In a decision issued on April 13 2016 that will disappoint many public interest groups, Canada’s Federal Court of Appeal dismissed an appeal of the Federal Court’s refusal to allow a judicial review of the environmental assessment (EA)  decision under the Canadian Environmental Assessment Act, S.C. 1992, c. 37 on the refurbishment and continued operation of the Darlington Nuclear Generating Station.

The appeal was brought in November 2014 by Greenpeace Canada, the Canadian Environmental Law Association, Lake Ontario Waterkeeper and Northwatch. They argued that the Federal Court erred in rejecting their application for judicial review because the Responsible Authorities who conducted the assessment unreasonably excluded severe low probability nuclear accidents from the scope of the assessment and unreasonably failed to give adequate consideration to the long term management of nuclear fuel waste that the Darlington Facility will generate.

The Federal Court of Appeal did not agree. In its decision, among other points, the court stated that “…the CNSC is much better placed than a reviewing court to factually assess and determine what types of possible accidents are likely to occur at a nuclear power plant and how to conduct the assessment of the environmental impacts of potential accidents. It is therefore inappropriate for a reviewing court to second-guess these determinations through a detailed re-examination of the evidence as the appellants would have us do in the instant case.” [60]

Lake Ontario Waterkeeper, Northwatch, Canadian Environmental Law Association and Greenpeace are currently reviewing the decision to determine if further action will be taken.

Lake Ontario Waterkeeper President, Mark Mattson said “We are disappointed and studying the ruling, but more importantly the ruling shows that there’s a need to modernize Canada’s environmental assessment legislation. Assessments need to have public input and fully consider the effects a major nuclear accident could have on nearby communities.”

Read the Federal Court of Appeal’s decision.

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Manning Environmental Law is a Canadian law firm based in Toronto, Ontario. Our practice is focussed on environmental law, energy law and climate change law. 

Paul Manning is a certified specialist in environmental law. He has been named as one of Canada’s leading Environmental Lawyers by Who’s Who Legal: Canada and ranked by Lexpert as one of Canada’s Leading Energy Lawyers.

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