Ecology Action, et al. v. Minister of Environment and Climate Change

Cette page en français: Fondation Sierra Club Canada c. Canada (Environnement et Changement climatique

In May 2020, Ecology Action Centre, Sierra Club Foundation, and WWF-Canada took joint action against the federal government in protest of a regional assessment of offshore drilling risks. The applicants sought an injunctive order declaring the assessment invalid, and forcing further review by the Regional Assessment Committee in Newfoundland and Labrador. The Court has not ruled on this action. Simultaneously, the plaintiffs filed for an interim order which would prohibit the government from enacting regulations based on the report. The respondent filed a motion to dismiss. Both the applicant's interim order motion and the government's motion to dismiss were denied. A further decision will be given on the report itself at a later date.

Background
In 2019 the federal government appointed a committee to conduct a regional assessment of the effects of existing and anticipated exploratory drilling offshore of Newfoundland and Labrador under the Canada Environmental Assessment Act (CEAA). The regional assessment involved governmental departments, indigenous groups, and private organizations. The applicants were also involved in the regional assessment. The report was released in March of 2020 after a 30-day public comment period. At the time of its release the CEAA had been repealed and replaced by the Impact Assessment Act (IAA).

The applicants seek an order declaring the report is not a "regional assessment" as defined in the IAA. Furthermore, the applicants seek to prohibit the Minister of Environment from making regulation until judicial review of the assessment is complete. If regulation is enacted before the Court rules on this case the applicants seeks an order staying the effect of the regulation.

Granting an interim injunction requires the satisfactorily meeting the conjunctive tripartite test created by the Supreme Court of Canada. The test requires that an applicant demonstrates that:
 * 1) there exists a serious issue to be tried;
 * 2) the applicants will suffer irreparable harm if the relief is not granted; and
 * 3) the balance of convenience favors the granting of the order

Relevant Laws and Principles

 * Conjunctive Tripartite Test
 * Impact Assessment Act
 * Canada Environmental Assessment Act

Ruling
J. Roussel denied the interim injunction and further denied the motion to dismiss filed by the government. The respondents cite numerous climate change litigation cases, including Trans Mountain Pipeline ULC v. Misavair in their argument to dismiss the motion. A very high-bar must be passed for a motion to strike an application for judicial review to be granted. This bar has been articulated in a variety ways, including "should only be granted in those exceptional cases where the application is so clearly improper as to be bereft of any chance of success", or "whether it is plain and obvious that the application is doomed to fail". J. Roussel writes that such a high bar is not passed in this case, and that whether the report is amenable to judicial review should be left to the trial judge who hears the case.

J. Roussel then continues to evaluate whether the test for granting an interim injunctive order is passed. According to RJR-Macdonald, the first part of the test is not substantive. "If the proceeding is not frivolous or vexatious, the analysis should turn to the next prong of the test". J. Roussel admits there issue of whether or not the report can be considered a proper "regional report" under the IAA is significant; thus, she turns immediately to the second test: irreparable harm.

Here, J. Roussel agrees with the respondents in that, on a balance of probabilities, the applicant will not suffer irreparable harm if the relief is not granted. The applicant's argument involves the potential marine damage that will result from offshore drilling, the likelihood of oil spills negatively effecting the surrounding environment, and the loss of the applicant's participatory rights in contributing to the assessment of drilling hazards. J. Roussel denies the applicant's conclusion on three key grounds. First, the alleged environmental harm would not result from the report or regulation. Rather, it will come from potential drilling under the regulation, a distinction that distances the harm from the claim. Second, a multitude of regulatory hurdles must be crossed before any harm could take place. There are already rules and regulations in place that significantly decrease the chance of environmental consequences stemming from offshore drilling. Third, according to the applicants themselves, if any regulation was passed based on the report, the applicants would file for judicial review of said regulation. J. Roussel writes that since remedies such as this are available, irreparable harm cannot be assumed, on the balance of probabilities, to be inevitable should the interim injunction not be granted.

Thus, the Court will hear the application on the original report and no further action will be taken in the meantime.

Takeaways
This interim ruling was based on technical legal tests without significant analysis of the implications on future climate litigation. It remains to be heard how the Court will rule in deciding both the justiciability of the assessment itself, and, in the affirmative case whether or not the assessment was sufficient. Provincial courts have already argued in favor of the justiciability of environmental assessments. In particular, the B.C. Supreme Court ordered Trans Mountain Pipeline to return to the consultation stage of its environmental assessment report in 2018. This decision may push the court to rule on the application in question given that the assessment is justiciable.

Links

 * Sabin Center Database
 * Grantham Research Institute