As we previously wrote
here, in a 2014 judicial review application, the Federal Court
found that the environmental assessment
("EA") process for the Darlington New
Nuclear Power Plant Project (the
"Project") conducted by the Joint Review
Panel (the "Panel") contained a number
of deficiencies. The Federal Court allowed the judicial review
application and directed that the EA report be returned to the
Panel for further consideration of certain issues, including those
related to disposal of nuclear waste and severe nuclear accidents.
The Federal Court's decision was subsequently appealed by
Ontario Power Generation ("OPG"), the
Canadian Nuclear Safety Commission and the Attorney General of
Canada on the basis that it contained errors of law regarding the
correct interpretation of the Canadian Environmental Assessment
Act and the manner in which it was applied by the Panel in its
consideration of the Project.
On September 10, 2015, in a two to one decision, the Federal
Court of Appeal (the "FCA") overturned
the Federal Court's ruling and restored the Panel's
decision and approval of the Project. The FCA disagreed with the
Federal Court's conclusions that the analysis of the Panel was
incomplete in three areas: (i) gaps in the bounding scenario
regarding hazardous substance emissions and on-site chemical
inventories; (ii) consideration of spent nuclear fuels; and (iii)
the deferral of the analysis of a severe common cause accident.
The FCA was unanimous in determining that the latter two issues
had been adequately addressed by the Panel. With respect to the
management of spent nuclear fuel, the FCA found that the
Panel's consideration was consistent with its Terms of
Reference as it considered the issue and made specific
recommendations which obviated the question of off-site storage.
With respect to the common cause accident issue, the FCA found that
given that the issue was a highly improbable severe accident, the
Panel's limited assessment of the environmental effects and its
deferral of the issue to a later date was a matter within its
discretion and its conclusion was reasonable.
The FCA disagreed on whether proper consideration had been given
to the effects of hazardous substances emissions. The majority
found that the Federal Court misapplied the reasonableness standard
of review by imposing its own opinion as to how the effects of
hazardous substance emissions ought to have been considered by the
Panel. The majority noted that the level of consideration that must
be given to an environmental effect is a matter to be determined by
the Panel, and determined that there had been reasonable
consideration. The majority found it was reasonable for the Panel
to accept a forward looking approach as the basis for the EA,
recognizing that the deferral of the selection of the type of
reactors to be used in the Project would prevent the OPG from
providing objectively measurable assessments of all of the
environmental effects of the Project. The FCA found that the Panel
had reasonably considered the environmental effects of hazardous
The full decision of the FCA setting aside the Federal
Court's judgments and dismissing the ongoing applications for
judicial review may be found here.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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