Last fall, Bruce Power asked the Canadian Nuclear Safety Commission to approve a plan to ship 16 radioactive steam generators across the Great Lakes and over the ocean to Sweden. Despite objections from dozens of non-profit, aboriginal, and local government organizations, the Commission approved Bruce Power's plan. The Commission's decision is now being challenged in Federal Court.
In this newsletter, we look at the Court's June 9 decision to deny intervenor status to the Canadian Nuclear Safety Commission.
The Canadian Nuclear Safety Commission (CNSC) will not be allowed to intervene in a judicial review of its decision to allow Bruce Power to ship 16 steam generators through the Great Lakes to Sweden. An intervenor is an interested party who will contribute something unique to the proceedings. In denying the CNSC's request to intervene, the Federal Court essentially said that there was no clear difference between the nuclear regulator's position and the position of Bruce Power, the nuclear plant operator.
The Canadian Environmental Law Association (CELA) and the Sierra Club of Canada filed judicial review applications (here and here) in March. The applications challenge the legality of the CNSC licences, alleging the following:
Non-compliance with the Canadian Environmental Assessment Act;
Failure to follow the rules of natural justice in the case of the export licence; and
Inadequacy or absence of the CNSC’s reasons for its decisions.
Their main issue concerns the CNSC's interpretation of the Canadian Environmental Assessment Act (CEAA). CELA and Sierra Club are asking the court to decide whether or not shipping the steam generators is a “project” as defined by the Act. If the Court says Bruce Power's proposal is a "project", then the CNSC should have completed an environmental assessment.
The Canadian Nuclear Safety Commission asked to intervene in the case, but the Court denied the request for these reasons:
The CNSC failed to indicate what facts it would introduce that weren’t already contained in the parties’ affidavits, nor did the CNSC indicate how those facts might be useful in the determination of the issues before the Court.
The CNSC failed to indicate how their perspective would differ from that of Bruce Power or the Attorney General.
The CNSC failed to indicate how its expertise would be relevant or even useful in the determination of the issues before the Court.
The CNSC already addressed the issues before the Court with regards to the CEAA in the decision that is now under review.
The Court finds that there are no facts the CNSC can offer that will not be submitted by Bruce Power.
Based on these conclusions, the Court is satisfied that intervention by the CNSC is not appropriate.
When it asked permission to intervene in the case, the CNSC went above and beyond its role as a nuclear regulator. It asked permission to act as an advocate for the nuclear industry, to defend and promote Bruce Power's plan in federal court. The Court correctly ruled that the CNSC's role ended when the Commission made its licencing decision in the winter, leaving the advocacy work to Bruce Power.
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