Failure/Refusal to Apply the Statutorily Required Sustainability and Precautionary Principles of EA
August 3, 2017: This is the sixth in a series of Blogs by Rod McLeod, retired lawyer, former Ontario Deputy Minister Environment (with the Liberals) and, earlier, Deputy Minister Public Safety (with the Conservatives) after a time as Chief Crown Prosecutor and, latterly, 25 years of Environmental law practice, and currently a Board member of SOS GREAT LAKES.
Background: Premier Wynne’s Government owns Ontario Power Generation Inc. (OPG). Kathleen Wynne, as head of the Government, has allowed OPG to continue to plan to build a nuclear waste dump on the shore of Lake Huron, the central of the five Great Lakes that provide drinking water to 40 million people in Canada and the U.S. This Deep Geologic Repository (DGR) would hold 400,000 cubic metres of Intermediate and Low Level Waste (I&LLW). ILW can include reactor parts and other decommissioning waste that will remain dangerously radioactive for hundreds of thousands of years. When that material leaks, as every other Deep Geologic Repository (DGR) in the world has, the rogue emissions will enter the Great Lakes, potentially causing unimaginable damage to the largest supply of fresh water in the world.
McKenna’s Dilemma: Allowing this dump on the shore of Lake Huron is a dangerous and unnecessary gamble with our drinking water and would be in stark contrast to many very important environmental protection principles and initiatives, on which the Trudeau Government was elected in 2015. At the same time, she may be reluctant to be seen to be opposing the ever-popular vote-getting ‘’green” nuclear energy industry led by OPG.
Please click here for Blog 1 where I tell you a little about SOS GREAT LAKES and explain the significance of an April 2017 Report from her Expert Panel (EP). The EP proposes major changes in Canadian Environmental Assessment to restore faith in the EA with new fairer processes. It can and should help her with her upcoming decision to reject or accept the conditional first step approval for OPG’s plan granted by the Harper-appointed Joint Review Panel (JRP) at Kincardine. (Her decision is currently scheduled for fall 2017.)
In Blog 1, I stated my thesis: the Minister’s independent EP’s April 2017 Report provides her at least two ways out of this dilemma. Both require courage but with the help of her EP she may even be able to escape while continuing full support of nuclear energy, at least its green production cycle.
Her first way out is the totality of the major errors and legal breaches described in Blogs 2 to 7.
Today I deal with Failures/Refusals to apply the Foundation Principles, - the Sustainability and Precautionary Principles.
At best, the JRP paid lip service only, as evidenced by:
skipping the science;
failure to examine alternative sites and means;
accepting a high level of risk given the failure of every other DGR in the world;
the failure of the New Mexico WIPP facility (Waste Isolation Pilot Project) in February 2014 was particularly important. WIPP was the only operating DGR in North America. It was proffered by OPG, in the 2013 part of the JRP Hearings, as OPG’s model for a successful DGR. OPG, CNSC and the JRP even visited it. But, in early 2014, WIPP had accidents on two separate occurrences resulting in its highly publicized closure.
The consideration of sustainability is a requirement of the Canadian Environmental Assessment Act (CEAA 2012) in the development of projects that have the potential to affect human health, social and cultural well-being, our economy, and the environment. How then could OPG state, and then the JRP conclude, on page 41 of its final report , that the application of sustainability principles was not readily applicable to this project’?
In January 2009 the Canadian Government approved the Environmental Impact Statement Guidelines (EIS) and Terms of Reference (TOR) for the Joint Review Panel (JRP) for DGR 1 in Kincardine. The EIS Guidelines identified the information OPG had to provide to prepare the EIS including the detailed analysis of the potential environmental effects of the proposed project. The JRP Agreement established the terms of reference for the JRP, and how it would function in its consideration of the licence application to prepare a site and construct a facility. The CEAA 2012, EIS Guidelines, and JRP’s TOR each specifically state the requirement that the proponent and the panel consider sustainable principles in designing and evaluating the DGR.
CEAA 2012 (Section 4) says, “The purposes of this Act are … to encourage federal authorities to take actions that promote sustainable development in order to achieve or maintain a healthy environment and healthy economy.” Elsewhere, the CEAA 2012 defines sustainable development as “development that meets the needs of the present, without compromising the ability of future generations to meet their own needs”.
TOR (Part IV) describes the scope of the Environmental Assessment to be produced by OPG and this must include a consideration of the “capacity of renewable resources that are likely to be significantly affected by the Project to meet the needs of the present and those of the future”.
The Federal EIS Guidelines (Section 6) define sustainable development as “(…) development [which] seeks to meet the needs of present generations without compromising the ability of future generations to meet their own needs”. And, Section 15 “Capacity of Renewable Resources”, required that the EIS describe the effects of the project on the capacity of renewable resources to be significantly impacted by the DGR, i.e., how resource use, productivity, or carrying capacity might be affected.
OPG demonstrated none of the requirements that had been mandated by the CEAA 2012 and TOR to achieve sustainable development:
OPG dismissed the idea of a requirement of their proposal to advance a healthy environment and healthy economy;
OPG did not allow for the right of future generations to meet their own needs for health, clean water, and clean air across a broad geographic region and for hundreds of generations;
OPG did not evaluate the capacity of renewable resources to retain their value or ability to be sustained despite the project;
OPG did not consider that damage to non-renewable resources that could result in a totally unsustainable environment.
OPG presented insufficient, incomplete, and misleading information on the capacity for the DGR to be a sustainable industry, skipped key steps in the evaluation process, and ignored likely and potential negative effects on the broad range of interrelated ecosystems (including the human population and the whole of the Lake) that could render those systems unsustainable at any time in the term of use. It did not evaluate cumulative effects of potential damage. It did not investigate a time frame of resilience. It did not address the ways in which alternative sites and means might reduce the impact of the radioactive waste disposal to create a model of greater sustainability, with less risk of damage to its context.
The Chair of the JRP, Stella Swanson, further compromised the requirements of the CEAA 2012 by stating explicitly in the Socio-Economic Special Session that socio-economic concerns that could affect the sustainability of the region in the short and long term would not be sufficient to dismiss the DGR Project.
The Minister’s first route to avoid turning this dilemma into a disaster is to look at the totality of the major errors and legal breaches in Blogs 2 to 7. When she does she will see a picture that is so wildly out of sync with her Government’s 2015 Election platforms and her recent EP report, rejection of the Kincardine JRP Report should be an obvious decision.
Rod McLeod, Director, SOS GREAT LAKES
PS We have now seen major errors and legal breaches in five subject areas: Blog 2 Community Acceptance, Blog 3 International Obligations, Blog 4 Abandoning Science, 5 Human Health and 6 Failure to Apply the EA Foundation Principles of Precaution and Sustainability. The reader may find the JRP’s decision suspect on anyone of these but I am asking the Minister to look at the totality including Blog 7 to come.