An Alberta woman has the right to sue the provincial environment ministry for allegedly failing to properly investigate water contamination she says Encana’s hydraulic fracturing caused on her property, a Calgary judge has ruled.
Jessica Ernst launched a $33-million lawsuit in 2011 against Alberta Environment, the province's energy regulator and energy company Encana.
She claims gas wells fracked around her land in Rosebud, Alta., about 120 kilometres northeast of Calgary, released hazardous amounts of methane and ethane gas and other chemicals into her water well.
Ernst claims there was so much methane in her tap water as a result of hydraulic fracturing, or fracking, that she could set fire to the water.
Lawyers for Alberta Environment argued the department did not owe a "private duty of care" to individual landowners when investigating causes of groundwater contamination, and could not be held legally responsible for negligence.
'A big victory'
Court of Queen’s Bench Chief Justice Neil Wittmann disagreed.
“There is a reasonable prospect that Ernst’s claim that she is owed a private duty of care will succeed,” Wittmann said in his ruling on Friday.
He also ordered the province to pay Ernst’s legal costs at triple the regular rate because Ernst was put through the time and expense of two legal proceedings that could have been combined, Wittmann said.
"This is a big victory for water and for all Albertans," said Ernst in a release. "The decision means that landowners can stand up and hold governments and regulators to account if they fail in their duty to properly investigate environmental contamination."
But Wittmann ruled last year Ernst cannot name the Alberta Energy Regulator — formerly the Energy Resources Conservation Board — in her lawsuit because under provincial law it is immune from private legal claims.
In its statement of defence, Encana denies all of Ernst's allegations.
Hydraulic fracturing involves pumping water, nitrogen, sand and chemicals at high pressure to fracture rock and allow natural gas or oil to flow through wells to the surface.