MLT Alert! Federal Court Dismisses Challenge to Environmental Assessment Decision

On May 4, 2011, the Federal Court recently dismissed two judicial review applications concerning a federal screening level environmental assessment (EA) decision in Canadian Transit Company v. Canada (Transport), 2011 FC 515. The EA decision was made by federal responsible authorities (RAs) pursuant to section 20 of the Canadian Environmental Assessment Act (CEAA) with respect to the proposed Detroit River International Crossing Project, a bridge that would cross the Detroit River between Windsor, Ontario and Detroit, Michigan (the Project). In 2009 the RAs concluded that the Project would not cause significant adverse environmental effects. Canadian Transit Company (CTC) and Sierra Club of Canada (SCC) applied to have the federal EA decision set aside on a number of grounds. In denying the CTC and SCC’s applications the Federal Court reinforced and confirmed a number of important principles regarding the CEAA.

Background

The Windsor-Detroit transportation corridor facilitates approximately $146 billion worth of trade passing across the border annually. In 2001, Canada, Ontario, the United States and Michigan formed a partnership to improve the safe and efficient movement of people and goods across the Canada-U.S. border at the Ambassador Bridge. These government proponents sought to conduct one EA to meet the requirements of all applicable legislation in the relevant jurisdictions, while at the same time reducing jurisdictional overlap and duplication.

CTC is an owner of the existing Ambassador Bridge and proposed its own project to add a new span to the bridge. However, the alternative of expanding the existing Ambassador Bridge was rejected by the government proponents in the course of their own project development study process because it would result in large impacts to the nearby communities, and would not achieve the desired redundancy of a new bridge. Transport Canada purchased land from the City of Windsor for $34 million for a new Customs Plaza, and shortly thereafter the Project EA was approved by Ontario. The federal EA incorporated studies from the Ontario EA, and the federal RAs approved the Project EA in December 2009 by deciding that, with the implementation of mitigation measures, a new bridge was not likely to cause significant adverse environmental effects. Part of the federal EA decision also relied on mitigation measures identified in the provincial EA process.

Discussion

CTC raised three issues in its judicial review application: (i) whether the decision to build a new bridge was biased; (ii) whether RAs can rely on the needs analysis undertaken by the Ontario Ministry of Transport without performing an updated needs analysis; and (iii) whether the RAs breached ss. 5(1)(a), 11(1), 11(2), and 16(1) of CEAA by committing to a project before a federal EA was conducted. The SCC raised two issues: (i) whether approval of the federal EA was unreasonable or failed to satisfy the precautionary principle; and (ii) whether the footprint of the new bridge was expanded, thus requiring further assessment.

CTC Issue 1: Bias

CTC alleged that the decision to build a new bridge instead of expanding the Ambassador Bridge was biased against CTC and pre-determined. However, the evidence demonstrated that only Transport Canada maintained that the new bridge should be publically owned, and that all members of the government proponent partnership made compromises to accommodate the objectives of all partners before agreeing upon the chosen alternative. The Court held that it was reasonable to conclude that Transport Canada’s policy “did not control, influence, subvert, or taint” the Partnership’s decision, and that an informed person viewing the matter realistically would not have a reasonable apprehension of bias regarding the Partnership’s decision to eliminate the twinning option.

CTC Issue 2: Needs Analysis

CTC claimed the RAs should not have relied on a provincial needs analysis, and that the RAs should instead have performed a separate needs analysis based on updated traffic information. The Court held that a federal EA requirement for a needs analysis was met by incorporating the Ontario EA needs assessment. Thus, RAs may rely upon provincial authorities to provide information upon which a federal EA is conducted. The Court also held that determining “need” is based on many considerations, of which traffic projections formed only one part, and that there was no reason to duplicate the work done for Ontario regarding the need for the new bridge project. This is consistent with the goal of reducing unnecessary overlap and duplication in EA.

CTC Issue 3: Breaches of the CEAA

CTC submitted that Transport Canada’s purchase of $34 million dollars worth of land from the City of Windsor for the Project breached several sections of the CEAA such as ss. 5 and 11 by committing to a project that was not yet approved. The Court disagreed. The land can always be sold if the Project is not approved, and a $34 million land purchase was only a fraction of the expected multi-billion dollar Project. Of note, the Court held that s. 16 of the CEAA had not been breached when it was determined that the Blue Water Bridge would not be included in the cumulative effects assessment (CEA) for the Project. The Court held that RAs have wide discretion to determine which additional projects to consider for the purposes of conducting a CEA, and that only likely cumulative environmental effects that result from project effects combined with the effects of other past, existing, and imminent projects and activities are considered.

SCC Issue 1: Breach of the Precautionary Principle

The SCC submitted that the federal EA decision should be quashed because it breached the precautionary principle by (i) approving mitigation measures that are not expected to work, (ii) conducting insufficient field work, and (iii) failing to generate specific mitigation measures with respect to adverse effects on migratory birds. In determining that the SCC’s submissions were without merit the Court held as follows:

• Section 20 the CEAA allows the RA to consider any mitigation measures the RA considers appropriate when determining effects significance, and in particular s. 20(1.1) permits RAs to take account of and rely on mitigation measures that are not within the legislative authority of Parliament but that it is satisfied will be implemented by another person or body (in this case, the Province of Ontario). It was also reasonable for the federal RAs to rely on Ontario’s provincial endangered species legislation for appropriate mitigation.

• The EA process is preliminary and predictive in nature, thus CEAA does not require that all the details of mitigating measures be resolved before acceptance of a screening report. The CEAA specifically allows for follow up programs to deal with the ongoing and dynamic nature of EA, as it is likely that finality and certainty in environmental assessment can never be achieved.

• The Court is not an academy of science, and it is reasonable for RAs to rely on field work done by expert study teams. The Court’s role is to determine whether the RAs followed the proper statutory process. It was reasonable for the RAs to rely on mitigation measures identified in reports generated during the EA with respect to migratory birds. Furthermore, decisions under CEAA can describe general mitigation measures which will be detailed and resolved in the future when the exact project design is determined. This is consistent with the preliminary and predictive nature of an EA.

SCC Issue 2: Improper Cumulative Effects Assessment

SCC claimed that the RAs should have assessed an additional 100 metre zone the Province of Ontario had eventually acquired around a related road which allowed the Province to purchase land from landowners who do not want to reside in the Project area. The Court viewed this as an entirely separate project subsequently undertaken by the provincial government outside the scope of the federal EA decision for the Project.

Conclusion

This decision discusses a number of important EA issues such as mitigation measures, jurisdictional coordination, and CEA. During the project EA and development process these issues can be confusing and controversial, and the Federal Court has now provided further guidance on these matters which will hopefully assist all parties involved in project development.

In the Federal Court’s accompanying decision released on the same day in Canadian Transit Company v. Canada (Transport), 2011 FC 517, the Federal Court was asked to rule on issues concerning the admissibility of evidence in CTC and SCC’s judicial review applications discussed above. In this accompanying decision the Court held that the admissibility of additional evidence could not be determined without the benefit of the full hearing and argument of the parties, and therefore could not be determined on a preliminary basis. Ultimately, the Court held that the new evidence at issue was not determinative of the final disposition of the case, and that the new evidence was either already before the RAs, not relevant or inadmissible.

This Alert! is intended for general information only. Please feel free to contact us for additional information on this or any other issue:

  • Rangi Jeerakathil | Saskatoon | (306) 975-7107 | rjeerakathil@mlt.com
  • Ryan Rodier | Saskatoon | (306) 975-7113 | rrodier@mlt.com