The Problem of Causation: Wind Turbines and Adverse Public Health Effects

The majority of scientists believe that anthropogenic sources of greenhouse gases contribute significantly to global climate change.  The majority of politicians even agree that importing fossil fuels from foreign sources is a politically risky endeavor.  Not surprisingly, some municipalities, corporations and even homeowners have taken the energy dilemma into their own hands by addressing the situation with alternative sources.  With this increasing pressure to implement more sustainable energy sources, tensions have erupted between public policy objectives and an often emotionally charged local perception.[1] As wind power in the United States is a fledgling industry in itself, likewise, so are the legal arguments against it.

Of the many complaints against wind turbines, opponents allege that low-frequency noise[2] causes a myriad of adverse health effects such as headaches, hearing loss, and inability to sleep.  This article does not suggest that the locals do not in fact feel physical symptoms.  One possible explanation may stem from the fear of novelty.  Novelty presents us with a sense of helplessness which in turn can magnify the perception of actual harm.  When a phenomenon is uncontrollable and unobservable, the perception of risk is at its highest, such as the risk associated with radioactive waste and nuclear reactor accidents.[3] The stress of novelty may be more difficult to digest for some than others, causing psychosomatic symptoms when similarly situated neighbors feel nothing.

Seemingly caught on the cutting edge, Maine has a well-developed and consistent judicial response to the local concern arguments.[4] In each case, the Supreme Judicial Court grants considerable deference to the Board of Environmental Protection and reviews its permitting decisions on a limited scope.  The Department of Environmental Protection has already established regulations to limit sound levels from wind energy developments, but in reviewing a developer’s application, the Department nevertheless consults with the Maine Center for Disease Control (MCDC).  In its June 2009 report, the MCDC found no evidence in peer-reviewed literature that the noise and vibrations from wind turbines cause adverse health effects other than “occasional annoyance.”  In fact, the report concludes that the use of wind turbines provides potential health benefits by reducing instances of asthma, other lung diseases, heart disease and cancer that are caused by pollution from fossil fuel energy sources.[5]

Despite the evidence against potential health effects, the applicant must continue to monitor actual sound levels while in operation.  The court will only vacate findings of the Board if there is no competent evidence in the record to support the findings, nor can the court substitute its own judgment for that of the agency on its factual findings.  Furthermore, the court must consider that the Maine Wind Energy Act of 2004[6] established the policy of encouraging the development of wind energy in Maine, including the recognition that it is in the interest of the state to reduce the potential for controversy, sometimes by expediting the permitting process.

The landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc.[7] reminds us that the judge is the gate-keeper when it comes to the admissibility of scientific evidence at trial.  No longer must scientific evidence simply meet the “general acceptance” test, but it is still a valid element among other factors to consider.  The other Daubert factors (a scientifically tested hypothesis, peer review or publication, rate of error) cumulatively seem to point to the traditional “general acceptance” model.

When considering the injury allegations of the concerned locals, judges must also recall the logical fallacy of post hoc ergo propter hoc.[8] A correlation argument sometimes disguises itself as a causation argument.  The danger lies in relying on the power of the sequence of events while not considering the influence of other factors.  A post hoc analysis may lead one to a finding of causation when in fact none exists.  The law demands real scientific expertise, not mere conjecture or anecdotal knowledge.

Until the relevant scientific evidence meets the relatively liberal requirements of Daubert, courts must discard the causation arguments of the concerned locals alleging injury from wind turbine infra-sound.  When and if that time does come, courts still must reconcile these arguments with the strong public policy of encouraging and expediting alternative energy development.

[1] Also known as NIMBYism (Not In My BackYard).

[2] Infra-sound is sound below 20 Hz, the normal range of human hearing.

[3] M. Granger Morgan, Risk Analysis and Management, 41 Scientific American, July 1993.

[4] See Friends of Lincoln Lakes v. Bd. of Envtl. Protection, 989 A.2d. 1128 (Me. 2010); Martha A. Powers Trust v. Bd. of Envtl. Protection, 15 A.3d. 1273 (Me. 2011); Concerned Citizens to Save Roxbury v. Bd. of Envtl. Protection, 15 A.3d. 1263 (Me. 2011).

[5] Concerned Citizens to Save Roxbury, 15 A.3d at 1267.

[6] Me. Rev. Stat. Ann. Tit. 35-A § 3402 (2004).

[7] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[8] “After this, therefore because of this.”

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