In recent months, there have been several interesting environmental law decisions issued by the Federal Court of Canada. In both Greenpeace Canada v Canada (Attorney General), 2014 FC 463 (CanLII) and Council of the Innu of Ekuanitshit v Canada (Attorney General), 2014 FCA 189 (CanLII), the Court provides guidance on the federal environmental assessment regime. Both these cases consider the previous Canadian Environmental Assessment Act (CEAA) but, despite massive changes to federal environmental assessment law, assist in interpreting and applying the new Canadian Environmental Assessment Act, 2012 (CEAA 2012).
In the Council of the Innu of Ekuanitshit decision, the Court considered an appeal from judicial review of an environmental assessment for the proposed Lower Churchill Hydroelectric Project. In this case, the proposed project was reviewed by a Joint Review Panel, which found that the project was likely to result in significant adverse environmental impacts that the federal Cabinet found to be “justified in the circumstances.” The Council of the Innu of Ekuanitshit challenged the decision on several grounds, including the justifiable adverse environmental impacts determination.
From the perspective of federal environmental assessment law, this decision is interesting because it considers the equivalent of section 52 of CEAA 2012, which requires the federal cabinet to decide whether significant environmental impacts can be “justified in the circumstances.” The Court stated that:
[paragraph 40] …the Court will only intervene with the GIC and Responsible Ministers’ decisions under subsections 37(1.1) and 37(1) if it finds that: 1) the CEAA statutory process was not properly followed before the section 37 decisions were made; 2) the GIC or Responsible Ministers’ decisions were taken without regard for the purpose of the CEAA; or 3) the GIC or Responsible Ministers’ decisions had no reasonable basis in fact; which is tantamount to an absence of good faith.
In his Ablawg post Professor Martin Olszynski argues – and we agree – that this decision suggests that the federal Cabinet decision must provide reasons for its determination that significant adverse environmental effects are “justified in the circumstances.” Typically, such reasons are not provided. For example, the Cabinet decision in Northern Gateway simply stated that significant adverse impacts on woodland caribou and grizzly bear populations were justified in the circumstances.
In Greenpeace Canada v Canada (Attorney General), the Court considered the decision of a Joint Review Panel for the Darlington New Nuclear project proposed by Ontario Power Generation. In this case, the environmental impact assessment was prepared by the project proponent using a plant parameter envelope approach since no particular nuclear reactor technology had been selected. The Joint Review Panel accepted the plant parameter envelope approach and, ultimately, concluded that the project was not likely to cause significant adverse environmental effects.
Greenpeace challenged the adequacy of the environmental assessment and the Joint Review Panel report on the grounds that it was not possible to conduct an environmental assessment that met the requirements of CEAA when the reactor technology had not been chosen. Greenpeace noted that other key project components, such as the site design layout, cooling system option, used nuclear fuel storage option and radioactive waste management option, also remained unspecified.
In the course of its decision, the Court clarified the role of review panels in the context of the federal environmental assessment regime:
[Paragraph 58] 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.
The Court further stated:
[Paragraph 106] However, the Panel’s role as it pertains to the decision-making aspect of environmental assessment is to ensure that decision-makers have the necessary factual basis to make a scientifically informed decision. … the Panel’s role does not extend to the elimination of all uncertainty; rather, it must be possible for decision-makers to reasonably conclude that a project is likely, or is not likely, to cause significant adverse environmental effects, keeping in mind the guiding principles set out below, including the principle of precaution.
In other words, the Court draws a clear distinction between the environmental assessment process and subsequent regulatory decision-making. The role of the environmental assessment process and review is to consider potential environmental impacts of proposed projects. This role cannot be fulfilled during subsequent regulatory decision-making processes. The environmental assessment process must provide the necessary factual basis upon which to base the regulatory decisions to follow.
Another interesting recent decision – although not dealing with environmental assessment law – is Syncrude Canada Ltd. v Attorney General of Canada, 2014 FC 776. In this case, a provision of the federal Renewable Fuel Regulations made pursuant to the Canadian Environmental Protection Act, 1999 was subject to a constitutional challenge. This provision required that diesel fuel produced, imported or sold in Canada contain at least 2% renewable fuel. In its challenge, Syncrude argued that the dominant purpose of the impugned provision was to regulate non-renewable resources and promote the economic benefits of protecting the environment, and to create a demand for biofuels in the Canadian marketplace. In essence, Syncrude argued that the provision was not a constitutionally sound use of the federal criminal law power as any prohibition of harm was merely ancillary.
The Court upheld the constitutionality of the impugned provision. In response to Syncrude’s assertion that the production and consumption of petroleum fuels is not dangerous and does not pose a risk to human health or safety, the Court stated:
[paragraph 83] … there is a real evil and a reasonable apprehension of harm in this case. The evil of global climate change and the apprehension of harm resulting from the enabling of climate change through the combustion of fossil fuels has been widely discussed and debated by leaders on the international stage. Contrary to Syncrude’s submission, this is a real, measured evil, and the harm has been well documented.
The Court continued:
[paragraph 85] For these reasons, I find that the dominant purpose and effect of subsection 5(2) of the RFR is to make a significant contribution to the reduction of air pollution, in the form of reducing GHG emissions. Parliament chose to do so by using its criminal law power. Protection of the environment is itself a valid criminal purpose, and the impugned provision creates a valid prohibition backed by a penalty, although the prohibition does not take the form of a direct, targeted, restrictive prohibition.
This decision reaffirms the view previously expressed by Canadian courts: protection of the environment is a valid criminal purpose. We hope that the federal government will take heed and use its criminal law power to strongly address the environmental challenges – including climate change – facing Canada.