By: Martin Olszynski

PDF Version: Northern Gateway: Federal Court of Appeal Applies Wrong CEAA Provisions and Unwittingly Affirms Regressiveness of 2012 Budget Bills

Case Commented On: Gitxaala Nation v. Canada, 2016 FCA 187 (CanLII)

On June 20, 2016, the Federal Court of Appeal released its much anticipated decision in the Northern Gateway legal saga (for a list of previous ABlawg posts, going as far back as 2012, see here). The Court quashed the Governor-in-Council (i.e. Cabinet) Order directing the National Energy Board (the Board) to issue a certificate of public convenience and necessity to Northern Gateway on the basis that the federal government did not fulfill its duty to consult. My colleague Sharon Mascher is preparing a blog post on that part of the decision. In this post, I focus on the Court’s approach to the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 and its dismissal, in essentially a single paragraph (para 125), of all of the substantive challenges to the Joint Review Panel’s report. As further discussed below, the Court appears to have applied the wrong provisions of the CEAA, 2012, with considerable implications for both the substantive challenges to the JRP report as well as Cabinet’s determination that Northern Gateway’s significant adverse environmental effects are “justified in the circumstances” (CEAA, 2012 subs 52(4)). It is nevertheless important to consider the Court’s approach because the provisions that it did apply are applicable to Kinder Morgan’s TransMountain Pipeline review and TransCanada’s Energy East project. Continue reading →

By: Martin Olszynski, Sharon Mascher, and Nigel Bankes

PDF Version: Top Ten Environmental Law Stories: Canadian Edition

This last year was an important one for environmental law and policy, both in Canada and globally. In this post we highlight ten of the most significant developments. Many of these figure among the usual suspects included in top-ten lists, but we’ve included some less obvious ones as well.

Continue reading →

By: Martin Olszynski and Meinhard Doelle

PDF Version: Ontario Power Generation Inc. v Greenpeace Canada: Form over Substance Leads to a “Low Threshold” for Federal Environmental Assessment

Case Commented On: Ontario Power Generation Inc. v Greenpeace Canada et al, 2015 FCA 186

In this decision, a majority of the Federal Court of Appeal (Justices Trudel and Ryer) overturned a ruling of the Federal Court (Justice Russell) finding that the environmental assessment of Ontario Power Generation’s (OPG) Darlington New Nuclear project conducted by a Joint Review Panel failed to comply with the Canadian Environmental Assessment Act, SC 1992 c 37 (since replaced with the Canadian Environmental Assessment Act, 2012 SC 2012 c 19). Justice Russell found gaps in the Panel’s assessment (specifically with respect to hazardous substances emissions, spent nuclear fuel, and a failure to consider the effects of a severe ‘common cause’ accident) that in his view were unreasonable in light of the purpose and scheme of the Act. The majority of the Federal Court of Appeal, on the other hand, endorsed a more formal approach to judicial review in this context, holding that reasonableness was a “low threshold” (at para 151) such that a panel need only give “some consideration” to a project’s environmental effects (at para 130) to be reasonable; it is only where a panel “gives no consideration at all” that its assessment will be deemed unreasonable (at para 130). Justice Rennie dissented, agreeing with Justice Russell with respect to hazardous substances emissions (at paras 48 – 50) and endorsing the latter’s characterization of CEAA as a two-step decision-making process that is intended to be evidence-based and democratically accountable (at para 52). Because of its potential to seriously undermine the effectiveness of the federal environmental assessment regime, this post focuses on the majority’s approach to reasonableness review in this context. Both of us previously commented on Justice Russell’s decision in separate blog posts (see here and here), and one of us wrote up a full case comment on it (forthcoming in the Dalhousie Law Journal).

Continue reading →