In a decision released May 14, 2014, the Federal Court of Canada concluded that aspects of a Joint Panel Review (JPR) decision under the Canadian Environmental Assessment Act for a new nuclear reactor in Ontario were “unreasonable”.
It is a rare day indeed when a court finds an environmental assessment (EA) decision falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law”. This finding in turn led to the quashing of the licence issued by the Canadian Nuclear Safety Commission (CNSC), which requires a legally conducted EA prior to its issuance.
Overall, the court concluded that the EA conducted was reasonable, but not in three important ways:
(1) because a final nuclear reactor technology had not been chosen, Ontario Power Generation (OPG) was unable to provide a detailed evaluation of process effluent quality and options for treatment. The EA could not therefore assess the effects of hazardous substance releases; rather, the JPR’s EA report reflected an assessment of the mitigation measures to manage those effects in a qualitative way. This approach “short-circuited” the two-stage process where an expert body (JRP) evaluates the evidence regarding a project’s likely effects, and the political decision-makers then evaluate whether that level of impact is acceptable in light of policy considerations, including “society’s chosen level of protection against risk.”
(2) the issue of long-term management and disposal of spent nuclear fuel to be generated had not received adequate consideration; the court indicated a decision about the creation of spent nuclear fuel was an aspect of the project that needed to be placed before the the political decision-makers with the benefit of a proper record regarding how it will be managed over the long-term, and what is known and not known. Without information regarding the suitability of existing plans for used nuclear fuel management, the political decision-makers cannot realistically assess whether the risks and impacts are in line with “society’s chosen level of protection against risk”. The court outlined several factors that the JRP needed to include in its analysis on this point, including the following:
- the effect of the addition of spent fuel from enriched uranium (as compared to natural uranium from current reactors) would have on current plans for the management and disposal of spent nuclear fuel;
- the likelihood that a deep geological repository will be available or appropriate;
- if such a facility is neither appropriate nor available, what alternatives exist to manage this type of fuel in perpetuity to isolate it from people and the environment; and
- the cost implications for current and future generations.
(3) the OPG failed to analyse the cumulative effects of existing and new facilities for malfunctions and accident scenarios on the basis that they were hypothetical and have a very low probability of occurring; the JRP did not agree with this approach, but only recommended that prior to construction the CNSC require the OPG to evaluate the effect of a common-cause severe accident involving all the nuclear reactors at the site to determine if further planning measures are required. The court took the view that the JRP’s recommendation did not meet the requirements of CEAA: this analysis was required within the EA, so that it could be considered by those with political decision-making power in relation to the proposal.
Ultimately the court ordered that the Environmental Assessment report be returned to the Joint Review Panel for further consideration related to these issues. Until that happens, the federal Cabinet does not have authority to approve the response to the JRP’s report, and the CNSC, the Department of Fisheries and Oceans and Transport Canada have no jurisdiction to issue any authorizations or take any other actions, nor issue any licences or similar instruments, which would enable the project to proceed.
The concerns of the court reflect long-standing societal concerns related to managing long-term nuclear waste, which even for current reactors in Ontario no one really knows how to do. In light of recent and less recent high profile nuclear disasters, like the 1986 Chernobyl disaster, still not fully managed, and Fukushima in 2011, the failure to analyse “common-cause severe accidents” seems particularly egregious.
As part of the Fukushima fall-out, the Canadian government has begun a reconsideration of the liability caps. Currently, this sits at only $75 million for nuclear facilities. Bill C-22 would increase that absolute liability to $1Billion. However even that number is completely inadequate, as outlined recently by the Canadian Environmental Law Association in its submissions to the Standing Committee on Natural Resources for the House of Commons. Further, it does not force proponents of nuclear facilities to factor in liabilities beyond that and places the burden of additional costs on taxpayers instead, if the Canadian government decides, by way of its discretionary powers, to set up a taxpayer funded compensation fund. This is in distinction to the oil and gas sectors, which the Canadian government proposes to allow those responsible for disasters to be sued in negligence beyond the $1 Billion absolute liability costs it would be responsible for. Why nuclear power generation should be treated differently is unclear.
Ultimately the court’s decision sends a strong message that proposed nuclear reactor facilities today may well have to be held to a higher standard than those that came before it in terms of planning for the used nuclear fuel it will generate; but the court notes “this is nothing more than a consequence of the statutory environment in which it has been proposed. It should not be surprising that Canada’s approach to environmental approvals has developed and evolved over the past several decades.” Indeed, it should not.
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