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Ecology Action Centre v. Nova Scotia (Environment), 2022 NSSC 104 - decision

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The applicants, the Ecology Action Centre and New Brunswick Anti-Shale Gas Alliance, sought judicial review of the Minister of Environment and Climate Change’s decision to approve a highway realignment project related to the Goldboro LNG Project. The Minister of Environment and Climate Change brought a motion alleging, among other things, that the applicants should not be granted public interest standing to start judicial review of the decision. 

The applicants argued that the Minister (i) failed to provide the applicants with the written statement of the decision, including findings of facts upon which it based its decision and the reasons for the decision, contrary to the requirements set out in the Environment Act, (ii) erred in making the decision, and (iii) failed to properly consider the comments received from the applicants and other participants during the public consultation process. The applicants argued that, among other things, the Minister failed to consider their comments concerning greenhouse gas emissions and the risks of carrying out the project in an area already significantly impacted by historical gold mining activity and contaminated by toxic gold mine tailing deposits.

In determining whether to grant public interest standing, the Court was required to determine whether (i) there was a serious, justiciable issue raised, (ii) the applicants had a real stake or genuine interest in the matter, and (iii) in all the circumstances, the proposed suit was a reasonable and effective way to bring the issue before the Court. 

On the question of whether it was a serious and justiciable issue, the Court determined that reasonableness of the Minister’s decision to approve the highway realignment project was justiciable. However, it found that it was not a serious issue, given that the application related solely to the decision to allow the highway realignment project, rather than the decision to approve the overall Goldboro LNG Project (which was approved in 2014). The Court determined that the applicants’ primary concern was with the GHG that would be emitted by the Goldboro LNG Project, not the highway realignment project. On the question of whether the applicants had a real stake or genuine interest in the matter, based on their respective mandates related to the environment and climate change, the Court determined that the applicants had a genuine interest in the matter. On the question of whether the proposed suit was a reasonable and effective way to bring the issue before the Court, the Court acknowledged that an application for judicial review was the only mechanism available to challenge the Minister’s decision. The Court added that the applicants brought a perspective to the issues which were distinct from those more directly affected. In weighing all of the factors cumulatively, the Court found that they did not support granting public interest standing to the applicants. The Court accepted that climate change and the environmental impacts from natural gas production are important issues, but that the decision in question was about the approval of a highway realignment (with secondary greenhouse gas emissions concerns compared to the actual Goldboro project). 

The applicants’ application for judicial review of the decision to approve the highway realignment project was dismissed. However, the Court allowed the applicants’ application for judicial review regarding whether the Minister failed to provide the applicants with the written statement of the decision contrary to the requirements set out in the Environment Act to proceed to a hearing on the merits.

The case was first dismissed on grounds that the issues raised in the application were not serious, which was overturned by the Court of Appeals in February 2023. 

Ecology Action Centre v. Nova Scotia (Environment), 2022 NSSC 104

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

This sector involves the wholesale and retail selling of goods.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

People with different national or cultural traditions from the dominant population

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Using laws and the legal system more broadly to protect vulnerable entities

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Actions or measures to adapt freshwater systems to climate change.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

This sector involves the distribution, treatment, and conservation of water resources.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

People whose health, both mental and physical, makes them more vulnerable to the effects of climate change

woman and genders outside of the gender binary

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

This sector involves activities to move goods and people, alongside the storage of products.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

The processes through which enterprises can identify, prevent, mitigate and account for how they address their actual and potential adverse impacts. Due diligence is the idea that reasonable precautions should be taken to avoid causing harm to people, the environment, or society. It also involves identifying and mitigating risks before they occur.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Ecology Action Centre v. Nova Scotia (Environment), 2022 NSSC 104 - decision

Target

Policy instrument

Risk

Impacted group

Just transition

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance