Federal Court Of Appeal Overturns Lower Court's Revocation Of Darlington Nuclear Project Licence – Nuclear Project Allowed To Proceed

On September 10, 2015, the Federal Court of Appeal (FCA) overturned the decision of the Federal Court of Canada (FCC) in Greenpeace Canada v. Attorney General of Canada, 2014 FC 463, which had (i) revoked the Site Preparation Licence (Licence) issued to Ontario Power Generation (OPG) to construct new nuclear generation units at the existing Darlington nuclear facility, and (ii) ordered that the environmental assessment (EA) under the Canadian Environmental Assessment Act (CEAA 1992)1 be returned to the Joint Review Panel (JRP) for further consideration.

This decision affirms the existing understanding of the role of a JRP tasked with gathering and "considering" the potential environmental effects of a project under sections 16(1)(a) and (b) of CEAA 1992. The FCA applied the well-established standard that the JRP must give "some consideration" to the relevant issues; since the CEAA 1992 does not stipulate how an environmental effect is to be considered, the scope of consideration is in the discretion of the JRP.

The decision also affirms that the standard of review of a JRP's decision is one of reasonableness, requiring reviewing judges to defer to the JRP's expertise and first-hand review of evidence. A reviewing court must not impose its own opinion as to how environmental effects are to be considered. The decision assists in understanding the analytical framework that the Court will apply. The FCA's dissent by Rennie J.A. highlights that even though the framework is simple, judges can and will differ on how that analytical framework is applied.

Finally, this decision highlights the deference that must be granted to JRPs as to their consideration of the environmental effects of a project, and how the JRP manages the evidence before it, in light of: (a) the requirement that EAs must take place as early as practicable in the planning process; and (b) the uncertainty that can arise in predicting environmental effects of certain projects.

For a discussion of the FCC's decision, please refer to our June 18, 2014 Osler Update.

Background

In June 2006, OPG sought approval for the construction of a new nuclear power generation facility at the existing Darlington nuclear site in Clarington, Ontario. The federal Darlington New Nuclear Power Plant Project (the Project), which included the construction, operation, decommissioning and abandonment of nuclear reactors and the management of the associated conventional and radioactive waste, triggered an...