Date: 20160413

Docket: A-564-14

Citation: 2016 FCA 114

CORAM:

STRATAS J.A. RYER J.A. GLEASON J.A.

 

BETWEEN:

GREENPEACE CANADA, CANADIAN ENVIRONMENTAL LAW ASSOCIATION, LAKE ONTARIO WATERKEEPER AND NORTHWATCH

Appellants

and

ATTORNEY GENERAL OF CANADA AND ONTARIO POWER GENERATION INC.

Respondents

Heard at Toronto, Ontario, on December 2, 2015.

Judgment delivered at Ottawa, Ontario, on April 13, 2016.

REASONS FOR JUDGMENT BY:	GLEASON J.A.
CONCURRED IN BY:	STRATAS J.A. RYER J.A.

 

Date: 20160413

Docket: A-564-14

Citation: 2016 FCA 114

CORAM:

STRATAS J.A. RYER J.A. GLEASON J.A.

 

BETWEEN:

GREENPEACE CANADA, CANADIAN ENVIRONMENTAL LAW ASSOCIATION, LAKE ONTARIO WATERKEEPER AND NORTHWATCH

Appellants

and

ATTORNEY GENERAL OF CANADA AND ONTARIO POWER GENERATION INC.

Respondents

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:

1. submission of the project description by OPG;
2. preparation by the RAs’ staff of a draft Environmental Assessment Scoping Information Document [EASID] that detailed the proposed scope of OPG’s project;
3. provision of comments by the public and interested parties, including the appellants, on the draft EASID;
4. finalization of the EASID by the RAs;
5. 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;
6. review of the EIS by the RAs’ staff and submission of questions and comments to OPG;
7. provision by OPG of replies to these questions and comments;
8. conduct of consultations by OPG with potentially interested parties;
9. preparation and release of a draft EA Screening Report by the RAs’ staff;
10. provision of comments on the draft EA Screening Report by interested parties, including all four appellants;
11. 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
12. 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:

[42]           Section 16 governs the factors to be considered in the EA. It provides in relevant part as follows:

[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.”

APPENDIX

Canadian Environmental Assessment Act, S.C. 1992, c. 37 (repealed July 6, 2012):

Fisheries Act, R.S.C. 1985, c. F-14, s. 32 (repealed November 24, 2013):

Nuclear Safety and Control Act, S.C. 1997, c. 9 (subsection 24(8) repealed June 28, 2012):

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

	Docket:		A-564-14
STYLE OF CAUSE:		GREENPEACE CANADA et al. v. ATTORNEY GENERAL OF CANADA et al.
PLACE OF HEARING:			Toronto, Ontario
DATE OF HEARING:			December 2, 2015
REASONS FOR JUDGMENT BY:			GLEASON J.A.
CONCURRED IN BY:			STRATAS J.A. RYER J.A.
DATED:			april 13, 2016

APPEARANCES:

Theresa McClenaghan Richard Lindgren Kaitlyn Mitchell Laura Bowman	For The Appellants
Michael Morris Joël Robichaud Laura Tausky	For The Respondent ATTORNEY GENERAL OF CANADA
John Laskin James Gotowiec	for the respondent ontario power generation inc.

SOLICITORS OF RECORD:

Theresa McClenaghan Richard Lindgren Kaitlyn Mitchell Laura Bowman Barristers and Solicitors Toronto, Ontario	For The Appellants
William F. Pentney Deputy Attorney General of Canada	For The Respondent ATTORNEY GENERAL OF CANADA
Torys LLP Barristers and Solicitors Toronto, Ontario	for the respondent ONTARIO POWER GENERATION INC.