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Archive for February, 2012

Feb 29

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Oh Irony of Ironies!

Manhattan is about to be besieged by wind turbines and the residents are none to happy about it…

From Manhattan Local News — February 29, 2012:

UPPER EAST SIDE — Imagine if New York City was completely transformed into an eco-friendly paradise with rooftops dotted with wind turbines, greenhouses and solar panels and building facades outfitted with energy-efficient insulation and special shade structures over windows.

The Bloomberg administration hopes to promote these types of projects under a new zoning amendment, which was the subject of a City Planning Commission public hearing Wednesday. It would lift previous constraints to allow for the construction and retrofitting of green buildings.

But some preservationist-minded residents on the Upper East Side fear that the proposed changes could mar the character of their neighborhood.

“I’m all for the environment,” Elizabeth Ashby, a member of Community Board 8, said at a recent City Planning presentation of the “zone green” text amendment. “But I’m worried this is a license to create an eyesore.”

Many expressed concern over the possibility of wind turbines, which would be allowed to rise 55 feet above rooftops on buildings taller than 100 feet, as long as they are set back at least 10 feet from the property line.

“What about the noise?” asked Community Board 8 member Michele Birnbaum. “That’s such a visual blight.”

It’s unlikely that the historic townhouse-lined blocks of the Upper East Side would become havens for wind turbines. City officials said that landmark rules would still apply, which means that any applications in those swaths would have to pass muster from the Landmarks Preservation Commission.

City officials noted that wind energy makes the most sense where the winds are consistent, which tends to be on taller buildings and nearer the waterfront. – Read more:   Complete story

Let’s all hope that Toronto is next in line.  Then we will start to hear an uproar like we haven’t heard in a while.  How ironic that people, living in a New York borough with a population of 1.5 million, amidst concrete buildings hundreds of feet high, are worried that putting wind turbines on top of those buildings will take away from the “character” of the neighborhood.

Welcome to our world!  No one wants the lifestyle they’ve chosen to be inundated with unwanted, unnecessary, noisy wind structures.  People who live in the country have chosen to do so, to get away from “concrete jungles”.  Those living in cities, also, usually have chosen that particular location because they like the looks of their neighborhood.

None of us should be bullied into having these hideous monstrosities shoved down our throat.  It’s so easy for people living in Toronto, Mississauga, Scarborough, etc. to accuse rural residents of being selfish, anti-earth, anti-environment, etc. and that the only reason we don’t want to live next to wind turbines is pure Nimbyism (a term, by the way, that I despise and am getting really sick of hearing) and that all perceived health problems associated with IWT’s are all in our minds, plus we’re just ‘jealous’ because we’re not the ones making money off of the F-I-T program.

I’d love to see if they’re so quick to embrace these goliaths when it comes to their backyard.  I have a feeling the outcry would be just as loud as in Manhattan.  Absolute hypocritical environmentalists who expect everyone else to make the sacrifice for “their” cause, but are unwilling to do the same when it comes time for them to fall on the sword.

I would truly snicker, if the next provincial government halted all rural turbine construction and focussed their attention on the larger metropolitan areas for all future ‘green’ programs.   It would be fun to sit back and watch them all scramble. — Donna Quixote

 

Feb 29

Windpower Case Study (Why wind energy is unnecessary in resource rich Ontario)

by William Palmer — Master Resource — February 29, 2012

(Note: This case study of Ontario, Canada (one of the least emissions-producing electricity systems in the world), by a veteran energy engineer uses available data to shed light on unfounded claims about industrial wind turbines. Some aspects of the Ontario situation are unique, but many considerations are applicable to all countries/states/provinces.)

“Even while wind was at peak operation, the coal generators served as backup (at low load) to be able to respond rapidly to the anticipated, and actual, drop in wind output that occurred just hours later.”

It has been claimed that industrial wind turbines allow Ontario to shut down coal-fired electrical generating stations. But the facts reveal this to be a myth.

The following graph shows how Ontario has generated its electricity from 1988 to 2011. It presents a pretty clear picture of what happened from an energy point of view, showing the generation sources for each year. Energy is measured in Terra (1012) Watt hours.

In 1988, Ontario was using coal (about 35 TWh per year), hydro (also about 35 TWh per year), and nuclear (about 65 TWh per year). Those sources met the load of about 135 TWh.

In the early 1990s (1992 and 1994, and 1995), Darlington Nuclear generating station came into service. As nuclear output increased to about 92 TWh, the coal generation dropped to about 15 TWh in 1994. Also, a slight recession was causing the Ontario electrical load to drop a bit.

In the latter 1990s, as the economy recovered some, a decision was made to lay up Bruce A and Pickering A nuclear stations, and focus limited resources on bringing the newer “B” stations at Bruce B, Pickering B, and Darlington up to a higher operational level. Nuclear generation dropped to about 60 TWh. Coal picked up the slack, rising back over 40 TWh.

By 2003, nuclear performance was improving, and in 2003 and 2004, 2 nuclear units at Pickering A and 2 more at Bruce A were brought back into service. Nuclear output started to rise, and coal usage fell correspondingly.

Full article including corresponding graphs

William Palmer, an Ontario Licensed Professional Engineer, has been responsible for Operations Performance Assurance at the Ontario Bruce B Nuclear Station and was authorized by the federal regulator as a Nuclear Shift Supervisor.

He is a member of the Canadian Acoustical Association, and the Acoustical Society of America. He has applied his professional experience in the energy industry, as well as education in engineering and risk assessment to a study of the safety of wind turbines.

Palmer has written a number of papers dealing with the subject of wind turbine noise and setbacks; has presented to international conferences, and has been a witness before tribunals, regulators, and legislators regarding wind turbines in Ontario. He has also written on the adverse economic impacts of integrating renewable energy supply into the bulk electrical system.

Feb 29

Wind Turbine Debate Stirs Up Council

By Nancy Powers — Strathroy Age Dispatch — February 29, 2012

The ongoing issue about wind turbines has finally blow into Strathroy-Caradoc.

Councilllors debated the merits of supporting a resolution calling for the provincial government to place a moratorium on future wind turbine projects.  Ward 2 Councillor Larry Cowan raised the issue after council received a request from the municipality of Arran-Elderslie asking for support of their resolution regarding wind turbine.

The resolution was actually forwarded to Strathroy-Caradoc by Esther Wrightman, of the Middlesex Wind Action Group. The group is actively opposed to wind turbines.  “I sent the resolution to Strathroy-Caradoc because some of these wind turbines will encroach on their boundaries,” said Wrightman. “At the local high school for example.”

Councillor Cowan suggested Strathroy-Caradoc support a portion of the resolution that speaks to the moratorium. “I’m very much opposed to wind turbines,” said Councillor Cowan. “And I feel we should support this request.”

Full article

Feb 29

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Greater local voice in the wind for turbines in Ontario

Province willing to tweak controversial Green Energy Act

Deborah Van Brenk — London Free Press — February 29, 2012

As wind turbines multiply like rabbits across Ontario’s countryside, the provincial energy minister’s assurances of greater local voice over where they’re located is being met with a mixture of optimism and doubt.

“This is an opportunity for the democratization of energy,” said Kristopher Stevens, executive director of the Ontario Sustainable Energy Association that helped draft some aspects of the Green Energy Act.

That act is a foundation of the Liberal platform and encourages renewable energy sources and “green” manufacturing jobs.

But dozens of municipalities have expressed concerns over their inability to change provincial decisions about the best places locate wind turbines.

This week, Energy Minister Chris Bentley said that consultation process is also under review as the province examines how to tweak the Green Energy Act.

“We’re listening, and taking municipal concerns into account as we make thoughtful choices and move forward,” he told a conference of the Rural Ontario Municipalities’ Association.

Pressed to say if municipalities will be able to veto disputed projects, he said they’ll need to wait until changes come forward.

Full article

Feb 28

Barb Ashbee and Making the Gut-wrenching Decision to Leave Your Home

Feb 28

Public Health Ethics, Legitimacy, and the Challenges of IWT’s: The Case of Ontario, Canada

by Martin Shain on behalf of the National Association for Science, Technology & Society

Used with permission from the author

(part 4 — continuing from yesterday)

The Precautionary Principle

It was imported into Canadian law via the Supreme Court case of Spraytech v. Hudson (Town) [2001] 2 S.C.R. 241 from international law where it was originally approved by Canada in the Bergen Declaration of 1990. Subsequently, this doctrine has been embedded in several pieces of Canadian legislation including the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1)(a); Endangered Species Act, S.N.S. 1998, c. 11, ss. 2 (1)(h) and 11(1).  It means the following: When scientific evidence concerning the harm potential of a given industrial activity leaves room for doubt, that activity should not be undertaken.

Proposed mitigating measures are not an adequate response, because if you do not know the nature or degree of risk you cannot prepare for its eventuation.   Some doubt surrounds the standard of care required by this principle. For example, how much harm could or should be reasonably foreseen if a risk eventuates? How big must the risk be to activate the principle?

Currently, this principle is being tested in Ontario’s legal and quasi-legal systems as it may be applied to IWT licensing. Such testing is likely to go on for some time. A recurrent issue appears to be the extent to which the Precautionary Principle that may be embedded in governing or parent statutes (such as Environmental Protection Acts) evaporates as delegated legislative vehicles such as regulations and administrative orders are created under its supposed authority. 2

The Least Impactful Means Test

Evident from recent decisions of the Ontario Municipal Board, which is an administrative tribunal similar to many others in North America and the United Kingdom, this test means the following: State issuers of licenses should approve only those proposed methods of operation that will have the smallest social and environmental impact in pursuit of legitimate industrial objectives.

The Least Impactful Means Test is generically related to the Proportionality Test, which has currency in many countries including Canada. This test requires a form of ends-means analysis in which the requirement that the government provide justifications for statutes that infringe on protected rights is front and center (Beatty, 2004). In Canada, the Supreme Court case of R. v. Oakes [1986] 1 S.C.R. 103 is usually seen as the source of the proportionality test, which was stated as follows: First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.  Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or  freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for  limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance.”

As is apparent from the wording above, the test was developed to deal with infringements of the Canadian Charter of Rights and Freedoms by government actions such as law enforcement (as in the Oakes case) and law enactment (in other cases). Beatty (2004) shows convincingly, however, that in a number of countries, proportionality analysis is treated as a general principle of public law, applicable not only to constitutional law but also to administrative and even to international law questions.

However, Beatty is not alone in relating the proportionality test to the integrity of the rule of law. Harlow (2006) makes a similar connection in her consideration of the question whether or to what extent we can observe the emergence of a global administrative law with common principles and values. Central to such considerations is the question of when the State or its agencies can be held to be acting “ultra vires”—that is, beyond its legitimate powers and therefore unconstitutionally.

The marriage between the emerging jurisprudence of administrative tribunals in Ontario and the jurisprudence of the Supreme Court and the international community has not yet taken place. But the courtship is in progress and awaits only the brokerage and determination of creative lawyers to firm up the bond.

The Neighbor Principle

Also evident by deduction from recent Municipal Board decisions, this is a common law legal doctrine that until recently applied only to claims of negligence in civil courts.  It means the following: basically, there is a legal duty of care to know enough about your neighbors to avoid doing predictable harm to their legitimate interests. A neighbor in this context is anyone who could be foreseeably affected by your acts or omissions. The standard of care is that of the reasonable person in the same situation.

However, the neighbor principle is now being referred to by implication in environmental cases where the expectation is raised that “reasonable” developers should know what social and environmental interests of their neighbors are foreseeably affected by their operations.

The relatively new concept of a “social impact zone” in municipal board jurisprudence (see examples of such decisions in Note 3) arguably requires developers to consider the foreseeable impact of their operations in certain defined areas. Ultimately, the Neighbor Principle takes its place within the framework of the Good Planning Test that pulls together all the expert information available to determine the extent to which proponents have discharged their duty to demonstrate no unacceptable or, in some cases, no negative impacts from their proposed operations.

This means that they should be aware of not only the commercial and business interests of neighbors but also of their reasonable social expectations of privacy, freedom from nuisance, and enjoyment of property. These are all “legitimate” interests.

It can be seen that all three aforementioned doctrines are allied to the Rawlsian concept of fairness as the recognition and reasonable accommodation of the legitimate interests claims and rights of others. Indeed, it is this very concept of fairness that has the potential to unite the three doctrines into a coherent jurisprudence of social and environmental stewardship.

The Polluter Pay Principle

This well-established common law principle is evident from many Canadian cases including the Supreme Court case of St. Lawrence Cement Inc. v. Barrette [2008] SCC 64 and Smith v.Inco (2010) ONSC 3790 (CanLII).  

It is also enshrined in various forms of legislation. It means that when an industrial operator is found to have caused loss to its neighbors it must compensate them for such loss regardless of whether there was negligence or not. This strict liability rule (a feature in many common law jurisdictions) has most recently been applied in a class action suit involving nickel contamination. The impact zone within which such losses will be considered varies from case to case.

Essentially, the polluter pay principle is a generic way of describing a class of private civil remedies that includes nuisance, trespass, and negligence. These are legal tools that are used in most cases after damage has been done except where injunctions and other interlocutory measures are used to stop harmful actions before they begin or while they are in  progress.  They really represent the failure of prevention.

Conclusion

A public health ethics analysis of how IWTs should be licensed and installed if the health of the few is to be balanced with, traded off or sacrificed for the health of the many, leads to the conclusion that the present methods of proposal evaluation need to be critically reviewed.

The only type of test that present methods would easily pass is “strong paternalism”—the argument that the State knows best. But this justification for public health measures enjoys little support in a free and democratic society. With regard to the broader issue of governmental legitimacy and IWTs we are confronted with an even more profound problem. State actions that do not enjoy the active consent of the people—particularly of those whose health may be adversely affected by IWTs—are fundamentally suspect.

Administrative law systems that stray from the principles of natural justice held to underlie them are also suspect because such departures are in conflict with the Rule of Law. Unfortunately, we do not find ourselves in this situationa as a result of any one remediable action or default on the part of government but rather as a result of a gradual erosion of our collective capacity to hold government accountable.

IWT licensing procedures in whatever jurisdiction are a bellwether of the fate of democracy itself and therefore should be closely examined against the criteria suggested in this article, and in particular against the criterion of procedural fairness and active consent advocated by Rawls.  Several tools present themselves as proactive means of addressing perceived threats to procedural fairness and active consent: the Precautionary Principle, the Least Impactful Means Test (supported by the more general jurisprudence of the Proportionality Test), and the Neighbor Principle (drawn from the more specific requirements of the Social Impact Zone Test).

Converted into criteria for evaluation of IWT license applications, these principles and tests represent a formidable array of protections against arbitrary governmental action. That said, conversion into practical evaluative tools will require creative thinking and benign intent if we are to emerge with a more robust spine to our system of governance and administrative law.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Bio

Martin Shain S.J.D. is trained in law and social sciences.  He is principal and founder of the Neighbour at Work Centre® and assistant professor at the Dalla Lana School of Public Health, Occupational and Environmental Health Division, University of Toronto.

Feb 28

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Perfect Political Double Speak

Chris Bentley talking about how municipalities are going to have more say in the future about IWT placement in their area.

“We’re not giving every municipality the right to set their own rules, but we are taking a look at the approach,” Bentley told reporters at Queen’s Park, speaking of his review of the microFIT feed-in-tariff program that buys green energy from small-scale green energy projects, such as solar panels at family farms.

“We are looking for ways to make sure that voices, (who) may not feel they have been heard in the way they would like to have been heard, can be heard in a stronger and better way in the future.” — Canadian Press

Translation:  ”The Ontario government is going to pass out megaphones to all rural municipal representatives so that they can be heard in a stronger and better way.” — Donna Quixote

Feb 27

Roger’s story of abandoning his dream home (longer clip)

Roger Oliveira’s compelling story of having to abandon his property due to wind turbine problems.

Feb 27

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No Wonder Urban Ontarians are Clueless About our Plight.

Keith Leslie, The Canadian Press reported this today…

“Local governments will have more say over wind and solar energy projects, Premier Dalton McGuinty said Monday after a handful of politicians walked out on his speech to the Rural Ontario Municipalities Association.

“I cannot help but observe, as you did, that some folks left when I took my position here at the podium,” McGuinty told the audience of local politicians from across the province.

“I know it’s about clean energy. I support clean energy, I support the tens of thousands of jobs that it creates. I knew this could happen, but I came anyways.”


Apparently Mr. Leslie thinks that 100 municipal councillors is a mere ‘handful’.  Thanks a lot Keith. Great way to minimize the concerns and problems faced by rural Ontarians.  Some families are in the fight of their lives and you give them no more consideration than a dead bug on your windshield.   It’s no wonder that urban Ontarians are totally oblivious to our cause, when we get downplayed like this.

Why not take the time to voice your displeasure at this clearly biased reporting and leave a comment under this article?  It will just take a moment, but will let them know we are a force to be reckoned with.

Vancouver News:  Click here to leave your opinion

Winnipeg News:  Leave your opinion here also

Feb 27

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Ontario Set to Scale Back Green Energy Feed-in Rates

by Sonya Bell — February 27, 2012 — IPolitics

When the first full-scale review of Ontario’s controversial green energy program is released this spring, observers expect the government will take some cues from TD economist Don Drummond’s recent report on the state of the province’s finances.

“I think Mr. Drummond dropped some pretty big hints in his report in terms of where this was likely to go,” said Mark Winfield, the chair of the Sustainable Energy Initiative at York University. The report did not say the program should be shut down, but it does need to be refined.

Dalton McGuinty enacted Ontario’s Feed-in-Tariff program in 2009 to encourage the development of renewable energy in the province. It offers long-term contracts for partners who generate energy from certain sources including biomass, biogas, landfill gas, wind, solar and waterpower. The program’s scheduled two-year review began in October 2011, and the results are expected as early as March.

In the course of the review process, more than 2,900 Ontarians responded to online survey questions and sent in over 150 written submissions, according to the Ministry of Energy. The province also met with more than 80 stakeholders.

“As a result of this review, new prices for FIT contracts will be carefully developed to balance the interests of ratepayers with the need to encourage investments in new clean energy in Ontario. Going forward, all future clean energy contracts will be subject to the new price schedule,” Energy Minister Chris Bentley said in a statement.

That’s a good start for Drummond. He recommended taking several steps to mitigate the program’s impact on electricity prices. His three suggestions are to lower the initial prices offered in the FIT contract, introduce degression rates to reduce the tariff over time, and make better use of “off ramps” in existing contracts.

Full Article

Feb 27

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Public Health Ethics, Legitimacy, and the Challenges of IWT’s: The Case of Ontario, Canada

by Martin Shain on behalf of the National Association for Science, Technology & Society

Used with permission from the author

(part 3 — continuing from yesterday)

The Broader Canvas: Political Legitimacy, Social Justice, and IWTs

As noted earlier, public health ethics discourse as applied to IWTs is antecedent to a further-reaching discussion of political legitimacy. This connection is of vital importance in the case of IWTs because, as observed already, the regulation of IWTs does not fall within the public health remit but rather resides in other administrative bodies. Consequently, public health bodies have no direct control over the ways in which IWT installations are approved or sited. This dissociation of powers is in itself problematic and should be a matter of con- cern to all who govern in the name of the people. However, the issue of the public health impact of IWTs arises not only in the specific arena of institutional public health but also in the arena of political legitimacy generally.

Two fundamental questions of political legitimacy are the following: What gives government the right to govern in a democratic society in the first place? What gives it the ongoing right to coerce compliance with its laws and regulations?

These sound like simple if not simplistic questions but they have consistently eluded answers to which all can agree ever since people began to ask them.

Indeed, it is well to consider the context in which these questions were first asked in any really public and secular context, which was during the 17th century. Prior to that, natural law and divine right had been the source of the domi- nant accounts of political legitimacy and authority.

Early accounts of alternate sources of legitimacy concentrated on the nature of consent as the basis of political author- ity. Locke’s treatise on the social contract is perhaps the best known of these accounts but there are many others that either elaborate on his thesis or challenge it (Peter, 2010). Essentially, however, Locke’s account is based on not only “originating consent” (how government first got its mandate from the peo- ple) but on a form of ongoing majoritarianism. As Locke (1690/1990) wrote,

Every man, by consenting with others to make one body politic under one government, puts himself under an obligation to every one of that society to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact if he be left free and under no other ties than he was in before in the state of nature. (Locke, 1690/1990, p. 52f)

Modern descendants of earlier theories of consent now considered to be overly simplistic focus on notions of public reason and/or democratic approval drawing on the works of Kant and Rousseau, respectively (Peter, 2010).

One of the leading embodiments of these derived accounts is the seminal work of John Rawls (2001; see also Rawls, 1971), who grounds his theory of justice and legitimacy in fairness as a normative social practice.

This writer subscribes to Rawls’s theory and declares his bias in this matter.

Fairness, as Rawls defines it, is to be not only a basis for everyday interactions among citizens but also the basis of interactions between government and citizens.

Fairness, as Rawls sees it, is the requirement to recognize and accommodate up to a standard of reasonableness the legitimate interests, claims, and rights of others.

Shain (2001) further articulates this requirement of fairness as it applies in domestic and institutional situations. Drawing on Trebilcock (1993), he identifies two impediments to the normative application of fairness as defined above: informa- tion failure and participation failure. Essentially, failures in these areas represent a failure of active consent, thus bring- ing full circle the links between fairness, legitimacy, and social justice.

The failure of information and participation are of partic- ular relevance in the context of IWT installations where the alleged perfunctory adherence by government and proponents to regulated requirements for consultation with the public has attracted some harsh criticism.

Information and participation failure is abetted by any system of administrative law in which the principles of natural justice (e.g., let the other party be heard, the rule against bias, and the requirement of reasonableness) have become casual- ties. So much of what goes on under the auspices of administrative law is hidden from or ignored by the public to the point where the erosion of some of our most basic rights can go unremarked (Harlow, 2006).

So it is with IWTs, the story of which, in many jurisdictions, is representative of much that ails our system of administrative law. Anecdotal and deposition evidence from homeowners, community groups, and even municipalities in Canada and beyond frequently testify to the bankruptcy of the consultative process that should embody the principles of information sharing, transparency, and participation.1

Active consent to the rules and procedures that govern site location and installation of IWTs must be sought or obtained in a substantive way from those who are most likely to be affected by them, namely, residents in affected areas and the municipalities in which they live.

Fairness as an applied modern version of social contract theory calls for an active process in which all participants to a decision are engaged in ways that do not, without offer of compensation, advantage one party over another and in which there is an imperative to discover, acknowledge, and accom- modate up to a standard of reasonableness one another’s legitimate interests, claims, and rights.

In such a process, there are no preconceived “trump” values or considerations. For example, regulations under the Green Energy Act in Ontario cannot legitimately (according to a Rawlsian view) simply trump the claims and rights of subpopulations of citizens to the protection of their own and their families’ health or enjoyment of their property based on some preconceived and unconfirmed notion of overall benefit to population health. However, that said, there are modern scholars who propose that there can be certain “preemptive” reasons that would allow governments to trump other considerations and interests if the authority behind the action were considered credible, rational, and legal enough for them to do so (see, e.g., Raz, 1986, 1995, 2006). The credibility of “preemptive” reasons, however, requires a virtually nonnor- mative Weberian account of legitimacy that is based on tra- dition, charisma, or some other kind of faith-based belief in the rightness of authority (Weber, 1918/1991; see also Weber, 1964). This is not considered to be mainstream thinking about the legitimacy of governmental action in Western democra- cies (Peter, 2010).

Various other critiques of consent as the basis of legitimacy see it as wishful thinking (e.g., Wellman, 1996) or as a delusion born of a desire to not acknowledge that many, now legitimate governments were born of violence (e.g., Hume, 1748/1965). Such arguments paved the way for the sorts of pragmatic, utilitarian justifications for public health measures that were scouted in the previous section.

Notwithstanding these objections to consent—in some form at least—as the basis of political authority and legitimacy, beliefs in its importance are probably the most current and widely held in our society today (Peter, 2010). We place a high value on the idea of consent in how we are governed even if in reality it is difficult to invest it with practical meaning. Effectively, consent is at the heart of how we create and honor contractual promises that extend beyond the realm of private transactions to that of state and civic governance. When we depart from the principle of consent, we feel obliged to give some account of how that can be justified, and eventually we return to the basic premise that it is desirable to place consent of the governed at the center of our communal life.

From the foregoing discussion and analysis, this writer proposes that Rawlsian fairness and its implied requirement of active consent emerge as the public health ethical principles most likely to serve the needs of a robust and legitimate democracy.

If that is taken as working assumption, what practical guidelines can be extrapolated from such principles to assist governments in the determination of criteria for approving IWT license applications?

In this regard, three emerging legal doctrines may be drawn on for assistance. These have roots in common law and in international law. They appear to be highly relevant to how we might usefully think about how IWT proposals can be fairly evaluated and judged. One doctrine—the Precautionary Principle—has been applied in an administrative law context in Canada already. The other two—the Neighbor Principle and the Least Impactful Means Test—remain to be fully articulated as such in an administrative law context but their emerging shape can be nonetheless discerned from recent cases.

These three doctrines are “before the fact” tools in that they are used to prevent harm from occurring in the first place.

A fourth doctrine—the Polluter Pay Principle—is an “after the fact” financial compensation tool that has long legal roots in all common law jurisdictions.

The Precautionary Principle

It was imported into Canadian law via the Supreme Court case of Spraytech v. Hudson (Town) [2001] 2 S.C.R. 241 from international law where it was originally approved by Canada in the Bergen Declaration of 1990. Subsequently, this doctrine has been embedded in several pieces of Canadian legislation including the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1)(a); Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h) and 11(1).

It means the following: When scientific evidence concerning the harm potential of a given industrial activity leaves room for doubt, that activity should not be undertaken. Proposed mitigating measures are not an adequate response, because if you do not know the nature or degree of risk you cannot prepare for its eventuation.

Some doubt surrounds the standard of care required by this principle. For example, how much harm could or should be reasonably foreseen if a risk eventuates? How big must the risk be to activate the principle? Currently, this principle is being tested in Ontario’s legal and quasi-legal systems as it may be applied to IWT licensing. Such testing is likely to go on for some time. A recurrent issue appears to be the extent to which the Precautionary Principle that may be embedded in governing or parent statutes (such as Environmental Protection Acts) evaporates as delegated legislative vehicles such as regulations and administrative orders are created under its supposed authority.2

(part 4 continued tomorrow)

Feb 26

Health effects from IWT’s in Port Burwell, Ontario

Former Green Party member discusses her experiences with wind turbines and what changed her mind on the issue of wind power.

Feb 26

Cut in Solar Power Support Sparks Row

Opposition parties accused Germany’s environment and economy ministers of endangering thousands of jobs as well as the country’s switch to renewables by cutting solar power subsidies.

Environment Minister Norbert Röttgen, of the Christian Democratic Union (CDU) and Economy Minister Philipp Rösler, of the Free Democratic Party (FDP) this week presented plans to cut solar power subsidies by one-third, prompting environmental groups to express their disappointment.

Solar power producers will now only receive between €0.135 and €0.195 for every kilowatt hour they send to the grid. Despite this, Germany still plans to build new solar power facilities with a total capacity of 2,500 – 3,500 megawatts over the next two years.

Röttgen said photovoltaic power must “grow in a sensible framework when it comes to costs and maintaining grid stability.”

Rösler described the solar power subsidies as “sweet poison” for solar power operators. “If, out of €12 billion set aside by the Renewable Energy Act, €6 billion is spent on photovoltaic power, when it accounts for three percent of electricity production, then obviously we have to think about its economic value,” he said.

Ulrich Kelber, deputy parliamentary leader of the opposition Social Democratic Party (SPD), criticized Rösler sharply. “The government’s plans to attack solar power have Rösler’s ideological handwriting all over them,” he said. “He has imposed his will on the environment minister.”

Green party parliamentary leader Jürgen Trittin accused the government of sacrificing Germany’s switch to renewable energy for the sake of peace in the coalition. He called the subsidy cuts, “completely out of proportion and therefore irresponsible.”

“The agreement frightens investors, endangers thousands of jobs and hurts climate protection,” he added.

Greenpeace energy expert Sven Teske said the plan threatens 130,000 jobs in 10,000 mid-sized companies, while World Wildlife Fund board member Eberhard Brandes described the deal as a “tragedy for energy policy.”

Link to article

Feb 26

Sentenced to Illness by IWT’s

This video is 12 1/2 minutes long, but it’s an excellent example of a couple, from Germany, who were environmentalists, passionate about nature, in favour of helping the planet and certainly not adverse to green energy.

Then came the turbines….

Please take the time to hear their story as they relate the slow onset of various health problems, some of which could not be explained and were unknown to medical professionals.

Feb 26

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Public Health Ethics, Legitimacy, and the Challenges of Industrial Wind Turbines: The Case of Ontario, Canada

by Martin Shain on behalf of the National Association for Science, Technology & Society

Used with permission from the author

(part 2 — continuing from yesterday)

Overall Benefit (Beneficence)

The argument is that public health is a good by definition, because most people benefit from it in one area or another. This is a net social gain type of argument.

The net gain argument is bolstered in modern economics by statistical models that seek to demonstrate population health benefits on an aggregated basis. These models often embed moral assumptions that are not always apparent under the guise of supposedly objective cost utility analyses. For example, the health of the elderly may be discounted as less valuable than the health of the young: the rights of those with “poor” health habits may be devalued in contrast to those who attend (and can afford to attend) health clubs and gyms and shop at high-end food stores (see, e.g., Brock, 2002; Gafni, 1991; Powers & Faden, 2006). And lurking in the shadows of cost utility analyses in the public health arena is the ever pres- ent specter of eugenics.

As Faden and Shebaya (2010) state,

There is the risk that the findings emerging from these formal analyses will have determinative influence in policy circles. This risk is augmented by the increasing interest in attempting to empiricize moral considerations by measuring and aggregating the value preferences of the public about moral tradeoffs such as prioritizing by age or life-saving potential (Baker et al., 2008; Menzel et al., 1999; Nord, 1999). These aggre- gated preferences are then transformed into weights intended to incorporate moral values directly into the structure of the formal methodology, a move that is open to criticism on methodological as well as substantive grounds. (p. 17)

Applied to IWTs one can appreciate that green ideology could be “empiricized” to the point at which it trumps all other values in the development of wind energy policy.

Collective Efficiency

The argument is that in a complex society threatened by so many health risks from so many sources it is efficient for a central agency (public health) to oversee and regulate these risks because agencies organized according to specific issues could not hope to achieve the same level of proficiency.

While there is an intuitive appeal to this sort of argument, it fails to acknowledge the reality that public health concerns are often embedded in policies and practices that fall outside the sphere of public health agencies. IWTs are a leading example of this type of governmental dissonance. As noted above, the regulation of IWTs does not at present fall within an official public health remit in spite of the numerous and compelling claims advanced by various researchers in this issue.

Harm Prevention

The argument is that restriction or curtailment of the rights of a few can be justified only by prevention of harm to the many (Mill, 1869/1998).

This argument has been used in various public health and safety contexts but usually the contrast is between incursions on individual liberty (as in the case of compulsory seat belt or helmet use and no smoking in public places rules) and collec- tive health benefits. In the case of IWTs, the contrast as noted already is between health benefits to the many versus health risks to a few, a situation to which the Harm Principle may not be best suited, although it must be said that advocates’ claims for IWTs go beyond collective health benefits to embrace other putative social goods. These include increased freedom from reliance on nonrenewable energy sources. Insofar then as the contrast is between sacrificing the health of a few in the service of an anticipated bright energy future for the many, perhaps the Mills formulation is more useful. In this context, the prevention of harm to the many becomes a projected scenario in which the majority is “not harmed” by the perpetual threat that oil, gas, and even coal may run out or become inaccessible to us. Certainly, the trade-off is between a clear and evident loss to a few and the unknown, even vague probability of benefit to the many.

Paternalism

The argument is that government can interfere with the liberty or other rights of a few because it is ultimately in their best interests and certainly in the interests of the majority.

In the case of IWTs, the strong paternalistic case is made implicitly and sometimes explicitly that opponents are stupid, stubborn, or both because they do not know what is best for them in the long run. Their stupidity therefore disqualifies them from any further participation in the determination of their own fate.

A softer “libertarian” version of paternalism requires that until people are led to understand the benefits of the measures to which they are about to be unwillingly exposed they should not be subjected to them. Some argue that this is not paternalism at all but rather a form of participatory governance consistent with grassroots democracy. In any event, in this version people who did not accept that IWTs were likely to be a net benefit to them would not be obliged to consent to have them installed within a range accepted by the more prudential scientific community as likely to cause harm to their health.

Fairness

The argument is that in a democratic society we expect a relatively even social distribution of burdens when these are imposed and directed by government. Unequal distribution is unfair and therefore requires specific justification. In the case of IWTs, this justification might take the path of suggesting that all of us ultimately benefit from green energy in reduced pollution and eventually in freedom from reliance on nonrenewable fossil fuel sources. Consequently, harm to a few is justified by good for the many, which may even include the few who suffer in the short run but reap benefits in the end.

A particular problem arises in this context involving the disproportionate impact of certain public health measures on already disadvantaged groups. In the case of IWTs, this refers to those home and business owners who are economically disadvantaged to the extent that they do not have the option to sell and move from the location in which they are being harmed or expect to be harmed by the careless introduction of wind energy generators.

Again as Faden and Shebaya (2010) state,

There is broad agreement that a commitment to improving the health of those who are systematically disadvantaged is as constitutive of public health as is the commitment to promote health generally (Institute of Medicine, Committee for the Study of the Future of Public Health, 1988; Nuffield Council on Bioethics, 2007; Powers & Faden, 2006, Thomas, Sage, Dillenberg, & Guillory, 2002). (p. 14)

Faden and Shebaya (2010) continue,

When the burdens of a policy fall heavily on those who are already disadvantaged, the justificatory hurdle is particularly high. This concern is at the heart of many environmental justice controversies such as the locating of hazardous waste facilities and hazard- ous industries in low income communities and coun- tries. (p. 16)

In other words, it is contradictory to the essence of public health ethics, at least insofar as it is grounded in fairness, to further disadvantage the already disadvantaged.

As we explore the further reaches of legitimacy in the next section of this article, fairness will be seen to take on an even more important role.

(part 3 tomorrow)

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