Category: Environmental Page 32 of 53

By: Shaun Fluker

PDF Version: Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

Case Commented On: Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285

This comment adds to the earlier post by Martin Olszynski (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator/Energy Resources Conservation Board (AER/ERCB) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on whether the Alberta Court of Appeal has correctly applied the law on a motion to strike under Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules). I argue the Court of Appeal has erred by applying the test too restrictively.

Simply put, Ernst alleges that Alberta Environment and the AER/ERCB owe her a duty of care and are negligent by failing to meet that duty. This is a question of regulatory negligence, and the parameters of the law on this question have been summarized by Professor Olszynski. The AER/ERCB applied to the Court to strike Ernst’s claim for failing to disclose a reasonable cause of action, and for summary judgment. In the first instance, Chief Justice Wittman granted the request to strike back in September 2013 (Ernst v Encana Corporation, 2013 ABQB 537).

Revisiting Regulatory Negligence: The Ernst Fracking Litigation

By Martin Olszynski

On October 15, 2014

In Environmental, Torts

By: Martin Olszynski

PDF Version: Revisiting Regulatory Negligence: The Ernst Fracking Litigation

Case Commented On: Ernst v. Alberta (Energy Resources Conservation Board), 2014 ABCA 285

On September 15, 2014, the Alberta Court of Appeal released its decision in Ernst v. Alberta (Energy Resources Conservation Board). Ms. Ernst owns land near Rosebud, Alberta, and is suing EnCana Corporation, the ERCB (now the Alberta Energy Regulator) and Alberta Environment (now Alberta Environment and Sustainable Resources Development) for negligence in relation to the alleged contamination of her groundwater as a result of EnCana’s hydraulic fracturing (fracking) activities in the area. The ERCB (but not Alberta Environment – a point further discussed below) applied to have the action against it struck. The case management judge, Chief Justice Wittmann, agreed that this particular negligence claim was not supported in law: he found that the ERCB owed no private law duty of care to Ms. Ernst and that, in any event, any claim was barred by s 43 of the ERCB’s enabling legislation (see Ernst v. EnCana Corporation, 2013 ABQB 537). The Alberta Court of Appeal (Justices Côté, Watson and Slatter, writing as “The Court”) dismissed Ms. Ernst’s appeal. This post considers the regulatory negligence aspects of both the Queen’s Bench and Court of Appeal decisions.

Federal Court of Appeal Reviews CEAA “Justification” Determination for Lower Churchill Falls

By Martin Olszynski

On September 19, 2014

In Administrative Law, Environmental

By: Martin Olszynski

PDF Version: Federal Court of Appeal Reviews CEAA “Justification” Determination for Lower Churchill Falls

Case Commented On: Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189

At least three times in the course of the past year, an environmental assessment (EA) panel convened under the Canadian Environmental Assessment Act 2012, SC 2012, c 19 (CEAA, 2012) has concluded that a project is likely to result in significant adverse environmental effects: Shell’s Jackpine Mine Expansion, Taseko’s New Prosperity Mine, and Enbridge’s Northern Gateway Pipeline. In the case of both Jackpine and Northern Gateway, the federal Cabinet determined that these effects were “justified in the circumstances,” but not so for New Prosperity. In none of these instances, however, did the relevant “Decision Statement” pursuant to section 54 of CEAA, 2012 contain any explanation or reasons for Cabinet’s decision. The Federal Court of Appeal’s recent decision in Council of the Innu suggests that this approach is wrong. This litigation involved the Lower Churchill Hydroelectric Project proposed by Nalcor in Newfoundland. This project was reviewed under the previous CEAA regime but the relevant provisions are virtually unchanged. Like the three EAs referred to above, the panel concluded that the project was likely to result in significant adverse environmental effects. Unlike the three projects referred to above, however, the government did provide a detailed explanation for its determination that the significant adverse environmental effects were justified in the circumstances. The Council challenged this determination (the Council also challenged the sufficiency of Aboriginal consultation; this post focuses only on the justification issue).

Federal Court to Syncrude: Climate Change is a Real, Measured Evil, Whose Harm has been Well Documented

By Martin Olszynski

On September 15, 2014

In Climate Change, Constitutional, Environmental

By: Martin Olszynski

PDF Version: Federal Court to Syncrude: Climate Change is a Real, Measured Evil, Whose Harm has been Well Documented

Case Commented On: Syncrude Canada Ltd. v Attorney General of Canada, 2014 FC 776

“The fall term in the 1997-1998 academic year,” wrote Professor David Beatty, “was a constitutional law teacher’s dream.” Professor Beatty was referring to the release of two Supreme Court of Canada decisions that touched some of the “most politically charged issues” of the day and which “together raised almost every important issue in constitutional law” (one of which was R v Hydro Quebec, [1997] 3 SCR 213, 1997 CanLII 318 (SCC), central to the Syncrude decision being commented on here; see David Beatty, “Canadian Constitutional Law in a Nutshell” (1998) 36(3) Alta L Rev 605). As it turns out, the summer of 2014 has shaped up to be an environmental law teacher’s dream. In May, the Federal Court released its decision in Greenpeace Canada v Canada (Attorney General), 2014 FC 463 (CanLII), a decision that I have suggested represents a major development in Canadian environmental assessment law. Then in August, the Federal Court handed down its judgment in Syncrude, which my colleague Professor Nigel Bankes has observed is the “first case in which a party has challenged the constitutional validity of any federal greenhouse gas regulations.” This post focuses on that very issue; Professor Shaun Fluker has also written a post on the decision, focusing on the administrative law issues.

Syncrude v Canada: Where is the gatekeeper when you need one?

By Shaun Fluker

On September 12, 2014

In Administrative Law, Climate Change, Environmental

By: Shaun Fluker

PDF Version: Syncrude v Canada: Where is the gatekeeper when you need one?

Case Commented On: Syncrude Canada Ltd v Attorney General of Canada, 2014 FC 776

This post continues on from the introductory comment posted by Nigel Bankes on September 11, 2014 (here) concerning this case, and discusses the administrative law aspects in Justice Zinn’s decision. Briefly put, Syncrude challenges the validity of the Renewable Fuels Regulations, SOR/2010-109 enacted pursuant to section 140 of the Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA]. Section 139 of CEPA together with the Renewable Fuels Regulations require diesel fuel produced, imported or sold in Canada to contain renewable fuel of at least 2% by volume. Syncrude produces diesel fuel, and is thus subject to this requirement unless it can successfully argue the Renewable Fuels Regulations are ultra vires the authority of the Governor in Council or that there is some other legal defect in how the rules have been administered against it. My comment focuses on two points in the decision, namely: (1) are the Renewable Fuels Regulations unlawful because they do not conform to the regulation making powers of the Governor in Council set out in section 140 of CEPA?; and (2) did the Minister err in law by failing to afford Syncrude procedural fairness in administering the regulations?