We've previously reported on the
Ernst case, which yesterday was in the Supreme Court of Canada
for argument of Jessica Ernst's allegation that the Alberta
Energy Regulator (Board) breached her Charter right to freedom
of expression. Ms. Ernst alleges a breach on the basis that
the Board refused to accept further communications from her,
claiming she constituted a security threat.
The case is rooted in her claim (filed originally on December 3,
2007) against the Board, EnCana Corporation, and Her Majesty
the Queen in Right of Alberta, alleging that her fresh water supply
was contaminated by EnCana's hydraulic fracturing (fracking)
activities; that the Board negligently administered the regulatory
regime; and that Alberta, through the Alberta Environment and
Sustainable Resource Development department, owed her a duty to
protect her water supply, and it failed to respond adequately to
the activities of EnCana.
The Supreme Court of Canada's decision will potentially have
wide-ranging implications for any regulator that claims statutory
protections for claims, even those alleged to be Charter
In recent U.S. litigation, citizens and environmental
successfully challenged the actions of the Village of Painted
Post, in New York state, which authorized Painted Post Development
to lease land to Wellsboro and Corning Railroad, for the
construction and operation of a transloading facility and permitted
the Village to sell approximately one million gallons per day of
water from its water supply to SWEPI (Water Agreement). The water
was to be loaded onto trains and then transported to Pennsylvania
via rail, where it would be used for fracking.
The court agreed with the petitioners that the Village's
determination that the Water Agreement was not subject to an
environmental assessment was "arbitrary and capricious".
This case has
potentially wide application as other similar agreements may be
now be considered void, impacting fracking operations who
use the water, and for communities that need the revenue.
Fracking has been a hot button topic in Canada and the United
States for several years now. The high-pressure injection of
fracking fluid creates cracks in the deep-rocks releasing natural
gas, petroleum, and brine. It is highly controversial over the environmental
impacts, including potentially triggering earth quakes.
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