Legal Decisionmaking Frameworks for Fundy Tidal Power

  • David VanderZwaag
  • Karen A. Massey
Conference paper
Part of the Lecture Notes on Coastal and Estuarine Studies book series (COASTAL, volume 20)


This chapter provides an overview of the Canadian and U.S. decisionmaking processes potentially applicable to Fundy tidal power and highlights the legal and administrative uncertainties inherent in federal review mechanisms, state and provincial permit procedures, and judicial proceedings. The first section examines the U.S. framework of state and federal laws which would impose technological and environmental review requirements on a domestic hydro-electric project or a Canadian Fundy tidal power project. The chapter next reviews the Canadian legal framework for regulating tidal power development and focuses on the regime most likely to apply to the Fundy Tidal Power proposals. The final section compares the American and Canadian legal systems for controlling hydro-electric projects and concludes by analyzing which system is better equipped to address concerns over long-range, indirect environmental effects. Chapter 4 then examines this question in considerable detail, focusing on specific instances where the two systems were called upon to consider indirect and transboundary environmental effects.


Transmission Line Supra Note Judicial Review Executive Order Federal Energy Regulatory Commission 
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    The section of this chapter describing the U.S. legal framework is an excerpt from Massey, “Tidal Power Development: Environmental Decisionmaking in the United States,” 3 Can.-Am. L.J. (1984), reprinted with permission of the Canadian-American Law Journal of the Gonzaga University School of Law, Spokane, WA.Google Scholar
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    U.S.C. §§ 1451–1464 (1982). But the State does not have the final say; the Secretary of Commerce can overrule a state’s denial of consistency. See supra, notes 87–89 and accompanying text.Google Scholar
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    Id. at 809–811. See 35 M.R.S.A. § 2306, providing, inter alia, that in eminent domain proceedings: “Environmental factors to be considered for proper location of a transmission line or gas pipeline shall not be subject to review by the Public Utilities Commission when the location of the transmission line has received site location of development approval under Title 38, section 484.” This provision was added by P.L. 1977, ch. 374, § 2, apparently in response to the Bangor Hydro-Electric decision which, while precluding consideration of environmental factors by the PUC in the approval of 100 kV plus transmission lines pursuant to 35 M.R.S.A. § 13-A, found PUC consideration of the environmental effects mandated for lower-powered lines in eminent domain proceedings. A site location of development permit is required prior to the acquisition of land by eminent domain. 38 M.R.S.A. § 484 (1978).Google Scholar
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    In the alternative, the President could perhaps amend Executive Order 10,485 to require that environmental impact assessments for transboundary transmission lines cover transboundary effects of the power plant located abroad and that upgrading of lines be subject to NEPA if undertaken for the importation of power from a plant that might have significant effects. But the real time to investigate these issues is when the contracts are signed before transmission line construction.Google Scholar
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    Crown corporations listed in Schedule D to the Financial Administration Act would be subject to the Process if it is corporate policy to apply the Process and if the application of the Process is within the legislative authority of the corporation. SOR/84–467, s. 7. Such corporations include: Air Canada, Canada Deposit Insurance Corp., Canadian Broadcasting Corp., Cape Breton Development Corp., Central Mortgage and Housing Corp., Eldorado Aviation Ltd., Eldorado Nuclear Ltd., Export Development Corp., National Railways, Northern Transportaton Co. Ltd., Polymer Corp. Ltd., The St. Lawrence Seaway Authority, the Seaway International Bridge Corp. Ltd., Canadian Development Investment Corp., VIA Rail Canada, Federal Business Development Bank, Petro–Canada, and Teleglobe Canada. Financial Administration Act, R.S.C. 1970, C. F–10, Schedule D, as amended by S.C. 1974–75–76, 14, s. 56; C. 61, s. 15; C. 77, s. 8; SOR/78–287 and SOR/82–854.Google Scholar
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    Ibid., s. 20. Public review would also be required when potential adverse environmental effects are significant as determined according to criteria cooperatively developed by FEARO and the initiating department.Google Scholar
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Copyright information

© Springer Science+Business Media New York 1986

Authors and Affiliations

  • David VanderZwaag
  • Karen A. Massey

There are no affiliations available

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