Landowner Will Take Well-Water Fight To Supreme Court by James Mahony, November 13, 2014, Daily Oil Bulletin (subscription required)
An Alberta landowner who is suing the Alberta government in a case arising from claims of well water contamination has vowed to fight all the way to the Supreme Court of Canada.
Thursday’s Editorial: A victory for the little guy by Edmonton Journal, November 13, 2014
A decade ago, Jessica Ernst startled Albertans with video of her drinking water catching fire as it flowed from the kitchen tap in her Rosebud-area farm east of Calgary.
For four years, she fought to find out what caused methane to suddenly start flowing into her well, alleging that contamination occurred after hydraulic fracturing or “fracking” occurred in the area.
Finally, in 2007, Ernst launched a lawsuit against the energy regulator, Alberta Environment and Encana, alleging they failed to investigate properly and take remedial action.
Seven years later, Ernst has won a major victory Alberta’s Court of Queen’s Bench.
Chief Justice Neil Wittmann tossed out Alberta Environment’s long-standing argument for immunity in the case and ruled the department can be sued for failing to properly investigate the contamination.
The provincial government three times tried to derail Ernst’s lawsuit, arguing it could not be sued because it had statutory immunity. In other words, individual landowners could not take the department or the energy regulator to court if they felt an investigation was faulty or negligent.
Alberta Environment also argued it has a “duty of care” to the public in general, but not a “private duty of care” to individual citizens.
But Wittmann, in a bold and well-reasoned decision, has overturned that dubious position and shifted the balance to give landowners the right to sue.
It’s also a decision that benefits all citizens who can demand stronger accountability from their government.
This ruling may also promote better environmental protection. Alberta Environment and the regulator will have added incentive to uphold standards to full extent, to be vigilant in investigating spills and incidents.
Wittmann’s decision is particularly timely, given the massive changes in Alberta’s environmental enforcement system implemented in the last year.
At industry’s request, the provincial government handed over the job of enforcing the Water Act and other environmental laws to the new regulator, now called the Alberta Energy Regulator.
Concerns have been raised that the regulator, headed by a former oilpatch lobbyist and paid for entirely by industry, may go easier on energy companies when it is enforcing those laws.
Wittmann’s decision has added a potential check — if the regulator does not do its job in good faith, it can be taken to court.
In its defence, the government raised the spectre that lifting immunity will result in a flood of lawsuits.
We certainly hope that does not happen, for many important reasons. Getting bogged down in court is costly and hardly desirable for any party.
Nor do we expect that to happen given most companies endeavour to uphold environmental standards, and the Prentice government is sending clear messages about the importance of doing so.
But a judgment that gives individuals access to the courts when there is the possibility of negligence by public agencies is an encouraging step in a province that prizes individual rights, landowners’ protection and high environmental standards.
For Ernst, the battle is far from over. Her water is still contaminated, she does not know the chemicals Encana used in their fracking process that fires water, sand and chemicals into the ground at high pressure to release natural gas. Meanwhile, her legal odyssey continues. Ernst next heads to the Supreme Court of Canada to overturn the regulator’s heavy-handed decision to ban her from further communication. We hope she wins that one, too. [Thank you Edmonton Journal!]
Editorials are the consensus opinion of the Journal’s editorial board, comprising Margo Goodhand, Kathy Kerr, Karen Booth, Sarah O’Donnell and David Evans. [Emphasis added]
Une victoire pour le citoyen ordinaire Translation by Amie du Richelieu, November 14, 2014
Fracturation hydraulique : une propriétaire obtient le droit de poursuivre l’Alberta Mise à jour le mercredi 12 novembre 2014
Une femme du sud de l’Alberta, qui affirme que son terrain a été contaminé par les travaux de fracturation de l’entreprise Encana, vient de remporter une importante victoire.
Jessica Ernst, de Rosebud, une petite municipalité située à 120 kilomètres au sud de Calgary, a déposé une poursuite de 33 millions de dollars contre l’ancêtre de l’Agence de réglementation de l’énergie de l’Alberta, le gouvernement provincial et Encana en 2011.
Elle affirme que l’eau qui sort de son robinet contenait tellement de méthane et d’éthane qu’elle pouvait y mettre le feu. Selon elle, ces gaz provenaient des travaux de fracturation hydraulique d’Encana à Rosebud.
Le juge en chef de la Cour du Banc de la Reine a déterminé que Mme Ernst avait le droit de poursuivre le ministère de l’Environnement pour avoir manqué à son devoir d’enquêter et de remédier à la contamination de l’eau sur sa propriété.
La province affirmait qu’individuellement des propriétaires ne peuvent pas tenir le gouvernement pour responsable de négligence dans des enquêtes sur la contamination environnementale.
La Cour a ordonné au gouvernement de payer le triple du coût des procédures judiciaires à Mme Ernst en raison de la façon dont la demande de la plaignante a été contestée en cour.
Jessica Ernst Can Sue Alberta, Encana Over Fracking On Her Property, Says Judge by The Canadian Press, November 12, 2014, Huffingtonpost.ca
Court won’t let Alberta quash landowner’s fracking lawsuit by Jason Markusoff, November 12, 2014, Calgary Herald and Edmonton Journal
The Alberta government cannot claim immunity against a lawsuit by a landowner who claims an energy company’s operations contaminated her drinking water supply.
The new ruling allows Rosebud-area resident and oilpatch consultant Jessica Ernst to move forward with her multimillion-dollar actions against Encana’s hydraulic fracturing and Alberta Environment’s oversight, and could clear the way for similar claims by other landowners, her lawyer said.
The judge who refused Alberta’s bid to dismiss the Ernst lawsuit also ordered the province to pay triple her legal costs, after multiple attempts to quash her claims. It’s Chief Justice Neil Wittmann’s “sign of displeasure that they kept trying to knock her out with legal objections,” said Ernst lawyer Murray Klippenstein.
Ernst initially sued Encana, the provincial government and its energy regulator in 2007, claiming the Calgary-based company’s coal bed methane fracking near her property contaminated her well and the Rosebud aquifer with methane and other harmful chemicals. She also sought damages from the government overseers for inadequate oversight and investigations done “negligently and in bad faith.”
A judge has ruled Ernst cannot sue the quasi-judicial Energy Resources Conservation Board — now known as Alberta Energy Regulator — and in September the Alberta Court of Appeal refused to overturn that decision. Ernst plans to continue that fight at the Supreme Court.
Meanwhile, the provincial government argued the case against it should be thrown out as well, because it has legal immunity because of parts of the Water Act and the Environmental Protection and Enhancement Act, and that didn’t have duty for Ernst’s private care.
In Wittmann’s decision, he writes that courts should “err on the side of generosity in permitting novel claims to proceed. On that basis … there is a reasonable prospect that Ernst’s claim that she is owed a private duty of care will succeed.”
Ernst will now get the chance to fight her case on its merit and evidence, Klippenstein said.
An Alberta Justice spokesman declined to comment Tuesday.
Rosebud is 125 kilometres northeast of Calgary. [Emphasis added]
Judge rules Alberta can be sued over fracking allegations, province may appeal by The Canadian Press, November 12, 2014, Global News
ROSEBUD, Alta. – A judge has ruled an Alberta woman who says her well is so contaminated with methane that the water can be set on fire can sue the province over hydraulic fracturing on her property.
Jessica Ernst filed a multimillion-dollar lawsuit against Alberta Environment and energy company Encana in 2007.
She alleges fracking on her land northeast of Calgary released hazardous amounts of chemicals into her well and that her concerns were not properly investigated.
The government asked the court to strike it from the lawsuit, arguing the province is immune from prosecutions under its environment and water legislation.
Chief Justice Neil Wittmann of Court of Queen’s Bench has dismissed the government’s application, and ordered the province pay Ernst legal costs at triple the regular rate.
The Justice Department is reviewing the judgment to determine if it will appeal.
An Alberta woman has the right to sue the provincial environment ministry for allegedly failing to properly investigate water contamination she says Encana’s hydraulic fracturing caused on her property, a Calgary judge has ruled.
Jessica Ernst launched a $33-million lawsuit in 2011 against Alberta Environment, the province’s energy regulator and energy company Encana.
She claims gas wells fracked around her land in Rosebud, Alta., about 120 kilometres northeast of Calgary, released hazardous amounts of methane and ethane gas and other chemicals into her water well.
Ernst claims there was so much methane in her tap water as a result of hydraulic fracturing, or fracking, that she could set fire to the water.
Lawyers for Alberta Environment argued the department did not owe a “private duty of care” to individual landowners when investigating causes of groundwater contamination, and could not be held legally responsible for negligence.
‘A big victory’
Court of Queen’s Bench Chief Justice Neil Wittmann disagreed.
“There is a reasonable prospect that Ernst’s claim that she is owed a private duty of care will succeed,” Wittmann said in his ruling on Friday.
He also ordered the province to pay Ernst’s legal costs at triple the regular rate because Ernst was put through the time and expense of two legal proceedings that could have been combined, Wittmann said.
“This is a big victory for water and for all Albertans,” said Ernst in a release. “The decision means that landowners can stand up and hold governments and regulators to account if they fail in their duty to properly investigate environmental contamination.”
But Wittmann ruled last year Ernst cannot name the Alberta Energy Regulator — formerly the Energy Resources Conservation Board — in her lawsuit because under provincial law it is immune from private legal claims.
In its statement of defence, Encana denies all of Ernst’s allegations.
Judge Rules Landowner May Sue Gov’t in Landmark Fracking Case, Decision ‘reaffirms the power of the people,’ says plaintiff Jessica Ernst by By Andrew Nikiforuk, November 11, 2014, TheTyee.ca
Procès charnière du fracking: Le juge statue qu’un propriétaire terrien peut poursuivre le gouvernement translation of Nikiforuk article by Amie du Richelieu, November 11, 2014
KLIPPENSTEIN’S PRESS ADVISORY November 10, 2014, Canada News Wire
[Refer also to:
ISN’T THIS INTERESTING TIMING? The “model” Alberta regulators have been boasting for years that they are “Best in the World” with “World Class” regulations (deregulated fast and furious in secret the last decade, while lying to the public, to enable an unaccountable frac frenzy).
Alberta Energy Regulator (AER) announces best-in-class project News Release by Alberta Energy Regulator, November 11, 2014
The Alberta Energy Regulator (AER) today announced a project that will provide the organization with the necessary tools and framework to become a best-in-class energy regulator.
Following a competitive bidding process, the AER selected the University of Pennsylvania’s Penn Program on Regulation to undertake the best-in-class project.
The best-in-class project has three main objectives:
- To identify the key attributes of a best-in-class regulator
- To understand how the AER can adopt these attributes [Since the AER does not yet have them, were the regulators, industry, CAPP, Alberta politicians lying to the world all these years, claiming “best in the world” status?]
- To identify how to measure the concept of best in class in a credible manner [?? Credible manner? The Pennsylvania regulator and AER lost their credibility long ago.]
“The AER’s interest in an independent process and an evidence-based model is truly distinctive,” said University of Pennsylvania Law School Professor Cary Coglianese, who is also the director of the Penn Program on Regulation and leader of the best-in-class project. “This project provides a unique opportunity to apply research from multiple disciplines to help define and identify ways to measure the best regulators as they pursue vital societal goals.” [To measure ego or propaganda success? The regulator that cons the public fastest/best wins top status?]
The AER selected the Penn Program on Regulation, centred at the University of Pennsylvania’s Law School, based on criteria that included its academic credentials and the quality of research, the university’s track record in organizing high-level engagement sessions, its proposed strategy to deliver on the project, its ability to advance its findings at the national and international level [Propaganda success?], and the bid price.
“We recognize it is not enough to do our job well and simply declare ourselves as best-in-class,” said president and chief executive officer Jim Ellis. “To be collaborative and transparent, we must define what that means, ensure that our stakeholders agree with that definition [Is U Pennsylvania going to ask you and me?], and take the necessary steps to improve our regulatory performance.” [How do you improve “Best in the World” pollution enabler and liar?]
When the University of Pennsylvania delivers a peer-reviewed framework by the summer of 2015, the AER expects to measure its performance against best-in-class attributes on a regular basis. [What does that look like? More promotion of industry’s , unenforceable,voluntary “Best Practices” and Synergy Alberta conferences while efficiently deregulating?] Updates on the project will be posted to Penn Program on Regulation’s best-in-class website.
The best-in-class project is closely linked to the AER’s efforts to be a regulator that is protective, effective, efficient, and credible. [?? With Ex-Encana / Cenovus Gerard Protti as Board Chair?]
… FOR BROADCAST USE …
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For more information, please contact:
Bob Curran, AER Office of Public Affairs
Media line: 1-855-474-6356