GREENPEACE CANADA, LAKE ONTARIO WATERKEEPER, NORTHWATCH v. CANADIAN, 2014 FC 463

Date: 20140514 Dockets: T-1572-11 T-1723-12 Citation: 2014 FC 463 Ottawa, Ontario, May 14, 2014 PRESENT: The Honourable Mr. Justice Russell BETWEEN: GREENPEACE CANADA, LAKE ONTARIO WATERKEEPER, NORTHWATCH AND CANADIAN ENVIRONMENTAL LAW ASSOCIATION Applicants and ATTORNEY GENERAL OF CANADA, MINISTER OF THE ENVIRONMENT, MINISTER OF FISHERIES AND OCEANS, MINISTER OF TRANSPORT, CANADIAN NUCLEAR SAFETY COMMISSION AND ONTARIO POWER GENERATION INC. Respondents AND BETWEEN: GREENPEACE CANADA AND CANADIAN ENVIRONMENTAL LAW ASSOCIATION Applicants and ATTORNEY GENERAL OF CANADA AND ONTARIO POWER GENERATION INC. Respondents REASONS FOR JUDGMENT AND JUDGMENT

TABLE OF CONTENTS I. INTRODUCTION .. 5 II. BACKGROUND .. 5 III. DECISIONS UNDER REVIEW ... 10 IV. ISSUES . 13 V. STANDARD OF REVIEW ... 14 VI. STATUTORY PROVISIONS . 20 VII. ARGUMENT .. 28 A. Applicants . 28 EA Report - T-1572-11 . 28 Failure to Comply with the CEAA .. 28 The PPE Approach . 30 Decommissioning and Waste Management 35 Procedural Errors . 37 Site Preparation License T-1723-12 . 40 Legal Prerequisites . 41 Failure to Comply with Mandatory Requirements . 41 Procedural Fairness . 42 B. Respondents . 43 EA Report – T-1572-11 . 43 Separate Scoping Decision – Collateral Attack . 44 There Was a Project to Assess . 45 The Bounding Approach . 46 Compliance with

Section 16 of the Act 48 No Unlawful Delegation . 51 No Procedural Errors . 54 Site Preparation License T-1723-12 . 55 Compliance with Statutory Scheme . 55 Procedural Fairness . 57 C. Applicant’s Reply Submissions . 58 EA Report T-1572-11 . 58 No Collateral Attack . 58 VIII. ANALYSIS . 61

D.

The Environmental Assessment – T-1572-11 . 61 The Dispute . 61 The Law and Guiding Principles . 63 The Issues Raised . 71 No Project to Assess . 71 Improper Collateral Attack . 73 Scope of the Project 78 Scope of the factors to be considered . 82 Was there a Failure to Assess the Project in Accordance with the CEAA? . 93 What did the CEAA require? . 101 Evidence put forward by the Applicants . 118 Links to the issue of improper delegation . 124 Gaps in the bounding scenario regarding hazardous substance emissions and on-site 132 chemical inventories . 132 Consideration of spent nuclear fuel 149 Deferral of the analysis of a severe common cause accident 165 Relevant Case Law .. 172 W est Vancouver . 172 Inter-Church Uranium Committee . 175 Express Pipelines . 178 Failure to Assess “Need” and “Alternatives” to the Project 182 Unlawful Delegation . 189 Procedural Issues . 193 Conclusions . 195 E.

The Site Preparation License T-1723-12 . 197 The Dispute . 197 Did the EA Comply with the CEAA? . 198 Did the CNSC Comply with the NSCA? . 198

Procedural Fairness . 202 The Motion to Strike . 204 Merits of the Procedural Fairness Issue . 207 IX. JUDGMENT .. 212 INTRODUCTION [ 1 ] This judgment relates to two applications for judicial review under s. 18.1 of the Federal Courts Act , RSC 1985, c F-7 [Federal Courts Act] in relation to the Darlington New Nuclear Power Plant Project (Project) proposed by Ontario Power Generation (OPG).

The first application challenges the adequacy of the federal environmental assessment (EA) conducted by a joint review panel (JRP or Panel) established under a March 2009 agreement between the federal Minister of the Environment (Minister) and the Canadian Nuclear Safety Commission (CNSC) pursuant to s. 40 of the Canadian Environmental Assessment Act , SC 1992, c 37 (CEAA or the Act). Because the assessment was concluded on August 25, 2011, the governing statute is the CEAA, which has since been repealed and replaced.

The second application challenges a Site Preparation Licence (Licence) that was issued by the CNSC to OPG on August 17, 2012 under the Nuclear Safety and Control Act , SC 1997, c 9 (NSCA), following the completion of the EA and the Government of Canada’s response to the Panel’s Environmental Assessment Report (EA Report). BACKGROUND [ 2 ] In June 2006, the Ontario Minister of Energy directed OPG, which is wholly owned by the Province of Ontario, to begin the process of seeking federal approval for new nuclear power generation units at an existing site.

This directive coincided with a Supply Mix Directive issued to the Ontario Power Authority, indicating that a combination of new and refurbished nuclear units would be needed to meet future base-load energy requirements in Ontario. The Government of Ontario later selected the existing Darlington nuclear site as the preferred site for the Project. In September 2006, OPG applied to the CNSC for a licence to prepare the Darlington site for the construction of a new nuclear power generation facility involving up to four new nuclear reactors.

The Darlington site is located in Bowmanville, Ontario, on the north shore of Lake Ontario, in the Municipality of Clarington, and is the location of the existing Darlington Nuclear Generating Station (Darlington NGS). [ 3 ] Under the Law List Regulations , SOR/94-636 (Law List Regulations), an environmental assessment was required before the Licence could be granted.

The Project proposed by OPG – which includes the construction, operation, decommissioning and abandonment of the proposed reactors and the management of the associated conventional and radioactive waste – also required other federal approvals that would trigger a CEAA assessment under the Law List Regulations, including authorizations under s. 35(2) of the Fisheries Act , RSC 1985, c F-14 (Fisheries Act) and s. 5 of the Navigable Waters Protection Act , RSC 1985, c N-22 (NWPA) (now titled the Navigation Protection Act ).

The CNSC requested that the Minister refer the Project for review by a joint review panel, which the Minister did in March 2008.

The Panel was “joint” in the sense that it was to conduct an environmental assessment of the Project under the CEAA, and was also to function as a CNSC panel for the purpose of reviewing the Licence application. [ 4 ] In September 2008, the Minister and the CNSC published drafts of the Environmental Impact Statement Guidelines (EIS Guidelines) for the Project and the Joint Review Panel Agreement (Agreement), including the Panel’s Terms of Reference (Terms of Reference), for public comment.

The EIS Guidelines provided direction to OPG on how to develop its Environmental Impact Statement (EIS) for the Panel’s consideration, and the Agreement outlined the framework for the establishment of the Panel and the conduct of the joint review. The final versions of these documents were published on March 12, 2009, after public comments were received and considered.

Both documents stated that a range of designs were being considered and no decision had yet been made regarding reactor technology. [ 5 ] On September 30, 2009, OPG filed its EIS, along with supporting documents and a revised Site Preparation Licence application. Since no specific nuclear reactor technology had been selected, OPG prepared its EIS based on what it called a “bounding approach” – also referred to as a “plant parameter envelope” (PPE) or “bounding scenario” approach – encompassing several possible reactor technologies.

As described by OPG in its submissions to the Court, this approach involves identifying the salient design elements of the Project and, for each of those elements, applying the “limiting value” (the value with the greatest potential to result in an adverse environmental effect) based on the design options being considered. In theory, this results in a composite picture of the maximum expected environmental impact – the bounding scenario or PPE.

[ 6 ] Initially, three technology options were considered in developing the bounding scenario, referred to as the ACR-1000, US EPR, and AP1000 options. Later in the process, the Enhanced CANDU-6 (EC-6) reactor technology was added as an option, though it was not addressed in the EIS. OPG says the EC-6 option was added to the PPE model in July 2010 based on a letter from the CNSC to the Panel Chair.

The letter explained that the PPE approach is meant to provide a generic “technology-neutral” EIS, and including the EC-6 technology in the Panel’s review would provide flexibility at later stages of the Project and minimize the likelihood that another EA would be required should the EC-6 technology be selected by OPG. The Panel requested additional information from OPG to facilitate its assessment of the EC-6 option.

In October 2010, the Applicants objected to what they characterized as the late inclusion of the EC-6 design based on fairness and other grounds, but these objections were rejected by the Panel. [ 7 ] The three member Panel was appointed on October 30, 2009. In November 2009, the Panel began its review of the sufficiency of the EIS. This included the consideration of comments and recommendations from the public, CNSC staff and other interested parties, including government agencies and departments, over the course of 11 months.

These submissions included a letter from CNSC staff to the Panel secretariat dated November 2, 2009 stating that the EIS contained all of the information required by the EIS Guidelines and the regulations applicable to site preparation under the NSCA . [ 8 ] The Panel made 284 requests to OPG for additional information related to the EIS, and 26 requests relating to the Licence application, based in part on the comments received. Technical briefing sessions open to the public were held at CNSC headquarters in December 2009 and June 2010.

Comments on the sufficiency of the EIS were accepted up until October 8, 2010. The Panel concluded in December 2010 that the EIS and the supplementary responses from OPG contained sufficient information to enable the Panel to proceed to public hearings on the Project. [ 9 ] These hearings were held over 17 days between March 21 and April 8, 2011. The Applicants participated as interveners during both the public hearings and the pre-hearing proceedings.

On the final day of the hearings, the Panel released a revised procedure for written comments, permitting hearing participants (other than OPG) to make final written submissions by May 17, 2011, and OPG to make final written submissions by May 22, 2011. On June 3, 2011, the Panel gave notice that it had obtained and made public all of the information needed to prepare its report, and closed the record for the EA. [ 10 ] On August 25, 2011, the Panel completed the EA and submitted the EA Report to the Minister.

The EA Report concluded that the Project is not likely to cause significant adverse environmental effects, provided the mitigation measures proposed and the commitments made by OPG during the review, as well as the Panel’s 67 recommendations, are implemented. [ 11 ] On September 23, 2011, the Applicants initiated the first of the judicial review applications under consideration here (T-1572- 11), challenging the adequacy of the EA and the EA Report. [ 12 ] Once an EA Report is submitted by a review panel, the responsible authorities prepare a Government Response, which is presented to the Governor in Council (Cabinet) for approval. “Responsible authorities” is a defined term referring in this case to federal departments or agencies that must make some decision or take some action in order for a project to move forward, and who are therefore responsible for ensuring the EA is conducted (see CEAA, ss. 2(1) , 5(1) (d), 11(1) ).

In this case, the CNSC, the Department of Fisheries and Oceans (DFO) and Transport Canada are responsible authorities, and the Respondent Attorney General of Canada (AGC) indicates that the Department of Natural Resources and Health Canada were also involved in drafting the Government Response. [ 13 ] The Government Response was issued on May 2, 2012, stating that the Government had concluded that the Project is not likely to cause significant adverse environmental effects.

The Act requires responsible authorities to take a “course of action” that is consistent with the Cabinet-approved Government Response (see CEAA, s. 37(1.1) (c)).

On May 8, 2012, the responsible authorities announced their “course of action decision” (or Final Decision) stating that the responsible authorities may exercise any power or perform any duty or function with respect to the Project because they are of the opinion that it is not likely to cause significant adverse environmental effects. [ 14 ] On August 17, 2012, the Panel, acting as a panel of the CNSC for the purposes of the Licence application, issued a ten-year licence to OPG to undertake a range of site preparation activities in relation to the Project. DECISIONS UNDER REVIEW

[ 15 ] The EA Report, submitted by the Panel to the Minister on August 25, 2011, is 143 pages in length (plus appendices) and includes 67 recommendations directed to federal, provincial and municipal governmental authorities.

The EA Report’s overall conclusion was that “the Project is not likely to cause significant adverse environmental effects, provided the mitigation measures proposed and commitments made by OPG during the review and the Panel’s recommendations are implemented”: EA Report at p. 143. [ 16 ] With respect to the use of the PPE approach, the Panel made the following observations at page 45 of the Report: The Panel accepts the use of a plant parameter envelope for environmental assessment purposes as an approach that allows the prediction of adverse environmental effects for a select group of reactor technologies.

The Panel recognizes, however, that this is a departure from a more standard approach where the major components of a project are defined in advance of an environmental assessment. Additionally, the Panel notes that aspects of the plant parameter envelope were based on preliminary design information.

As such, there will be a need for ongoing verification of the conclusions reached on the significance of adverse environmental effects. [ 17 ] The Panel stated that if the Project is to go forward, the selected reactor technology “must be demonstrated to conform to the plant parameter envelope and regulatory requirements, and must be consistent with the assumptions, conclusions and recommendations of the environmental assessment and the Government response to [the EA Report].” The Panel noted that this will need to be evaluated by the responsible authorities once a reactor technology is selected, and will be required to be demonstrated as part of the Application for a Licence to Construct: EA Report at p. 11.

If the reactor technology selected is fundamentally different than those assessed, the Panel stated, “then this review does not apply and a new environmental assessment must be conducted”: EA Report at p. 143. This is reflected in Recommendation 1 of the EA Report, which reads: The Panel understands that prior to construction, the Canadian Nuclear Safety Commission will determine whether this environmental assessment is applicable to the reactor technology selected by the Government of Ontario for the Project.

Nevertheless, if the selected reactor technology is fundamentally different from the specific reactor technologies bounded by the plant parameter envelope, the Panel recommends that a new environmental assessment be conducted. [ 18 ] The Licence, which is valid from August 17, 2012 to August 17, 2022, authorizes OPG to undertake a range of site preparation activities, including clearing and grubbing of vegetation, excavation and grading of the site, installation of services and utilities, construction of administrative and support buildings, and other activities.

It is supported by a Record of Proceedings, Including Reasons for Decision, comprising over 50 pages (Reasons for the Licence Decision). Those Reasons describe the matters to be decided and the conclusions of the Panel (acting as the Commission) as follows: 9. In considering the application, the Commission was required to decide whether the site is suitable for the construction of a nuclear generating station, in accordance with the regulatory requirements of the Class I Nuclear Facilities Regulations and the expectations set forth in CNSC Regulatory Document RD-346.

The Commission was also required to decide, pursuant to subsection 24(4) of the NSCA :

a) if OPG is qualified to carry on the activities that the licence would authorize; and

b) if, in carrying on those activities, OPG would make adequate provision for the protection of the environment, the health and safety of persons and the maintenance of national security and measures required to implement international obligations to which Canada has agreed. […] 13. Based on its consideration of the matter, as described in more detail in the following sections of this Record of Proceedings, the Commission concludes that OPG is qualified to carry on the activities that the licence will authorize.

The Commission is of the opinion that OPG, in carrying on those activities, will make adequate provision for the protection of the environment, the health and safety of persons and the maintenance of national security and measures required to implement international obligations to which Canada has agreed…

ISSUES [19] The issues raised in these judicial review applications can be summarized as follows: (

a) Did the Panel fail to comply with the requirements of the CEAA in conducting the EA by: i. Failing to conduct an environmental assessment of a “project” as defined in the Act; ii. Failing to consider the “environmental effects” of the Project as required by s. 16 of the Act; iii. Failing to assess the need for, and alternatives to, the Project as required by the Act and the Panel’s Terms of Reference; iv. Failing to fulfill its information gathering, public consultation and reporting duties under s. 34 of the CEAA; or v. Unlawfully delegating its duties under the Act? (

b) Did the Panel fail to comply with the requirements of the CEAA and the NSCA in issuing the Licence by: i. Failing to ensure that an environmental assessment compliant with the CEAA was conducted prior to issuing the Licence;or ii. Failing to comply with s. 24(4) of the NSCA by considering and granting the Licence in the absence of informationspecifically required by the relevant regulations? (

c) Did the Panel breach a duty of procedural fairness by preventing effective public participation in the joint review through itsprocedural rulings, or by relying on extraneous evidence in granting the Licence? STANDARD OF REVIEW [20] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysisneed not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court issettled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review.

Only where this searchproves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles ofjudicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis:Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48. [21] There is no dispute that issues of procedural fairness are reviewable on a standard of correctness: see Mission Institution vKhela, 2014 SCC 24 at para 79; Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29 at para100; Sketchley v Canada (Attorney General), 2005 FCA 404 at para 53. [22] The Applicants submit that failure to comply with a mandatory requirement of the CEAA is an error of law reviewable on thecorrectness standard, and that this standard applies to the question of whether the Panel in this case met its legal duties under the Act:MiningWatch Canada v Canada (Minister of Fisheries and Oceans), 2007 FC 955 at paras 135-37 [MiningWatch (FC)], rev’d 2008 FCA209, rev’d 2010 SCC 2; Pembina Institute for Appropriate Development v Canada (Attorney General), 2008 FC 302 at paras 37, 41[Pembina Institute]; Alberta Wilderness Assn v Cardinal River Coals Ltd, (FC), [1999] 3 FC 425 (TD) at paras 39-41[Cardinal River Coals]; Friends of the West Country Assn v Canada (Minister of Fisheries and Oceans), (FCA),[2000] 2 FC 263 (FCA) at para 25 [Friends of the West Country]; Prairie Acid Rain Coalition v Canada (Minister of Fisheries andOceans), 2006 FCA 31 at paras 9-12; Environmental Resource Centre v Canada (Minister of the Environment), 2001 FCT 1423, [2001]FCJ No 1937 (TD) at paras 154-59 [Environmental Resource Centre]; Georgia Straight Alliance v Canada (Minister of Fisheries andOceans) (sub nom Canada (Fisheries and Oceans) v David Suzuki Foundation), 2012 FCA 40 at paras 88-90, 96-106 [David Suzuki]. [23] The Respondents argue that, in substance, the Applicants are attacking the adequacy or “quality” of the evidence and thereasonableness of the conclusions based upon it, and the Court has cautioned against mis-characterizing such matters as issues of failingto comply with the requirements of the Act: Pembina Institute, above, at paras 38-40.

They note that the Panel’s consideration of theevidence, including conclusions about its adequacy or the significance of environmental effects, are to be reviewed on a reasonablenessstandard: Pembina Institute, above, at para 37; Bow Valley Naturalists Society v Canada(Minister of Canadian Heritage), (FCA), [2001] 2 FC 461 (FCA) at para 55 [Bow Valley]; Inverhuron & District Ratepayers’ Assn v Canada (Minister of theEnvironment), 2001 FCA 203 at paras 32-40 [Inverhuron (FCA)]; Alberta Wilderness Assn v Express Pipelines Ltd (1996), (FCA), 137 DLR (4th) 177, [1996] FCJ No 1016 (FCA) at para 10 [Express Pipelines].

They argue that the same is true withrespect to questions of whether the Panel properly considered the need for, and alternatives to, the Project: Grand Riverkeeper, Labrador

Inc v Canada (Attorney General) , 2012 FC 1520 at paras 27-40 [ Grand Riverkeeper ] . The Respondents point out that, while courts must ensure that the requirements of the CEAA are followed, they must defer to substantive determinations.

A reviewing court is not to act as an “academy of science.” Provided the statutory steps are followed, it is not for judges to decide what projects should be authorized: Inverhuron (FCA) , above, at para 36, citing Bow Valley , above. [ 24 ] In addition, based on recent developments in the law on judicial review, the Respondents argue that, even in respect of many questions of law, the Panel’s findings are entitled to deference: Canada (Canadian Human Rights Commission) v Canada (Attorney General) , 2011 SCC 53 at para 24 ; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 33-34 [ Alberta Teachers ] .

Similarly, they note that this Court has established in the context of a licence renewal application that the CNSC’s

interpretation and application of the NSCA is to be reviewed on a standard of reasonableness: Fond du Lac Denesuline First Nation v Canada (Attorney General) , 2010 FC 948 at para 42 , aff’d 2012 FCA 73 [ Fond du Lac ] . [ 25 ] It is true that prior to Dunsmuir , above, this Court and the Court of Appeal consistently applied a standard of correctness when reviewing a review panel or other administrative decision-maker’s

interpretation of the CEAA and their duties under that Act ( Cardinal River Coals , above; Friends of the West Country , above; Bow Valley , above, at para 55 ; Environmental Resource Centre , above, at paras 138, 154 ; Pembina Institute , above, at paras 37, 41), and applied a standard or reasonableness when reviewing a panel’s weighing of the evidence and substantive conclusions based on the evidence, such as whether a project is likely to cause significant adverse environmental effects ( Bow Valley , above, at para 55 ; Inverhuron (FCA ), above, at paras 39-40; Pembina Institute , above, at para 37).

Thus, for example, interpreting the duty to consider the factors set out in s. 16 ( Environmental Resource Centre , above, at paras 138, 152-154 ) and the statutory information gathering and reporting duties of a review panel set out in ss. 34(

a) and (c) ( Cardinal River Coals , above, at para 26 ) were seen as questions of law reviewable on a standard of correctness. [ 26 ] In practice, it sometimes proved difficult to discern the difference between questions engaging a panel or decision-maker’s

interpretation of their duties under the CEAA on the one hand, and questions of the sufficiency or quality of the evidence before the decision-maker on the other ( see Cardinal River Coals , above, at para 24 ; Pembina Institute , above, at para 39; Express Pipelines , above, at para 10 ).

This is not surprising, since fulfilling a duty to “consider,” to obtain “the information required,” or to prepare a report setting out one’s “rationale, conclusions and recommendations” is always a matter of degree; one could always go further in considering factors, gathering information, or setting out the rationale for one’s conclusions. [ 27 ] The post- Dunsmuir jurisprudence tends to reflect an appreciation of this fact. I do not doubt that there is an element of statutory

interpretation involved in determining how far to go in gathering information, considering a particular factor, or reporting on one’s rationale, conclusions and recommendations.

But this is also a matter of judgment based on the facts and circumstances of each particular case, and is a question upon which a review panel can be expected to bring its experience and expertise to bear: see Grand Riverkeeper , above, at paras 35-40 ; Conseil des Innus de Ekuanitshit v Canada (Attorney General) , 2013 FC 418 at paras 69-71 [ Conseil des Innus de Ekuanitshit ]; Canadian Transit Co v Canada (Minister of Transport) , 2011 FC 515 at paras 83-86 , aff’d 2012 FCA 70 [ Canadian Transit ] .

This is in keeping with the now firmly established principle that an administrative decision-maker interpreting its home statute or a closely related statute is entitled to deference: see McLean v British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 SCR 895 at paras 21-22 [ McLean ]; Alberta Teachers , above, at para. 34 ; Dunsmuir , above, at para 54 .

The Federal Court of Appeal has recently confirmed that the principle from David Suzuki , above, holding that this presumption of deference does not apply in the same manner to non-adjudicative decision-makers, has been superseded by later Supreme Court jurisprudence: see Kandola v Canada (Minister of Citizenship and Immigration) , 2014 FCA 85 at paras 30-42 (per Noel JA, Webb JA concurring) and para 86 (per Mainville JA) . [ 28 ] It may be that questions of law could arise under the CEAA or its successor legislation in relation to which, based on a contextual analysis, the presumption of reasonableness review would be rebutted and a standard of correctness would apply: see McLean , above, at para 22 ; Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 35 , [2012] 2 SCR 283 , at para. 16 ; Dunsmuir , above, at paras 58-61 .

However, I do not think any such questions arise here. While there is an element of statutory

interpretation involved in answering issues a. i. through a. v, each is also a question of mixed fact and law that engages the expertise and judgment of the Panel. As such, in my view, each of these issues is reviewable on a standard of reasonableness. [ 29 ] Similarly, as I found in Fond du Lac , above, at para 42 , “reasonableness is the appropriate standard upon which to review the [CNSC’s]

interpretation and application of the [ NSCA ]” in the course of its licensing decisions. As such, a standard of reasonableness applies in reviewing the Panel’s (functioning as the Commission) decision to issue the Site Preparation Licence in this case, including issues b. i. and b. ii. above. [ 30 ] For clarity, I would note that because the CEAA sets out specific duties and responsibilities for a review panel, a reviewing court must go beyond assessing whether a panel came to a reasonable conclusion. The Court must have regard for the duties set out in the Act, and ensure that the panel has complied with them.

However, in doing so, a degree of deference is owed to the panel’s judgment in terms of how to fulfill those responsibilities in a given case. They are duties that must be interpreted and carried out reasonably in the

circumstances: see Grand Riverkeeper , above, at para 62 . [ 31 ] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir , above, at para 47 , and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59 [ Khosa ] .

Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” STATUTORY PROVISIONS [ 32 ] The following provisions of the CEAA are applicable in these proceedings: Purposes 4.

(1) The purposes of this Act are (

a) to ensure that projects are considered in a careful and precautionary manner before federal authorities take action in connection with them, in order to ensure that such projects do not cause significant adverse environmental effects; (

b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy; […] (

d) to ensure that there be opportunities for timely and meaningful public participation throughout the environmental assessment process. […] Duties of the Government of Canada

(2) In the administration of this Act , the Government of Canada, the Minister, the Agency and all Objet 4.

(1) La présente loi a pour objet :

a) de veiller à ce que les projets soient étudiés avec soin et prudence avant que les autorités fédérales prennent des mesures à leur égard, afin qu’ils n’entraînent pas d’effets environnementaux négatifs importants;

b) d’inciter ces autorités à favoriser un développement durable propice à la salubrité de l’environnement et à la santé de l’économie; […]

d) de veiller à ce que le public ait la possibilité de participer de façon significative et en temps opportun au processus de l’évaluation environnementale. […] Mission du gouvernement du Canada

(2) Pour l’application de la

bodies subject to the provisions of this Act, including federal authorities and responsible authorities, shall exercise their powers in a manner that protects the environment and human health and applies the precautionary principle. […] Factors to be considered 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: (

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; (

b) the significance of the effects referred to in paragraph (a); (

c) comments from the public that are received in accordance with this Act and the regulations; (

d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and (

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. présente loi, le gouvernement du Canada, le ministre, l’Agence et les organismes assujettis aux dispositions de celle-ci, y compris les autorités fédérales et les autorités responsables, doivent exercer leurs pouvoirs de manière à protéger l’environnement et la santé humaine et à appliquer le principe de la prudence. […] Éléments à examiner 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 :

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;

b) l’importance des effets visés à l’alinéa a);

c) les observations du public à cet égard, reçues conformément à la présente loi et aux règlements;

d) les mesures d’atténuation réalisables, sur les plans technique et économique, des effets environnementaux importants du projet;

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

Additional factors

(2) In addition to the factors set out in subsection (1), every comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors: (

a) the purpose of the project; (

b) alternative means of carrying out the project that are technically and economically feasible and the environmental effects of any such alternative means; (

c) the need for, and the requirements of, any follow-up program in respect of the project; and (

d) the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present and those of the future. Determination of factors

(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 (

a) by the responsible authority; or (

b) where a project is referred to a mediator or a review panel, by the Minister, after consulting the responsible authority, when fixing the terms of reference of the mediation or review panel. […] consultation de celle-ci, peut exiger la prise en compte. Éléments supplémentaires

(2) L’étude approfondie d’un projet et l’évaluation environnementale qui fait l’objet d’une médiation ou d’un examen par une commission portent également sur les éléments suivants :

a) les raisons d’être du projet;

b) les solutions de rechange réalisables sur les plans technique et économique, et leurs effets environnementaux;

c) la nécessité d’un programme de suivi du projet, ainsi que ses modalités;

d) la capacité des ressources renouvelables, risquant d’être touchées de façon importante par le projet, de répondre aux besoins du présent et à ceux des générations futures. Obligations

(3) L’évaluation de la portée des éléments visés aux alinéas (1)a),

b) et

d) et (2)b),

c) et

d) incombe :

a) à l’autorité responsable;

b) au ministre, après consultation de l’autorité responsable, lors de

Assessment by review panel 34. A review panel shall, in accordance with any regulations made for that purpose and with its term of reference, (

a) ensure that the information required for an assessment by a review panel is obtained and made available to the public; (

b) hold hearings in a manner that offers the public an opportunity to participate in the assessment; (

c) prepare a report setting out (

i) the rationale, conclusions and recommendations of the panel relating to the environmental assessment of the project, including any mitigation measures and follow-up program, and (ii) a

summary of any comments received from the public; and (

d) submit the report to the Minister and the responsible authority. la détermination du mandat du médiateur ou de la commission d’examen. […] Commission d’évaluation environnementale 34. La commission, conformément à son mandat et aux règlements pris à cette fin :

a) veille à l’obtention des renseignements nécessaires à l’évaluation environnementale d’un projet et veille à ce que le public y ait accès;

b) tient des audiences de façon à donner au public la possibilité de participer à l’évaluation environnementale du projet;

c) établit un rapport assorti de sa justification, de ses conclusions et recommandations relativement à l’évaluation environnementale du projet, notamment aux mesures d’atténuation et au programme de suivi, et énonçant, sous la forme d’un résumé, les observations reçues du public;

d) présente son rapport au ministre et à l’autorité responsable. [ 33 ] The following provisions of the NSCA are applicable in these proceedings:

Licences 24.

(1) The Commission may establish classes of licences authorizing the licensee to carry on any activity described in any of paragraphs 26(

a) to (

f) that is specified in the licence for the period that is specified in the licence. […] Conditions for issuance, etc.

(4) No licence shall be issued, renewed, amended or replaced — and no authorization to transfer one given — unless, in the opinion of the Commission, the applicant or, in the case of an application for an authorization to transfer the licence, the transferee (

a) is qualified to carry on the activity that the licence will authorize the licensee to carry on; and (

b) will, in carrying on that activity, make adequate provision for the protection of the environment, the health and safety of persons and the maintenance of national security and measures required to implement international obligations to which Canada has agreed. […] Catégories 24.

(1) La Commission peut établir plusieurs catégories de licences et de permis; chaque licence ou permis autorise le titulaire à exercer celles des activités décrites aux alinéas 26a) à

f) que la licence ou le permis mentionne, pendant la durée qui y est également mentionnée. […] Conditions préalables à la délivrance

(4) La Commission ne délivre, ne renouvelle, ne modifie ou ne remplace une licence ou un permis ou n’en autorise le transfert que si elle est d’avis que l’auteur de la demande ou, s’il s’agit d’une demande d’autorisation de transfert, le cessionnaire, à la fois :

a) est compétent pour exercer les activités visées par la licence ou le permis;

b) prendra, dans le cadre de ces activités, les mesures voulues pour préserver la santé et la sécurité des personnes, pour protéger l’environnement, pour maintenir la sécurité nationale et pour respecter les obligations internationales que le Canada a assumées. […] [ 34 ] The following provisions of the Class I Nuclear Facilities Regulations , SOR/2000-204 (Regulations) are applicable in these proceedings: General Requirements 3. An application for a licence in respect of a Class I nuclear Dispositions générales 3. La demande de permis visant une installation nucléaire de

facility, other than a licence to abandon, shall contain the following information in addition to the information required by

section 3 of the General Nuclear Safety and Control Regulations: (

a) a description of the site of the activity to be licensed, including the location of any exclusion zone and any structures within that zone; (

b) plans showing the location, perimeter, areas, structures and systems of the nuclear facility; (

c) evidence that the applicant is the owner of the site or has authority from the owner of the site to carry on the activity to be licensed; (

d) the proposed quality assurance program for the activity to be licensed; (

e) the name, form, characteristics and quantity of any hazardous substances that may be on the site while the activity to be licensed is carried on; (

f) the proposed worker health and safety policies and procedures; (

g) the proposed environmental protection policies and procedures; (

h) the proposed effluent and environmental monitoring programs; catégorie I, autre qu'un permis d'abandon, comprend les renseignements suivants, outre ceux exigés à l'article 3 du Règlement général sur la sûreté et la réglementation nucléaires:

a) une description de l'emplacement de l'activité visée par la demande, y compris l'emplacement de toute zone d'exclusion et de toute structure s'y trouvant;

b) des plans indiquant l'emplacement, le périmètre, les aires, les ouvrages et les systèmes de l'installation nucléaire;

c) la preuve que le demandeur est le propriétaire de l'emplacement ou qu'il est mandaté par celui-ci pour exercer l'activité visée;

d) le programme proposé d'assurance de la qualité proposé pour l'activité visée;

e) le nom, la forme, les caractéristiques et la quantité des substances dangereuses qui pourraient se trouver sur l'emplacement pendant le déroulement de l'activité visée;

f) les politiques et procédures proposées relativement à la santé et à la sécurité des travailleurs;

g) les politiques et procédures proposées relativement à la protection de l'environnement;

h) les programmes proposés pour la surveillance de l'environnement et des effluents;

i) lorsque la demande vise une installation nucléaire mentionnée à l'alinéa 2b) du Règlement sur la sécurité nucléaire, les renseignements exigés à l'article 3 de ce règlement;

(

i) if the application is in respect of a nuclear facility referred to in paragraph 2(

b) of the Nuclear Security Regulations, the information required by

section 3 of those Regulations ; (

j) the proposed program to inform persons living in the vicinity of the site of the general nature and characteristics of the anticipated effects on the environment and the health and safety of persons that may result from the activity to be licensed; and (

k) the proposed plan for the decommissioning of the nuclear facility or of the site. Licence to Prepare Site 4. An application for a licence to prepare a site for a Class I nuclear facility shall contain the following information in addition to the information required by

section 3: (

a) a description of the site evaluation process and of the investigations and preparatory work that have been and will be done on the site and in the surrounding area; (

b) a description of the site's susceptibility to human activity and natural phenomena, including seismic events, tornadoes and floods; (

c) the proposed program to determine the environmental baseline characteristics of the site and the surrounding area; (

d) the proposed quality

j) le programme destiné à informer les personnes qui résident à proximité de l'emplacement de la nature et des caractéristiques générales des effets prévus de l'activité visée sur l'environnement ainsi que sur la santé et la sécurité des personnes;

k) le plan proposé pour le déclassement de l'installation nucléaire ou de l'emplacement. Permis de préparation de l'emplacement 4. La demande de permis pour préparer l'emplacement d'une installation nucléaire de catégorie I comprend les renseignements suivants, outre ceux exigés à l'article 3 :

a) une description du processus d'évaluation de l'emplacement, ainsi que des analyses et des travaux préalables qui ont été et seront effectués sur l'emplacement et dans les environs;

b) une description de la vulnérabilité de l'emplacement aux activités humaines et aux phénomènes naturels, y compris les secousses sismiques, les tornades et les inondations;

c) le programme devant servir à déterminer les caractéristiques environnementales de base de l'emplacement et des environs;

d) le programme d'assurance de la qualité proposé pour la conception de l'installation nucléaire;

e) les effets sur l'environnement ainsi que sur la santé et la sécurité des personnes que peut avoir l'activité visée par la demande, de même que les mesures qui seront prises pour éviter ou atténuer ces effets.

assurance program for the designof the nuclear facility; and (

e) the effects on theenvironment and the health andsafety of persons that may resultfrom the activity to be licensed,and the measures that will betaken to prevent or mitigatethose effects. […] […] ARGUMENT Applicants EA Report - T-1572-11 Failure to Comply with the CEAA [35] The Applicants challenge the EA on a number of grounds. Their overall position is that in conducting the EA, the Panel failedto comply with the mandatory requirements of the CEAA and the Panel’s own Terms of Reference.

They say that, as a matter of law, thePanel failed to conduct an EA of a “project” within the meaning of the CEAA, and failed to consider the mandatory factors set out in s.16 of the Act and the Terms of Reference. In addition, they say the Panel failed to comply with the legal duties imposed by s. 34 of theAct in relation to information-gathering, public participation and reporting, and unlawfully attempted to defer or delegate its s. 34 dutiesto other entities and agencies.

The Applicants ask that the Court remit the EA back to the Panel for further consideration in accordancewith the legal requirements of the CEAA. [36] The Applicants contend that the overall aim of the CEAA is to achieve sustainable development by integrating environmentalconsiderations into federal governmental decision-making about projects.

They characterize the Act as the federal “look before you leap”law, noting that s. 4(1) requires “careful and precautionary” consideration of projects and timely and meaningful public participationthroughout the EA process, and s. 4(2) imposes a positive legal duty upon “all bodies subject to the provisions of this Act” to “exercisetheir powers in a manner that protects the environment and human health and applies the precautionary principle.” [37] The Applicants note that the Supreme Court of Canada has endorsed the precautionary principle (R v Hydro Quebec, (SCC), [1997] 3 SCR 213 at para 86; 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40at para 31 [Spraytech]; Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 at para 84).

Moreover, the Federal Court ofAppeal has held that “the precautionary principle states that a project should not be undertaken if it may have serious adverseenvironmental consequences, even if it is not possible to prove with any degree of certainty that these consequences will in factmaterialize” (emphasis added): Canadian Parks and Wilderness Society v Canada (Minister of Canadian Heritage), 2003 FCA 197 atpara 24 [Parks and Wilderness Society]; see also Pembina Institute, above, at paras 29-31.

In the Applicants’ view, the approach takenby the Panel in this case amounts to a “leap before you look” approach. [38] The Applicants argue that it was not possible to conduct an EA that met the requirements of the CEAA when the reactortechnology had not been chosen and other key Project components, such as the site design layout, cooling system option, used nuclearfuel storage option, and radioactive waste management option, remained unspecified.

Although s. 11(1) of the Act provides that an EA isto be conducted as early as practicable in the planning stages of a project and before irrevocable decisions are made, the EA must also beconducted at a stage when it is possible to fully consider and determine whether the project may cause adverse environmental effects:Friends of the Island Inc v Canada (Minister of Public Works), (FC), [1993] 2 FC 229 at paras 41, 47, 53-54, 99[Friends of the Island]. [39] While the Project will require additional licences under the NSCA, the Applicants note that the federal EA at issue here is theonly EA that will be carried out for the Project as a whole.

Contrary to the Respondents’ characterization of environmental assessment as

an information-gathering and planning tool, the Applicants cite Friends of the Oldman River Society v Canada (Minister of Transport), (SCC), [1992] 1 SCR 3 at para 103 [Oldman River] for the proposition that it has “both information-gathering anddecision-making” components and provides decision-makers “with an objective basis for granting or denying approval for a proposeddevelopment.” The PPE Approach [40] The Applicants take issue in particular with the use of the “bounding scenario” or PPE approach described above inconducting the EA.

They argue, first, that this has the consequence that the Panel did not review a “project” within the meaning of theCEAA, because the specific nature of the physical work to be undertaken was not identified. In the alternative, even if the proposalreviewed was a “project,” the adoption of the bounding scenario approach prevented the Panel from assessing the environmental effectsof the Project as required by the CEAA. [41] Since it is “projects” that must undergo EAs, the Applicants argue that the term is central to the statutory scheme. Subsection2(1) of the Act defines a “project” as either: (

a) an undertaking in relation to a physical work; or (

b) an activity listed in the Inclusion ListRegulations. Here, it is the first branch of the definition that is relevant. The Applicants say that, in order to be assessed under thisbranch, the Project must: (

a) be a physical activity by humans; (

b) be in the proposal stage and prior to construction actually starting; and(

c) have identifiable, concrete characteristics and results: Bennett Environmental Inc v Canada (Minister of the Environment), 2005 FCA261 at para 77 [Bennett Environmental]; Canadian Transit, above. [42] In order for there to be a “project,” the Applicants say, a proponent must have identified the specific nature of the proposedphysical work from start to finish, including the preferred means of carrying it out.

This is in contrast to plans, policies and programs,which are broader and more vague and involve “various processes of reforming, adding, and subtracting different elements”: CanadianTransit, above, at paras 34-35; Stephen Hazell and Hugh Benevides, Federal Strategic Environmental Assessment: Towards A LegalFramework, (1998) 7 JELP 349 at 371. When a proponent is still considering alternative means to carry out a project, there is not yet aspecific “physical work” that can be practicably assessed in terms of its environmental effects.

The point of the CEAA is not to assess aconceptual collection of options and alternatives, but to assess a specific project, described with a level of detail that permits meaningfulreview of potential environmental effects: Friends of the Island, above, at paras 41, 53, 99; Canadian Transit, above, at paras 53, 54,139, 141.

As the Court noted in Friends of the Island at para 53: “Public hearings on a generic proposal are not a substitute for a specificevaluation of the actual project which is planned to construct.” [43] In this case, the Applicants say, the EA was supposed to carefully assess the construction, operation and decommissioning ofan identifiable new nuclear power plant. Instead, they argue, the EA Report defers or delegates the evaluation of a specific reactor designto bodies other than the Panel.

OPG presented, and the Panel assessed, an over-generalized collection of conceptual options and vaguesite development choices to be made in the post-EA period, without further assessment under the CEAA. This amounts to a plan ratherthan a project. The Applicants note that the Panel itself found that key information about the Project was absent. [44] The Applicants contend that by conducting an EA when the main components of the proposal remained at a conceptual level,the Panel and the public were prevented from meaningfully assessing the Project’s specific environmental effects.

Federal decision-makers still do not know:

a) the particulars of the specific project to be implemented at the Darlington site;

b) the full range of site-specific or cumulative environmental effects; or

c) whether there are feasible mitigation measures over the Project’s full lifecycle.

ThePanel’s approach, and its conclusion that no significant environmental effects are likely – provided that sizeable information gaps areeventually addressed by other bodies and numerous to-be-determined mitigation measures are implemented – is the antithesis of theprecautionary principle enshrined in s. 4(2) of the Act and endorsed by the Supreme Court of Canada. [45] Even if there was a “project” within the meaning of the CEAA, the Applicants argue, it was an error for the Panel to acceptand apply the bounding approach, and this error resulted in a failure to fully assess the environmental effects of the Project as required byss. 15(3), 16(1) and (2), and 34(

a) and (

b) of the CEAA. Subsection 15(3) imposes a mandatory duty to subject all components of the“physical work” to EA scrutiny. Subsections 16(1) and (2) set out mandatory factors that must be considered in relation to thesecomponents, including their environmental effects: MiningWatch (FC), above, at para 39; Friends of the West Country, above, at para 25;Pembina Institute, above, at paras 21, 33. Subsections 34(

a) and (

b) impose obligations on the Panel to gather, disclose and hold publichearings on the information required for an assessment of the factors set out in s. 16 of the Act and the Terms of Reference. This is anon-delegable duty that does not depend upon the success or failure of the proponent, public agencies or interveners to produceinformation: Cardinal River Coals, above, at paras 39-41.

Not only was the use of the bounding approach in the present case a“departure” from the normal EA process, as acknowledged by the Panel, it resulted in a fundamental failure to fulfill the above-notedduties under the Act. [46] The Applicants argue that s. 16 of the Act requires the Panel to first describe the environmental effects associated withvarious aspects of the Project, and then make findings about the significance of those effects, taking into account mitigation measures

that are technically and economically feasible: Cardinal River Coals , above, at paras 54-56 . The use of the bounding approach, and the failure to assess a specific reactor technology, undermined the Panel’s ability to properly evaluate the Project’s environmental effects. The Applicants point in particular to the following findings and observations in the EA Report: The Panel found that the assessment of potential environmental effects was qualitative in many respects because it was conducted without specific knowledge of potential releases.

OPG explained that certain parameters of the bounding scenario, such as hazardous substance emissions and on-site chemical inventories, could not be developed until a specific reactor technology has been selected by the Government of Ontario. (page 39) […] In the absence of a choice of reactor technology for the Project, OPG did not undertake a detailed assessment of the effects of liquid effluent and stormwater runoff to the surface water environment.

Instead, the proponent committed to managing liquid effluent releases in compliance with applicable regulatory requirements and to applying best management practices for stormwater. (page 65) […] In response to a Panel request for information on stored inventories of hazardous materials and sources, types and quantities of non- radioactive wastes predicted to be generated by the Project, OPG indicated that specific details regarding the chemicals to be stored and used on the site could not be provided before a reactor technology is selected for the Project. (page 78) […] The Panel accepts the adoption of a safety goal-based approach for the assessment of the consequences of an accident in a situation where there has not been a choice of reactor technology.

The Panel notes, however, that once this choice has been made, the proponent must be required to complete an assessment of the offsite effects of a severe accident that could arise for the chosen technology. (page 124) [ 47 ] The Applicants argue that, in light of these and other gaps in information, the Panel failed to meet its obligations under s. 16 of the Act . They say that the environmental effects of the following components of the Project were not fully assessed by the Panel: (

a) Specific reactor technology; (

b) Specific site design layout; (

c) Specific water cooling option; (

d) Specific used nuclear fuel storage option; and (

e) Long-term radioactive waste management option.

Decommissioning and Waste Management [ 48 ] With respect to the decommissioning of the site and long-term management of nuclear waste, the Applicants argue that the Panel accepted an optimistic and non-precautionary prediction from OPG that “effective and practical mitigation options would be available when required in the future,” contrary to this Court’s previous direction that “vague hopes for future technology” or “the possibilities of future research and development” do not constitute proper mitigation measures under the CEAA : Pembina Institute , above, at paras 25-26, 69.

The Panel acknowledged that there were a number of information gaps with respect to long-term radioactive waste management, but rather than requiring OPG to provide the necessary information, the Panel merely recommended that future study and analysis be conducted. In doing so, the Panel failed to consider whether the radioactive waste from the Project will have significant adverse effects, and whether there are any technically and economically feasible measures which would mitigate them.

There was no factual basis for its conclusion that “radioactive and used fuel waste is not likely to result in significant adverse environmental effects.” [ 49 ] According to the Applicants, s. 34(

a) and (

b) of the Act do not permit the Panel to identify missing information and then

simply recommend future studies and information gathering to address these gaps after the EA has concluded. Parliament clearlyintended that these steps take place, and be subject to public involvement, as part of the EA process itself: Cardinal River Coals, above,at paras 39-41. Unless and until these evidentiary gaps are filled, the Panel has not conducted an EA in accordance with the Act, and hasnot provided federal decision-makers with the evidentiary basis required to make an informed decision. The Panel therefore lacked thenecessary jurisdiction under s. 34(c)(

i) to make any recommendations to the Minister: Cardinal River Coals, above, at paras 40-41, 43,51; Alberta Wilderness Assn v Canada (Minister of Fisheries and Oceans), (FCA), [1999] 1 FC 483 at paras 17-21. [50] The Panel also failed to properly consider cumulative effects as required by s. 16(1)(

a) of the Act, especially in view of OPG’sintention to refurbish the existing reactor units at Darlington NGS. The Panel should have addressed the likelihood and significance ofcumulative effects from the new and existing units at Darlington, including the effects of a severe “common cause” accident at the site:Bow Valley, above. [51] The Applicants further argue that the Panel failed to properly consider the “need” for, and “alternatives” to, the Project.Paragraph 16(1)(

e) of the Act allows the Minister to decide that these factors must be considered and, in this case, the Minister includedthem in the Terms of Reference. At best, the Panel gave these factors short shrift, simply accepting OPG’s statement in the EIS that theneed for the Project was to fulfill a Directive of the Ontario Minister of Energy to seek federal approval of new nuclear reactors.

As amatter of law, the Applicants say, a provincial Minister or project proponent cannot bind the Panel in the exercise of its statutoryresponsibilities, and the Panel effectively declined its jurisdiction by treating the Directive as dispositive of the issue of the “need” forthe Project: Innisfil (Township) v Vespra (Township), (SCC), [1981] 2 SCR 145 at 173. [52] Where a project poses environmental risks, the Applicants say, the proponent must present detailed evidence and analysisdemonstrating that it is actually needed: West Northumberland Landfill Site (Re) (1996), 19 CELR (NS) 181 (Ont Jt Bd) at paras 88, 90;Canadian Transit, above, at paras 5, 27-28, 78, 111, 115-18.

The Panel should have identified the functional purpose of the Project –supplying a portion of “base load” electricity for Ontario – and should have considered the need for and alternatives to the Project fromthat perspective. Instead, the Panel erroneously concluded that these were issues of provincial energy policy that were better left to futurehearings before the Ontario Energy Board.

The only evidence on the actual need for the Project was a brief and untested overview fromthe provincial Ministry of Energy, provided after the hearings concluded and without an opportunity for the Applicants to file respondingevidence, contrary to the audi alteram partem principle. Procedural Errors [53] The Applicants argue that the alleged problems with the EA outlined above were compounded by procedural errors, includingthe Panel’s refusal to:

a) extend the public comment period on the EIS to allow the addition of the EC-6 design to be more fullyaddressed;

b) allow cross-examination on evidence or answers to undertakings; or

c) adjourn the public hearing so that gaps in theevidence could be filled and the relevant information publicly disclosed and carefully assessed by the Panel. [54] These allegations are closely related to the Panel’s rulings on a series of preliminary objections raised by the Applicants on thefirst day of the public hearings, with prior notice to the Panel that they would be raised.

The Panel rejected each of these objections, firstorally and then in written reasons which are attached to the EA Report as Appendix 3 (EA Report at pp. 163-168). [55] The Applicants say that just before the close of the pre-hearing public comment period on the EIS, they learned that the EC-6reactor technology would be added as a fourth option to be assessed within the EA.

Since in their view this technology poses health andenvironmental risks that significantly differ from those arising from the three reactor designs addressed in the EIS, the Applicantsobjected to its late inclusion on fairness and other grounds. They argued that the EA process should be restarted or the deadlines forcomments extended if the EC-6 design were to be included in the EA.

The Panel rejected this argument, finding that the EA wasintended from the beginning to be “technology neutral,” and it had been known from the beginning that it would follow a plant parameterapproach that would not exclude the eventual selection of technologies not included in the proposal or the EIS. The consideration ofadditional technologies such as the EC-6 did not amount to a change in the scope of the Project being considered.

The Panel also foundthat the Applicants had sufficient time and notice to prepare, and opportunities for further submissions or additional hearing days wouldbe provided if required to address this issue.

The Applicants argue that this ruling was in error, and compromised their ability toparticipate effectively in the hearings. [56] In these same reasons, the Panel rejected an argument that the hearings should be suspended in light of the Fukushima Daiichiaccident in Japan, which occurred just 10 days before the start of the hearings, as any EA that did not include lessons learned from thatcrisis would be incomplete.

The Panel noted that, as fully independent decision-makers, the Panel members could decide if newinformation related to those events was required, and would continue to review the Project until satisfied that they had all the relevantinformation for appropriate and informed decision-making. Similarly, the Panel rejected an objection that there was insufficient orinadequate information before the Panel on which to base an EA or a licensing decision, and that the absence of a technology decisiondeprived the public of the ability to participate.

The Panel found that if it were able to proceed to the public hearing stage only when it

had all the information required for the EA, this would effectively negate the need for holding a public hearing. The Panel also rejected a request from the Applicant Canadian Environmental Law Association (CELA) that the Panel receive information from OPG and the relevant agencies as sworn evidence, finding that it was not required to adopt the formal rules of evidence applicable to a civil or criminal trial.

The Applicants argue that these rulings were in error, and deprived them of the ability to participate effectively in the EA process. [ 57 ] In addition, the Applicants argue that after the close of the hearings, the Panel accepted further evidence from two participants – OPG and the Ontario Ministry of Energy – to which the Applicants were not provided an opportunity to file responding evidence.

The impugned evidence consists of responses to Undertakings 75 and 76 regarding the need for and alternatives to the Project, which were admitted despite the objections of the Applicant CELA on procedural fairness grounds.

They argue that this was contrary to the audi alteram partem principle. [ 58 ] The Applicants argue that the Panel also violated the well-established administrative law principle of delgatus non potest delgare , which provides that a body to which a power is delegated under a statute cannot further delegate that power unless the statute explicitly or implicitly authorizes it to do so: Sara Blake, Administrative Law in Canada , 5 th ed (Toronto: LexisNexis, 2011) at 143-46.

While review panels do not decide whether projects should be permitted to proceed, Parliament has entrusted them with the important, non-delegable responsibility of assessing and reporting upon major projects so that responsible authorities can make informed EA decisions. Since the Act does not expressly empower review panels to delegate their obligations under s. 34, they must fully complete their duties before they can lawfully report to the Minister.

While a Panel might be permitted to leave minor details of confirmation, monitoring or mitigation for other agencies to deal with where a project has otherwise been fully assessed, most of the Panel’s recommendations in this case were aimed at generating critically important information to backfill significant evidentiary gaps. This level of delegation is not permissible: Environmental Resource Centre , above, at paras 154-59 ; Pembina Institute , above, at paras 20, 60- 62, 67, 69.

Site Preparation License T-1723-12 [ 59 ] The Applicants argue that the CNSC committed three fundamental and reviewable legal errors when it decided to issue the Licence: 1) it failed to ensure that the mandatory prerequisites under the CEAA had been satisfied in the EA of the Project before making its Licence decision; 2) it failed to comply with the mandatory requirements of the NSCA and the associated Regulations , in that it failed to make adequate provision for the protection of the environment and the health and safety of persons.

It also failed to ensure that OPG’s application for the Licence contained required information regarding the environmental and health effects that may result from the activity to be licensed, as well as the measures that will be taken to prevent or mitigate those effects; and 3) the Panel breached its duty of procedural fairness to the interveners who participated in the public hearings on the Project by relying on extraneous documents not on the record.

Legal Prerequisites [ 60 ] The first of these arguments asserts that an EA in conformity with the CEAA is a legal prerequisite to the issuance of the Licence, and that this prerequisite was not satisfied in this case. This argument is based on the same errors that were alleged in relation to the EA Report itself, as outlined above. Failure to Comply with Mandatory Requirements [ 61 ] The second argument asserts that the CNSC failed to fulfill the requirements of s. 24(4) of the NSCA by failing to subject the Project to scrutiny under the NSCA and its Regulations .

In other words, regardless of the Court’s conclusions regarding the requirements of the CEAA and whether they were met in the conduct of the EA in this case, the Applicants argue that s. 24(4) of the NSCA and the associated Regulations require that a detailed assessment of the Project occur, including the facility design and reactor technology involved, before a site preparation licence can lawfully be issued.

They base this argument on the language of s. 24(4), and the requirements set out in ss. 3 and 4 of the Class I Nuclear Facilities Regulations , set out above, regarding the details that must be included in a licence application. They argue that since OPG has not identified a specific reactor technology for the Project, the required information was not provided and the CNSC lacked jurisdiction to consider the application or grant the Licence.

Procedural Fairness [ 62 ] Finally, the Applicants argue that the Panel breached a duty of fairness by relying upon two documents generated after the close of public hearings – the Fukushima Task Force Report, dated October 2011, and the associated CNSC Action Plan, dated March 2, 2012 - in coming to its decision on the Licence. They argue that the Panel also relied on documents cited in the CNSC’s Licence Condition Handbook that existed only in draft form or not at all during the hearings.

These documents were not tendered as exhibits during the public hearings held by the Panel, and were thus not subject to notice or comment opportunities by the Applicants or other interveners. Had this been done, the Applicants say they would have voiced serious concerns regarding the Task Force Report and CNSC Action Plan and the Panel’s reliance on them, including the continued inadequacy of the risk assessment performed by OPG and the fact

that the Action Plan could not fill the gaps in Project-specific information left by the EA. [63] The Applicants argue that, based on the factors set out in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker], the decision to issue the Licence is one that attracts a high degree of procedural fairness.They say the decision-making process is close to a trial model, in that s. 40(5) of the NSCA mandates public hearings, s. 24(4) requiresthe Panel to make many findings of fact, and intervening parties will often invest significant time and resources: Baker, above, at para23.

Moreover, the statutory scheme provides no avenue of appeal, and the Licence decision carries great importance to the Applicants asit constitutes the first step toward constructing new nuclear reactors on the Darlington site without, in their view, a valid EA. They saythis result is antithetical to their longstanding work in the area of energy and nuclear power planning and risk management. Further, theApplicants had a legitimate expectation that only evidence on the public record would be relied upon because this is the “regular practiceof administrative decision-makers”: Baker, above, at para 26.

Respondents EA Report – T-1572-11 [64] While each of the Respondents – OPG, the CNSC and the Attorney General of Canada – have filed separate submissions,there is substantial agreement and overlap among their positions. [65] All of the Respondents argue that the EA process and Report were fully compliant with the CEAA and there is no basis uponwhich the Court should interfere.

They say the use of the “bounding scenario” approach was appropriate, and the Applicants’ argumentthat the Panel improperly delegated its authority misunderstands the nature of environmental assessment, which is fundamentally aninformation gathering and planning tool. They note that the Project will be subject to further regulatory approvals that will involveconsideration of environmental effects, including a requirement for licences from the CNSC at each phase of its development.

In theirview, it was appropriate for the Panel to take this full regulatory context into account in formulating its conclusions andrecommendations. [66] The Respondents argue that conducting the EA prior to the selection of a specific reactor technology is consistent with therequirement to conduct the assessment as early as practicable in the planning process and before irrevocable decisions are made (seeCEAA, s. 11(1)). In substance, they say, the Applicants are attacking the Panel’s conclusions about the sufficiency of the evidence, notits compliance with legal duties under the Act.

The Panel’s conclusion that there was sufficient information to conduct the EA is entitledto deference. Provided the record contains information on which the Panel could rationally base its conclusions, the Court should notintervene. Separate Scoping Decision – Collateral Attack [67] The Respondents argue that the decision to proceed with the EA prior to the selection of a reactor technology and based on thebounding approach was a separate scoping decision made by the Minister with the release of the EIS Guidelines and the Panel’s Termsof Reference on March 12, 2009.

It was open to the Applicants at that time to challenge this scoping decision through judicial review, butthey did not do so and the time for such a challenge has long passed: Citizens’ Mining Council of Newfoundland and Labrador Inc vCanada (Minister of the Environment) (1999), (FC), 163 FTR 36 (FC) at paras 47-49; Hamilton-Wentworth (RegionalMunicipality) v Canada (Minister of the Environment), 2001 FCT 381 at para 60, aff’d 2001 FCA 347; City of Ottawa v Canada (HumanRights Commission) (sub nom Desormeaux v Ottawa-Carleton Regional Transit Commission), 2004 FC 1778 at para 68.

TheApplicants’ argument that the Panel erred by failing to assess a “project” as defined in the CEAA amounts to an improper collateralattack on the scoping decision made by the Minister. Parties must avail themselves of their remedial options in a timely manner and,should they fail to do so, they generally are not permitted to bring collateral attacks on final decisions: R v Wilson, (SCC), [1983] 2 SCR 594 at 599; Boucher v Stelco Inc, 2005 SCC 64 at para 35.

There Was a Project to Assess [68] The argument that the proposal assessed was not a “project” as defined in the CEAA is in any case without merit, theRespondents argue.

There is a “project” under the first branch of the definition in s. 2 of the Act if there is some “undertaking” inrelation to a “physical work.” Since construction, operation, decommissioning and abandonment were all proposed here and arespecifically included as examples of undertakings in s. 2(1) of the Act, and since the proposed reactors are physical works, the definitionof a “project” is clearly met: see Bennett Environmental, above, at para 77; Canadian Environmental Assessment Agency, CanadianEnvironmental Assessment Act – An Overview, December 2011 (Updated) at p. 8 and Canadian Environmental Assessment Agency,Glossary (2006) at pp. 20, 26 (Respondent’s Record (CNSC), Vol. 5, Tabs 4J and 4K).

[69] The Respondents point out that this conclusion is also supported by the scheme of the Act. Subsection 11(1) requires federalauthorities to ensure that an EA is conducted as early as practicable in the planning stages of a project, before irrevocable decisions aremade. The CNSC argues that it is preferable to identify environmental concerns before a final design is selected, and to use the EAprocess as a planning tool: Friends of the Island, above, at para 41; Quebec (Attorney General) v Canada (National Energy Board), (SCC), [1994] 1 SCR 159 at para 74.

The case law recognizes that environmental assessment is “an early planning tool”:Pembina Institute, above, at paras 33-34. The Bounding Approach [70] In Canadian Transit, cited by the Applicants, the Court had no difficulty concluding that a project existed and was relativelywell-defined even though three bridge design options were under consideration at the time of the assessment: Canadian Transit, above,at paras 50-51.

Similarly, in Inverhuron & District Ratepayers’ Assn v Canada (Minister of the Environment) (2000), (FC), 191 FTR 20, 34 CELR (NS) 1 (TD) [Inverhuron (TD)], aff’d in Inverhuron (FCA), above, both the Federal Court and theFederal Court of Appeal upheld a decision of the Minister of the Environment approving a project to develop a dry storage facility forspent nuclear fuel where the environmental impacts were considered based upon alternative designs that were under consideration. [71] Friends of the Island, cited by the Applicants, is distinguishable on its facts.

While the Court there found that a generalassessment comparing three concepts for crossing the Northumberland Strait (two bridges and a tunnel) did not satisfy the requirementsof the Environmental Guidelines Order that preceded the CEAA, the assessment in that case expressly stated that it was not fullyconsidering potential environmental implications, and emphasized that an assessment of the specific designs must be undertaken: Friendsof the Island, above, at para 41. [72] The Applicants’ argument that an EA must involve a detailed analysis of a specific technology is not supported by the caselaw.

There is no one prescriptive method for conducting an EA; it must simply be conducted at a time and in a manner that results inconsideration of the factors outlined in the Act: Inverhuron (FCA), above, at paras 54-57. The focus is on whether the environmentalimplications of a project can be “fully considered”: Friends of the Island, above, at para 41.

This may mean the consideration ofreference designs with alternatives, a PPE approach, or any other approach that achieves this goal. [73] The use of a “reference design” in conducting an EA – which the Respondents submit is no different from the boundingapproach at issue here – was specifically approved in Inverhuron: Inverhuron (TD), above, at paras 46-56; Inverhuron (FCA), above, atparas 54-56. The Federal Court stated at para 55: …[T]o the extent that the challenge to the Minister's decision arises from the use of a reference design which does not correspond to thefinal design choice, the challenge must fail.

As long as the statutory factors are considered, it is not a ground of review that they wereconsidered by comparison to a reference design rather than by themselves. To the extent that the applicant's case is that the process isflawed because the design studied is not the design approved, which is in effect an attack upon the use of a reference design for purposesof conducting an assessment, it must fail. The choice of methodology is a matter within the competence of the responsible authority andas long as it results in consideration of the factors which the legislation requires t

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