On April 13, 2015, the Federal Court of Appeal dismissed the appeal related to the environmental assessment (“EA”) for the refurbishment and continued operation of the Darlington Nuclear Generating Facility (the “Project”). The appeal was from the Federal Court’s earlier decision dismissing a judicial review application related to the EA for the Project.

The Federal Court’s Earlier Decision

On November 25, 2014, the Federal Court dismissed the appellant’s application for judicial review in respect of the EA conducted for the refurbishment and continued operation of the Project. In their application, the appellant’s argued that: (1) the responsible authority (“RA”) erred in excluding low probability accidents from the scope of the EA; (2) the RA failed to assess the significance of the effects of the project on fisheries; and, (3) the RA improperly delegated a portion of the EA. The Federal Court dismissed the judicial review application, finding that the RA had discretion to exclude certain accidents and that there was nothing unreasonable in excluding accidents based on a one in a million per year threshold, that the RA’s consideration of the impacts on fisheries was reasonable, and that it was within the RA’s power to delegate completion of certain reports.

The Federal Court of Appeal’s Current Decision

The appellants appealed the Federal Court’s decision, submitting that the court erred in rejecting their application for judicial review because the RAs had: (1) unreasonably excluded severe low probability nuclear accidents from the scope of the assessment; and (2) unreasonably failed to give adequate consideration to the long term management of nuclear fuel waste that the Project would generate.

On April 13, 2016, the Federal Court of Appeal issued its decision dismissing the appeal. The Federal Court of Appeal found:

  • There was nothing unreasonable in excluding the issue of off-site long term fuel waste management from the scope of the EA. To find otherwise “would mean that OPG could not proceed to refurbish the Darlington reactors unless and until the [Nuclear Waste Management Organization] comes up with a solution for permanent storage of nuclear waste in Canada” and there was nothing improper in deferring consideration of this issue to the NWMO.[1]
  • With respect to the issue of severe low probability nuclear accidents, the court found that that the RA’s choice of what types of accidents should be assessed “must be respected unless it is irrational” and that “there is nothing irrational about the one in a million per year threshold, which is the accepted norm applied in these sorts of assessments as the CNSC explained in its decision.”[2] The decision is available at http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143472/index.do.
  • The Federal Court of Appeal’s decision shows deference to the discretion of the RA, the Canadian Nuclear Safety Commission, on technical and scientific issues and confirms that consideration of environmental impacts related to the long-term storage of spent nuclear fuel has been properly deferred to the Nuclear Waste Management Organization.