CELA in the Courts - Casework Highlights

CELA Bulletin

81:  15-June-2012

 

Periodic E-News from the Canadian Environmental Law Association

 

In this issue

CELA in the Courts – Casework Highlights

•             Richmond Landfill – Ensuring Proper Environmental Assessment Process

•             R v Castonguay – Seeking a Broad Scope for Ontario’s Environmental Protection Act Reporting Requirements

•             Japan’s WTO challenge of Ontario’s Green Energy Act

Assessing Nuclear Power:

•             Seeking Judicial Review of Bruce Power License to Ship Radioactive Steam Generators in the Great Lakes

•             Opposing the Construction of New Reactors at the Darlington Nuclear Station

•             Joint Panel Review of Proposed Deep Geologic Repository for Radioactive Waste

 

 

Richmond Landfill – Ensuring Proper Environmental Assessment Process

There has been a long history of public concern and controversy regarding the privately owned Richmond Landfill, one of the largest in Ontario. The proponent's proposal to expand the landfill, located near Napanee, was the subject of judgments by the Divisional Court and the Ontario Court of Appeal  under the Environmental Assessment Act.  Following this litigation, the Minister of the Environment ultimately refused to approve the proposed expansion for environmental reasons, and the Ministry ordered the landfill closed in 2011. However, CELA continues to represent the local community in response to the risks posed by the closed landfill over its contaminating lifespan. In late March 2012, the Environmental Review Tribunal granted CELA's clients leave to appeal several conditions in the site’s closure orders regarding environmental monitoring, contingency plans, and reporting.  The clients then filed their Notice of Appeal, and the Tribunal has scheduled a preliminary hearing on June 25th.  In the meantime, the proponent has recently commenced another environmental assessment that proposes an even bigger landfill immediately beside the closed Richmond Landfill.

For more information:

Richard Lindgren, CELA Counsel r.lindgren@sympatico.ca  613-385-1686

On-line collection: Richmond Landfill - Upholding Ontario's Environmental Assessment Process  

 

 

R v Castonguay - Seeking a Broad Scope for Ontario’s Environmental Protection Act Reporting Requirements

At the Ontario Court of Appeal, CELA intervened as a friend of the court in the case of Ontario (Environment) v Castonguay Blasting Ltd. involving a prosecution for failure to report a discharge of blasted rock onto a neighbour’s property. This case has significant relevance to the scope of offences that could be prosecuted under the Ontario Environmental Protection Act (EPA). At issue is whether the Crown, i.e., the Ministry of the Environment, is required within the reporting requirement of s.15(1), to prove that the discharge of a contaminant must separately impair the natural environment, in addition to causing an adverse effect within the meaning of s.1(1) of the Act. As an intervener at the Court of Appeal, CELA argued that interpretation of the EPA involves a consideration of the common law as well as the precautionary principle. In particular, CELA argued that the interpretation of s.15 does not require the Crown to also establish that a discharge of a contaminant separately impaired the natural environment. On March 16, 2012, by a 2-1 majority, the Ontario Court of Appeal upheld a lower court conviction of the company favouring a broader interpretation of the reporting requirements at issue. Castonguay Blasting Ltd. has filed leave to appeal to the Supreme Court of Canada. The Crown’s response is anticipated later this month.

For more information:

Joe Castrilli, CELA Counsel castrillij@sympatico.ca  416-960-2284 ext. 218

Ramani Nadarajah, CELA Counsel ramani@cela.ca  416-960-2284 ext. 217

On-line Collection: Ontario (Environment) v. Castonguay Blasting Ltd.

 

 

Japan’s WTO challenge of Ontario’s Green Energy Act

Japan and the EU have filed complaints against Canada to the World Trade Organization (WTO) regarding the domestic content requirements found in Ontario’s Green Energy Act, specifically its feed-in tariff (FIT) program. Among other issues, both countries allege that these domestic content requirements are contrary to WTO rules against subsidies. The FIT program provides incentives to renewable energy suppliers by guaranteeing long-term contracts to buy renewable energy at rates that reflect the costs of investing in these technologies. Japan and the EU say the domestic content provision under the FIT program provides an unfair advantage to Ontario renewable energy equipment providers. On May 10, 2012, CELA, along with Ecojustice and the International Institute on Sustainable Development (IISD) submitted a joint amicus curiae submission to the WTO panel established to hear the Japan-Canada dispute (DS412).  In it we argue for a broad application of the GATT Article XX exceptions to ensure that that climate change and renewable energy policies are exempt from international trade subsidy rules because they protect human, animal and plant life and health and relate to the conservation of exhaustible natural resources. The Panel’s final report is expected in September 2012.

For more information:

Ramani Nadarajah, CELA Counsel ramani@cela.ca 416-960-2284 ext. 217

CELA, IISD, Ecojustice: Canada - Certain Measures Affecting the Renewable Energy Sector (May 10, 2012) Amicus Curiae submission

 

 

Seeking Judicial Review of Bruce Power Permits to Ship Radioactive Steam Generators in the Great Lakes

In March of 2011, on behalf of CELA and the Sierra Club Canada, CELA counsel launched two applications for judicial review in the Federal Court in relation to two permits issued by the Canadian Nuclear Safety Commission (CNSC). These permits would allow Bruce Power to transport and export 16 radioactive steam generators from the Bruce site, through the Great Lakes and St. Lawrence Seaway, to a private Swedish facility for "recycling" purposes. The judicial review applications challenge the legality of the permits on the basis of non-compliance with the Canadian Environmental Assessment Act, failure to follow the rules of natural justice in the case of the export permit, and the inadequacy of the CNSC’s reasons for its decisions. CELA anticipates that the Federal Court will soon set the hearing date for both applications.

For more information:

Richard Lindgren, CELA Counsel r.lindgren@sympatico.ca 613-385-1686

On-line collection: Shipping Radioactive Steam Generators in the Great Lakes  

 

 

Opposing the Construction of New Reactors at the Darlington Nuclear Station

Ontario Power Generation (OPG) is proposing to build four new nuclear reactors at Darlington, despite the fact that Ontario has not yet picked a vendor, selected the reactor technology, or quantified the multi-billion dollar cost.  Nor is it clear where the high-level radioactive waste from these new reactors will be stored, and other key design and operational details have not been disclosed to date. OPG's proposal was the subject of a Joint Review Panel established under the Canadian Environmental Assessment Act and Nuclear Safety and Control Act.  During public hearings in 2011, the Panel heard extensive public and expert opposition to the project for various legal, environmental, economic and public health reasons.  However, in August 2011 the Panel released an environmental assessment report which recommended conditional approval of OPG's project.  In September 2011, lawyers with Ecojustice and the Canadian Environmental Law Association (CELA), representing Greenpeace, Lake Ontario Waterkeeper, Northwatch and CELA, launched a judicial review application in Federal Court.  In essence, the application argues that the Panel failed to comply with its statutory duties under the Canadian Environmental Assessment Act, and the application requests a court order directing the Panel to reconvene and continue the environmental assessment in accordance with the Act.  In the meantime, while the judicial review application is pending, the federal Cabinet has accepted the Panel's report, and certain federal authorities have made "Course of Action" decisions about permits required for the project.  It is anticipated that the Federal Court will schedule a two-day hearing of the judicial review application in Toronto shortly.

For more information:

Richard Lindgren, Counsel r.lindgren@sympatico.ca 613-385-1686

Theresa McClenaghan, Executive Director and Counsel Theresa@cela.ca 416-662-8341

On-line collections: Darlington New Build Joint Review Panel and Nuclear Phase-Out  

 

 

Joint Review Panel of Proposed Deep Geologic Repository for Radioactive Waste

The Ontario Power Generation proposal for a “Deep Geologic Repository” at the Bruce Nuclear site near Kincardine, Ontario is the subject of a joint review panel by the Canadian Nuclear Safety Commission and the Canadian Environmental Assessment Agency. The proposed facility would receive low and intermediate radioactive wastes from the Bruce, Pickering and Darlington nuclear plants. CELA has submitted three rounds of interrogatories, or information requests, one related to hydrogeology issues and two concerning compliance with the Canadian Environmental Assessment Act. The panel hearing is expected this fall.

For more information:

Ramani Nadarajah, CELA Counsel ramani@cela.ca 416-960-2284 ext. 217

Joseph Castrill, CELA Counsel castrillij@sympatico.ca 416-906-2284 ext. 218

On-line collection: Proposed Deep Geologic Repository for Nuclear Waste