Moving to a clean energy future or conflict and litigation?

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Siting Decisions for Solar and Wind Energy Developments in Australia: conciliation or conflict?

Siting decisions for renewable energy developments should not be restricted to evaluation of land areas based simply on technical and commercial feasibility, says Dr Ted Christie. Concern over the conservation of protected wildlife and public health also need to be effectively addressed and siting decisions should involve public participation to manage and resolve conflict between competing land use interests.

IT IS CLEAR that the world is moving towards a much more efficient system for energy generation. Renewable energy sources will have a key role for achieving a clean energy future by being part of any sustainable solution to limit carbon dioxide emissions.


The Federal Government is committed to a long-term investment in renewable sources of energy. The target is for 20 per cent of Australia’s electricity to be produced from renewable sources by 2020. Renewable energy is also a priority of the Obama administration.

Renewable energy developments, as a new form of land use, may have significant environmental impacts on large areas of land throughout Australia. For the community who have to live with the potential environmental impacts, will a siting decision for renewables make conflict and litigation inevitable? What potential environmental impacts could arise from siting decisions for renewables?

Impacts on biodiversity are one source of concern. Concern over adverse effects on human health from wind farms is another.

The rate of biodiversity loss is a significant global issue. Because of the claim that Australia has the worst extinction rate of mammals in the history of the Earth, siting decisions for renewable energy sites must be consistent with the needs for the conservation of protected wildlife.

Renewable energy developments have the potential to adversely impact the habitat that is critical for the survival of protected wildlife through habitat destruction and fragmentation. Wind turbines, transmission lines and solar panel arrays can also lead to wildlife mortality though collisions; as well as causing wildlife to be displaced from their habitat.

There have been claims by people living near wind farms in North America and Australia that infrasound produced by wind turbines causes adverse health effects.

The recently completed Senate Inquiry by the Community Affairs References Committee into “The Social and Economic Impact of Rural Wind Farms (June 2011)” received evidence in relation to adverse health effects suffered by some people who lived in close proximity to wind farms.

The Senate Committee in their Final report commented that “there were suggestions, concerns and opinions expressed [to the Committee] that infrasound produced by the turbines is a cause of adverse health impacts similar to those described for a medical condition called ‘Wind Turbine Syndrome’”.

Symptoms of the adverse health related complaints described to the Senate Committee, claimed to arise from Wind Turbine Syndrome, included sleep disturbance, headache, dizziness/vertigo, memory and concentration deficits, tinnitus, irritability and anger, fatigue and loss of motivation.

Establishing a link between the infrasound produced by wind turbines and adverse health effects is problematic. Wind Turbine Syndrome symptoms are non-specific. Similar symptoms may arise generally and may be caused by other factors.



This creates difficulty for scientific and legal proof of causation. Chair of the Senate Committee, Greens Senator Rachel Siewert, put it this way:

"We have found that there have been adverse health effects found in some people near wind farms. However, and this is a very important, we have not found that this is necessarily associated with noise or vibration….We are saying that there's not enough information, but that people are feeling possible adverse health effects, it could be related to other factors, and we had a lot of evidence around stress associated with location of wind farms."

Conflict over potential environmental impacts associated with siting decisions of renewable energy developments can also act as a trigger for the community to pursue their legal rights related to the decision-making process by Government. This has been the case in North America — for both protected wildlife and adverse effects on human health.


In the United States, law suits have been brought under the Federal endangered species legislation by opponents of proposed renewable energy projects. Paradoxically, some of these lawsuits have been initiated by the green movement notwithstanding green support for renewables and a clean energy future.

A solar-energy project involving 400,000 mirrors on part of California’s Mojave Desert was opposed by environmental groups, the Sierra Club and the Centre for Biological Diversity, because of the risk of habitat loss of a threatened desert tortoise. A giant solar plant in San Bernardino County approved by the California Energy Commission was opposed by the Sierra Club because of its potential impacts on rare and threatened plant and wildlife species.

There has also been litigation in North America, related to the environmental impacts of wind turbines. These lawsuits have involved claims either that prescribed noise levels have not been complied with in Maine, USA or for adverse effects on human health in Michigan, USA and Ontario, Canada.

Why has this litigation occurred? Part of the reason reflects the wide statutory powers given to Government. This power may be exercised with unrestricted discretion in many directions, such as climate change and energy, environment, health, immigration, infrastructure, planning, population and communities and resources.

The problem is that all power is capable of misuse or abuse. But, a member of the public can commence a legal action to ensure that Government is properly using its statutory power.

Knowledge power of legal rights provides the community with the means for keeping the decision-making powers of Government, under a statute, in check and accountable; for example, the validity of a decision by Government made under environmental legislation to grant approval for a renewable energy project when habitat destruction of protected wildlife or public health were in issue.

Could a vigorous, co-ordinated community campaign opposing a siting decision for a renewable energy development on biodiversity or public health grounds, result in a class action in Australia and follow the litigation pathway of North America?

What workable alternatives exist to avoid such a scenario for Australia?Depending on the outcome of litigation, the result would be for a renewable development proposal to be delayed, modified or even stopped.

The foundation for meeting the needs for the conservation of biodiversity would be to compile maps of the areas of land that meet the legal definition of “critical habitat” for all protected wildlife species that are listed under the “endangered species legislation” of the Commonwealth and each State and Territory.

Critical habitatrefers to habitat that is crucial for the survival of a wildlife species and essential for its conservation. The Queensland legislation extends the meaning of this legal term to

“include an area of land that is considered essential for the conservation of protected wildlife, even though the area is not presently occupied by the wildlife.”

Already, a major NGO in the United States, the Natural Resources Defense Council, has released maps of 13 States in the western United States showing areas of land which needs to be avoided by renewable energy developments as the habitat is critically important to wildlife.


The problem for Australia is that, unlike the United States, our “endangered species legislation” may not require the habitat critical for the survival of a protected species of wildlife to be identified and defined at the same time as it is listed for protection.

Where the habitat critical for the survival of a listed wildlife species is unknown, scientific uncertainty will cause problems for siting decisions for renewable energy developments; litigation risk becomes a possibility.

Another source of litigation risk, for renewable energy developments, would be where the critical habitat of a protected wildlife species was known — but conflict arose over the effectiveness of mitigation measures for it conservation in the decision granting approval.

The United States and the UK/EU have environmental policies linking ecological and economic considerations, to provide a range of options for biodiversity conservation which could be used effectively in public participation processes to avoid this situation. Options that could be applied for resolving conflicts over siting decisions include: enhancing, restoring or re-creating habitat that has been fragmented or destroyed; and tradeable units of “conservation credits” to sustain economic development at the regional level. In exceptional cases, a new site may be proposed.

Commenting on the reported cases of illness and the possible consequences that any adverse health effects may have on communities' acceptance of wind farms, the Senate Inquiry into “The Social and Economic Impact of Rural Wind Farms” recommended:

“That the Commonwealth Government initiate, as a matter of priority thorough, adequately resourced epidemiological and laboratory studies of the possible effects of wind farms on human health. This research must engage across industry and community, and include an advisory process representing the range of interests and concerns”.

It would not be in dispute that this is a sound recommendation and should be pursued. But in planning such research, there is a direction the Commonwealth Government should consider following a recent decision (18 July 2011) of the Environmental Review Tribunal, Ontario, Canada.


The Canadian Tribunal acknowledged that there were “certainly legitimate concerns and uncertainties about the effects of wind turbines on human health”. However, it could not conclude that engaging in this wind farm project, as approved by the Government agency, would cause “serious harm to human health” — the statutory test that had to be satisfied.

The Canadian Tribunal commented that it had evidence before it from an impressive array of 25 leading experts* from around the world who were at the cutting edge of scientific inquiry. The Tribunal concluded that:


“This case has successfully shown that the debate should not be simplified to one about whether wind turbines can cause harm to humans. The evidence presented to the Tribunal demonstrates that they can, if facilities are placed too close to residents. The debate has now evolved to one of degree. The question that should be asked is: What protections, such as permissible noise levels or setback distances, are appropriate to protect human health?”

To avoid the possibility of conflict and litigation, siting decisions for renewable energy developments should not be restricted to evaluation of land areas within Australia based simply on technical and commercial feasibility.


Meeting the need for 20 per cent of Australia’s electricity to be produced from renewable sources by 2020 requires Government to effectively address – from the outset – community concerns over the conservation of protected wildlife and public health.

Future siting decisions for renewable energy developments also requires Government to adopt co-operative and effective public participatory processes to manage and resolve conflict between competing land use interests – instead of relying on the reactive “Decide-Announce-Defend” process traditionally used by Government.

The community has to live with the outcome of a siting decision. The community must have trust and confidence in siting decisions by Government. NIMBY-ism (“Not in My Back Yard”) needs to be replaced by NIMBI-ism (“Now I Must Be Involved”).



* Expert Witnesses in the Environmental Review Tribunal Case, Ontario, Canada

1. Mr. Richard James’ Evidence


Mr. James was qualified to provide opinion evidence as an acoustician.

2. Dr. Michael Nissenbaum’s Evidence

Dr. Nissenbaum was qualified to give expert opinion in the areas of diagnostic imaging with knowledge of medical physics, internal medicine and primary care.

3. Dr. Robert Thorne’s Evidence

Dr. Thorne was qualified as an expert in environmental health with knowledge of acoustics and psychoacoustics.

4. Dr. Daniel Shepherd’s Evidence

Dr. Shepherd was qualified as an expert psycho-acoustician with knowledge of human health and quality of life.

5. Dr. Jeff Aramini’s Evidence

Dr. Aramini was qualified to give opinion evidence as an epidemiologist with knowledge of public health, statistics and statistical analysis.

6. Dr. Jeffrey Wilson’s Evidence

Dr. Jeffrey Wilson gave opinion evidence in this proceeding as an expert in epidemiology, with knowledge of public health, statistics and statistical analysis.

7. Dr. Christopher Hanning’s Evidence

Dr. Hanning was qualified to give evidence as a medical doctor with experience in sleep medicine and sleep physiology. He authored a January 2011 report titled “Wind turbine noise, sleep and health.”

8. Dr. Arline Bronzaft’s Evidence

Dr. Bronzaft was qualified to give expert opinion evidence in the areas of environmental psychology with knowledge of noise and its effects on humans.


9. Dr. Carl Phillips’ Evidence

Dr. Phillips was qualified to give opinion evidence in the area of public health with knowledge of epidemiology and related health sciences and scientific epistemology and methodology.

10. Dr. Robert McMurtry’s Evidence

Dr. McMurtry was qualified to give opinion evidence as a physician and surgeon with experience in delivery of health care, health care policies and health policy.

11. Dr. Gloria Rachamin’s Evidence

Dr. Rachamin was qualified to give opinion evidence as an expert human toxicologist and pharmacologist with expertise and extensive experience in assessing potential health risks of chemicals and physical agents and in developing standards, guidelines and policies for the protection of human health.

12. Dr. Syed Mansoor Mahmood’s Evidence

The Director, Mansoor Mahmood, testified as to the process he followed in approving the REA, as a Director under section 47.5 of the EPA. He explained that he has been a practising professional engineer for 23 years.

13. Mr. John Kowalewski’s Evidence

Mr. Kowalewski was qualified as a mechanical engineer with specific experience and expertise in environmental noise issues and in the application and development of noise guidelines.

14. Dr. Cornelia Baines’ Evidence

Dr. Baines was qualified as a physician epidemiologist with a special expertise in dealing with scientific evidence affecting public policy. Dr. Baines, who received a medical degree and Masters of Science from the University of Toronto, is a professor emerita at the Dalla Lana School of Public Health at the University of Toronto.

15. Dr. Mark Speechly’s Evidence

Dr. Speechly was qualified to give opinion evidence as an epidemiologist with special expertise in population science and psychosocial epidemiology.

16. Dr. William David Colby’s Evidence

Dr. Colby was qualified to give opinion evidence as a medical expert in public health with special expertise and knowledge in the issue of public health and wind turbines.

17. Mr. Brian Howe’s Evidence

Mr. Howe was qualified to give opinion evidence as a mechanical engineer with expertise in acoustics, noise and vibration, with special expertise in infrasound, low frequency noise and wind turbine noise. He is a principal of Howe Gastmeier Chapnik Limited (HGC) and was involved in the preparation of the following reports: HGC “Wind Turbines and Infrasound: A Discussion” (2006) (“HGC Report 2006”), HGC “Wind Turbines and Sound: Review and Best Practice Guidelines” (2007) (“HGC Report 2007”) and the HGC Report 2010.

18. Mr. Payam Najafi-Ashtiani’s Evidence

Mr. Ashtiani was qualified to give opinion evidence as a professional engineer with expertise in acoustical engineering.

19. Dr. Pierre Heraud’s Evidence

Dr. Heraud was qualified to give opinion evidence in the area of wind turbine ice throw risk assessment with knowledge of turbine failure and tower collapse.

20. Mr. Robin Skinner’s Evidence

Mr. Skinner was qualified to give opinion evidence as a mechanical engineer with specific expertise in wind turbine layout, including application of the MOE Noise Guidelines.

21. Dr. Geoff Leventhall’s Evidence

Dr. Leventhall was qualified to give opinion evidence as an acoustician with expertise in noise and vibration and subjective response to noise and special expertise in infrasound, low frequency noise and wind turbine noise.

22. Dr. Kenneth Mundt’s Evidence

Dr. Mundt was qualified to give opinion evidence as an expert in epidemiology.

23. Dr. Christopher Ollson’s Evidence

Dr. Ollson was qualified to give opinion evidence as an expert in environmental health science, practicing in the evaluation of potential risks and health effects of people and the ecosystem associated with environmental issues.

24. Dr. William Holley’s Evidence

Dr. Holley was qualified to give opinion evidence as an expert in wind turbine technology and system design. Dr. Holley is the Chief Consulting Engineer, Wind Systems for GE.

25. Dr. Robert McCunney’s Evidence

Dr. McCunney was qualified to give opinion evidence as a medical doctor, board certified in occupational and environmental medicine, with particular expertise in the health implications of noise exposure.

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