Regional Municipality of Halton v. Canada (Environment

Halton (Regional Municipality) v. Canada (Environment)
Court (s) Database
Federal Court Decisions
Date
2024-03-01
Neutral citation
2024 FC 348
File numbers
T-330-21
Decision Content
Date: 20240301
Docket: T-330-21
Citation: 2024 FC 348
Ottawa, Ontario, March 1, 2024
PRESENT: The Hon Mr. Justice Henry S. Brown
BETWEEN:
REGIONAL MUNICIPALITY OF HALTON, THE CORPORATION OF THE TOWN OF MILTON, THE CORPORATION OF THE TOWN OF HALTON HILLS, THE CORPORATION OF THE CITY OF BURLINGTON, THE CORPORATION OF THE TOWN OF OAKVILLE AND THE HALTON REGION CONSERVATION AUTHORITY
Applicants
and
CANADA (MINISTER OF THE ENVIRONMENT), ATTORNEY GENERAL OF CANADA, AND CANADIAN NATIONAL RAILWAY COMPANY
Respondents
JUDGMENT AND REASONS
Table of Contents
I. Nature of the matter and conclusions 2
II. Partial procedural history 7
III. Issues 8
IV. Standard of review is reasonableness 9
V. The Parties 14
A. The Applicants 14
B. The Respondents 14
VI. Important note on nomenclature: “direct” and “cumulative” significant adverse environmental effects 15
VII. The Project’s environmental assessment process 17
A. Establishment of expert Review Panel and its report 17
(1) Review Panel Final Report, January 27, 2020 20
(2) IAAC Memorandum to the Minister, February 10, 2020 27
(3) Executive Summary of Crown Consultation and Accommodation Report, August 9, 2020 29
VIII. Minister’s Referral Decision pursuant to subsection 52(2) of CEAA 2012 / IAAC Memorandum dated September 1, 2020 30
IX. Cabinet’s Justification Decision made pursuant to subsection 52(4) of CEAA 2012, (PC Number: 2021-0008 January 20, 2021) 34
X. Minister’s Decision Statement made pursuant to subsections 53(2) and 54(1) of CEAA 2012 (January 21, 2021) 37
XI. Analysis 37
A. The Minister’s Referral Decision is unreasonable 37
(1) The Minister failed to meaningfully grapple with the Project’s significant direct adverse environmental effects on human health 37
(2) The Minister failed to consider the protection of human health in breach of subsection 4(2) of CEAA 2012 45
(3) An adverse inference will not be drawn 48
B. Cabinet’s Justification Decision is unreasonable 50
(1) Cabinet did not exceed statutory authority under paragraph 52(4)(a) of CEAA 2012 50
(2) Cabinet failed to grapple with the Project’s significant direct adverse environmental effect on human health 54
(3) Cabinet failed to consider the protection of human health in breach of subsection 4(2) of the CEAA 2012 54
(4) An adverse inference will not be drawn 56
C. Conditions in the Minister’s Decision Statement 56
XII. Conclusion 60
XIII. Costs 61
I. Nature of the matter and conclusions
[1] This matter involves three applications for judicial review pursuant to sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c F 7 [Federal Courts Act] of three decisions:
i.Referral decision dated September 1, 2020 of the Minister of the Environment to the Governor in Council made pursuant to subsection 52(2) of Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52, Repealed, 2019 c 28, s 9) [CEAA 2012] [Minister’s Referral Decision];
ii.Governor in Council’s justification decision (Order in Council PC Number 2021-0008 dated January 20, 2021) made pursuant to subsection 52(4) of CEAA 2012 [Cabinet Justification Decision];
iii.Minister’s Decision Statement dated January 21, 2021 establishing conditions with which Canadian National Railway Company [CN] must comply under subsections 53(2) and 54(1) of CEAA 2012.
[2] At issue is a very large $250 million intermodal container transfer facility [the Project] adjacent to CN’s main line and a highway, through and at which containers may be loaded and offloaded from trucks to rail cars, and from rail cars to trucks.
[3] Stripped to its essentials and for the purposes of this litigation, the Project will be used 24/7 by a great number of diesel powered trucks (800 round trips, 1,600 one way trips daily) in addition to four intermodal trains daily powered by multiple diesel locomotives, two of which are already moving along the Halton Subdivision mainline. The diesel exhaust produced will contain pollutants, some of which are known to be toxic to human health, in respect of which there is no safe level of human exposure: 1) particulate matter less than 10 microns in size (“PM10”), 2) particulate matter less than 2.5 microns in size (“PM2.5”); and 3) nitrogen dioxide (“NO2”). Exposure to diesel particulate matter may exacerbate existing diseases such as asthma, which affects about 10% of the general population. The effects of diesel small particulate matter relate largely to cardiovascular and respiratory disease but may also include premature non-cancer deaths.
[4] In this connection, an expert Review Panel appointed under the Canadian Environmental Assessment Act, 2012 (S.C. 2012, c.19, s.52) [CEAA 2012] concluded the Project, after taking mitigation into account, would likely cause six (6) significant adverse environmental effects, two “direct” and four cumulative. The two instances in which the Review Panel found the Project itself will likely cause significant direct adverse environmental effects are on: 1) air quality and 2) human health as it relates to air quality. The expert Review Panel also found four instances of significant adverse cumulative environmental effects on: 3) air quality, 4) human health, 5) wildlife and habitat, and 6) agricultural land. Total: six.
[5] Inexplicably, neither the Minister’s Referral Decision nor the Cabinet Justification Decision consider or refer to the second finding above, namely that the Project will likely cause significant direct adverse environmental effects on human health as it relates to the air quality of local residents.
[6] That is, of the six significant adverse effects likely caused by the Project, only five are addressed by the Minister. Missing is the Review Panel’s finding the Project will likely cause significant direct adverse environmental effects on human health. No explanation for its absence is provided in the Minister’s Referral Decision.
[7] Likewise only five significant adverse effects are addressed by Cabinet, which also makes no mention of the Project’s significant direct adverse environmental effects on human health of local residents.
[8] While other points are raised, a central issue is whether the Minister and Cabinet meaningfully grappled with the expert Review Panel’s undisputed determination that the Project, even after taking into account mitigation measures, will likely cause significant direct adverse environmental effects on human health as it relates to the air quality of local residents.
[9] While of course all significant adverse environmental effects are important, including adverse effects on wildlife, wildlife habitat and agricultural lands, it is obvious to me, was not disputed by any party, and is self-evident as a matter of common sense that significant direct adverse environmental effects related to human are of very considerable importance in the decision-making under review. Moreover, consideration of the protection of human health is specifically required by subsection 4(2) of the CEAA 2012.
[10] In this respect, the Court finds the Minister’s Referral Decision is flawed because it does not meaningfully grapple with what the Court considers a central and important issue, namely the Project’s significant direct adverse environmental effects on human health. In my respectful opinion, the Minister’s Referral Decision does not reasonably reflect the high stakes raised by this specifically identified threat to the human health of local residents. In addition, the Court concludes the Minister’s Referral Decision does not reflect the heightened responsibility the Minister had to ensure his reasons demonstrate he considered this negative direct human health consequence in referring this Project to Cabinet to decide if it is justified in the circumstances, as required by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov] at paragraphs 133 and 135. The outcome is also not justified in the reasons by the decision-maker to those to whom the decision applies, contrary to Vavilov at paragraph 126. In this respect, the Minister’s Referral Decision is unreasonable.
[11] For the same reasons the Cabinet’s failure to meaningfully grapple with the Project’s significant direct adverse environmental effects on human health is a fundamental flaw in the Cabinet’s Justification Decision. It too is unreasonable.
[12] Another central issue is whether the Minister and or Cabinet in making their decisions are required to consider the protection of human health. The Court concludes both are under a duty to consider human health. Protection of human health is a required consideration imposed on the Minister and Cabinet by the express terms of subsection 4(2) of the CEAA 2012 which provides:
(2) The Government of Canada, the Minister, the Agency, federal authorities and responsible authorities, in the administration of this Act, must exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.
[Emphasis added]
[13] The Court finds the Minister and Cabinet did not consider this duty. In this respect both decisions are also unreasonable.
[14] Therefore, and with respect and viewed holistically and not as a treasure hunt for error, the Court finds both the Minister’s Referral Decision and the Cabinet Justification Decision are unreasonable because a) neither grapples in a meaningful way with the finding of the Review Panel that the Project itself will result in significant direct adverse environmental effects on human health as it relates to air quality, and b) neither considers the protection of human health under subsection 4(2) of the CEAA 2012. Both are therefore set aside and remanded for redetermination in accordance with these Reasons.
[15] I note the Minister’s Referral Decision is now a public document on the Federal Court’s file. In keeping with general principles of more openness and transparency, the Court suggests the Minister make public the Referral Decision, if any, following redetermination.
II. Partial procedural history
[16] Pursuant to Rule 383 of the Federal Court Rules, SOR/98-106 [Federal Court Rules], Associate Judge Molgat was assigned as Case Management Judge, who among other things granted leave under Rule 302 of the Federal Court Rules to apply for judicial review of these three decisions in one proceeding. The Court thanks Associate Judge Molgat for preparing this complex matter for hearing.
[17] The parties filed affidavits. Affidavits are not generally accepted on judicial review because a) judicial review is a review by the Court of the record that was before the decision maker, not an opportunity to re-litigate a case by adding new material at different levels of review, b) it is not fair to fault a decision maker for failing to consider material the parties did not put before them. While there are exceptions, they apply where new evidence is filed to prove procedural unfairness or to provide background information: see Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paragraph 20.
[18] CN and the Applicants each objected to certain statements and or exhibits of the other on the basis they were impermissible argument or new evidence. This dispute was assigned by the case management judge to this Court to decide.
[19] After a productive hearing management conference, counsel for CN and the Applicants consulted with each other and consented to mutually acceptable orders removing contested new evidence, which orders were issued at the start of the three-day hearing in Toronto. The Court commends experienced counsel for working collaboratively thus allowing this matter to focus on the issues.
III. Issues
[20] The Applicants raise three issues:
1.Whether the Minister’s Referral Decision made pursuant to subsection 52(2) of CEAA 2012:
i.is unreasonable, arbitrary, and/or perverse;
ii.failed to protect human health in breach of subsection 4(2) of CEAA 2012;
2.Whether the Governor in Council’s justification decision made pursuant to subsection 52(4) of CEAA 2012:
i.exceeded the statutory authority conferred by subsection 52(4) of CEAA 2012 by considering additional measures that will be implemented to mitigate the significant adverse environmental effects identified by the Minster of the Environment;
ii.failed to protect human health in breach of subsection 4(2) of CEAA 2012;
iii.is unreasonable, arbitrary, and/or perverse;
3.Whether the Minister of the Environment’s Decision Statement made pursuant to sections 53(2) and 54(1) of CEAA 2012:
i.failed to comply with subsection 53(2) of CEAA 2012 by establishing conditions that were not directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority;
ii.is unreasonable, arbitrary, and/or perverse.
[21] The Respondent, the AGC and Minister, raise two issues:
1.The applicable standard of review for the decisions is reasonableness; and
2.The impugned decisions are reasonable.
[22] The Respondent CN, raises five issues:
1.Are the decisions unreasonable for purportedly failing to consider the “direct significant adverse environmental effect on human health caused by air quality”?
2.Are the decisions unreasonable under section 4(2) of CEAA 2012?
3.Is the Governor in Council’s approval decision unreasonable for considering additional mitigation measures?
4.Is the Minister’s Decision Statement unreasonable because of the conditions that it imposed?
5.Are the decisions unreasonable because of deficiencies in the CTR and the claim to privilege under the Canada Evidence Act?
[23] Respectfully, the issues on this application are whether any of three impugned decisions are unreasonable, and whether the Minister and Cabinet appropriately considered subsection 4(2)’s in terms of the protection of human health.
IV. Standard of review is reasonableness
[24] I am setting out the standard of review at the outset of these Reasons because the Court refers to these tests before and during its Analysis.
[25] Judicial review is a review of the record for reasonableness.
[26] The Supreme Court of Canada instructs judges that a reasonable decision is one that meets the tests of justification, transparency and intelligibility. As to what constitutes reasonableness, the Court relies on Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post], issued at the same time as the Supreme Court of Canada’s decision in Vavilov.
[27] In Canada Post, which teaches courts in a practical manner how to apply Vavilov, the majority per Justice Rowe explains what is required for a reasonable decision, and what is required from a court reviewing a decision on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[28] The Supreme Court of Canada in Vavilov at paragraph 86 instructs that it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies:
[86] Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir, at paras. 47-49. In Dunsmuir, this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir, “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid. In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.
[29] Notably, Vavilov at paragraphs 133 and 135 confirms that the reasons of a decision maker must “reflect the stakes” where the decision involves the potential for significant personal impact or harm. In my view that is the case here. The Supreme Court of Canada instructs that where decision makers has power over the lives of ordinary people, they may have a “heightened responsibility” to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law:
[133] It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm: Baker, at para. 25. However, this principle also has implications for how a court conducts reasonableness review. Central to the necessity of adequate justification is the perspective of the individual or party over whom authority is being exercised. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.
…
[135] Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law.
[Emphasis added]
[30] Also importantly, Vavilov at paragraph 128 requires a reviewing court to assess whether the decision meaningfully grapples with the key issues:
[128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39.
[Emphasis added]
[31] Vavilov also instructs at paragraph 102 that judicial review is not a “line-by-line treasure hunt for errors”, but rather a reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic.
[32] Vavilov at paragraph 97 endorses Komolafe v Canada (Citizenship and Immigration), 2013 FC 431 [Komolafe] at paragraph 11, where Justice Rennie (as he then was) sets out where and when a reviewing court may “connect the dots”, i.e., give reasons or decide a matter on the basis of reasoning the decision maker did not give:
[11] Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page.
[33] The statutory framework in CEAA 2012 is set out in Schedule “A” to these Reasons.
V. The Parties
A. The Applicants
[34] The Regional Municipality of Halton is a regional government in Ontario comprised of the four Applicant municipalities: The Corporation of The Town of Milton, The Corporation of the City of Burlington, The Corporation of the Town of Halton Hills and The Corporation of the Town of Oakville. They have a combined population of approximately 600,000 residents. The Halton Regional Conservation Authority is a conservation authority established by Ontario’s Conservation Authority Act, RSO 1990, c. C 27.
B. The Respondents
[35] The Minister of the Environment and the Governor in Council (Cabinet) are the Respondents. They are represented by the Attorney General of Canada who is named as a Respondent per the Federal Courts Rules.
[36] CN is a commercial railway company. Prior to the enactment of the CN Commercialization Act, SC 1995, c 24 in 1995, CN was a federal Crown corporation. CN comes under federal authority by virtue of subparagraphs 92(1)(10)(a) and (c) (at least) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 [Constitution Act, 1867].
VI. Important note on nomenclature: “direct” and “cumulative” significant adverse environmental effects
[37] There are two main kinds of significant adverse environmental effects in this proceeding: 1) those that are “direct”, and 2) those that are “cumulative.” The starting points are paragraphs 19(1)(a) and (b) of CEAA 2012:
Factors
19 (1) The environmental assessment of a designated project must take into account the following factors:
(a) the environmental effects of the designated project, including the environmental effects of malfunctions or accidents that may occur in connection with the designated project and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out;
(b) the significance of the effects referred to in paragraph (a);
[Emphasis added]
[38] Both the Impact Assessment Agency of Canada [“IAAC” or “Agency”], which assisted the Minister in the CEAA 2012 review of the Project, and the Minister distinguish between “direct” and “cumulative” significant adverse environmental effects. They do this in the IAAC’s Memorandum to the Minister dated September 1, 2020, which once concurred in became the Minister’s Referral Decision. This document on its first page refers to 1) “significant direct adverse environmental effects” and 2) “significant adverse cumulative environmental effects.”
[39] The Review Panel did not use that language, referring instead to 1) “significant adverse environmental effects” (without the modifier “direct”), and “significant adverse cumulative environmental effects.” The CEAA 2012 does not use the modifier “direct” either but does refer to significant adverse cumulative environmental effects. The CEAA 2012 refers to “cumulative environmental effects” in describing what must be identified by the Review Panel (paragraph 19(1)(a) of CEAA 2012).
[40] What the Minister and IAAC refer to as “significant direct adverse environmental effects” and what the CEAA 2012 means in findings of “significant adverse environmental effects” (without the modifier cumulative), in my view, are the same.
[41] The Minister and Agency were obviously of the view that adding the word “direct” clarified matters to better distinguished between direct and cumulative impacts.
[42] Like the IAAC and the Minister, I have decided to refer to significant direct adverse environmental effects and significant adverse cumulative environmental effects.
[43] Significant direct adverse environmental effects are adverse “environmental effects of the designated project” (in this case, the Project), including the environmental effects of malfunctions or accidents that may occur in connection with the Project. By this, I understand “environmental effects of the designated project” are those likely to be caused by the Project itself (see paragraph 19(1)(a) of CEAA 2012).
[44] The CEAA 2012 also recognizes “cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that been or will be carried out” (paragraph 19(1)(a)). Where such cumulative effects are significant and adverse, they are the sum of the “significant direct adverse environmental effects” of the project itself (i.e., the “direct” results of the Projects) plus other pre-existing and other circumstances physical activities carried out not likely to be caused by the Project itself (i.e. that are unrelated to the project itself).
VII. The Project’s environmental assessment process
[45] In March 2015, CN gave notice of its intention to proceed with the Project. This triggered a screening process under the CEAA 2012 to determine whether an environmental assessment of the Project was required under the legislation.
A. Establishment of expert Review Panel and its report
[46] In July 2015, the Minister concluded the public interest required an expert Review Panel be established to conduct an environmental assessment of the proposed Project, per subsection 38(1) of CEAA 2012:
Referral to review panel
38 (1) Subject to subsection (6), within 60 days after the notice of the commencement of the environmental assessment of a designated project is posted on the Internet site, the Minister may, if he or she is of the opinion that it is in the public interest, refer the environmental assessment to a review panel.
[47] In December 2016, the Minister released an Agreement with the Chair of the Canadian Transportation Agency “To Establish a Joint Process for the Review of the Milton Logistics Hub Project.” The Agreement attached Terms of Reference for the Review Panel, including that the Review Panel take into account the enumerated factions listed in subsections 19(1) and 19(3) of the CEAA 2012, the scope of which were outlined in the Environmental Impact Statement Guidelines.
[48] Under section 19 of CEAA 2012 the Review Panel’s assessment must consider the “environmental effects” of the project (that is, direct environmental effects) in addition to any “cumulative environmental effects” that are likely to result. Cumulative effects are those that result from the combination of the project itself with “other physical activities that have been or will be carried out” (i.e. that are unrelated to the project itself).
[49] The environmental assessment must also consider the “significance” of these effects and must also consider any “mitigation measures that are technically and economically feasible” that would mitigate any significant adverse environmental effects of the project.
[50] In this connection, subsection 4(2) of the CEAA 2012 mandates (“must”) the Government of Canada, and the Minister, agency (and federal authorities and responsible authorities) to exercise their powers “in a manner that protects human health and the environment.” Specifically 4(2) provides: “The Government of Canada, the Minister, the Agency, federal authorities and responsible authorities, in the administration of this Act, must exercise their powers in a manner that protects the environment and human health and applies the precautionary principle” [emphasis added].
[51] Under subsection 5(2) of CEAA 2012 and the Environmental Impact Statement Guidelines, the Review Panel was required to assess the Project’s effects on human health arising from changes to the environment.
[52] The Project’s impact on human health in my view was a significant, central and important aspect of the Review Panel’s impact assessment. There are other impacts, of course, but the Review Panel’s finding with respect to the Project’s significant direct adverse environmental effects on human health is the focus of this proceeding.
[53] The environmental impact process focused on two subsets of environmental effects. The first, set out in subsection 5(1) of CEAA 2012, relates to changes to the environment within federal legislative authority such as fisheries, species at risk, migratory birds per paragraph 5(1)(a), changes on federal lands per 5(1)(b), and with respect to Aboriginal peoples per 5(1)(c).
[54] The second subset of environmental effects, important for this case, is set out in subsection 5(2) and includes human health in subparagraph 5(2)(b)(i): “health and socio-economic conditions.” Subsection 5(2) effects are those that arise from activities authorized by another federal authority, which in this case is the Canadian Transportation Agency which has jurisdiction over federal railways under subsection 98(1) of the Canada Transportation Act, SC 1996, c 10 [Canadian Transportation Act].
[55] The expert Review Panel process included four years of information-gathering, during which CN submitted an Environmental Impact Statement (over 400 pages, without the appendices) and provided thousands of pages of answers to information requests made by the Canadian Environmental Assessment Agency and the Review Panel, including responses to issues raised by the Applicants.
[56] Public hearings were conducted in Milton over several weeks in the summer of 2019. The Review Panel heard 88 presentations, including 17 from the Applicants. Expert witnesses discussed topics such as air quality, greenhouse gases, light, noise, health effects, fish, wildlife and soil. The Review Panel gathered information on topics that were relevant to CN’s Canadian Transportation Act approval, such as municipal planning and finances.
(1) Review Panel Final Report, January 27, 2020
[57] The expert Review Panel’s report is more than 400 pages long. It recognizes the Project would “provide needed logistics infrastructure that would support economic development through the timely movement of goods” and the environmental benefits of the modal shift of long-haul transportation of intermodal goods from road to railway, with the potential to reduce greenhouse gases and other air pollutants at a regional or greater level.
[58] In summary, the expert Review Panel concluded the Project, after taking mitigation into account, would likely cause six (6) specific and significant adverse environmental effects, two “direct” and four “cumulative”. The two instances where the Review Panel found the Project itself will likely cause significant direct adverse environmental effects are: 1) in relation to air quality and 2) on human health as it relates to air quality. The expert Review Panel also found four instances of significant adverse cumulative environmental effects on: 3) air quality, 4) human health related to air quality, 5) wildlife and habitat, and 6) agricultural land. Total: six. Specifically the Panel concluded:
[T]he Panel has concluded that the Project is likely to cause significant adverse environmental effects on air quality and on human health as it relates to air quality, and significant adverse cumulative environment effects on air quality, human health, wildlife habitat, and the availability of agricultural land.
[59] Of the six adverse environmental effects identified, the one at issue here is the Review Panel’s conclusion the Project’s addition of toxic diesel pollutants to the already degraded local airshed will likely cause significant direct adverse environmental effects on human health as it related to air quality in the local area. These arise because diesel exhaust, from the 800 (1,600 one way) daily round trip truck trips and additional train movements involving multiple additional diesel locomotives, contain pollutants that are toxic to human health without any safe level of human exposure.
[60] In fact, the Review Panel found three contaminants caused by the Project’s increase increase in diesel exhaust would exceed relevant Canadian ambient air quality criteria: Benzo(a)pyrene (would exceed standards by 2600 percent), benzene (would exceed standards by 128 percent) and very small particulate matter (less than PM10) (would exceed standards by 112 percent), resulting in a high magnitude effect. Some predicted diesel exhaust pollutants (diesel particulate matter, formaldehyde, acetaldehyde, benzene, 1, 3-butadiene, and polycyclic aromatic hydrocarbons) are carcinogenic or known to cause cancer.
[61] Health Canada advised that exposure to diesel particulate matter may exacerbate existing diseases such as asthma, which affects about 10% of the general population. Health Canada also noted the effects of diesel small particulate matter relate largely to cardiovascular and respiratory disease but may also include premature non-cancer deaths.
[62] Notably the Project’s boundary is within 100 metres of a residential neighbourhood.
[63] The Review Panel’s finding the Project will likely cause significant direct adverse environmental effects on human health related to air quality is one of the two “direct” significant adverse environmental effects caused by the Project after taking into account mitigation. The other category of “direct” significant adverse environmental effect is the Project’s significant direct adverse environmental effects on local air quality.
[64] Notably, these two “direct” negative impacts are separate and specific findings by the expert Review Panel.
[65] No one disputes the expert Review Panel’s conclusion the Project itself will likely cause significant direct adverse environmental effects on human health as it relates to air quality in the area.
[66] As discussed later, the Review Panel’s finding of significant direct adverse environmental effects on human health is not only found in the Panel’s report, but is also specifically noted in two separate sets of material prepared by IAAC for the Minister’s consideration, dated February 10, 2020 and August 9, 2020.
[67] These Reasons deal with the expert Review Panel’s conclusions the Project will likely cause significant direct adverse environmental effects on 1) air quality and 2) human health, and will likely cause significant adverse cumulative environmental effect on both 3) air quality and 4) human health.
[68] These Reasons do not deal with the Review Panel’s findings that the Project will cause significant adverse cumulative effects on wildlife, wildlife habitat, and agricultural land because they are not in issue.
(a) Significant direct adverse environmental effects on local air quality
[69] Section 5.1.3 of the expert Review Panel’s report states this conclusion on p.52:
The Panel concludes that the Project is likely to cause a significant adverse environmental effect on local air quality because it would further contribute to degraded baseline air quality conditions.
The Panel considers that, even with mitigation, the Project will add to the predicted baseline exceedances of ambient air quality standards for benzene and benzo(a)pyrene and cause new exceedances for PM10 and PM2.5, resulting in a high magnitude effect that, without improvements to general emissions technology, would be long-term.
[Emphasis added]
(b) Significant adverse cumulative environmental effect on air quality
[70] In the same section, under cumulative effects, the Review Panel conclude at p.54 of its report:
The Panel concludes that the Project, in combination with other projects and activities that have been or will be carried out, is likely to cause a significant adverse cumulative environmental effect on air quality.
The Panel finds that baseline air quality standard exceedances and the Project emissions would combine with emissions from planned future developments in the area, and these are expected to cumulatively result, at minimum, in a continuation of the predicted air quality standard exceedances for benzene, benzo(a)pyrene and new exceedances of PM10 and PM2.5.
[Emphasis added]
(c) The Project’s significant direct adverse environmental effects on human health
[71] On p.182 the expert Review Panel concludes, even with the recommended mitigation, that the Project is likely to cause a significant direct adverse environmental effects on human health as it relates to air quality. This is one of the two direct impacts of the Project:
The Panel concludes that the Project, even with the recommended mitigation, is likely to cause a significant adverse environmental effect on human health caused by air quality because it would contribute to exceedances of health-based exposure standards.
The Panel finds that the effects of Project air emissions on human health in isolation would be low, but become significant when combined with baseline exceedances and exposure ratios that are at or near the maximum acceptable level, and when considering there are no safe exposure limits established for non-threshold air contaminants and that some predicted exceedances are known human carcinogens.
[Emphasis added]
[72] In section 11.1.1, the Review Panel discusses the Project’s effects on human health and at p.179 summarizes Health Canada’s human health advice:
Health Canada stated that CN had not adequately characterized the health risks associated with exposure to the carcinogenic components of diesel exhaust. It noted that diesel particulate matte