Monday, December 29, 2014

Strange Goings On In Ontario Anti-Wind Movement

A number of Ontario ERT (Environmental Review Tribunal) decisions were released just before Xmas; they can be found here.   The results should no longer be surprising; forces opposing the development of wind farms in the province challenged several projects on grounds that they were dangerous to human health, and lost.  However, one appeal--Gillespie v. Director, Ministry of the Environment-- contained a few elements novel enough to deserve some commentary.

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The appellants in this case were John Gillespie and The Municipality of Bluewater, Mr. Gillespie being a town Councillor up there.  One peculiarity was that, while Mr. Gillespie argued the "security of his person" was endangered due to the fact he lives "in proximity" to the proposed facility, he apparently did not supply the ERT with so much as a mailing address.  From the decision:

[147] It is the Director’s position that the analysis of s. 7 involves two steps: first, the claimant must demonstrate that the legislation or state action deprives him or her of life, liberty or security of the person; and second, if the first step is met, the claimant must demonstrate that the deprivation is not in accordance with a principle of fundamental justice. The Director submits that the Appellant Gillespie fails on both steps.

[148] With respect to the first step, the Director argues that the Appellant Gillespie adduced no evidence about himself, where he lives or how his rights have been infringed.

And later on, when the Tribunal is discussing the reasoning behind its findings:

[170] The Tribunal now turns to the Director’s argument that the Appellant Gillespie, as the Charter claimant, adduced absolutely no evidence of how his rights have been infringed. In support of this position, the Director emphasizes that there is no evidence regarding who Mr. Gillespie is, where he lives, or even if he lives in the vicinity of the Project. The Director submits that for this reason alone, his Charter claim must fail. 

It appears that Mr. Gillespie saw himself as a proxy, a kind of every-man representing the allegedly violated rights of other Bluewater residents, so these facts about his personal situation didn't matter However, according to the relevant law you aren't allowed to represent others; the evidence presented must be about you and your situation.  So this aspect of Mr, Gillespie's appeal (a constitutional challenge under s. 7 of the Canadian Charter of Rights and Freedoms) failed as a result.

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More interesting  were the circumstances around the testimony of Dr. Hazel Lynn,  She co-authored Systematic Review 2013: Association Between Wind Turbines and Human Distress, a lit survey of papers dealing with the health effects of wind-turbines.  It survived peer review to appear in the journal Cureos.  This paper IMHO was not particularly useful, and its conclusions re the significance of annoyance (dubbed human distress in the text) as an impactor on human health were overstated.  Nevertheless, this document, plus several other reports Dr. Lynn helped prepare, were the entire body of evidence relied upon by the appellants to make their case against the Grand Bend facility.

Therefore it is extremely worth noting Dr. Lynn did not want to be at this hearing, to the point where she suggested (through hired counsel) that she had no expertise in the relevant matters:

[18] The Approval Holder adopted the submissions of the Director.  Dr. Lynn’s counsel submitted that Dr. Lynn herself does not believe she has the expertise to give opinion evidence in this proceeding and, as a result, her evidence would be of no benefit to the Tribunal, and, therefore, is unnecessary. 

At several points in the ERT decision, the same fact is raised again and again: Dr. Lynn did not appear voluntarily but as a result of a summons, which she fought:

...Bearing in mind that Dr. Lynn was opposed to giving evidence and retained counsel to represent her in opposing the summons, the Tribunal finds that counsel for the Appellants made reasonable efforts to obtain a witness statement from Dr. Lynn and to provide the parties with as much information regarding her proposed testimony as he could reasonably be expected to obtain prior to the commencement of the hearing.

And it is interesting in light of this that the testimony Dr. Lynn provided was distinctly unhelpful to the Appellants.   In fact she seems to have walked-back or at least de-emphasized the most important claims in her previous research.  For example, the substitution of the concept of "human distress" for the concept of "annoyance" has drawn considerable criticism. Dr. Simon Chapman, an associate dean at the School of Public Health at the University of Sydney, has argued that:

The authors chose to use the term “distress” instead of “annoyance". The American Medical Dictionary defines distress as 1. Mental or physical suffering or anguish or 2. Severe strain resulting from exhaustion or trauma. Annoyance on the other hand is defined as 1. The act of annoying or the state of being annoyed or 2. A cause of irritation or vexation; a nuisance. (The American Heritage Dictionary of the English Language, Fourth Edition copyright 2000) and is generally identified as a highly subjective state in medical literature. It is clear that the authors chose a stronger term than was used by the majority of studies. Most literature refers to annoyance, while the referenced alternative of “Wind Turbine Syndrome” was coined in a vanity press published case study with extraordinary weaknesses of selection bias, methodology and analysis (17). Similarly, “extreme annoyance” is rarely used in the literature. Annoyance is by far the most commonly used term in the material referenced, so it is unclear why “distress” was chosen.

Similarly, at the ERT hearing itself, Dr. Kenneth Mundt argued for the wind farm project that:

 ...one of the most serious errors made by the authors was to manipulate the results of the
studies by combining a variety of self-reported symptoms into a new category that they
term “distress”, which, he asserts, is not a scientifically meaningful term, and obscures
the findings in some of the studies.

And in her (compelled) testimony before the ERT,  Dr. Lynn basically admits this point:

[77] Dr. Lynn stated that she prefers to use the term “distress”, because a lay
person’s understanding of the term “annoyance” may be perceived as understating the
seriousness of people’s complaints. She indicated that she considered annoyance, in
relation to wind turbine noise, to be whether a person could hear and notice the noise.
She acknowledges that “distress” is a human term, not a research term.

And so on throughout. I would suggest that Ms. Lynn tried in her testimony to discourage any further use of her as a witness in tribunal hearings/court cases.  And so Ontario's anti-wind forces continue to lose sources of expertise.  Ms. Lynn's case is the first one where these losses have been "self inflicted", as it were, and not at the hands of an unsympathetic tribunal.

2 comments:

The Mound of Sound said...

And so it goes... on and on and on.

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