In Supreme Court, a Battle Over Fracking and Citizens’ Rights

Jessica Ernst’s long fight to challenge legislation putting energy regulator above the law reaches top court.

Sourced through Scoop.it from: www.thetyee.ca

“[…] After years of legal wrangling, Jessica Ernst and Alberta’s powerful energy regulator finally squared off in the Supreme Court of Canada yesterday.

For almost two hours, all nine justices questioned lawyers from both sides in a case that will determine if legislation can grant government agencies blanket immunity from lawsuits based on the Charter of Rights and Freedoms.

At times the debate was so bogged down in legal jargon and little known cases that it felt as though the participants were holding a conversation in a foreign language. […]

Ernst alleges the Alberta Energy Regulator violated her rights by characterizing her as a “criminal threat” and barring all communication with her.

The claims are part of her multipronged lawsuit related to the regulation of fracking. She says fracking contaminated aquifers near her homestead near Rosebud, about 110 kilometres east of Calgary, and is seeking $33 million in damages. […]

The Supreme Court hearing dealt with Ernst’s allegation that the provincial energy regulator denied her the right to raise her concerns about groundwater contamination. She argues that the legislation shielding the regulator from citizen’s lawsuits should not bar charter claims.

Lawyers for Ernst, the BC Civil Liberties Association and the David Asper Centre for Constitutional Rights all argued that the Alberta Energy Regulator’s immunity clause undermined the spirit of Canada’s charter, which is designed to protect citizens from government abuses of power.

It is patently unfair to allow a government to violate a citizen’s basic freedoms and then deny them an appropriate remedy in the courts, especially when the charter itself grants that right, they argued. […]

Eight years ago, Ernst sued Alberta Environment, the Energy Resources Conservation Board (which has since become the Alberta Energy Regulator) and Encana, one of Canada’s largest unconventional gas drillers. She claimed her well water had been contaminated by fracking and government agencies had failed to investigate the problems.

But the regulator argued that it couldn’t be sued because it had an immunity clause that protected it from civil action.

After an Alberta Court of Appeal agreed, Ernst’s lawyers appealed the matter to the Supreme Court in 2014.

Initially three provincial governments and the federal government announced their intention to intervene in the case.

“But once they looked at the arguments, they withdrew,” said Murray Klippenstein, another of Ernst’s lawyers, after yesterday’s hearing.

“So there was no government here to support the argument of the [regulator],” added Klippenstein. “It kind of shows in a common sense sort of way how ridiculous the position is.”

The case made legal history, too. “This is the first time the Supreme Court has heard a case about human rights with an environmental context,” noted Lynda Collins, a professor of law at the University of Ottawa’s Centre for Environmental Law and Global Studies.

She said the case concerns the right of a citizen to pinpoint environmental wrongs, such as groundwater contamination, without being penalized by a regulatory body.

Whenever a regulator allegedly takes punitive measures against a citizen addressing key environmental issues in the public interest, “you have a serious allegation,” added Collins. […]

The case is being closely watched by Canada’s oil and gas industry. In 2014, Borden Ladner Gervais, Canada’s largest national full-service law firm, included the Ernst case in a top 10 list of important judicial decisions affecting the energy industry.

“The Ernst case has brought into focus the potential for regulator or provincial liability arising out of oil and gas operations…. If Ernst proceeds to trial, it will likely provide more guidance on the scope of the duty of care and the standard of care required by the province and the oil and gas operator to discharge their duties in the context of hydraulic fracturing.”

The fracking industry has been the subject of scores of lawsuits across North America. Landowners have sued over property damage and personal injury related to industry-caused earthquakes, air pollution and the contamination of groundwater.

In one major Texas case, a jury awarded one family $3 million. The verdict found that Aruba Petroleum “intentionally created a private nuisance” though its drilling, fracking and production activities at 21 gas wells near the Parrs’ Wise County home over a three-year period between 2008 and 2011. […]”

See on Scoop.itGreen & Sustainable News

The Precautionary Principle | Canadian Environmental Law Association

The precautionary principle denotes a duty to prevent harm, when it is within our power to do so, even when all the evidence is not in. This principle has been codified in several international treaties to which Canada is a signatory. Domestic law makes reference to this principle but implementation remains limited.

Source: www.cela.ca

See on Scoop.itGreen & Sustainable News

California Real Estate Assn’ Educates Members on Building Energy Performance & Benchmarking

In California, brokers are at the heart of every non-residential sale or lease. Can the AIR organization get them on board with benchmarking?

Source: www.greenbiz.com

>”Commercial buildings are some of California’s largest energy- and water-guzzlers. With 58 percent of the state locked in the highest category of drought, many commercial property owners are seeing increased utility bills, and with a new building energy benchmarking and disclosure law on the books, building owners seek energy efficiency solutions as a common-sense way to ease some of the pressure. One key trade association in California, the AIR Commercial Real Estate Association, is taking the lead by educating its members on the benefits of energy efficiency.

AIR, founded in 1960, is a regional commercial real estate brokers association with more than 1,700 members across southern California, and is one of the nation’s largest organizations of its kind. It’s recognized across the U.S. for its ever-expanding library of sample lease forms, which members use to stay updated on industry and lease language trends — several of which now include sustainability. When California’s energy benchmarking law, AB 1103, went into effect in January, AIR responded by creating sample energy disclosure lease and sale addenda (PDF) and began educating its members on these new tools.

Brokers are in the thick of it

The law states that any time a non-residential building owner finances, sells or leases a whole building, the property owner is required to use Energy Star portfolio manager to benchmark the building and provide the Energy Star rating and supporting consumption information to the lender, buyer or tenant in the transaction. As brokers are central to every aspect of a commercial transaction, their participation is essential for the law to have its intended effect. AIR’s lease and sale addenda effectively address these energy disclosure requirements in one document, providing real estate professionals, building owners, tenants and attorneys with a framework template for compliance with the regulation.

Brokers hold the key to increasing stakeholder awareness, potentially boosting compliance rates, benchmarking data quality and ultimately better building performance and energy management — and educating the community about new regulations and tools is essential to unlocking this potential.”<

See on Scoop.itGreen & Sustainable News

CEC Delays Energy Benchmarking and Disclosure Requirements 2 Years for Smaller Buildings

 

>”[…]Compliance with AB 1103 is not suspended, and will continue to be required, for the sale, lease, or financing of buildings over 10,000 square feet that are otherwise subject to the regulations based upon occupancy type.

Significant barriers to compliance with AB 1103

An Emergency Rulemaking Action requires a description of specific facts justifying the immediate action. In justifying the two-year delay, the CEC explained that several stakeholders had expressed concerns about significant barriers to compliance with AB 1103. The CEC noted the following factors in justifying the two-year delay:

  • Some utilities have required tenant consents before releasing utility usage data despite letters sent from the CEC to utilities in July 2013 prohibiting such requirement. This requirement to obtain tenant consents significantly increases compliance costs.
  • Smaller utilities have expressed concerns with their ability to comply given limited staff and resources.
  • The Portfolio Manager platform and software has experienced significant technical problems.
  • The expansion in scope to smaller buildings would increase the number of compliance requests received by utilities, impeding their ability to address barriers to compliance.
  • Smaller building owners may lack the expertise, resources, or capacity necessary to overcome current barriers to compliance without incurring undue expense.
  • Based on initial disclosure data following the January 1, 2014 implementation, it became apparent that “the required disclosures were not being made for the majority of transactions for which they were required.”
  • The development of best practices approaches is lowering compliance costs and paving the way to greater compliance. The additional two years will facilitate lower costs and higher compliance rates before further expanding the program to smaller buildings.”<

See on Scoop.itGreen Building Operations – Systems & Controls, Maintenance & Commissioning

BP battles for billions in latest Gulf Oil Spill pollution trial

See on Scoop.itGreen & Sustainable News

HOUSTON/LONDON (Reuters) – BP will battle to hold down fines that could hit $18 billion in a new phase of the Gulf of Mexico trial that will rule on how much oil it spilled in 2010 and judge its efforts…

Duane Tilden‘s insight:

>POLLUTION FINES

BP says 3.26 million barrels leaked from the well during the nearly three months it took to cap the blowout at the Deepwater Horizon rig; the U.S. government says it was 4.9 million. Both those totals include 810,000 barrels that were collected during clean-up and which Barbier has agreed to exclude.

This month, BP’s lawyers questioned the government’s figure. “United States experts employ unproven methods that require significant assumptions and extrapolations in lieu of … available data and other evidence,” they said in a filing.

They have also sought to convince Barbier that if the company is to be found guilty, it should amount to only “negligence” and not “gross negligence” – a crucial distinction since the latter carries much higher maximum penalties.

Under the Clean Water Act, negligence can be punished with a maximum fine of $1,100 for each barrel of oil spilled; a gross negligence verdict carries a potential $4,300 per barrel fine.

If the court judged the spill to have been 4.09 million barrels – the government estimate less oil recovered – the price of negligence could reach $4.5 billion. Gross negligence, in the costliest scenario, could run to $17.6 billion.<

See on www.reuters.com

Construction Materials Scarcities in India spurs alleged Mafia-Political corruption

See on Scoop.itGreen Building Design – Architecture & Engineering

In several areas, Indian rules and regulations make honest business impossible. The only choice is illegal business or no business.

Duane Tilden‘s insight:

>Sand is essential for construction. Sand, gravel and cement are mixed to produce concrete. But an acute sand shortage has been created by licensing and environmental bottlenecks. So, mafia groups are mining river beds illegally across India. It’s easy: one mechanical excavator can extract several truckloads of sand every night.

Sand helps retain monsoon water in river beds, releasing the water gradually in the dry season. Excessive mining endangers this. Central and state governments have detailed environmental rules for extraction, made even tougher by court interventions. Ideally, we should have environmentally safe mining that meets rising construction demand.

Instead we have grossly insufficient legal mining, huge illegal mining, sand scarcity for construction, and big illegal profits split between the mafia and politicians.

A former cabinet minister recently declared that political parties are now funded mainly by the mafia, not by big business. This again is part of the untold Durga Sakthi story.

Politicians used to demand bribes for mining licences. Now, they deliberately hold back leases to make sand scarcer, and more profitable. […]<

See on www.cato.org

Companies Fined for Greenhouse Gas (GHG) Emissions Reporting Errors | The National Law Review

See on Scoop.itGreen & Sustainable News

Nine companies were issued fines by the California Air Resources Board (ARB) for violating the State of California’s Mandatory Greenhouse Gas Reporting rule. The ARB adopted the reporting rule in 2007.

Duane Tilden‘s insight:

>The companies cited for violations were not concentrated in one industry sector.  Sources receiving fines included a refinery, a biomass generating plant, an oil and gas production company, a utility company, a lime manufacturing company, and a cement company, among others. <

See on www.natlawreview.com

New flash mob law to get tough on social media users

See on Scoop.itTwitter & Social Media

According to a Huffington Post report and other media sources, on Friday, Illinois got a step closer to getting tough on persons who place posts on the Internet

Duane Tilden‘s insight:

>The lawmakers passed the measure to hopefully stop violent occurrences in which persons have gathered, run the streets and stopped traffic, robbed, and terrorized people. The flash mobs of note in Chicago have occurred along Michigan Avenue – the Magnificent Mile which is known for its high-end shops and stores. Other areas frequented by tourists have been targeted by the flash mob activists as well.<

See on www.examiner.com

Lawmakers float renewable energy finance bill – The Hill’s E2-Wire

See on Scoop.itGreen Energy Technologies & Development

A bipartisan, bicameral group of lawmakers revived legislation Wednesday that aims to spur renewable energy investment through federal tax code tweak. Lawmakers unveiled the Master Limited Partnerships Parity Act — spearheaded in the Senate by Sens.

Duane Tilden‘s insight:

The bill would extend master limited partnerships to renewable energy projects ranging from wind power to energy efficiency. Currently, only oil-and-gas projects can use the financing mechanism.

“This market-driven solution supports the all-of-the-above energy strategy we need to power our country for generations to come. Our legislation will unleash private capital, create jobs and modernize our tax code,” Coons said in a statement.

See on thehill.com

Small Hydro Power for micro hydro power generation in streams & rivers. HydroWorld

See on Scoop.itGreen & Sustainable News

Read the hot small hydro power project news & technology.

Duane Tilden‘s insight:

Hydroelectric plants with a capacity of 20 MW or less are a valuable niche of the hydro industry, providing local power in underdeveloped countries and sources of new capacity in established markets.

See on www.hydroworld.com