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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 breaches.

In recent U.S. litigation, citizens and environmental organizations 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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