Law Times

Law Times • November 17, 2014 Page 9 www.lawtimesnews.com Court demands more specifics from nuclear proponents Case seeks 'more discipline from all participants' in environmental assessments By arshy mann Law Times uclear projects in Canada are a rarity, but one of the few that appeared to be moving forward has lost some of its steam at the Federal Court. Greenpeace Canada v. Canada (Attorney General) concerned a proposal by Ontario Power Gen- eration to build a number of new nuclear reactors at the existing Darlington nuclear plant. A joint review panel approved an environmental assessment for the project in 2011, but a number of groups, namely Greenpeace Canada, Lake Ontario Water- keeper, Northwatch, and the Ca- nadian Environmental Law As- sociation, criticized the process as f lawed and argued the panel had erred in its findings. While the Federal Court disagreed with the applicants on a number of major issues, it did find that the environmental assessment for the Darlington expansion contained significant gaps. "I think the judgment makes it clear that shortcuts are not per- missible when you're required to do a federal environmental assessment," says Richard Lind- gren, staff lawyer for the Cana- dian Environmental Law Asso- ciation and co-counsel for the ap- plicants. "In particular, the court emphasized the importance of doing a proper analysis of the en- vironmental effects of accidents and malfunctions." The applicants argued the en- vironmental assessment hadn't followed the terms set out by the Canadian Environmental Assessment Act and the "plant parameter envelope" approach taken by OPG wasn't sufficient to determine the actual environ- mental risks posed by the project. Under the plant parameter envelope approach, OPG looked at the greatest possible environ- mental impact of the project without committing to a specific reactor design. The applicants argued that didn't allow for an adequate as- sessment of the environmental risks. The court ultimately decided that while the plant parameter en- velope approach is an acceptable way to conduct an environmen- tal assessment, the Darlington project failed to provide enough information on three issues: po- tential accidents, the disposal of spent nuclear fuel, and the treat- ment of hazardous materials. "I think the court seems to have placed itself in a contra- dictory position," says Stanley Berger, a partner at Fogler Ru- binoff LLP who was OPG's in- house counsel during the envi- ronmental assessment. "On the one hand, they're say- ing that a plant parameter enve- lope is a respected and accepted methodology, so you can put nu- merous different designs before a tribunal, but then saying the tri- bunal is going to have to be very specific in giving its report about the information that it has avail- able to them," he says. Berger believes it's more prac- tical to require the specifics the court was asking for during a later licensing process rather than the environmental assessment. "Clearly you want to try and be as helpful as you can at the environmental assessment stage, but once you've accepted the plant parameter envelope, I think you also accept the prin- ciple that this is an early stage of the process," says Berger. "It's not practical from either a financial point of view or even a precautionary point of view to get into the kind of detail the court, as I say as a matter of con- tradiction, demands in the Dar- lington hearing." Kaitlyn Mitchell, staff lawyer for Ecojustice, disagrees. "Looking at it as just one of the various licensing steps misses the point of the Canadian Environ- mental Assessment Act, which is to take a precautionary approach to these projects by looking at their full life cycle," she says. "This is the only environ- mental assessment that's going to be done of this project, so it's important to get it right." Lindgren says it's important to recognize that the environ- mental assessment is a precursor to deciding whether a project should go forward. "We often describe environ- mental assessment law as a look- before-you-leap law and you can't really take that anticipatory or preventative approach unless you have a sufficient amount of infor- mation at a reasonable level of de- tail in order to identify and assess these impacts," he says. According to Lindgren, the court's ruling is especially im- portant when it comes to poten- tial accidents. "The court looked at the lan- guage of the Canadian Envi- ronmental Assessment Act and indicated that even if the likeli- hood of accidents may be small, if the consequences are signifi- cant, they should be examined anyways," he says. In other words, an environ- mental assessment has to look at accidents that may occur and not just those that are likely to happen. "In terms of the implications of the decision for nuclear law in Canada, I think that's a pretty important one," says Mitchell. Lindgren says that while the language in the Canadian Envi- ronmental Assessment Act has remained the same since 1992, the courts had previously not given it much judicial treatment. But Berger believes the deci- sion has created unpredictabil- ity for future environmental assessment hearings. "It creates a threshold that is unrealistic for the stage of the process that an environmental assessment is at," he says. "It's too early in the process to de- mand that level of specificity." Berger also thinks the deci- sion is condescending towards elected officials who make the ultimate decisions about whether a project should move forward. "To say to them we expect you to have a detailed plan in front of you before you make a decision I don't think treats them with the respect that they deserve," he says. "I think they're entitled to use their discretion and make decisions." While the case is a symbolic blow for nuclear energy in Can- ada, in some ways it's a moot point. The Ontario Ministry of Energy released an updated long-term energy plan in 2013 that indefinitely defers any new nuclear reactors for the Darling- ton plant. The federal govern- ment has also passed a new en- vironmental assessment law, but Berger believes it wouldn't have changed the decision. The province is, however, moving forward with refur- bishments to the existing nu- clear reactors at the Darlington plant. The same applicants that launched a judicial review in Greenpeace Canada have filed a similar suit against the refur- bishments. A judgment is pend- ing following arguments earlier this year. Lindgren says many of the same issues that arose in Greenpeace Canada are also rel- evant to the refurbishment. "Our clients took the posi- tion that the environmental as- sessment that was conducted in relation to refurbishment also tended to gloss over the envi- ronmental effects of severe ac- cidents," he says. Berger says one of the most important implications of the Federal Court decision will be in how project proponents pres- ent their case during an envi- ronmental assessment. "What it will do is it will de- mand more discipline from all participants in hearings in the sense that to the extent that the information is available, it will be provided," he says. On that point, Mitchell broadly agrees. "It does confirm that if you are going to build a new nuclear reactor in Canada, you better have your details in order before you go out and try to get your approval from the federal gov- ernment," she says. The Canadian Nuclear Safety Commission is appealing the Federal Court's decision. LT FOCUS YOUR ADVANTAGE, in and out of the courtroom. Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com TRUST (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP you're putting your reputation on the line. It's all about trust well placed. Proud Member ALEKS MLADENOVIC | RICHARD HALPERN | SLOAN MANDEL ThomsonRogers_LT_Nov17_14.indd 1 2014-11-13 7:15 AM N 'I think the court seems to have placed itself in a contradictory position,' says Stanley Berger.

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