Federal Court rules on validity of Darlington Environmental Assessment – sort of

The Federal Court has released the full ruling on the validity of the environmental assessment that had provided preliminary approval for a new build of nuclear units neighbouring the existing Ontario Power Generation (OPG) Darlington generating station.

The issue was in court due to Greenpeace Canada, Lake Ontario Waterkeeper, Northwatch and Canadian Environmental Law Association – all professional anti-nuclear veterans.  The comrades had celebrated the ruling in a May 15th news release:

“The Federal Court has thrown out the approvals for building new reactors at Darlington.”

Well, not really.

From the ruling:

[394] My specific findings of inadequacies and unreasonableness in the EA Report do not vitiate the whole Report, although it seems to me that some reconsideration and corrective action is required that will allow the Cabinet and s. 37 decision-makers to assess, or re-assess, the whole Project and make their decision accordingly. I have attempted to craft a remedy that will allow this to happen without discarding what appears to me to be the highly competent work accomplished by the Panel.

In brief, the failure to comply occurred in three areas as set out more fully in the reasons:

(a) Gaps in the bounding scenario regarding hazardous substance emissions and on-site chemical inventories;

(b) Consideration of spent nuclear fuel;

(c) Deferral of the analysis of a severe common cause accident.

3. The EA Report shall not be quashed and set aside in its entirety, but shall be returned to the Panel (or a duly constituted panel) for further consideration and determination of the specific issues set out above and in the reasons to this judgment, and any consequential matters arising from that reconsideration that the Panel (or a duly constituted panel) considers necessary;

This seems somewhat of a moot point now, as the project is no longer planned to be imminent, but some criticism of the ruling is still warranted.

Waterkeeper is one of Robert F. Kennedy’s things, along with investing in energy technologies that aren’t nuclear and anti-vaccination campaigns. The water cooling issue is what they are hoping will kill Indian Point in New York.  Obviously heating water isn’t great, but it is how a lot of electricity gets generated.  The Federal Court ruling has no useful measurements to compare environmental options as it never considers greenhouse gas emissions or the alternatives to nuclear.

It just trusts anti-vaxxers.

Spent fuel actually has a Canada-firster bent as the decision worries seem largely about the worse than really bad spent fuel an AP 1000 might produce.  The point organization on the fuel issue was Greenpeace- as far as I know they aren’t anti-vaxxers (just anti-golden rice).

The “severe common cause accident” issue was presented in the press as there being no planning for a Fukushima scale disaster. In fact, the concern is for not planning for a far worse disaster.

The Panel observed that OPG had not analyzed cumulative effects of the existing and new facilities for malfunction and accident scenarios “because they were considered hypothetical and to have a very low probability of occurring.”

I think it’s a bit of a disaster having a judiciary willing to allow anti-vaxxers and anti-gmo folks to move the ALARA bar to far more expensive heights for nuclear generation, with total disregard to emissions, affordability, and performance history.

But the judge did leave a path forward.



Related: Steve Aplin’s Climate change and Ontario electricity: federal court clarifies the choice





4 thoughts on “Federal Court rules on validity of Darlington Environmental Assessment – sort of

  1. Nice work, Scott. I wonder if there exist any activists willing to bankroll a legal team to take a similar look at the greenhouse gas emissions of the alternatives to nuclear. As you rightly point out, the Federal Court overlooked this, but it could just have been because they were bound to consider only what was in front of them.

    Imagine: a legal precedent requiring each and every gas-fired proponent to undertake a similar (actually a much more demanding) evaluation of the precise implications of every ton of CO2 it dumps into the air. And not just gas-fired plant, but each and every wind farm too, since wind cannot survive on a grid without some other source providing the actual power.


  2. […] Canada’s Federal Court, in issuing essentially a mild “back to the drawing board” order to Ontario Power Generation regarding one part of its application to build new nuclear reactors at its Darlington generation site, displayed a disappointingly common myopia when it comes to risk assessment. The Court issued a 200+ page judgment in response to the “concerns” of a group of professional anti-nuclear activists who had managed to raise enough money to engage a legal team that put enough squeak into the wheels of justice to make the Court agree to actually devote time and attention to their scaremongering nonsense. Scott Luft at Colder Air has a great summary and critique of the Court ruling. […]


  3. And on appeal … the environmental assessment is validated:
    ” in concluding that the Panel failed to comply with the consideration requirements in paragraphs 16(1)(a) and (b) of the Act in respect of the HSE Issue, the Spent Nuclear Waste Issue and the Common Cause Accident Issue, the Judge erred by misapplying the reasonableness standard. Accordingly, we would allow the appeals, set aside the judgments of the Federal Court and, rendering the judgments that ought to have been rendered, dismiss the applications for judicial review in T-1572-11 and T-1723-12, with costs to OPG …”

    Click to access 2010-09-10-federal-court-of-appeal-reasons.pdf


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