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Erroneous message from Canada’s nuclear regulator could allow nuclear energy projects to escape federal environmental assessment

A message about federal environmental assessments is being circulated by the Canadian Nuclear Safety Commission, one of Canada’s energy regulators, with the potential to undermine the fundamental principles of Canadian environmental assessment environmental assessment law and remove significant nuclear projects from federal environmental assessment review.

It comes in response to Bill-C 69, which proposes to repeal Canada’s current environmental assessment law, the Canadian Environmental Assessment Act, 2012 (CEAA 2012), and replace it with the Impact Assessment Act (IAA). This change is taking place as part of the government’s effort to restore public trust in the federal environmental assessment process.

In an attempt to reduce the number of nuclear energy projects that will be subject to the IAA, the Canadian Nuclear Safety Commission (CNSC) has been promoting the message that “all projects would still be subject to environmental assessment under the Nuclear Safety and Control Act.”

Not only is this message misleading, it is erroneous and unsupportable in law.

I write this post not to dissuade regulators, nuclear or otherwise, from considering environmental protection and human health during licencing procedures, but to recognize that “environmental assessment” is a distinct form of environmental review process which brings with it the express requirement for decision-making to consider social, economic, human and cultural factors. Environmental assessments also analyse a proposed project’s purpose and need, examine alternatives to the project, and evaluate different ways to carry out the project. These important threshold considerations are mandatory under the proposed IAA, but are not considered under the Nuclear Safety and Control Act (NSCA).

If significant nuclear projects (e.g. the decommissioning of nuclear power plants or small modular reactors) escape federal environmental assessment review and are left to current NSCA licencing requirements, then communities most directly affected by existing or proposed nuclear projects will be excluded from meaningfully participating in the decision-making process. As this blog explains, there is no circumstance under which an environmental review purportedly conducted by CNSC under the NSCA can be conflated with an environmental assessment under Canada’s federal environmental assessment law.

A look back: environmental assessment and sustainable development

One of the first markers of environmental assessment in Canada is a cabinet directive dating to 1972, precipitated by growing worldwide concern about the effects of development on the natural environment. In 1984, Canada’s environmental assessment process was given legal force as a Guidelines Order, and then was entrenched in legislation in 1992.

This statutory reform was undertaken following the release of the Brundtland Commission’s “Our Common Future Report” in 1987, which endorsed environmental assessment as a tool for achieving sustainable development.

Sustainability, as a fundamental principle of environmental assessment law, can be traced to this seminal report and the revelation of a “new reality,” in which it was recognized that there was “no escape,” should humans fail to fit their development within the planet’s finite ecological resources. The Brundtland Report’s emphasis on the social, economic, cultural and health considerations underlying sustainability continues to be reflected in Canada’s environmental assessment process, specifically as “factors to be considered” when conducting an environmental assessment under CEAA 2012 or the proposed IAA.

Likewise, the significance of public participation in decision-making, which remains a central goal of environmental assessment, was included in the Brundtland Report’s framing of sustainability, which expressly recognized that citizen groups, non-governmental organizations and scientific communities “play a crucial part in putting the world onto sustainable development paths.”

Environmental assessment under the guise of a nuclear licencing regime

The Nuclear Safety and Control Act, the law under which Canada’s nuclear regulator conducts its purported environmental assessments, emerged in the late 1940s in response to Canada’s declaration to use nuclear energy for peaceful purposes. Previously, Canada had actively participated in the use and research of nuclear technology to support UK and US efforts during World War II, with the first research facilities established for this reason.

With the passage of the Atomic Energy Control Act in 1946 (the predecessor to the NSCA), a federal regulator was established with the aims of developing and promoting the sector.

It was not until 2000 that a purpose of the NSCA, and by extension the licensing decisions made by the CNSC, was to “prevent unreasonable risk, to the environment and to the health and safety of persons.” The NSCA otherwise lacks the fundamental components of ‘environmental assessment’ or ‘sustainability,’ and no court decision to date has interpreted this purpose of the NSCA as being on par with Canada’s federal environmental assessment legislation.

We need to change the CNSC’s message

CELA has repeatedly encouraged the CNSC to revise its use of the term “EA” and instead use phrases which better reflect its licensing powers, such as ‘environmental review’ or ‘technical analysis.’ Nonetheless, “we will always conduct environmental assessments under the NSCA” has become a buzz phrase of the CNSC in its discussions with the media, during licensing hearings, and in public documents.

The outcome of the CNSC’s misuse of the phrase environmental assessment is already evident. In June, Durham Region requested to be involved in an environmental assessment for the decommissioning of the Pickering nuclear power plant so that the region’s interests, spanning “economic impacts, the social impacts on our community, and any emissions and health impacts” could be considered. In response, the CNSC stated, “as a nuclear regulator we don't look at the socioeconomic aspects, so in terms of sustainability and the NSCA we wouldn't be examining those aspects.” The CNSC cannot have it both ways; they cannot assert they conduct environmental assessments and in the same breath exclude fundamental sustainability considerations embedded in environmental assessment law.

What’s next?

The federal Ministry of Environment and Climate Change will soon seek public comments on the Impact Assessment Act’s “Project List” – the list which will designate the projects required to undergo an assessment in the new IAA.

I invite you to join CELA during this public consultation to advocate for the inclusion of all significant nuclear projects in Canada’s new IAA, including the decommissioning and refurbishment of reactors, and the development of any new form of reactor technology, such as Small Modular Reactors.

Canadians, federal Cabinet members and all MPs must not be fooled by the CNSC’s message. There is only one environmental assessment law in Canada and its name is not the NSCA.

P.S. Read our other blogs related to Canada’s proposed Impact Assessment Act and stay tuned for announcements regarding upcoming comment opportunities.

 Kerrie Blaise is pictured here with the folks from Environment North at their event in Thunder Bay in November where members of the public discussed the siting of radioactive waste in Ontario's Northwest.