Ontario’s Environmental Review Tribunal (ERT) has dismissed another anti-wind power appeal: May 14, 2014, Pitt v. MOE ERT Registry Number: 13-121. The Wainfleet Wind Energy Project can now proceed, despite objections from a skydiving club. The ERT ruled that the club had not shown that the turbines were likely to cause even one serious skydiving accident over their twenty year working life.
Imagine if the same test were applied to other infrastructure. Maybe no new roads should be built without proof that there would never be a serious accident on that road? What about coal-fired power plants? Coal mines?
On October 7, 2013, the Ministry of the Environment (“MOE”), issued Renewable Energy Approval No. 7159-97BQAS (the “REA”) to Wainfleet Wind Energy Inc. (the “Approval Holder”), under s. 47.5 of the Environmental Protection Act (“EPA”). The REA grants approval for the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of five wind turbines with a total name plate capacity of 9 megawatts at a site (the “Project Site”) located at 22211 Abby Road Lot 22, Concession 2, Part 22, Township of Wainfleet, Regional Municipality of Niagara, Ontario (the “Project”).
Mikel Pitt and Skydive Burnaby Ltd. (“Skydive”) appealled, on the ground that airplanes or parachutists might either collide with these wind turbines or be unable to safely manoeuver due to wind turbulence generated by these wind turbines.
The ERT ruled that the skydivers had the onus of proof, and had to demonstrate that it is more likely than not that serious harm will occur. A mere risk of collisions was not enough.
For example, proof that the turbines could increase wind turbulence by 1% or less was not shown to appreciably change the impact that the ambient turbulence would have on the safety of skydivers:
“ In summary, the Tribunal finds that the evidence does not establish that skydivers, under normal conditions, will be unable to navigate their parachutes around the wind turbines or to avoid turbulence generated by wind turbines T4 and T5 both off the Skydive Site and during parachute descent on the Skydive Site…”
“ As it is certain that the serious harm (which includes fatality) will occur, the probability is 100%. However, this is just the probability of the outcome of parachute failure/incapacity. For such serious harm to occur, it also necessary to factor in the probability that mechanical parachute failure or physical incapacity will occur. It is, then, also necessary to factor in the probability that the skydiver will be near the turbines or their turbulence wake at the time such failure/incapacity occurs. These probabilities, when considered together (mathematically, they are multiplied), represent the probability that an injury will occur on any individual jump (“individual jump probability”).
 Each skydive is an individual event in which serious harm may occur. The evidence does not indicate that if a parachute failure or incapacity occurs on one jump, this will increase the probability that parachute failure/incapacity will occur on subsequent jumps. In terms of probability analysis, the Tribunal accepts that each event is independent, and the individual jump probability remains constant for all jumps.
 Although the individual jump probability may be very low, there are numerous skydive jumps that take place at Skydive each year. Therefore, it is necessary to consider the total number of jumps that will take place over the year lifespan of the Project. In order to satisfy the Health Test, the Tribunal must consider the probability that, for this total number of jumps, one or more serious injuries or fatalities will occur.
 The REA does expressly include a termination date. Regarding this matter, the parties, at the Tribunal’s request, provided an agreed statement of facts which indicates that power will be produced by Project for 20 years, and the turbines’ approximate life cycle is 25 years. Based on these agreed facts, the Tribunal accepts that, for purposes of this analysis, it is appropriate to consider that the lifespan of the Project under the REA is 20 years. Number of Skydive Jumps
 It is not disputed that Skydive conducts 10,000 skydive jumps annually. Therefore, over the lifespan of the Project, the total number of jumps would be 200,000.
 As the analysis in Dr. Cox’s Risk Assessment Report indicates, there are three components to be considered. The first is the probability that a skydive jump will take place from a drop that is on the westerly side of wind turbines T4 and T5. Based on Mr. Eralp’s evidence the number of such ranges from 21% to 45% of all the jumps conducted by Skydive each year depending on the spread of the turbulence wake. Therefore a probability analysis could either assume the probability is 21%, an assumption which favours the position of the Approval Holder, or the higher probability of 45%, (or 0.45) which favours the position of the Appellants. In his analysis, Dr. Cox’s assigns 50% as this probability.
 The second component is the probability of landing out, which Dr. Cox calculates as 0.003, based on Mr. Rosevinge’s evidence that his skydiving operation experiences about 18 landing outs for 6,000 jumps per year.
 The third component is the probability that the jumper will come into the path of either turbine or the turbulence wake within 500 meters of them. Dr. Cox’s analysis indicates that he calculates this probability based on the ratio of the land area covered by the wind turbines and their turbulence wake to the overall land area, which Dr. Cox states is 2.5%. In other words, the land area covered by the wind turbines and their turbulence wake represents 2.5% of the total area where a parachutist may land. This aspect of his evidence has not been challenged. Accordingly, Dr. Cox assigns 2.5% (or 0.025) as this probability.
 To determine the probability of a main parachute failure and the probability of a reserve parachute failure, Dr. Cox utilized statistics obtained from the United States Parachute Association. His use of these statistics is discussed in greater detail below. In his analysis, Dr. Cox also indicates that these statistics indicate that a main parachute failure occurs 1 in every 750 jumps (1/750 = 0.0013) and a reserve parachute failure 1 in every 1,000 jumps (1/1000 = 0.001).  Accordingly, Dr. Cox assigns 0.0013 as the probability of main parachute failure, and 0.001 as the probability of reserve parachute failure…”
“ The Tribunal also notes that regulatory authorities, whether they are volunteer organizations such as Canadian, American or British parachute associations, or agencies exercising a legislated jurisdiction, may impose set back restrictions, even where the risk of harm is very low, because they consider it prudent to do so as a safety measure. However, in this case, the Tribunal must make findings respecting the Health Test, which is very specific. It must be shown the serious harm will occur. Hence, the regulatory policies, in and of themselves, are not evidence that harm will occur, unless they are based on other supporting evidence which indicates that harm will occur. In such circumstances, it is the supporting evidence that would be probative, not the policy itself.
 In summary, therefore, the Tribunal finds that this evidence does not establish that serious harm will occur.
 The Tribunal accepts that Dr. Cox’s conclusion is a strong indicator that the risk of harm posed by the wind turbines does not rise above the level of a concern. … However, the Tribunal is mindful that the serious harm being considered in this case is serious physical injury or death. Therefore, when reviewing Dr. Cox’s evidence, the Tribunal wished to satisfy itself that there was no aspect of the probability analysis which would indicate that, on a balance of probabilities, the Health Test could be met. Consequently, the Tribunal requested that Dr. Cox provide additional clarification of his evidence, …
 The end result of his calculation indicates that the probability that 1 or more fatal accidents would occur over a 20 year life span is only 0.000481768. The Tribunal notes that fatality also includes serious physical harm.
 For these reasons, the Tribunal accepts Dr. Cox’s evidence over the evidence adduced by the experts who testified on behalf of the Appellants. Therefore, the Tribunal finds that the Appellants have not established that a parachutist will encounter the wind turbines or their turbulence wake under emergency conditions.
 Based on the foregoing analysis and findings, the Tribunal finds that the Appellants have not established that the Health Test has been met on the grounds that skydivers will be seriously harmed by collision with wind turbines T4 and T5 or interaction with their turbulence wakes.”
The Tribunal therefore rejected the anti-wind power appeal.
By Dianne Saxe, Ontario Environmental Lawyer
Reprinted with permission from the Environmental Law and Litigation Blog.
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