A duo of recent decisions underscore yet again the need for an overhaul of the existing environmental assessment ("EA") regime.
Environmental groups Greenpeace Canada, Lake Ontario Waterkeeper, Northwatch, and the Canadian Environmental Law Association (the "Applicants") filed two judicial review applications of the EAs conducted as part of the proposed expansion of a nuclear power facility. In essence, the Applicants argued that proper attention was not paid to the most serious potential environmental and human health impacts from two proposed projects related to the expansion.
Back in May 2014, the Federal Court granted one of these applications in part. The Court determined that certain aspects of a Joint Panel Review pertaining to the proposed construction of a set of new reactors at the Darlington Nuclear Generating Station in Clarington were unreasonable and sent it back to the assessment panel.
That decision was subsequently appealed by the Respondents—Ontario Power Generation, the Canadian Nuclear Safety Commission, and various federal ministries—who successfully convinced a majority panel of the Federal Court of Appeal to overturn the lower court decision in their favour.
The Applicants then applied for leave to appeal the Federal Court of Appeal decision to the Supreme Court of Canada. Earlier this week, their request for leave to appeal was denied.
Meanwhile, the same Applicants filed a second judicial review application in relation to the screening level environmental assessment conducted as part of a proposed refurbishment of another set of reactors at Darlington. The application was dismissed by the Federal Court in a November 2014 decision.
The Applicants appealed that decision. However, the Federal Court of Appeal dismissed that appeal earlier this month.
Both of the environmental assessments at issue in these applications were conducted under the now repealed Canadian Environmental Assessment Act. That Act was replaced by the Canadian Environmental Assessment Act, 2012 as part of the former federal government's efforts to "streamline" environmental assessment processes for large-scale projects, including those related to energy, infrastructure, and resource extraction.
This "streamlining" of the federal environmental assessment regime has continued to attract intense criticism, in particular because it has introduced a much weaker, and therefore less protective, regime for assessing projects that have the potential to bring significant harm to human health and the environment.
The incoming Liberal government indicated it would review these changes and has made some tentative and limited steps in that direction.
With the continued deference demonstrated by courts such as those in the Darlington saga to decision makers in the EA context, it has arguably become even more crucial that the federal government review and revise the current regime so as to ensure Canadians and the environment enjoy adequate protection.
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