Court challenge to Muskrat Falls continues

Ashley Fitzpatrick
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Groups involved in a federal court action, attempting to keep the Lower Churchill project from proceeding any further, issued a news release Friday just to remind everyone their case is still active.

The provincial and federal governments released the main piece of the proposed $6.2-billion hydro project for further assessment Thursday.

Before construction can begin, the project still requires authorizations from Fisheries and Oceans Canada and Transport Canada, in relation to planned impacts on fish habitat and navigable waters, but the main environmental assessments are done.

However, the groups who have filed a court challenge in relation to the project say issuing this kind of approval is exactly the action they feel government is not legally allowed to take.

The groups involved in the legal action are: Grand Riverkeeper Labrador, the Sierra Club of Canada and the NunatuKavut Community Council, the latter representing Métis in Central and Southern Labrador.

In their Notice of Application, filed in December 2011, they claim the Government of Canada and specifically the joint provincial-federal environmental review panel working on behalf of the Canada Environmental Assessment Agency failed "to assess or incorrectly or unreasonably assessed" several key points in regards to the project.

Specifically, they said potential cumulative effects of the dam projects at Muskrat Falls and Gull Island were not considered alongside other project elements, including transmission lines and the Labrador Island Link.

The additional project elements are subject to their own environmental reviews.

The groups also claims potential alternatives to proponent Nalcor Energy's project plans have not been presented or considered.

All documents from the joint review panel's work are available online at the Canadian Environmental Assessment Agency website.

"What the panel did, it generally did well, but it didn't reach conclusions or findings on all the factors that it was obligated to take into account," said Bruno Marcocchio, Sierra Club Canada spokesman.

"The environmental assessment is still incomplete as far as we're concerned," said a spokeswoman for Grand Riverkeeper Labrador, Roberta Frampton Benefiel.

"The federal government has known since the 12th of December that we have filed this judicial review because we believe their endorsement of the Lower Churchill project is unlawful."

The NunatuKavut community has apparently tapped Montreal-based lawyer Charles O'Brien to present their case.

The community council could not be reached for comment Friday, but has been informing the people of NunatuKavut about the court costs to potentially be incurred as a result of the court action.

Benefiel said costs have been considered by Grand Riverkeeper Labrador. "As far as we're concerned, we're ready to go," she said.

Lawyers with Ecojustice have taken on both Grand Riverkeeper Labrador and the Sierra Club of Canada as clients.

"I can say we'll be looking for a hearing in the early summer and I expect a hearing in the summer," said Ecojustice lawyer Lara Tessaro.

"In the meantime ... the parties have to submit their arguments and evidence to the court still. So that will be happening over the next few months and then we'll have a hearing."

The recent government approvals do not really affect the lawsuit, she said, other than to make it about overturning the government's approval of the project, versus keeping any approval from being issued.

Yet, she added, there is now additional risk associated with the project's moving forward on the shoulders of Nalcor Energy.

Should the legal case be won, with the project forced to backtrack to the work of the environmental assessment panel, it will likely be Nalcor paying as a result of any associated delays or changes to their project plans.

Organizations: Sierra Club of Canada, Fisheries and Oceans Canada, Transport Canada NunatuKavut Community Council Canada Environmental Assessment Agency Canadian Environmental Assessment Agency

Geographic location: Grand Riverkeeper Labrador, Central and Southern Labrador, Canada NunatuKavut Gull Island

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Recent comments

  • Maurice E. Adams
    March 21, 2012 - 21:03

    FRED, our average rate of growth in demand over the last 20 years is about 7 GWh per year ----- so 9 GWh is 25% more than we need.

    • Fred Penner
      March 22, 2012 - 06:39

      You are an inspired mathematician

  • Cyril Rogers
    March 21, 2012 - 13:41

    Fred, the "hydrology of the system dictates the amount of energy that is available from that system....potential energy = (mass)*(gravitaional constant)*(water head)....not the capacity of the reservoir" may also apply to the Muskrat Falls development. Some of the capacities they are touting may not materialize, especially in winter. Also, Hydro Quebec may be difficult to deal with and they do control the Upper Churchill, which could determine the capacity of the MF project below it. We have no guarantee, despite NALCOR's assurances.

    • Fred Penner
      March 21, 2012 - 15:08

      I did not make any reference to MF. I was referring to the island hydrology, misrepresentation of data and a few basic facts regarding physics. Having said that, the laws of physics do certainly apply to MF as well. With regard to MF, CFLco (and therefore Nalcor) manage the water resources in the Smallwood reservoir, not additional arrangement was negotiated not long ago (2009 I believe) and was announced by Nalcor. Further, the existing water management arrangement with HQ has no bearing on MF capacity. MF is essentially a run of the river development with a small reservoir. the available energy (read "water") available to Nalcor from the Smallwood reservoir at MF is very well known to Nalcor since CFLco has managed the reservoir since it first went online over 40 years ago. I would think this would be adequate experience of the system hydrology.

  • And so it was
    March 20, 2012 - 10:41

    And so it was that David took on Goliath. It will be interesting to see how it goes. Wasn’t it a tad misleading though, to have the PUB act as a public representative when so many restrictions were placed on them by the politicians? When a fire inspection is required by an insurance company, is the owner allowed to restrict it to some rooms but not others? The overly narrow focus on fulfilling the Muskrat hydro business legacy has essentially obstructed our ability to see the larger picture.

  • potential alternatives
    March 18, 2012 - 12:15

    “…potential alternatives to proponent Nalcor Energy's project plans have not been presented or considered.” It all stems from the root, doesn’t it? Why couldn’t they have done it right at the very beginning? The Muskrat Hydro Legacy is only one factor (albeit a major one) in the loss of public confidence in the ruling regime.

  • Maurice E. Adams
    March 17, 2012 - 12:02

    Last year Holyrood was used to produce 803 GWh of energy (about 11% of our needs) while NLHydro SPILLED 694 GWh of energy over our EXISTING island reservoirs. +++++ If you want to economically/cost-effectively reduce pollution, beef up our existing reservoirs.++++++ For a few, paultry million, such a move could practically ELIMINATE the need for BOTH Holyrood AND Muskrat Falls. +++++ But there is no legacy in that, no ego in that, no money making opportunity in that, no gouging opportunity in that.

    • Fred Penner
      March 19, 2012 - 19:12

      Lets talk spill....the average annual spill from NLH reservoirs (as per the MHI report) is 9 GWhrs....not 694 GWhrs. 98% of this 9 GWhr of spill happens at Paradise River. Lets suppose that spill records are kept for the past 40 years. Now exercise your mathematical muscles and deduce that 694GWhrs (last year) is an extreme aberation. By extension, if we "beef up our existing reservoirs", we will not be able to service more load since we have the same amount of water as was available previously. You see, the hydrology of the system dictates the amount of energy that is available from that system....potential energy = (mass)*(gravitaional constant)*(water head)....not the capacity of the reservoir.

  • John Smith
    March 17, 2012 - 10:00

    I was wondering when these guys would crawl out of the woodwork to get their piece of the pie. The Holyrood generating station is said to be one of the top ten polluters in Canada...yet do we hear these groups acting to remove that smoke belching, cancer causing, oil burning generator??? money in that...just follow the money trail...the prime motivator for all enviromentalists.