On May 14, 2014, Justice Russell of the Federal Court of Canada released the most recent decision on the federal EA process. The project involves the Darlington New Nuclear Power Plant Project (Project) proposed by Ontario Power Generation (OPG), at the heart of which is the proposed refurbishing of the Darlington Nuclear Power Plant. The applicants challenged the adequacy of the EA carried out by a Joint Review Panel under the Canadian Environmental Assessment Act (CEAA, 1992). While the case involves the 1992 version of the Act that was repealed in 2012, it grapples with a number of issues that are still relevant under CEAA, 2012.

At the core of the case is the tension between the requirement in section 11(1) of CEAA 1992 to ensure that an EA is conducted “as early as practicable in the planning stages of the project and before revocable decisions are made” and the obligations of the Panel to ensure that the s. 16(1) and (2) factors are given meaningful consideration. A key issue in the case is whether enough details about a project and its environmental effects are available to the Panel, for it to be able to carry out a meaningful assessment of the projects environmental effects. The court confirms in this regard that the EA must take place at a time when the environmental implications of a project can be fully considered.

The focus of the dispute was over the failure of the proponent to identify specific technologies and design options it intended to apply in the refurbishing of the Darlington nuclear plant. The proponent instead identify a number of technology and design options, and offered boundaries in terms of environmental impacts within which it proposed the project could operate regardless of which of the technology or design options it would ultimately choose.

The decision by Justice Russell confirms that it is the Panel’s Terms of Reference (TOR) that is the key document to determine the scope of the assessment, not the proponent’s project description, and not the EIS Guidelines issued by the Minister, though the latter is recognized by the court as a potential source of information about the Minister’s intention, presumably in case the TOR are unclear. The court correctly points out that the EIS Guidelines are issued to the proponent as the basis for preparing the EIS, not to the Panel. Only the TOR are issued to the Panel as direction on the scope.

In the Darlington case, the Court essentially concludes that the TOR and the EIS Guidelines offered every opportunity for the Panel to get enough information about the various options under consideration by the proponent to be able to fully consider the environmental implications of the project proposed. The fact that there were multiple technology options was not a problem, as the Panel, through the TOR, was given a clear mandate to explore the environmental implications of each of the options put forward by the proponent, and the proponent, through the EIS Guidelines, was given clear direction to provide the information needed for the Panel to fully consider the environmental implications of the technology options under consideration.

For the court, the case therefore comes down to the question whether the EA carried out by the Panel constituted a proper consideration of the project’s environmental implications. The court sees value in encouraging EAs to be carried out early. As a result, it is prepared to accept, in principle, the Panel’s approach in this case of assessing the project based on a plant parameter envelope approach, an approach that does not focus on the specific environmental effects of each technology or design option, but one that instead considers whether all technologies or design options under consideration will have environmental effects within certain acceptable parameters. The justification for accepting this approach, rather than wait until the proponent has selected a specific design option and a specific reactor technology, is that it would push the EA to a later stage in the project design.

The court does, however, accept the applicant’s position that the plant parameter envelope approach is not a justification for failing to comply with the scope and recommendation requirements of section 16 and 37 of CEAA and with the TOR. Furthermore, the Court concludes that the reliance by the Panel on the promised effectiveness of proposed future mitigation, without first considering the potential environmental effect of key elements of the project and the specific mitigation options available to address the effects, is contrary to the Panel’s obligation under CEAA to fully consider the environmental implications of the proposed project. The Panel is entitled to rely on an approach that considers general boundaries in terms of environmental impacts of a range of design or technology options, but it must still have sufficient evidence to be able to determine that the options are within the acceptable range, rather than rely on general commitments to mitigate environmental effects to keep them within an acceptable range.

The court identifies three areas of deficiencies.

1. The failure of the Panel to insist on a bounding scenario analysis for hazardous substance emissions, in particular liquid effluent and stormwater runoff to the surface water environment, and for the sources, types and quantities of non-radioactive wastes to be generated by the project;
2. The Panel’s inadequate treatment of the issue of radioactive waste management; and
3. The Panel’s conclusion that an analysis of the effects of a severe common cause accident at the facility was not required at this stage, but should be carried out prior to construction.

In these three key areas, it was not enough for the Panel to establish acceptable standards for the project to meet and impose general mitigation obligations to implement mitigation measures to meet those standards, or to recommend future studies to confirm that the project could operate within acceptable limits. Rather, the Panel had to first understand the environmental impacts of the range of design options, and then has to consider for each the potential to reduce the environmental impact to below the significance threshold. This, the Panel failed to do in these three critical areas.

The court requires the Panel to complete its work with respect to the three deficiencies identified before government decision makers can make final project decisions. For a copy of the decision, see: http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/71634/1/document.do

 

Meinhard Doelle,

Director, Marine & Environmental Law Institute