On April 13, 2015, the Federal Court of Appeal dismissed the
appeal related to the environmental assessment
("EA") for the refurbishment and
continued operation of the Darlington Nuclear Generating Facility
(the "Project"). The appeal was from the
Federal Court's earlier decision dismissing a judicial review
application related to the EA for the Project.
The Federal Court's Earlier Decision
On November 25, 2014, the Federal Court dismissed the
appellant's application for judicial review in respect of the
EA conducted for the refurbishment and continued operation of the
Project. In their application, the appellant's argued that: (1)
the responsible authority ("RA") erred
in excluding low probability accidents from the scope of the EA;
(2) the RA failed to assess the significance of the effects of the
project on fisheries; and, (3) the RA improperly delegated a
portion of the EA. The Federal Court dismissed the judicial review
application, finding that the RA had discretion to exclude certain
accidents and that there was nothing unreasonable in excluding
accidents based on a one in a million per year threshold, that the
RA's consideration of the impacts on fisheries was reasonable,
and that it was within the RA's power to delegate completion of
The Federal Court of Appeal's Current
The appellants appealed the Federal Court's decision,
submitting that the court erred in rejecting their application for
judicial review because the RAs had: (1) unreasonably excluded
severe low probability nuclear accidents from the scope of the
assessment; and (2) unreasonably failed to give adequate
consideration to the long term management of nuclear fuel waste
that the Project would generate.
On April 13, 2016, the Federal Court of Appeal issued its
decision dismissing the appeal. The Federal Court of Appeal
There was nothing unreasonable in excluding the issue of
off-site long term fuel waste management from the scope of the EA.
To find otherwise "would mean that OPG could not proceed to
refurbish the Darlington reactors unless and until the [Nuclear
Waste Management Organization] comes up with a solution for
permanent storage of nuclear waste in Canada" and there was
nothing improper in deferring consideration of this issue to the
With respect to the issue of severe low probability nuclear
accidents, the court found that that the RA's choice of what
types of accidents should be assessed "must be respected
unless it is irrational" and that "there is nothing
irrational about the one in a million per year threshold, which is
the accepted norm applied in these sorts of assessments as the CNSC
explained in its decision."2 The decision is
available at http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143472/index.do.
The Federal Court of Appeal's decision shows deference to
the discretion of the RA, the Canadian Nuclear Safety Commission,
on technical and scientific issues and confirms that consideration
of environmental impacts related to the long-term storage of spent
nuclear fuel has been properly deferred to the Nuclear Waste
1 Greenpeace Canada v. Canada (Attorney General)
2016 FCA 114 at para. 68.
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.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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