Nova Scotia Supreme Court Justice Denise Boudreau has rejected a motion from a citizens group opposed to burning tires for fuel at the Lafarge cement plant in Brookfield.
The motion was that new evidence from a toxicology expert be admitted as part of a judicial review this March of Environment Minister Iain Rankin’s decision to approve the one year pilot project.
“Following a review of the information provided by Lafarge Canada Inc. and the information provided during the government and public consultation of the environmental assessment, I am satisfied that any adverse effects or significant environmental effects of the undertaking can be adequately mitigated through compliance with the attached terms and conditions,” said Environment Minister Iain Rankin when he approved burning tires for fuel on July 6,2016. The measue is aimed at reducing the cement plant’s carbon footprint and will save the multinational company money on its fuel bill.
The Citizens Against Burning of Tires group (CABOT) have gone to court arguing the Minister’s decision was “unreasonable” because there could be adverse impacts to human health and the environment (the ash is used on farmers’ fields) that never came before the Minister. CABOT hired Douglas Hallett, a toxicologist with an international reputation for his work cleaning up the Great Lakes. Two of 10 issues Hallett notes the province didn’t consider were the chemical composition of what comes out the stack today and the release of a cancer-causing chemical called NDMA (N-Nitrosodimethylamine) in the future once 350,000 tires a year are burned in the kiln.
The law, however, provides only the narrowest of grounds on which to allow new evidence when a court is tasked with reviewing a government decision. Generally, it’s not permitted unless wrongdoing or bias is alleged, or unless the new evidence is linked directly to a finding of fact by the decision-maker.
In her written decision, Justice Boudreau said the minister made no particular findings but simply proceeded and issued an approval of the pilot project. Here’s an excerpt from the Boudreau decision:
The applicants submit that I should admit the evidence of Dr. Hallett because it will provide information that will “facilitate the reviewing court’s task”. I disagree. With the greatest of respect to Dr. Hallett, it is clear to me that his proposed evidence is directed toward one question: whether the decision of the Minister was “correct”, either a) in the opinion of Dr. Hallett; or b) in an absolute sense, upon review of the science that exists in this area (in Dr. Hallett’s words, “commonly accepted science or empirical evidence”).
That is not the question before this Court; our task is an assessment of the “reasonableness” of the decision. In addition, the admission of evidence from Dr. Hallett would most certainly trigger other complications; for example, it would immediately cause the respondents to seek to tender opposing scientific opinions. This will turn this judicial review into a full “battle of experts”, and a full re-hearing of the issue that was before the Minister.
Despite losing this round of the battle yesterday, CABOT spokesperson Lydia Sorflaten says the new information is too important for the government to ignore.
“Regardless of whether Dr. Hallett’s evidence can be used at the hearing of the judicial review, the Minister of Environment must consider the serious concerns raised by Dr. Hallett,” says Sorflaten, a Shortts Lake resident whose home is about 500 meters from the cement plant. “We have a world-class expert telling us to ‘stop and pause.’ Ten years from now, when the cancer rate in our communities has escalated, it will be too late… the environmental impact of this project needs to be fully evaluated by an expert such as Dr. Hallett before the project moves forward.”
Despite the setback for CABOT, Justice Boudreau’s decision does leave one door open for the citizen’s group to try again during the judicial review of the decision’s “reasonableness.”
CABOT lawyer Bill Mahody argues the minister has approved a project that would allow for the burning of whole tires when in fact the information he reviewed was based on a pilot project that would shred the tires first. What may sound like sloppy paperwork or a bait-and-switch could turn out to be important. In Europe only shredded tires are burned because they reduce the incidence of “upsets” or accidents inside the cement kiln which can lead to the unexpected release of toxic chemicals.
In reviewing the evidence, the judge noted that the citizens group CABOT had not made any submissions to the Minister last spring during an advertised period of public comment on the environmental assessment report Lafarge prepared for the government. CABOT’s Lydia Sorflaten has explained citizens, which had twice before fought against tire-burning and received support from the McNeil Liberals while that party was in Opposition, were stunned when the Liberals reversed themselves and approved the project shortly after their re-election to government.
NDP Environment critic Lenore Zann, whose Truro-area riding is just 15 kilometres down the road from the cement plant, issued this statement after yesterday’s ruling.
“I support the residents of Brookfield, Shortts Lake, and surrounding communities and call on the Liberals to show leadership, instead of forcing Nova Scotians to take the government to court to protect our environment,” read Zann’s statement.
March 6 and 7 have been scheduled for the judicial review. Lafarge Canada hopes to start-up the pilot project in May.