On one side, lawyer Eric Gillespie for the appellants Katie Erickson and Chatham-Kent Wind Action and his assistant.
On the other side two lawyers for the Ministry of Environment, Fredericka Rotter and Andrea Huckins along with MOE Director for Renewable Energy Approvals (REA) Mr. Mansoor Mahmood and alternately Brian Howe of HGC Engineering. Next to them were Suncor lawyer Albert Engel of Fogler, Rubinoff with Jay Headrick and Brad West of Suncor. Next to them sat Stantec Consulting representative, Chris Scott.
Following some important legal jousting over motions to dismiss, confidentiality and the role of advocate, the proceedings began with Mr. Gillespie’s opening remarks. He stated that the appellants case is based on science and will establish that the Kent-Breezes wind project ‘will’ cause serious harm to human health if permitted to operate as approved.
Ms. Rotter for the MOE argued that the nature of this legal action relates to matters outside the jurisdiction of the Environmental Review Tribunal; that there is no precedent for this so therefore it should not be heard- presumably because it would set a precedent. Ms. Rotter also advanced the case that because some of the expert witnesses were a part of The Society for Wind Vigilance they were advocates and biased. Therefore they did not qualify as experts. They had co-authored reports and as Ms. Rotter stated, our witnesses were “fear mongering” with an “anti-wind agenda” and appeared to be affiliated with a group of “rabble-rousers’ from an anti-wind activist group who had a “link” to The Society on the their website.
Mr. Gillespie countered by submitting that if the appellants’ expert witnesses did not qualify, it would also be necessary to exclude all the CanWEA members on the other side of the aisle as well as the expert medical witnesses who co-authored the AWEA/CanWEA Dec. 2009 paper and the Dr. Arlene King report of May 2010 called “The Potential Health Impacts of Industrial Wind Turbines”. These submissions seemed to resolve the issue.
The appellants’ first witness was Mr. Richard James of E-coustic Solutions, Michigan. In spite of lengthy attempts to discredit Mr. James’ expertise by both MOE and Suncor legal teams, the ERT Panel decided to allow Mr. James his status as “expert”.
Mr. James’ testimony lived up to his billing as expert. His presentation was seamless, clear and challenging for the other side. He told the Tribunal that in his opinion the MOE guidelines were not authoritative. He described the elements that were excluded in measuring sound from industrial-scale wind turbines. In particular James demonstrated that by adding c-weighting to a graph measuring sound on the a-weighted scale there was a significantly higher level of low frequency infra-sound. When asked by the Suncor lawyer where he got the input for the noise graph Mr. James stated he used the data from the Hatch Consulting noise impact assessment report for the approved Kent-Breeze project.
Both legal teams opposing the appeal stated that there would have to be a very high level of proof in order to stop this wind development. Mr. James’ testimony has launched a historic event which will demonstrate in no uncertain terms that high level proof not only exists but will prevail.
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