What the Darlington Nuclear Energy Projects tell us about the death of the Canadian Environmental Assessment Act

In 2011, there was much public outcry about the Canadian government’s decision to gut the Canadian Environmental Assessment Act (“CEAA 1992”) – along with a host of key federal environmental protection laws – through Bill C-38 (the federal omnibus budget bill).  Environmental groups expressed concern about:

  • The number of projects that would proceed without an environmental assessment despite their potential to cause serious environmental impacts;
  • The extremely limited scope of environmental assessments under the new Act (known as “CEAA 2012”); and
  • The lack of consultation and public debate on changes to CEAA.

These and other factors illustrate serious problems with CEAA 2012.  However, civil society groups and environmental law practitioners don’t merely want to go back in time to what we had before 2011.  Now that the government has announced plans to conduct a public review of CEAA 2012 and other environmental laws, it is particularly important to understand why.

Although there are aspects of CEAA 1992 that had the potential to advance the Act’s sustainable development goals, the way it was interpreted over time by decision-makers and courts arguably removed any effectiveness it once had. To satisfy the very low threshold of “turning their mind” to required environmental risks, CEAA proved in many instances to be little more than a box-ticking exercise for decision-makers.  Meaningful assessment of environmental risks and the project’s overall contribution to sustainable development were no longer adequately addressed in most environmental assessments.

Case examples: Darlington nuclear energy projects

Take the environmental assessment of a proposal to build new nuclear reactors at the Darlington Nuclear Power Plant site near Clarington, Ontario as an example.  The panel review of this project started just days after the Fukushima Daiichi nuclear disaster in Japan.  Despite calls to pause the assessment so that lessons from Fukushima could be considered in the assessment, the panel pushed on with its review.

The proponent of the project, Ontario Power Generation (OPG), proposed to build “up to four” new reactors, but did not identify the reactor design or cooling water technology to be employed.  This information is key to determining the likelihood, nature, and severity of a nuclear new-build project’s environmental impacts.  The panel did not have information before it regarding long-term management of radioactive waste generated by the project, or the off-site health and environmental risks posed by a severe common-cause accident involving multiple reactors on site.  Nonetheless, it concluded that building an unknown number of an unknown kind of nuclear reactor would not likely result in significant adverse environmental effects.

Along with counsel from the Canadian Environmental Law Association (“CELA”), Ecojustice lawyers went to court on behalf of Greenpeace Canada, Lake Ontario Waterkeeper, Northwatch, and CELA to challenge the environmental assessment of the new build project as well as OPG’s proposal to refurbish existing reactors at the Darlington site.

The Federal Court issued a strong decision in May of 2013 outlining the panel’s failures to follow the requirements of CEAA and prohibiting the new build project from proceeding until the deficiencies in the assessment were address.

Unfortunately, despite the “develop now, plan later” approach taken in these two environmental assessments, the Federal Court of Appeal upheld both of the assessments as reasonable under CEAA 1992.  The Supreme Court of Canada denied our clients’ application for leave to appeal with respect to the new build project in April of this year.

What the two decisions mean for environmental assessments

Although we are disappointed by these decisions, they shine 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.

An environmental assessment is supposed to result in better decision-making by ensuring that those with an interest in a given project have a meaningful opportunity to participate in a review.  It is the one window within which to examine the life cycle of a project and ask tough questions about whether it is needed, whether there are more efficient alternatives to it, and whether it will contribute to Canada’s sustainable development objectives.  To leave our environment and our economy in a healthy state for future generations, these are precisely the sorts of tough questions that we need to tackle.

Over time, CEAA 1992 was eroded such that a major nuclear project could be approved without consideration of key aspects of the project, like what would be done with radioactive waste over its (hundreds of thousands of years long) life cycle, or what would happen in the event of a major accident resulting in a large off-site release of radiation.  And this is to say nothing about the underlying need for the project in light of available renewable energy and conservation alternatives.  An environmental assessment law that allows government to merely “kick the tires” of a major project rather than lifting up the hood and conducting a meaningful review is of questionable utility.

The Future of Environmental Assessments in Canada

This is why we’re calling on the government to do more than merely resurrect the zombie that was CEAA 1992.  Canadians deserve a meaningful environmental assessment law that will promote the urgent and important goal of sustainable development in this country.  To be relevant, environmental assessments should involve meaningful consideration of the need for a given project and whether there are alternative ways to meet those needs while reducing risks to the environment and health.

During its review of CEAA 2012, the 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.

An effective environmental assessment law would provide meaningful opportunities for public participation and require consideration of a broad range of potential environmental and social impacts, including the cumulative effects of the project in combination with other developments.   Such a law would mark a fresh start and help put Canada on the path to sustainable development.