Category: Environmental Page 32 of 53

Whose (Pipe)line is it Anyway?

On December 3, 2014

By: Martin Olszynski

PDF Version: Whose (Pipe)line is it Anyway?

Document Commented On: Quebec’s Letter to TransCanada Corp. Imposing 7 Conditions on Energy East

On November 18^th, on the heels of a unanimous vote of non-confidence in the National Energy Board (NEB) by Quebec’s National Assembly, Quebec’s Environment Minister sent a letter to TransCanada outlining seven conditions that the company must meet before the province “accepts” the Quebec portion of the company’s proposed pipeline. Most of the conditions are similar to those stipulated by British Columbia with respect to Enbridge’s Northern Gateway pipeline (e.g. world class emergency and spill response plans, adequate consultation with First Nations) with three notable differences. First, while Quebec insists that the project generate economic benefits for all Quebecers, unlike British Columbia it is not asking for its “fair share” (whatever that meant). Second, because Energy East involves the repurposing of an existing natural gas pipeline, Quebec insists that there be no impact on its natural gas supply. Finally, and the focus of this post, Quebec insists on a full environmental assessment (EA) of the Quebec portion of the pipeline and the upstream greenhouse gas emissions from production outside the province – something that the NEB has consistently refused to assess in its other pipeline reviews. Last week, Ontario joined Quebec in imposing these conditions (see here for the MOU). Premier Kathleen Wynne acknowledged that “Alberta needs to move its resources across the country,” but argued that the two provinces “have to protect people in Ontario and Quebec.” In this post, I consider whether this condition is consistent with the current approach to the regulation of interprovincial pipelines.

Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

By Shaun Fluker

On November 17, 2014

In Civil Procedure, Environmental

By: Shaun Fluker

PDF Version: Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Case Commented On: Ernst v Alberta Environment, 2014 ABQB 672

This short comment adds to the recent posts on ABlawg by Professor Martin Olszynski (here and here) and myself (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator (AER) 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 how Chief Justice Neil Wittmann applies the law on a motion to strike under Rule 3.68 and for summary judgment under Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules) to dismiss Alberta’s application. I also ask how we reconcile this decision from the motion to strike initiated by the AER/ERCB and the decision by Alberta courts to grant that application.

Recall that Ernst alleges that Alberta Environment and the AER owe her a duty of care and were negligent by failing to meet that duty. The AER successfully applied to have the Ernst proceedings struck for failing to disclose a reasonable cause of action (Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (Ernst II)). Ernst has applied to the Supreme Court of Canada for leave to appeal this Court of Appeal decision (See here).

Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

By Martin Olszynski

On November 14, 2014

In Environmental, Torts

By: Martin Olszynski

PDF Version: Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

Case Commented On: Ernst v EnCana Corporation, 2014 ABQB 672

This post follows up on a previous one regarding Ms. Ernst’s lawsuit against EnCana, the Energy Resources Conservation Board (ERCB, now the AER) and Alberta Environment for the alleged contamination of her groundwater as a result of EnCana’s hydraulic fracturing activity (fracking) near Rosebud, Alberta. My first post considered the ERCB’s application to have the action against it struck, with respect to which it was successful (see 2013 ABQB 537 (Ernst I), affirmed 2014 ABCA 285 (Ernst II)). On November 7, 2014, Chief Justice Wittmann released the most recent decision (Ernst III) in what is shaping up to be the legal saga of the decade. Like the ERCB before it, Alberta Environment sought to have the regulatory negligence action against it struck on the basis that it owed Ms. Ernst no private law “duty of care” and that, in any event, it enjoyed statutory immunity. In the alternative, Alberta sought summary judgment in its favor. In contrast to his earlier decision agreeing to strike the action against the ERCB, the Chief Justice dismissed both applications.

In my previous post, I noted some inconsistencies between Ernst I and II with respect to the duty of care analysis and suggested that courts should strive to apply the applicable test (the Anns test) in a predictable and sequential manner, the Supreme Court of Canada’s decision in Cooper v Hobbart, 2001 SCC 79 (still the authority for the content of that test in Canada) being valued first and foremost for bringing some much needed transparency to the exercise. In this respect, the Chief Justice’s most recent decision is exemplary. In this post, I highlight those aspects of the decision that help to explain the different result in this case, as well as those that in my view address some of the concerns I expressed in my previous post.

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

By Shaun Fluker

On October 20, 2014

In Civil Procedure, Environmental

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.