Peel in the preparation and submission of this manuscript.
viewed and commented on the hundreds of technical reports prepared by the proponents. Relevant concerns about the GEA were expressed. These often in-depth critiques went largely ignored by the government and the proponents, becoming a table of comments and vague assessments of non-relevance or being out of scope. The sham of public review was made even more futile by the exemptions placed on the REA and the ERT review process, and by the government often being a proponent in the ERTs (with industry), having approved each project.

Differential Relationships with Government
Government lawyers, senior government officials and lawmakers engaged in close relationships with wind companies. This is evidenced, for example, during ERT hearings, when government and industry lawyers sat together and shared both strategies and arguments, at times at the request of the Tribunal (Whiteley A.: author's personal observation).

Advice from the government's own experts was ignored
Internal experts advised the government about reducing IWT approvals and tightening guidelines, both of which would reduce the number of IWTs in Ontario-these appear to have been ignored. This occurred both regarding IWT project approval and creation of requirements/guidelines. Government ignoring expert advice was concealed during ERTs.
Advice was also not taken when it was recognised that energy requirements were exceeded. In 2012, the Department of Energy and the Ontario Power Authority (now "IESO") considered cancelling certain IWT projects that had not yet been approved but were located within designated Important Bird Areas.
The IESO (Independent Electricity System Organization) was having difficulty managing "surplus baseload generation" caused by generation from IWTs during periods of low demand. However, none of the listed projects that were in Important Bird Areas were cancelled-maintaining the inflexible policy favouring renewable energy at all costs.

Limitations placed on the Environmental Review Tribunal (ERT)
The conditions for securing a hearing under the GEA scheme are highly prejudicial to those who oppose the siting of the IWTs and highly favourable to the proponents. The GEA imposed the legal pathway for appeal through an ERT that had limited jurisdiction. The legal test for health as defined in the GEA, "will cause" serious harm to human health, and serious and irreversible harm to the environment, is not consistent with the Statement of Environmental Values that requires adherence to the Precautionary Principal and is more in scope than the Environmental Protection Act. The GEA required appeal application being filed within two weeks of approval, a very tight timeline for the public to respond.

Untrue/Unsubstantiated Public Communication
Regarding the value of IWT installations, enticing but false, misleading or unproven narratives were communicated by the government in order to gain public buy-in. A former premier said: "Ontario is moving ahead with its clean energy program, taking immediate steps to ensure the long-term sustainability of renewable energy while creating more jobs, lowering prices and giving communities a greater say", and that: "More than 20,000 clean energy jobs have been created and the province is on track to create 50,000 jobs, while helping build a healthier future for all Ontarians." These claims have been refuted. The GEA did not create jobs or improve economic growth in Ontario, but rather increased unit production costs, diminished competitiveness, cut the rate of return on capital, reduced employment, and made households worse off. IWT installations have resulted in massive increases in the cost of electricity. From 2007, the government was informed by the Ontario Power Authority and the C.D. Howe Institute that IWTs would not reduce CO 2 emissions. Reports such as the Ontario Society of Professional Engineers Report of 2012 confirmed that the IWTs greatly increased CO 2 emissions because of the requirement for back-up generation due to their low capacity and intermittence. This is particularly the case where back-up technologies are more carbon intensive than the base load technologies, as is the case in Ontario.

Reduced Power for Communities
The GEA resulted in changes to the Municipal Act, which took away powers from municipalities. The changes allowed IWTs to be erected in contravention of municipal bylaws, official plans and assessment rights against local objections.
Municipalities and the public lost their veto power.

Rules, policies, practices, and procedures of the government favoured industry
Some examples are given below (details are available in Appendix 2).  Health Organization, 1999). The WHO document also states that when prominent low-frequency components are present (i.e., when the difference between C-weighted and A-weighted noise levels exceeds 10 dB), then measures based on A-weighting are inappropriate.
• Reports required for approval of specific IWT projects, such as sound emission test reports, were accepted by the government after the period for public comment expired.
• Draft REAs were sent to the proponent for comment after the period for public comment expired (e.g., Sumac Ridge-Township of Manvers), to which the government then often incorporated proponent suggestions in the final REA. No such opportunity was afforded to members of the public or municipal staff.
• Changes to a project were made while the project was under appeal to the ERT and Minister, without informing the public or allowing them to review the new information. Changes were also made after approval, without public consultation (e.g., Niagara Region Wind Farm). In some cases, approval was granted after the project was built and in operation and without any possibility of community input. (EBR Case No. 012-2985, posted 14 Dec 2015 • The government permitted many projects to utilize outdated noise guidelines through "transitional rules" in order that the IWT developers avoid more rigorous compliance requirements. This was the case even when, at the time that the more rigorous standards were imposed, none of the proponents had chosen a turbine model, were aware of the turbine MW output, or knew the number or location of turbines they would need. (e.g., Otter Creek wind project).
• When the public identified flaws in reports such as Noise Assessment Reports and environmental reports, no action was taken by the government. Even when a citizen-project identified species at risk after the proponent reported that there was no habitat for that species in their studies. The industry studies had failed to meet the minimum requirements as described in the government's "Survey Protocol for Blanding's Turtle in Ontario", yet still the government accepted the proponent's conclusion that the species was not present in the area.  • When evidence of flawed reports regarding sound emissions were taken to an ERT, it was declared outside the jurisdiction of the ERT to comment. The Tribunal stated that since the government had approved the reports, it must assume that the regulatory limits would be met and it could not consider evidence that the project would exceed those limits. (ERT Case No. 15-053, para 13, posted 17 Sep 2015) • After an ERT allowed a project to go forward, conditional on the extensive mitigation measures that had been presented to the Tribunal by the IWT developer, the proponent refused to perform any of the promised mitigation measures that were not expressed in the REA. They were said to be unenforceable.
• When a violation of the required setback from a turbine and house was taken to an ERT, the ERT held that it had no jurisdiction to enforce the statutory setback requirement and required the residents to prove that non-compliance would cause serious harm to human health (ERT Case 14-048): notwithstanding that the setback requirements were mandatory and imposed as the minimum measure to protect the health of adjacent residents. At the ERT the government admitted that the setback violation was the fault of the propo- nent and that the government had exercised no oversight, but "absolutely trusted the proponent". • When the government was informed that the restrictions imposed by a permit to destroy the habitat of bird species at risk were being violated, no action was taken. The government replied that the proponent had destroyed the habitat before the timing restrictions were operative, so that it was no longer considered habitat for purposes of the permit (e.g., White Pines).
• When the nest of an eagle, a species of special concern, was in the way of a turbine access road (Summerhaven), its preservation was recommended by government's expert and required by the Fish and Wildlife Conservation Act.
The government granted a ministerial exemption allowing the industry to cut down the tree on the basis that this would avoid significant cost and time delay for the proponent without re-starting the REA process.
• A batching plant for the production of cement for use in the foundations for IWTs towers was built immediately beside a primary school on Amherst Island without an impact study. Initially the government held that the cement plant was not part of the REA and would require environmental compliance approval. After the residents intended to challenge the application for the cement plant, the government amended the REA to add the cement plant as part of the "renewable energy project" (EBR 12-0774) thereby allowing construction and operation of a cement plant without any environmental assessment, without any input from the public and without any opportunity to appeal. Construction of a dock and underwater cable were dealt with in the same way.

Appendix 2: REA Approvals and Reduced Impediments
These provide specific examples of REA approvals during which the government of Ontario reduced impediments to the construction and operation of the IWTs.

Otter Creek-Lambton County
The project documents for the Otter Creek wind project in Lambton County were deemed complete by the government on 7 July 2017 and opened to public comment for a period of 45 days. The proposed turbines would have "the largest rotor available for an on-shore turbine". The company could not provide sound emission test reports until 3 months after the Technical Review phase as it had not been completed. Thus the modelled noise levels at nearby homes were merely estimates based on estimates of an untested turbine and could not be finalized before the period for public comment expired.
The government permitted the Otter Creek project and many other projects to utilize transitional rules to permit the IWT developers to avoid more rigorous compliance requirements. No further requirements were enforced even though, at the time that there were more rigorous standards were imposed, the company had not chosen a turbine model, they were aware of the turbine MW output, knew the number or location of turbines they would need or knew the turbines' noise emission or setback requirements.
Admitting that earlier noise modelling guidelines resulted in underestimates of noise at nearby homes, the government nevertheless also allowed the developers of the Easter Fields, Nation Rise, Romney and Strong Breeze IWT projects to ignore new guidelines designed to restrict noise impact.

Ostrander Point-Prince Edward County
Ostrander Point was identified by numerous environmental experts as a sensitive site particularly vulnerable to harm from development of an industrial-scale wind project with its ancillary equipment and roads, but the government accepted a report by the agent for the IWT developer and approved the project, indicating that having to complete the environmental assessment was a "regulatory glitch" that should not delay the proponent's schedule. Prior to approval, the government advised the proponent of the Ostrander Point project that the mandatory Environmental Assessment was an "administrative exercise", "just a formality" and "no big deal". When the ERT ordered the MNR senior manager overseeing the project to produce documentation during the permit process indicating urgent action was required to avoid jeopardizing the project, Ms. Bellamy failed to produce even the emails that had been secured by the citizen group under a Request for Information.
The people of Prince Edward County paid hundreds of thousands of dollars to protect Ostrander Point through 5 legal proceedings, all of which would have been unnecessary had the government not withheld relevant evidence and breached its statutory duties in order to impose IWTs in an unsuitable location.

Snowy Ridge-City of Kawartha Lakes
The government issued an REA for the Snowy Ridge project in June 2015; a At the ERT hearing the proponent stressed that the island roads would need minimal upgrades and widening in three locations only. After the ERT hearing concluded the proponent stated that island roads would suffer "catastrophic failure" if subjected to turbine traffic and proceeded to trench and widen 25 km of island roads without any modification of the REA. Despite the fact that the government's "Technical Guide to Renewable Energy Approvals" mandates that "all activities for all project phases…must be considered in defining the project location" the government refused to require an amended REA on the basis that "construction on a highway…is expressly excluded from the definition of a renewable energy generation facility".
The proponent's environmental impact study reported that there was no turtle habitat within the project location. Citizens mobilized a project which confirmed sitings of 58 Blanding's turtles within the project location. The government accepted the proponent's flawed study in the face of evidence to the contrary and the fact that studies carried out for the proponent failed to meet the minimum requirements as described in the government's "Survey Protocol for Blanding's Turtle in Ontario".
Even without actual sitings of turtles, the presence of waterbodies such as wetlands and river corridors are accepted surrogates for confirming associations of rare species with habitat. The ERT concluded that the proponent did not map the extent of waterbodies on Amherst Island, thereby potentially underestimating available corridors and habitat for Blanding's turtles. Without valid waterbody data, the ERT accepted the proponent's conclusions; it was constrained to do so for want of any probative evidence to the contrary.
The government issued a permit to destroy the habitat of Bobolinks, Eastern Meadowlarks and Eastern Whip-poor-wills provided that it was not done between specified dates. When notified by a resident that the proponent was violating the restrictions imposed by the permit, the government replied that the proponent had destroyed the habitat before the timing restrictions were operative, so that it was no longer considered habitat for purposes of the permit.
The government showed bias towards the IWT company by not adhering to their own guidelines for background studies. The gaps in, and the poor quality of studies conducted for the proponent and the lack of due diligence by the government in reviewing those studies, coupled with the stringent guidelines that dictate limitations in how ERT decisions are made were a large contributing factor to the denial of the appeal by the ERT.

Niagara Region Wind Farm (NRWF)
The government issued the REA for the NRWF in 2014. Ten months later, the IWT developer advised that multiple infrastructure changes were to be made to the project. The government failed to respond to requests by the public for particulars of the changes, and permitted multiple amended versions of the noise modelling document without public consultation.
The proponent relied on section 26(3) 7 of O. Reg. 359/09 and section 5.1 of the 2012 Natural Heritage Assessment Guide for Renewable Energy Projects to avoid investigation surveys of lands affected by the NRWF project, alleging that access was denied by landowners, and adjacent properties did not contain natural features that would warrant investigation. Residents advised the government that several landowners had never been asked for access to their lands, site surveys had not been conducted for 55 of the 80 (68%) proposed turbine locations, and there were numerous natural features on adjacent properties that required investigation. The proponent also failed to provide baseline data required to assess habitat disturbance of identified species. However, the government took no action and accepted the erroneous assertions of the proponent. Open Journal of Social Sciences A home is surrounded by IWTs and a Transfer Station forming part of the Niagara Region Wind Farm. The studies submitted by the proponent and accepted by the government erroneously identify that property as a vacant property. Despite this egregious error, the government issued an REA authorizing the project. Immediately following commissioning of the project, the homeowner was exposed to vibrations and noise; her health has been adversely affected. Despite numerous complaints, the government has failed to provide any resolution to issues including vibrations, interference with internet, stray voltage, shadow flicker or health impact.

Grand Valley Wind Farm-Dufferin County
In 2014 the government granted an REA for 16 IWTs. Two weeks after the turbines began operating in 2015, the government issued a new REA which altered the Acoustic Assessment Report and the Application. In breach of the Technical Guide to Renewable Energy Approvals, changes to the project had already occurred; the approval was granted after the project was built and in operation and without any possibility of community input.

HAF Wind Energy Project-West Lincoln Township
The government issued an REA to the IWT developer in 2013 despite the objections of West Lincoln Township and despite the fact that numerous individuals had identified deficiencies in the application. Among the many errors was the failure to specify a safe route for electricity collector lines in a road allowance adjacent to an old natural gas well. Despite indicating that the line would be installed on the south side of a road allowance away from the natural gas well the proponent installed it on the north side within 2.23 m of the gas well. The gas well inventory relied on by the proponent and accepted by the government indicates that the well was active and in good condition, although it had not been used in over 7 years. The proponent's engineering report stated that they had contacted the two registered owners of the well, who in fact have been dead for decades.

Summerhaven-Haldimand County
During construction of an access road to the IWTs, the IWT developer encountered a 200 year old cottonwood tree containing the nest of a bald eagle, a bird listed as of "special concern" in the Species at Risk List. The government's expert recommended moving the IWT leaving the tree and nest intact. Although the nest would be protected as per Section 7 of the Fish and Wildlife Conservation Act, the government helped the proponent to obtain a ministerial exemption allowing it to cut down the tree on the basis that this would avoid significant cost and time delay for the proponent without re-starting the REA process. The proponent was required to remove the tree within 2 days of the permit being posted on the EBR website: "to get the nest removed by Sunday".

Kent-Breeze Wind Farms-Chatham Kent
The REA for the project was received in 2010. During the first ERT held under the GEA, qualified experts submitted that the acoustical engineering evidence