Ecojustice Case – Healthy communities Case Status: Closed

Challenging flawed environmental reviews for new nuclear reactors in Ontario

Ecojustice lawyer Laura BowmanLaura BowmanLawyer
Ecojustice lawyer Kaitlyn MitchellKaitlyn MitchellEcojustice Alumni
Darlington_Nuclear_Generating_Station Photo by Óðinn via Creative Commons
Photo by Óðinn via Creative Commons

In 2014, the Federal Court found that an environmental review panel wrongly recommended approval of Ontario Power Generation’s plan to build nuclear reactors in Ontario. The ruling was appealed, and disappointingly, the Federal Court of Appeal upheld the assessment as reasonable under the Canadian Environmental Assessment Act, 1992.  The Supreme Court of Canada denied our clients’ application for leave to appeal this ruling in April 2016.

At issue was a proposal to build up to four new reactors at the Darlington Nuclear Generating Station in Clarington, Ontario, on the shore of Lake Ontario.  In 2011, the Joint Review Panel responsible for assessing the project found numerous gaps in information and analysis in the proposal. Despite these omissions, the panel said no significant adverse environmental effects were likely.

Environmental groups, represented jointly by lawyers from Ecojustice and the Canadian Environmental Law Association (“CELA”), filed an application for judicial review in 2011.Our clients alleged that the assessment was flawed because it failed to examine the environmental effects of radioactive waste, hazardous emissions and the potential of a Fukushima-type accident. Together with their CELA colleagues, Ecojustice lawyers argued that approving the project without this information was illegal under Canadian Environmental Assessment Act. The judge said a federal environmental panel failed to examine possible effects on the environment and human health and revoked the project’s licence.

Why did Ecojustice get involved?
When decision-makers approve projects based on incomplete or inaccurate environmental assessments, we believe that it is important to support Canadians’ to challenge those projects in order to protect their health and the environment. This is especially important in this case because nuclear accidents could pose serious health risks and nuclear waste remains toxic for thousands of years.

What does this outcome mean?
Although we are disappointed by the outcome, this case shines an important light on a little-acknowledged reality:  When CEAA was gutted in 2011 it was already failing to achieve its purposes.  What the government slayed in 2011 was merely an “undead” law – still technically on the books but without vital signs due it its effectiveness having been chiseled away over time.

During its upcoming review of CEAA 2012, the Trudeau government should learn from the strengths and weaknesses of that Act and its predecessor, and look to examples from other jurisdictions that have effective environmental assessment regimes in place.  The new law should focus on sustainability assessments and consider the overall impact of a project on economic and environmental sustainability, as well as its impacts on communities and the societal distribution of burdens and benefits associated with the project.

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