Federal Court Rules Against Darlington Nuclear New Build … but What Does this Mean for the Darlington Refurbishment?

The Darlington Nuclear Project (the “Project”) was first  proposed in 2006. In 2009, following the Project’s initial planning stages, an environmental assessment (“EA”) process was commenced under the Canadian Environmental Assessment Act (since replaced by the Canadian Environmental Assessment Act, 2012 and referred to below as the “CEAA”).  The federal EA process was conducted by a review panel (the “Panel”) and in August, 2011, the Panel concluded that the Project was not likely to cause significant adverse environmental effects, provided that certain recommended mitigation measures were implemented. 

A number of environmental groups (the “Applicants”) then filed applications seeking a judicial review of the EA on various grounds, including that the Panel failed to comply with the requirements of the CEAA by not taking into account the broad range of “environmental effects” that could result from the Project. Specifically, the Applicants argued that the Panel did not take into account the long-term effects of storing nuclear waste nor the potential effects of a Fukushima-scale nuclear accident.

“The Federal Court’s decision has no practical effect, as the Ontario government has since abandoned plans for the new-build Project”

On May 14, 2014, the Federal Court released its decision on the judicial review application and, with respect to the above-described issues, ruled that the Panel:

  1. Did not give the issue of long-term management and disposal of used nuclear fuel adequate consideration; and
  2. Failed to adequately consider the potential effects of a severe nuclear accident.

The Court did not quash the EA report in its entirety, but rather directed that it 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 has no practical effect, as the Ontario government has since abandoned plans for the new-build Project.  However, Ontario Power Generation (“OPG”) has started the process leading to the refurbishment of the existing nuclear reactors at Darlington. The Applicants have also challenged the federal EA for the refurbishment project on similar grounds (including that the EA did not adequately consider the potential adverse environmental effects of nuclear waste storage nor of severe nuclear accidents). The Federal Court recently heard this second judicial review application and we will be interested to see its decision given that the OPG’s refurbishment of the existing reactors is an integral part of Ontario’s Long-Term Energy Plan.