As we previously wrote here and here, in a 2014 judicial review application, the Federal Court found that the environmental assessment (“EA”) process for the Darlington New Nuclear Power Plant Project (the “Project”) conducted by the Joint Review Panel (the “Panel”) contained a number of deficiencies. The Federal Court allowed the judicial review application and directed that the EA report be returned to the Panel for further consideration of certain issues, including those related to disposal of nuclear waste and severe nuclear accidents. The Federal Court’s decision was subsequently appealed by Ontario Power Generation (“OPG”), the Canadian Nuclear Safety Commission and the Attorney General of Canada on the basis that it contained errors of law regarding the correct interpretation of the Canadian Environmental Assessment Act and the manner in which it was applied by the Panel in its consideration of the Project.

On September 10, 2015, in a two to one decision, the Federal Court of Appeal (the “FCA”) overturned the Federal Court’s ruling and restored the Panel’s decision and approval of the Project. The FCA disagreed with the Federal Court’s conclusions that the analysis of the Panel was incomplete in three areas: (i) gaps in the bounding scenario regarding hazardous substance emissions and on-site chemical inventories; (ii) consideration of spent nuclear fuels; and (iii) the deferral of the analysis of a severe common cause accident.

The FCA was unanimous in determining that the latter two issues had been adequately addressed by the Panel. With respect to the management of spent nuclear fuel, the FCA found that the Panel’s consideration was consistent with its Terms of Reference as it considered the issue and made specific recommendations which obviated the question of off-site storage. With respect to the common cause accident issue, the FCA found that given that the issue was a highly improbable severe accident, the Panel’s limited assessment of the environmental effects and its deferral of the issue to a later date was a matter within its discretion and its conclusion was reasonable.

The FCA disagreed on whether proper consideration had been given to the effects of hazardous substances emissions. The majority found that the Federal Court misapplied the reasonableness standard of review by imposing its own opinion as to how the effects of hazardous substance emissions ought to have been considered by the Panel. The majority noted that the level of consideration that must be given to an environmental effect is a matter to be determined by the Panel, and determined that there had been reasonable consideration. The majority found it was reasonable for the Panel to accept a forward looking approach as the basis for the EA, recognizing that the deferral of the selection of the type of reactors to be used in the Project would prevent the OPG from providing objectively measurable assessments of all of the environmental effects of the Project. The FCA found that the Panel had reasonably considered the environmental effects of hazardous substance emissions.

The full decision of the FCA setting aside the Federal Court’s judgments and dismissing the ongoing applications for judicial review may be found here.