Docket: A-564-14
Citation:
2016 FCA 114
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CORAM:
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STRATAS J.A.
RYER J.A.
GLEASON J.A.
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BETWEEN:
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GREENPEACE CANADA,
CANADIAN ENVIRONMENTAL LAW ASSOCIATION, LAKE ONTARIO WATERKEEPER AND
NORTHWATCH
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Appellants
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and
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ATTORNEY
GENERAL OF CANADA AND ONTARIO POWER GENERATION INC.
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Respondents
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
The appellants appeal from the November 25, 2014
decision of Justice Phelan of the Federal Court, reported as 2014 FC 1124, in
which he dismissed their application for judicial review in respect of a
screening level environmental assessment [EA] conducted under the Canadian
Environmental Assessment Act, S.C. 1992, c. 37 [CEAA 1992]. The
assessment in question concluded that the refurbishment and continued operation
of the Darlington Nuclear Generating Facility [the Darlington Facility] by
Ontario Power Generation [OPG] would likely not cause significant environmental
effects.
[2]
The appellants submit that the Federal Court erred
in rejecting their application for judicial review because the Responsible
Authorities [RAs] who conducted the assessment unreasonably excluded severe low
probability nuclear accidents from the scope of the assessment and unreasonably
failed to give adequate consideration to the long term management of nuclear fuel
waste that the Darlington Facility will generate. The appellants also say that
the Federal Court erred in awarding costs against them without hearing from
them on the issue even though all parties consented during the hearing that
they would subsequently deliver submissions on costs.
[3]
Issues very similar to those raised in the present
case were recently considered by this Court in Ontario Power Generation Inc.
v. Greenpeace Canada, 2015 FCA 186, 475 N.R. 247 [OPG v. Greenpeace].
That case involved the environmental assessment of OPG’s plans to install and
operate new nuclear power generation units at the Darlington Facility, a more
extensive project than that of merely refurbishing the existing units that was
considered in the present case. Due to the larger scope of the new-build
project, it was assessed by a joint review panel.
[4]
The joint review panel in OPG v. Greenpeace,
like the RAs in the present case, determined that the severity of accidents it
would consider as part of the assessment were those with a frequency of
occurrence greater than one in a million per year. Both the joint review panel
in OPG v. Greenpeace and the RAs in the present case also assessed the
environmental impact of OPG’s plans for on-site storage of spent nuclear fuel
and did not assess the impact of the absence of a plan for off-site long term
management of nuclear fuel waste. There, like here, the appellants argued that
the decisions to exclude severe low probability nuclear accidents and to
exclude long term off-site management of nuclear waste from the scope of the
assessment were unreasonable. In OPG v. Greenpeace, this Court disagreed
and unanimously concluded that the joint review panel’s treatment of both
issues was reasonable.
[5]
I believe that similar conclusions should be
reached in this case, and for the reasons below would dismiss this appeal with
costs.
I.
Background
[6]
OPG operates the Darlington Facility in
Clarington, Ontario, just west of the City of Toronto. OPG’s operations are
subject to detailed regulation, principally by the Canadian Nuclear Safety
Commission [the CNSC], one of the RAs responsible for conducting the EA in the
present case.
[7]
OPG, or its predecessor, Ontario Hydro, has been
generating nuclear power at the Darlington Facility since 1993 and currently operates
four CANDU nuclear reactors at the site. These reactors utilize uranium fuel,
which is incorporated into rods that are placed into the reactors, where they are
used to produce the fission reaction that generates electricity. When the fuel in
the rods is spent, they are highly radioactive. Due to this, the spent fuel
rods are moved by remote-controlled machinery from the reactors to shielded storage
pools at the Darlington Facility and are stored underwater in these pools for
at least ten years to allow the radioactivity to partially dissipate. Thereafter,
the spent fuel rods are moved by machinery, protectively encased and stored in a
shielded storage building at the Darlington Facility, known as the Darlington
Waste Management Facility [DWMF].
[8]
There is currently no comprehensive plan for the
permanent storage of nuclear fuel waste in Canada. Under the Nuclear Fuel
Waste Act, S.C. 2002, c. 23, the Nuclear Waste Management Organization [the
NWMO] has been tasked with developing and implementing a long term management
strategy for Canada’s nuclear fuel waste. The NWMO is still in the process of
developing this strategy, which is contemplated will provide for long term
storage of such waste at a site other than the Darlington Facility.
[9]
In addition to fuel waste, OPG’s nuclear
operations also produce other less radioactive types of waste, namely, low and
intermediate level irradiated wastes, which are either stored at the DWMF or,
more frequently, transported to and stored off-site at another facility, the
Western Waste Management Facility, which is located on the Bruce Power site
near Kincardine, Ontario [the WWMF]. The WWMF has been the subject of previous EAs
conducted by the CNSC.
[10]
On May 2, 2011, OPG submitted a project
description to the CNSC for the refurbishment and continued operation of the
four reactors at the Darlington Facility. In its project description, OPG noted
that the refurbishment was part of the anticipated life cycle of the reactors
and indicated that its proposed project involved inspecting and servicing
components in the reactors, removing and replacing fuel channel assemblies and
feeder pipes in the reactors, refuelling them and returning the reactors to
full operation for approximately another 30 years. OPG also noted that the
refurbishment and continued operation of the reactors were expected to produce waste,
including spent fuel. OPG stated that it planned to construct additional storage
capacity at the DWMF to store the spent fuel rods and confirmed that other
wastes were to be disposed of or stored in accordance with OPG’s existing waste
management practices, detailed above.
[11]
The activities described in the project
description required OPG to obtain an amendment to its Power Operating Licence
and renewal of its Waste Facility Operating Licence under subsection 24(2) of
the Nuclear Safety and Control Act, S.C. 1997, c. 9 [the NSCA]
and an authorization from the Minister of Fisheries and Oceans [DFO] in
accordance with the former section 32 of the Fisheries Act, R.S.C. 1985,
c. F-14 to authorize the killing of fish by means other than fishing.
[12]
Under the provisions of CEAA 1992 in
force in 2011, OPG’s application under the NSCA and the request for an
authorization under the Fisheries Act triggered the need to conduct a
screening level EA. By virtue of an order issued by the Minister of Environment
under subsection 124(2) of the new Canadian Environmental Assessment Act,
2012, S.C. 2012, c. 19, s. 52 [CEAA 2012], OPG’s refurbishment
project continued to be governed by CEAA 1992 despite the repeal of this
legislation in 2012.
[13]
Both the CNSC and the DFO were RAs with respect
to OPG’s refurbishment project as each bore responsibility for conducting the
EA. The CNSC assumed the role of the federal assessment coordinator and took
the lead in the EA process.
[14]
The principal steps in the EA process undertaken
in the present case encompassed the following:
- submission of the project description by OPG;
- preparation by the RAs’ staff of a draft Environmental
Assessment Scoping Information Document [EASID] that detailed the proposed
scope of OPG’s project;
- provision of comments by the public and interested parties,
including the appellants, on the draft EASID;
- finalization of the EASID by the RAs;
- provision by OPG of a lengthy Environmental Impact Statement
[EIS] and extensive supporting technical documentation, prepared in
accordance with guidelines from the RAs and the RAs’ decision to delegate
the preparation of the EIS and supporting documentation to OPG, pursuant
to section 17 of CEAA 1992;
- review of the EIS by the RAs’ staff and submission of questions
and comments to OPG;
- provision by OPG of replies to these questions and comments;
- conduct of consultations by OPG with potentially interested
parties;
- preparation and release of a draft EA Screening Report by the RAs’
staff;
- provision of comments on the draft EA Screening Report by
interested parties, including all four appellants;
- release of the proposed EA Screening Report by the RAs and holding
of a four day public hearing, during which the appellants appeared as
intervenors; and
- release by the CNSC, on behalf of both RAs, of its decision in March
of 2013.
[15]
Thousands of pages of detailed materials were
produced and filed with the RAs during the process, much of it of a highly
technical nature.
[16]
In the March 2013 decision that is the subject
of the appellants’ judicial review application, the CNSC reached four
conclusions: first, that the proposed Screening Report was complete and
complied with the requirements of CEAA 1992; second, that OPG’s
refurbishment project was not likely to cause significant environmental effects
when the mitigation measures identified in the Screening Report were taken into
account; third, that the project would not be referred to a review panel or
mediator for further study under CEAA 1992; and, finally, that the CNSC would
proceed to consider the licence application and application for licence amendments
under the NSCA.
[17]
During the EA process, consideration was given
to the appellants’ concerns regarding the exclusion of severe low probability
nuclear accidents and off-site long term management of nuclear fuel waste from
the scope of the EA.
[18]
On the issue of nuclear waste, as noted, OPG set
out in its project description the proposed treatment to be afforded to nuclear
wastes that would be produced by the refurbishment and continued operation of
the reactors and detailed what it proposed to do with the waste that would be
produced. It said it would be required to construct one additional building at
the DWMF, beyond the two then planned, for storage of spent fuel rods. OPG also
noted that it would store other wastes on the site or would transfer many of
them to the WWMF or another licenced facility.
[19]
The draft EASID provided further details on the
waste management issue. It defined the scope of the project to be assessed as
including the site preparation and construction of storage and support
buildings, refurbishment activities, the continued operation of the refurbished
reactors until about 2055, the subsequent attainment of a safe closure state
and assessment of waste management-related activities. Notably, interim storage
of fuel waste was listed as an activity related to the continued operation of
the reactors but permanent long term storage was not. Also excluded from the
scope of the project to be assessed were other projects and activities that had
been the subject of previous EAs conducted by the CNSC, including the expansion
of the low and intermediate radioactive waste storage capacity at the WWMF.
[20]
Following comments from interested parties,
including the appellants, CNSC staff proposed changes to the draft EASID. On
the issue of long term management of nuclear wastes, CNSC staff noted that
permanent long term management of used nuclear fuel was not within the proposed
scope of the EA, the NWMO was charged with implementing a plan for the long
term management of used nuclear fuel, the CNSC would be required to licence any
long term used fuel storage facility and that such facility would be subject to
its own EA. However, in response to concerns raised by some of the appellants
and other intervenors, CNSC staff proposed changes to the draft EASID to
require that contingency plans for the on-site long term storage of nuclear
fuel be added to the scope of the project in case the NWMO failed to come up
with a plan. The RAs accepted this proposal and included it in the final EASID.
[21]
OPG dealt with this revision in the EIS that it
filed. It noted that it was expected that off-site facilities for the long term
management of used fuel and related wastes would be available during the
continued operating phase of the four reactors. But, it added that if such
facilities were not available, further storage buildings (beyond the additional
three contemplated) would be constructed at the DWMF to store all the fuel
waste it was anticipated the project would produce. OPG detailed in the EIS the
maintenance and inspections planned for the storage buildings. OPG also described
in detail in the EIS how it would handle the other types of waste produced by
the refurbishment and continued operation of the reactors and assessed the
environmental impacts of the waste management activities it would be
undertaking.
[22]
In the draft and proposed Screening Reports, the
RAs noted that while off-site long term storage of nuclear fuel was not within
the scope of the EA, OPG’s contingency planning provided for construction of
additional buildings at the DWMF to store fuel waste on a longer term basis.
The issue was again canvassed during the public hearing phase.
[23]
In its March 2013 decision, the CNSC noted that
off-site long term waste management had been raised as an issue during the EA
process and commented on the concerns raised by some intervenors, including some
of the appellants, that off-site long term waste management was not part of the
EA. The CNSC noted that the issue was outside the scope of the EA and that the
NWMO was responsible for the implementation of Canada’s plan for safe long term
care of used nuclear fuel. In its decision, the CNSC accepted that the Screening
Report was complete and therefore endorsed the approach taken to management of
spent nuclear fuel and other wastes that would be generated during the project.
It also concluded that this (and all other) aspects of the project would not
likely cause significant adverse environmental effects.
[24]
In terms of severe low probability accidents, the
draft EASID indicated that the EA would include discussion and evaluation of
potential accidents and malfunctions. Among the specifics to be considered were
nuclear accidents with “postulated accident sequences
leading to radiological release that could occur” with a frequency
greater than one in a million per year “considering as
appropriate internal events, internal hazards, external hazards and
human-induced events, including an explanation of how these events were
identified, and any modeling that was performed, for the purpose of [the EA]”.
The draft EASID also indicated that the assessment should include “an identification and discussion of any lessons learned from
the events at Fukushima to the extent that they are relevant to the assessment
of malfunctions and accidents for this project” (Joint Appeal Book, Vol.
5 at 1176).
[25]
Some of the appellants and other intervenors provided
submissions to the RAs on the scope of accidents to be considered as part of
the EA process and expressed concern about the exclusion of serious accidents
with an expected frequency of occurrence of less than one in a million per year,
especially in light of the severity of such possible accidents as exemplified
by the disaster that occurred in Fukushima, Japan.
[26]
Following receipt of these submissions, the CNSC
slightly amended the scope of the required accident assessment in the final EASID
and broadened the analysis as follows: “for those
sequences having frequencies of less than [one in a million per year], but
sufficiently close to this frequency, the proponent should provide the
rationale for screening them out from further analysis” (Joint Appeal
Book, Vol. 10 at 2558).
[27]
In the EIS and technical documents that it
filed, OPG explained the process undertaken to assess the environmental impact
of the accidents it was required to assess by the EASID. It explained that it
had developed a model for nuclear accidents that looked at both internal and
externally caused accidents occurring in respect of a single or multiple
reactors and had found that three types of accidents would exceed the one in a
million per year threshold, the other possible scenarios having a lower
likelihood of occurrence by several orders of magnitude.
[28]
The three types of accidents OPG identified as
meeting the threshold shared common release characteristics, so OPG modelled the
one which was the most likely to occur and assessed its environmental impacts.
This accident involved a malfunction in a single reactor, but stood as proxy
for the other accidents identified. Thus, contrary to what the appellants
assert, the EIS did not limit its assessment to accidents arising from a single
reactor malfunction but, rather, used that type of accident as a proxy for all
types of accidents that met the one in a million per year threshold. In addition,
the probability of more severe multi-reactor accidents was assessed and found
to fall below the one in a million per year threshold.
[29]
In the EIS, OPG also detailed the improvements
to its processes that it had implemented or would implement as a result of the
lessons learned from Fukushima, which were taken into account in assessing
accident probabilities.
[30]
The EIS concluded that no residual effect on
humans was identified as a result of a possible nuclear accident and that the
risk of exposure to radiation from an accident at Darlington was less than from
general background radiation in the environment. OPG also reported in the EIS
that the risk of nuclear accident at the Darlington Facility was not affected
by the refurbishment project.
[31]
The issue of low frequency, high severity
accidents was raised by the appellants during the public hearing phase, where
the Greenpeace representative made detailed submissions on the issue.
[32]
In its decision, the CNSC dealt at length with potential
malfunctions and accidents. It explained the rationale for the selection of the
one in a million per year threshold, stating that this is the modern
international threshold used in EAs for assessment of potential accidents at
nuclear power facilities. It also noted that the threshold was published by the
International Atomic Energy Agency and that it had been applied in previous EAs.
[33]
In response to Greenpeace’s concerns about the
exclusion of less probable accidents, the CNSC noted that it would consider
such accidents during the licencing process. It also noted the improvements
that OPG had made or would make as part of the lessons learned from Fukushima and considered them to be mitigation measures.
[34]
In addition, the CNSC underscored that multiple
unit accidents were considered in the probabilistic safety assessment conducted
as a backdrop to the technical studies referenced in the EIS, but noted that such
accidents had a lower probability of occurrence than one in a million per year
as did the likelihood of a Fukushima-type occurrence. The CNSC concluded that
sufficient measures were in place to ensure that all accidents, including those
of a nuclear nature, would not likely cause significant adverse environmental effects.
II.
Relevant Legislation
[35]
To understand the issues in this appeal, it is
useful to briefly review the legislation applicable to the EA process followed
in this case.
[36]
By virtue of section 5 of CEAA 1992, an
environmental assessment is required before a federal authority can exercise
one of the powers or perform one of the duties listed in that section in
respect of a project. Paragraph 5(d) applies to the issuance of a permit
or licence, grant of an approval or other action taken to allow the project to
proceed in the circumstances prescribed by regulation.
[37]
Under the Law List Regulations,
SOR/94-636, a screening level EA is required before the CNSC can issue or amend
a licence under subsection 24(2) of the NSCA and before the DFO could issue
an authorization under the former section 32 of the Fisheries Act. Thus,
by virtue of these provisions, the RAs in the present case were required to
conduct a screening level assessment in respect of OPG’s refurbishment project.
[38]
CEAA 1992 provides
for four different types of environmental assessments: screening, comprehensive
study, mediation and assessment by a review panel. The least rigorous of these is
a screening level assessment (see subsection 16(1) and section 18 of CEAA
1992).
[39]
Pursuant to section 11 of CEAA 1992, a
federal authority with responsibility for the conduct of an EA is an RA. There can
be (and often are) more than one RA with respect to a project. Under subsection
11(1) of CEAA 1992, RAs are required to ensure that an EA is conducted “as early as is practicable in the planning stages of the
project and before irrevocable decisions are made”.
[40]
Sections 18 to 20 of CEAA 1992 govern
screening level EAs. Section 18 requires the RA to ensure that the screening is
conducted and that a screening report is prepared. The section also affords RAs
the discretion to decide whether or not a public hearing should be held.
[41]
In terms of the issues to be covered in an EA,
section 15 provides RAs the authority to determine the scope of the project to
be assessed in a screening level assessment, with the only limits on this broad
discretionary authority set out in subsection 15(3). The relevant portions of
section 15 provide:
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15. (1) The scope of the project in relation to which an
environmental assessment is to be conducted shall be determined by
(a) the responsible authority;
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15. (1) L’autorité responsable ou, dans le cas où le projet est
renvoyé à la médiation ou à l’examen par une commission, le ministre, après
consultation de l’autorité responsable, détermine la portée du projet à
l’égard duquel l’évaluation environnementale doit être effectuée.
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[...]
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[...]
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(3) Where a project is in relation to a physical work, an
environmental assessment shall be conducted in respect of every construction,
operation, modification, decommissioning, abandonment or other undertaking in
relation to that physical work that is proposed by the proponent or that is,
in the opinion of
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(3) Est effectuée, dans l’un ou l’autre des cas suivants,
l’évaluation environnementale de toute opération — construction,
exploitation, modification, désaffectation, fermeture ou autre — constituant
un projet lié à un ouvrage :
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(a) the responsible authority, [...]
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a) l’opération est proposée par le promoteur;
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likely to be carried out in relation to that physical work.
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[...]
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[42]
Section 16 governs the factors to be considered
in the EA. It provides in relevant part as follows:
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16. (1) Every screening or comprehensive study of a project and
every mediation or assessment by a review panel shall include a consideration
of the following factors:
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16. (1) L’examen préalable, l’étude approfondie, la médiation ou
l’examen par une commission d’un projet portent notamment sur les éléments
suivants :
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(a) the environmental effects of the project, including the
environmental effects of malfunctions or accidents that may occur in
connection with the project and any cumulative environmental effects that are
likely to result from the project in combination with other projects or
activities that have been or will be carried out;
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a) les effets environnementaux du projet, y compris ceux causés
par les accidents ou défaillances pouvant en résulter, et les effets
cumulatifs que sa réalisation, combinée à l’existence d’autres ouvrages ou à
la réalisation d’autres projets ou activités, est susceptible de causer à
l’environnement;
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(b) the significance of the effects referred to in paragraph (a);
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b) l’importance des effets visés à l’alinéa a);
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(c) comments from the public that are received in accordance with
this Act and the regulations;
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c) les observations du public à cet égard, reçues conformément à
la présente loi et aux règlements;
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(d) measures that are technically and economically feasible and
that would mitigate any significant adverse environmental effects of the
project; and
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d) les mesures d’atténuation réalisables, sur les plans technique
et économique, des effets environnementaux importants du projet;
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(e) any other matter relevant to the screening, comprehensive
study, mediation or assessment by a review panel, such as the need for the
project and alternatives to the project, that the responsible authority or,
except in the case of a screening, the Minister after consulting with the
responsible authority, may require to be considered.
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e) tout autre élément utile à l’examen préalable, à l’étude
approfondie, à la médiation ou à l’examen par une commission, notamment la
nécessité du projet et ses solutions de rechange, — dont l’autorité
responsable ou, sauf dans le cas d’un examen préalable, le ministre, après
consultation de celle-ci, peut exiger la prise en compte.
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[...]
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[...]
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(3) The scope of the factors to be taken into consideration
pursuant to paragraphs (1)(a), (b) and (d) and (2)(b), (c) and (d) shall be
determined
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(3) L’évaluation de la portée des éléments visés aux alinéas
(1)a), b) et d) et (2)b), c) et d) incombe :
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(a) by the responsible authority; [...]
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a) à l’autorité responsable;
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[43]
Under section 20 of CEAA 1992, an RA is provided
the final decision-making authority in respect of screening level assessments
to determine if a project would cause significant adverse environmental
effects. If an RA finds such effects likely, taking into account the
implementation of any mitigation measures that the responsible authority considers
appropriate, the federal authority is prohibited from exercising any power or
duty or performing any statutory function in respect of the project, thereby preventing
the project from proceeding. Subsection 20(2) also provides for the recognition
by an RA of mitigation measures to be taken with respect to a project and
provides RAs with authority to follow up and ensure that follow up measures
were implemented in “any manner” the RA “considers necessary”.
[44]
Finally, section 17 affords RAs the authority to
delegate to any entity they deem appropriate “any part
of the screening or comprehensive study of a project or the preparation of the screening
report [or] any part of the design and implementation of a follow-up program”.
[45]
The provisions of CEAA 1992, the former
provisions in the Fisheries Act, and the NSCA that are relevant
to this appeal are reproduced in the Appendix to these Reasons.
III.
The Federal Court Decision
[46]
The appellants appear to have raised somewhat different
issues before the Federal Court than they raise on this appeal. They argued before
the Federal Court that the RAs failed to assess the matters they were required
to assess under section 16 of CEAA 1992 and, in particular, erred in
excluding low probability severe nuclear accidents from the scope of the EA, in
failing to assess the likelihood or significance of the effects of the project
on fisheries and in improperly deferring a portion of the assessment they were
required to conduct to the licencing process under the NSCA.
[47]
The Federal Court held that the reasonableness
standard applied to the errors alleged by the appellants, except the issue of
improper delegation, which it held was reviewable on the correctness standard
of review. The Federal Court found that the RAs did not err in excluding severe
low probability accidents from the scope of the assessment, finding the
determination to be reasonable in light of the explanation offered for the
selection of the one in a million per year threshold and the fact that the CNSC
gave consideration to the appellants’ concerns on the issue. The Federal Court
also found the treatment afforded to the significance of the effects of the
project on fisheries to be reasonable. Finally, the Federal Court held that the
RAs were entitled to delegate completion of the EIS and technical studies to
OPG under section 17 of CEAA 1992 and that they did not need to postpone
their decision until after the design and implementation of the follow up
program that was to be pursued by OPG and presented to the CNSC as part of the
licencing process under the NSCA.
IV.
The Appellants’ Arguments before this Court
[48]
As noted, the appellants submit before this
Court that the CNSC’s decision is unreasonable as the RAs unreasonably excluded
severe low probability nuclear accidents from the scope of the assessment and
unreasonably failed to give adequate consideration to the long term management
of the nuclear fuel waste that the Darlington Facility will generate.
[49]
More specifically, in terms of the long term
fuel waste management issue, the appellants contend that OPG initially included
long term waste management in its project description and that this element was
improperly excluded from the scope of the project by the RAs in the EASID. They
allege that such an alteration in the scope of a project is impermissible under
section 15 of CEAA 1992 and submit that the Supreme Court of Canada so
held in MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2,
[2010] 1 S.C.R. 6.
[50]
The appellants also say more generally that
risks associated with fuel waste are necessarily incidental to the operation of
a nuclear reactor and, therefore, that the RAs could not reasonably exclude analysis
of permanent long term waste management from the scope of the assessment. They submit
that no assessment was undertaken of the adequacy of the additional buildings
that OPG might be required to construct as part of its contingency plan and
argue that this distinguishes this case from OPG v. Greenpeace, where
the project was scoped to include storage of spent nuclear waste on the Darlington site in perpetuity.
[51]
In terms of severe low probability accidents,
the appellants contend that the CNSC made two unreasonable factual findings.
First, they attack the CNSC’s conclusion that the probabilistic risk assessment
undertaken by OPG evaluated multi-reactor accidents. They say the CNSC did not
consider such accidents at all. Secondly, the appellants submit that, contrary
to what OPG said in the EIS and technical supporting documents and to what the
CNSC determined in its decision, the probability of a multi-reactor externally caused
accident actually exceeds one in a million per year. They allege that this is
shown in reports generated by OPG outside the EA assessment process that
Greenpeace placed before the CNSC. The appellants say that the RAs therefore made
an unreasonable factual finding in excluding such accidents from the assessment
because they actually fell within the one in a million per year threshold set
by the RAs.
[52]
In addition to these alleged factual errors, the
appellants also argue that in light of the magnitude of risk posed by a severe
low probability accident, the RAs erred in setting the threshold for assessment
at the level of one in a million per year as such accidents may well occur,
would be severe, as the Fukushima experience demonstrates, and therefore ought
to have been assessed under section 16 of CEAA 1992.
[53]
The appellants also contend that the RAs failed
to discharge their obligations under sections 15 and 16 of CEAA 1992 because
they improperly deferred consideration of certain issues to subsequent
regulatory processes – to the NWMO in the case of the fuel management issue and
to the licencing process to be undertaken by the CNSC under the NSCA in
the case of severe low probability nuclear accidents.
[54]
The appellants finally submit that they ought
not bear the costs associated with this appeal or in the Federal Court as they
are public interest litigants and ought to have been heard by the Federal Court
before the costs award against them was made.
V.
Standard of Review
[55]
On the issues other than that related to costs,
this Court is required to step into the shoes of the Federal Court and
determine whether it selected the appropriate standard of review and whether it
applied that standard correctly: Agraira v. Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs
45-47; OPG v. Greenpeace at paragraphs 33, 123.
[56]
In terms of the first step of that analysis,
involving the selection of the appropriate standard of review, I believe that
the reasonableness standard applies to each of the errors now identified by the
appellants as they are all either factual or involve an exercise of fact-based discretion
under sections 15 and 16 of CEAA 1992.
[57]
It is well-settled that the reasonableness
standard is applicable to review of an administrative tribunal’s findings of
fact or mixed fact and law that are heavily infused by fact, including its
exercises of fact-based discretion: Dunsmuir v. New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 at paragraphs 51, 53 [Dunsmuir]; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339 at paragraphs 60-62, 66-67Smith v. Alliance Pipeline Ltd., 2011 SCC
7, [2011] 1 S.C.R. 160 at paragraph 26.
[58]
This Court and the Federal Court have often
applied the reasonableness standard to the review of RAs’ factual
determinations: see, for example, Inverhuron & District Ratepayers'
Assn. v. Canada (Minister of the Environment), 2001 FCA 203 at paragraphs
39-40, 273 N.R. 62 [Inverhuron FCA]; Canadian Transit Company v.
Canada (Minister of Transport), 2011 FC 515 at paragraph 85, 389 F.T.R. 85
aff’d 2012 FCA 70; Pembina Institute for Appropriate Development v. Canada
(Attorney General), 2008 FC 302 at paragraphs 37, 40, 323 F.T.R. 297. Likewise,
this Court has applied the reasonableness standard to review an RA’s discretionary
determination as to the scope of factors to be assessed under section 16 of CEAA
1992 in OPG v. Greenpeace at paragraph 122 and has also applied
the reasonableness standard to scoping determinations made under section 15 of CEAA
1992 in Council of the Innu of Ekuanitshit v. Canada (Attorney
General), 2014 FCA 189 at paragraph 80.
[59]
Reasonableness review requires the reviewing court
to assess whether a decision is justified, transparent and intelligible and
whether the result reached is defensible on the facts and the law: Dunsmuir at
paragraph 47. This involves both assessment of any reasons given by the
decision-maker in light of the record and of the result reached.
[60]
Where, as here, the issues at play involve
detailed factual findings and discretionary decisions within the heartland of
the tribunal’s expertise, the reasonableness standard requires that
considerable deference be given to the tribunal’s determinations. This is
particularly so when the issues under review concern nuclear safety and the
tribunal is the nuclear safety regulator. In short, the CNSC is much better
placed than a reviewing court to factually assess and determine what types of
possible accidents are likely to occur at a nuclear power plant and how to conduct
the assessment of the environmental impacts of potential accidents. It is therefore
inappropriate for a reviewing court to second-guess these determinations
through a detailed re-examination of the evidence as the appellants would have
us do in the instant case.
[61]
As Pelletier J. (as he then was) noted in the
oft-cited passage at paragraph 71 of Inverhuron & District Ratepayers'
Assn. v. Canada (Minister of The Environment), 191 F.T.R. 20, 2000 CanLII
15291 (F.C.),
the function of the Court in judicial review
[of this sort of decision] is not to act as an “academy of science” or a “legislative
upper chamber”. In dealing with any of the statutory criteria, the range of
factual possibilities is practically unlimited. No matter how many scenarios
are considered, it is possible to conceive of one which has not been. The
nature of science is such that reasonable people can disagree about relevance
and significance. In disposing of these issues, the Court’s function is not to
assure comprehensiveness but to assess, in a formal rather than substantive
sense, whether there has been some consideration of those factors which the Act
requires the comprehensive study to address. If there has been some consideration,
it is irrelevant that there could have been further and better consideration.
[62]
Contrary to what the appellants assert, the wide
margin of appreciation to be afforded to the CNSC’s decisions in a case such as
this does not mean that its decisions are unreviewable or that judicial review of
environmental assessments is a hollow and meaningless exercise.
[63]
While the range of deference to be afforded to
decisions like the present one is significant, it is not without bounds. There
are indeed situations where decisions may be unreasonable. For example,
decisions which fail to consider the mandatory components of a project as
required by subsection 15(3) of CEAA 1992 may well be open to question.
Similarly, factual determinations or determinations of mixed fact and law that
are central to a decision and which are made in bad faith or for an improper
purpose, in a perverse or capricious manner or entirely without regard to the
evidence before the RA may prompt a court to interfere despite the broad margin
of appreciation given to the decision-maker. The list is not closed. However,
to establish grounds for the Court to interfere an applicant must do more than
merely allege that a better analysis could have been undertaken by the RA or
that a particular piece of evidence was not given adequate weight by the RA, as
the appellants assert in this case.
VI.
Analysis
[64]
Turning to the specific errors alleged by the
appellants in the present appeal, I do not find any of the impugned factual
findings to be unreasonable. Similarly, there is nothing unreasonable about the
discretionary determinations made by the RAs in the present case.
[65]
On the fuel management issue, contrary to what
the appellants assert, the RAs did not narrow the scope of the project to be
reviewed in the EASID. Rather, they broadened it to encompass the possibility
of ongoing long term on-site storage of spent nuclear fuel at the Darlington
Facility, which would require the construction of buildings beyond the three
contemplated by OPG in its project description. This expansion rendered the
scope of fuel waste management in the present case identical to the scope of
the fuel waste management assessed in OPG v. Greenpeace, where the new-build
project was scoped to include the permanent storage of spent nuclear fuel at
the Darlington site to address the eventuality that the NWMO might not find a
permanent solution to nuclear waste management issues during the life of the
Darlington Facility.
[66]
Thus, the appellants’ first argument must fail as
the RAs did not narrow the scope of the project as it pertains to nuclear waste
management in the EASID.
[67]
As for the appellants’ contention that it was
unreasonable to exclude off-site long term fuel management from the scope of
the assessment, for much the same reasons as were given in OPG v. Greenpeace,
I believe there is nothing unreasonable about excluding this issue from the
scope of the EA in the present case. The RAs, through the requirement for a
contingency plan, ensured that adequate provision was made to store the spent
fuel at the Darlington site in the eventuality the NWMO did not find an
alternate solution before 2055. Moreover, the CNSC assessed the environmental
impacts of OPG’s contingency plan. Accordingly, there was no gap in the
assessment.
[68]
In these circumstances, it was not unreasonable
to exclude off-site storage of spent fuel from the scope of the assessment as every
physical work associated with OPG’s proposed project was assessed, in
conformity with subsection 15(3) of CEAA 1992. Indeed, to hold otherwise
would mean that OPG could not proceed to refurbish the Darlington reactors
unless and until the NWMO comes up with a solution for permanent storage of
nuclear waste in Canada. Forestalling the refurbishment on this basis would not
be a reasonable outcome when a workable alternate solution was assessed by the
CNSC and found to pose no likely environmental risk.
[69]
I therefore conclude that no reviewable error
was made in the assessment of long term nuclear waste management and that the
RAs did not improperly defer consideration of the issues they were required to
address to the NWMO.
[70]
As for low probability nuclear accidents, the
appellants’ factual arguments would have this Court engage in a microscopic
re-assessment of the evidence, which is not an appropriate exercise in the
context of reasonableness review and highly inappropriate in the face of
scientific evidence as complex as that reviewed by the CNSC in the present case.
In essence, the appellants would have this Court determine that the scientific modelling
exercise undertaken by OPG as described in the EIS, which the expert regulator
found appropriate, was in fact flawed. However, this is not the role of a court
on judicial review under the reasonableness standard.
[71]
Moreover, even if it were, the appellants’
arguments are not borne out by the evidence. Contrary to what the appellants
assert, the EIS did in fact consider multi-reactor externally caused accidents
as they were studied in OPG’s probabilistic risk assessment exercise and were
found to fall below the one in a million per year threshold.
[72]
As for the allegation that the CNSC
misinterpreted the evidence and that one of OPG’s reports showed that the
probability of a multi-reactor externally caused accident actually exceeds one
in a million per year, the appellants have taken this document out of context.
It was created before the EIS was undertaken and did not factor in the
improvements that OPG made and planned to make as a result of the lessons
learned from Fukushima. When these improvements are factored in, as they were
in the EIS, the probability of the particular accident’s occurrence fell below
the one in a million per year threshold, as was documented in the EIS.
[73]
The CNSC assessed the likelihood of all accidents
based on these improvements being implemented, which is not an unreasonable approach
as the improvements were found to be mitigation measures and the CNSC ensured
their follow up through the licencing program under the NSCA. It is
incontrovertible that an RA may require a follow up program under section 17 and
subsection 20(2) of CEAA 1992 and the CNSC accordingly did not err in so
doing.
[74]
Similarly, as concerns the allegation that the
selection of the probability threshold of one in a million per year is not
stringent enough, there is no basis to disturb the RAs’ selection of this
threshold. As was noted in OPG v. Greenpeace at paragraph 70 (quoting Friends
of the West Country Assn. v. Canada (Minister of Fisheries and Oceans),
[2000] 2 F.C. 263 at 280-281, 1999 CanLII 9379 (F.C.A.)), CEAA 1992 does
not require that all accidents, no matter how improbable, be taken into account
in an EA or the process would be interminable.
[75]
Given the wide-ranging discretion afforded to
RAs to set the scope of the factors to be assessed under section 16 of CEAA
1992, an RA’s choice as to what types of accidents should be assessed
must be respected unless it is irrational. Here, 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.
[76]
Finally, contrary to what the appellants assert,
the CNSC did not delegate the environmental assessment it was required to
undertake to the licencing process under the NSCA when it mentioned in
its decision that less probable accidents excluded from the scope of the EA
would nonetheless be examined as part of the safety review to be undertaken by
the CNSC in the upcoming licencing process. This comment was offered to assuage
Greenpeace’s concerns and is not an admission that the scope of accidents that
required consideration under CEAA 1992 needed to be broadened. The CNSC
examined each of the factors it was required to assess with respect to nuclear
accidents under section 16 of CEAA 1992 and therefore did not improperly
defer part of that assessment to the licencing process.
[77]
The appellants’ arguments regarding the
exclusion of severe low probability nuclear accidents from the scope of the
assessment are therefore without merit.
[78]
On the issue of costs, given the agreement that
additional submissions were to be filed on this issue, I agree with the
appellants that the Federal Court judge ought to have heard from the appellants
before ruling against them on costs. However, despite the failure to hear from
them I do not believe that the appellants are entitled to their costs before
the Federal Court.
[79]
Under section 52 of the Federal Courts Act,
R.S.C. 1985, c. F-7, this Court is empowered to make the decision that the
Federal Court should have made, if appropriate. Having heard the appellants on
the issue of costs, I see no reason to disturb the Federal Court’s costs award
as the award is appropriate. The mere fact that the appellants are public
interest litigants does not immunize them from costs awards, as has been held
frequently, see e.g. Inverhuron FCA at paragraphs 62, 69-70; Lavoie
v. Canada (Minister of the Environment), 2002 FCA 268 at paragraph 22, 291
N.R. 282; Inter-Church Uranium Committee Educational Co-operative v. Canada
(Atomic Energy Control Board), 2006 FCA 274 at paragraph 7, [2006] F.C.J.
No. 1204. And, there is nothing about this case which would warrant departing
from the normal rule that costs should be awarded to a successful party. I thus
would not disturb the Federal Court’s costs award.
VII.
Conclusion and Costs
[80]
It thus follows that this application for
judicial review should be dismissed and the respondents are entitled to their
costs on appeal.
[81]
I would accordingly dismiss this appeal, with
costs.
"Mary J.L. Gleason"
“I agree
David Stratas J.A.”
“I agree
C.
Michael Ryer J.A.”
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