Greenpeace v Canada: Symbolic Blow to the Nuclear Industry, Game-changer for Everyone Else?

By: Martin Olszynski

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Case commented on: Greenpeace Canada v Canada (Attorney General), 2014 FC 463 (CanLII)

In this lengthy (431 paragraphs) decision, the Federal Court allowed in part Greenpeace et al’s application for judicial review regarding the Joint Review Panel report(the Report) for the Darlington New Nuclear project proposed by Ontario Power Generation (OPG). Justice Russell held that the environmental assessment (EA) conducted by the Joint Review Panel (JRP) failed to comply with the Canadian Environmental Assessment Act, SC 1992 c 37 (as it then was).  Specifically, there were gaps in the treatment of hazardous substances emissions and spent nuclear fuel, and a failure to consider the effects of a severe “common cause” accident.  As noted by the media, while the decision is of limited effect on a project already indefinitely postponed by the province, “it is a symbolic blow to an industry coping with the public and political fallout from Japan’s 2011 Fukushima meltdown.”  As further discussed below, the decision is also likely to have implications for EA in Canada generally and several other projects currently making their way through either the regulatory process or the courts, including Taseko’s New Prosperity mine, Enbridge’s Northern Gateway pipeline and Kinder Morgan’s Trans Mountain pipeline.

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Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

By: Nigel Bankes

PDF Version:Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

Case commented on: Nunavut Tunngavik Incorporated v Canada (Attorney General), 2014 NUCA 02

The Nunavut Court of Appeal has confirmed the availability of a disgorgement remedy as a possible means of assessing damages for breach of a modern land claim agreement. However, the majority of the Court (Justices Slatter and O’Brien) ruled that summary judgment was not available to the Nunavut Tunngavik Inc (NTI) in this case and that consequently damages must still be assessed following the trial. Justice Hunt (dissenting on this point) concluded that summary judgment was available. All members of the Court were agreed that nominal damages would not be appropriate in this sort of case even if NTI were unable to prove actual damages. To allow an award of nominal damages for breach of a land claim agreement would not foster the overall goal of reconciliation.

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EPA’s New Power Sector Climate Rules: A Brewing Political and Legal Storm

By: James Coleman

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Proposal Commented On: United States Environmental Protection Agency proposal for cutting power plant greenhouse gas emissions

On June 2, the United States Environmental Protection Agency (EPA) proposed requiring all fifty states to adopt greenhouse gas controls for their existing power plants. And EPA went further, proposing that, together, states would have to cut U.S. power sector emissions by 30% by 2030.  (You can see a chart of how much each state would have to cut here.)

These rules face strong political and legal opposition and will not go into action until 2020 at earliest. Their ultimate fate will depend on whether President Obama’s administration stands behind them, whether the public elects a new President that supports them, and whether the courts agree that EPA has authority to cap state greenhouse gas emissions. Their immediate impact is twofold: 1) it tells other countries that there’s a chance the U.S. could commit to strong greenhouse gas rules at 2015 negotiations in Paris; and 2) it sets the stage for an epic political and legal struggle over energy policy in the United States. Many nations, including Canada, are eager to see what will result.

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Directly and Adversely Affected: The Actual Practice of the Alberta Energy Regulator

By: Nigel Bankes

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Decisions commented on:(1) AER Letter decision to Beaver Lake Cree First Nation re CNRL’s Kirby Expansion Project; (2) AER Letter decision to Cold Lake First Nation re CNRL’s Kirby Expansion Project, (3) AER Letter decision to Fort McMurray First Nation re CNRL’s Kirby Expansion Project, (4) AER Letter decision to Kehewin Cree Nation re CNRL’s Kirby Expansion Project, (5) AER Letter decision to Oil Sands Environmental Coalition re CNRL’s Kirby Expansion Project, (6) AER Letter decision to Whitefish Lake Nation re CNRL’s Kirby Expansion Project, (7) AER Letter decision to AltaGas Ltd re Keyera Energy Ltd’s Rimbey Plant Turbo Expander Project, (8) AER Letter decision to ATCO Energy Solutions re Keyera Energy Ltd’s Rimbey Plant Turbo Expander Project, (9) AER Letter decision to NOVA Chemicals Corporation re Keyera Energy Ltd’s Rimbey Plant Turbo Expander Project

This post examines the actual practice of the Alberta Energy Regulator (AER) with respect to a number of related matters: (1) decisions by the AER as to whether a person is directly and adversely affected by an application, (2) decisions by the AER as to whether or not to hold a public hearing on an application, and (3) decisions by the AER as to whether it should disregard a statement of concern. The discussion is based on nine letter decisions of the AER in relation to two different project applications: CNRL’s Kirby in situ oil sands expansion project, and Keyera Energy’s application to enhance the extraction of liquids at its Rimbey Plant.  The interested parties who filed statements of concern (SOCs) or requests to participate with respect to the two applications include First Nations, an environmental organization, and industrial competitors. Thus the range of decisions examined here provides valuable guidance as to how the AER will exercise its discretion in relation to standing, hearing and statement of concern matters involving a number of different types of interests.

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Swift Judgment in a Complex Commercial Case

By: Nigel Bankes

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Case commented on: Blaze Energy Ltd v Imperial Oil Resources, 2014 ABQB 326

The Commercial Court of the English High Court is well known for its capacity to give swift judgments in complex commercial cases. This decision confirms that the Alberta Court of Queen’s Bench can offer the same service provided that the parties can agree on the procedures to be followed.

The statement of claim in this matter was filed on April 23, 2014 and on April 29 Chief Justice Wittman granted a Consent Order for an expedited trial confined to three issues. Absent an Agreed Statement of Facts the trial proceeded on the basis of filed affidavits and the transcripts of cross examination on those affidavits. The Consent Order provided that there would be no questioning or viva voce evidence. The trial concluded on May 26 and Justice Frederica Schutz acceded to counsels’ request and gave well written reasons for judgement on May 30.

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