ACT Government Warned on Potential Litigation re Wind Turbine Generated Electricity

The following letter was emailed to Chief Minister of the ACT (Australian Capital Territory), Hon Katy Gallagher and the Minister for the Environment and Attorney General, Hon Simon Corbell on October 2nd, 2014. The Foundation was advised the correspondence had been received and was receiving attention.

The letter was subsequently sent to the ACT Opposition and in the interests of transparency, and in the interests of the ACT taxpayers is now being made public.

Hon Katy Gallagher, Chief Minister
Hon Simon Corbell, Environment Minister,
ACT Government October 2, 2014

Given that the ACT government is in the process of contracting for the provision of wind generated electricity, we offer some advice that will be beneficial to residents of the ACT and rural residents near future wind power suppliers to the ACT, and supportive of the ACT Government’s policies.

A simple provision in all contracts for such power will protect the ACT Government from some unnecessary financial exposures with potential detriment to ACT residents, and encourage the humane provision of wind power, without impeding pursuit of the ACT Government’s renewable energy target.

It is well established that wind farm acoustic emissions can cause long term sleep deprivation and other harm to the health of some residents. The evidence is discussed later. The extent to which this occurs depends on multiple factors including location of a residence relative to the industrial wind development (IWD), topography, how the IWD is designed, constructed and operated in the specific location, the turbine tower and blade size and inter turbine separation distances, and factors such as house design and construction materials, individual risk factors, and weather patterns including temperature inversions and direction and strength of prevailing winds.

Should the ACT pay for wind farm operations to provide electricity in a way that harms residents, then the ACT, its taxpayers and its officials may be exposed to legal action.

We believe the ACT Government does not wish to be party to power supply arrangements that do deprive rural residents of sleep or in other ways harm their health. However, given the multiple factors noted above, it is impossible for the ACT Government to know in advance whether or not a power supplier will ultimately have these adverse effects. Prospective power suppliers are each far better placed to assess that likelihood in relation to their own operations.

The ACT Government can readily protect its taxpayers, officials and rural residents by including in all wind power supply contracts the simple provision:

The ACT Government will have the right to terminate this contract at any time, without penalty, should it be shown that the relevant wind farm is causing repeated sleep deprivation or other adverse health effects to people in its vicinity.

No doubt your lawyers can advise how best to phrase this provision to ensure the intended effect.

Such a provision will enable the ACT Government to pursue its renewable energy target while ensuring the power is generated not only in a humane way but limiting risks for ACT taxpayers.

The Potential Harm to Wind Farm Neighbours

The NHMRC have recently confirmed that the limited evidence considered in their 2014 Systematic literature review revealed sleep deprivation, “annoyance” symptoms, and poorer quality of life were evident in the research literature. Unfortunately some of the research conducted by a Victorian rural medical practitioner in Australia in 2004, and internationally by an American Paediatrician in 2009, was misclassified and then excluded from the 2014 Systematic Literature Review. 1

Also excluded from the 2014 NHMRC Systematic Literature Review was important research from Denmark in 2011 which demonstrated that as wind turbines increased in size and power generating capacity so too did the proportion of low frequency noise generated; research from China in 2004 showing a direct physiological effect on heart rate, blood pressure and sensations such as nausea from infrasound exposure for only an hour at levels which are comparable to those being measured at wind developments internationally; and research from thirty years ago by NASA affiliated researchers, funded by the US Department of Energy which confirmed a direct causal relationship between wind turbine generated impulsive infrasound and low frequency noise emissions, and annoyance symptoms, which included sleep disturbance and body vibrations. 2

British Acoustic expert in low frequency noise Professor Geoffrey Leventhall stated in June 2011 at the NHMRC Workshop on Wind Turbines and Health that “noise annoyance” symptoms are the same as “wind turbine syndrome” symptoms, and that he had known about them for years. 3

Recent acoustic survey research by Emeritus Professor Colin Hansen’s team from Adelaide University has validated the residents’ reports of sleep disturbance out to distances 8.7km from the nearest wind turbine near Waterloo wind development in South Australia, because of the levels of excessive low frequency noise measured inside these residents’ homes. 4 This research corroborates the research of both Mrs Mary Morris, the author of the only Australian research included in the NHMRC Systematic Literature Review, and the research of Adelaide University Master’s student “Frank” Zhenhua Wang, both population surveys having been conducted in the vicinity of the Waterloo Wind Development. 5

Dr Bob Thorne’s acoustic and clinical health data collected from residents at two Victorian wind developments, published just after the NHMRC’s cut off date for inclusion in the systematic literature review (September 2012) confirmed that sleep deprivation / poor quality sleep and extremely poor mental health were particularly prominent amongst those residents who had reported adverse health impacts from exposure to wind turbine noise. Dr Thorne also recommended much lower guidelines for noise pollution levels, in order to truly protect health. 6

Sleep disturbance, if repetitive and chronic, results in sleep deprivation, which in turn predictably results in deterioration in both physical and mental health. Sleep deprivation is acknowledged as a method of torture by both the UN Committee Against Torture and the Physicians for Human Rights. Sleep is regarded as a basic life necessity, and the numerous harmful effects of sleep deprivation are increasingly being documented in the clinical research literature generally, but also specifically with respect to excessive levels of night time environmental noise, including wind turbine noise. 7

The UN Convention Against Torture is very clear. Torture is not condoned for any reason, particularly not because of war of any kind, or because someone is “following orders”. The attitude which some Australian state bureaucrats and public health “experts” have openly expressed that rural residents living near industrial wind turbines are “collateral damage” is clearly not accepted by the UN Convention Against Torture, which Australia has signed. The penalties for those public officials who either commit acts of torture or who knowingly, and therefore intentionally, allow torture to occur are punishable under criminal codes.

Protecting ACT Taxpayers and Rural Residents

We assume the ACT Government is keen to not source electricity that is generated in a way harmful to rural residents and certainly not where the generation process has results that the UN has identified as torture. Aside from the ethical concerns, such outcomes could expose the ACT government to being sued, and relevant public officials to personal legal action for knowingly, and therefore intentionally, allowing torture to occur.

This will be particularly the case as ongoing research strengthens the evidence of the direct causal relationship between wind farm acoustic emissions and harm to the physical and psychological health of some neighbours. Relevant new research is now regularly being published internationally; for example German laboratory research just published in the Royal Society Open Access journal has demonstrated that there is a direct physiological impact on the cochlea (inner ear) from only 90 seconds exposure to low frequency noise. Whilst this research used levels of sound energy higher than levels of wind turbine noise at the same frequency, it does reliably establish the existence of a direct physiological impact in human cochlea from low frequency noise stimulation. 8

The ACT Government therefore cannot protect itself and the taxpayer in this respect by relying on:

• statements or warranties from prospective suppliers;
• the approval process for wind farms;
• state compliance enforcement mechanisms for wind farm noise.

The potentially self-serving nature of statements from prospective providers is obvious, and thus the lack of utility in such statements.

Nor is the ACT likely to be able to rely on supplier warranties to protect it and its officials from all actions. It can’t know who will be the operator and their financial condition at the time of any future legal action.

The ACT Government cannot rely on state wind farm approval processes for certainty that neighbours will not be harmed. There are several reasons for this. As part of a wind farm approval process, wind farm developers present complex noise modelling to justify their proposal. Typically, this modelling does not estimate sound levels inside dwellings and certainly not for each dwelling in the vicinity of the wind farm. But that is where sleep deprivation occurs. Aside from this glaring weakness, state planning agencies do not have the resources to test and challenge such analyses.

In addition, the adequacy of current wind farm noise standards to protect residents is increasingly under challenge. This is the case not only in Australia but in Europe, from where Australian standards have generally been derived. 9 Thus, what is thought adequate by governments today may subsequently be rejected as inadequate.

Further, during construction, the wind farm developer may move turbines from the approved positions and, in so doing, change the pattern of noise emitted by what is a complex, interacting, array of sound and vibration emitters. 10

On top of that, noise effects also depend on the operating practices for the wind farm, since typically reducing sound output also reduces electricity generation 11. Approval normally sets some operational noise conditions for the wind farm. That does not mean the operator will comply with them.

Which leads to the matter of compliance enforcement. Effective compliance enforcement requires permanent monitoring around a wind farm, since acoustic emissions change with wind and other atmospheric conditions and with operational practices. Permanent monitoring is not currently the norm for wind farms.

Nor are there generally defined penalties that would deter breaches. So there is an almost total absence of any effective compliance enforcement currently in most Australian jurisdictions, and to date the Clean Energy Regulator has ignored evidence and advice about non compliance (for example in the case of Waubra Wind Development in Victoria). 12

If the ACT Government fails to include the recommended contractual provision, a future government could end up attempting to extract itself from a situation where adverse health effects are being caused by a supplier, but where cancellation entails substantial costs for the ACT due to breach of contract.

Summary

The ACT Government has a renewable energy policy that requires wind generated electricity. There is clear evidence that wind farm acoustic emissions can harm the sleep and health of some residents, out to distances of at least ten kilometres with current sized wind turbines. 13 If that occurs with wind farms supplying the ACT, financial exposure may be created for the ACT taxpayer and possibly other legal exposures for ACT officials.

These risks can be avoided by including the recommended contractual provision. Adding the provision to ACT wind power contracts will encourage self-selection of wind farm operators who are genuinely confident they will cause no harm to neighbours. And presumably there are a good number of them, because they all keep assuring us they do not harm neighbours.

Thus the ACT would implement a mechanism to protect not just itself and its taxpayers but to encourage the development of wind farms sited and operated so as not to harm neighbours.

The recommended contract provision does not oblige a future ACT Government to terminate a contract if shown evidence of sleep deprivation or other health harm to neighbours. It gives the ACT Government the ability to decide the action appropriate at the time. It might, for instance, simply continue the contract if it can be shown that the supplier has acted to remedy the problem. Or it may choose to terminate if the supplier proves to be recalcitrant or simply unable to fix the problem.

Our recommendation to the ACT Government does not limit it in any way. In fact it will give the Government, and its successors, greater control over their power supply arrangements and any unintended consequences those arrangements may have.

Given that the issue will affect future ACT governments, as well as ACT taxpayers and rural residents, a copy of this warning and advice will be provided to the ACT Opposition, as a potential future ACT Government. It will also be made permanently publicly available as it may be helpful to various parties in the event harm to rural residents is caused by industrial wind developments supplying the ACT with electricity.

Yours sincerely,
Sarah Laurie, CEO, Waubra Foundation
Bachelor Medicine, Bachelor Surgery Flinders 1995

And

Michael Crawford, PhD Director, Waubra Foundation Resident, Boro, NSW

Download the letter→

Read the Waubra Foundation’s Media Release October 15, 2014