Saturday, April 23, 2011

Review of Policy proposal for BC Water Sustainability Act


British Columbia is currently reforming its legal framework for water management. In December 2010, a policy was proposed for the province's new Water Sustainability Act (WSA).

An interesting comparison between:
a) the 2008 Living Water Smart provincial initiative which launched the reform process;
b) the recommendations for reform made in 2009 by NGOs;
c) the 2010 policy proposal,
has been prepared by Randy Christensen, a lawyer with Ecojustice Canada, and Linda Nowlan, Director of Pacific Conservation with WWF-Canada. This comparison provides a great perspective to assess the reform process and evaluate whether the initial objectives are met.

The WWF has submitted comments on the WSA policy proposal that focus on environmental flow protection. The WWF argues the WSA should put environmental flows at the centre of the reformed framework through strong legal protection based on a five step process:

1 - Set a single province wide standard to protect environmental flows;

2 - Require regionally specific broad environmental flows standards to be determined, based on a classification scheme to group rivers and streams of the same type;

3 - Require time-bound plans for the most water-stressed areas that set environmental flow conditions and then require all licences to be subject to maintain those flow conditions;

4 - Require environmental flows to be considered in all new licences;

5 - Require review of licences at periodic intervals to enable response to changing flow conditions.

As the proposal now stands, WWF submits that only the third and fourth actions listed above will occur, leaving most of the province unprotected when it comes to environmental flows.

Dundee International Water Law and Transboundary Freshwaters Workshop

The International Water Law and Transboundary Freshwaters Workshop will be held in at the IHP-HELP Centre for Water Law, Policy and Science, University of Dundee, this August. Here's the blurb:

Running from Monday 1st August to Friday 5th August 2011 (inclusive), internationally renowned speakers will explore the role of international water law in the management of freshwater resources. Key topics to be addressed include:

• What is international water law and how does it support regional peace and security?

• How do international legal frameworks support national decision-making related to transboundary water resources planning and management?

• Who is entitled to use transboundary freshwater resources – why and how?

• What special rules exist for the management of groundwater?

• How does international law reconcile competing claims over transboundary freshwaters?

• How can states use international law to promote hydro-diplomacy?

More info can be found here.

Sunday, April 17, 2011

U.S. congressional committee report on chemichals used in fracking fluids


The U.S.A. House of Representatives Committee on Energy and Commerce, Minority Staff, released yesterday a report on the «Chemicals Used in Hydraulic Fracturing». A part of its executive summary reads as follows:

«The most widely used chemical in hydraulic fracturing during this time period, as measured by the number of compounds containing the chemical, was methanol. Methanol, which was used in 342 hydraulic fracturing products, is a hazardous air pollutant and is on the candidate list for potential regulation under the Safe Drinking Water Act.

Some of the other most widely used chemicals were isopropyl alcohol (used in 274 products), 2-butoxyethanol (used in 126 products), and ethylene glycol (used in 119 products). Between 2005 and 2009, the oil and gas service companies used hydraulic fracturing products containing 29 chemicals that are (1) known or possible human carcinogens, (2) regulated under the Safe Drinking Water Act for their risks to human health, or (3) listed as hazardous air pollutants under the Clean Air Act. These 29 chemicals were components of more than 650 different products used in hydraulic fracturing.»

The U.S. congressional committee notes that common chemical compounds in fracking fluids are known human carcinogens and can damage the central nervous system, liver and kidneys. For example, 2-butoxyethanol, which was used in 126 fracking fluid products from 2005 to 2009 in the U.S.A., is easily absorbed and distributed in the human. It can cause the destruction of red blood cells, as well as damages to the spleen, liver and bone marrow (see p.7 of the U.S. congressional committee report).

This is a very interesting read considering the paucity of information regarding fracking fluids in the recent BAPE report on shale gas exploitation in Québec (see p.57-58 of the BAPE report for public concern on human and environmental contamination as well as p.123-125 for the recommendations).

Tuesday, April 12, 2011

Shale gas exploitation and public interest in Texas


Disputes related to shale gas exploitation have arrived before the courts in the U.S.A. In RailRoad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water, the issue relates to the re-injection of drilling fluids underground after their use for hydraulic fracturing. The Court thus describes the factual background:

«Fracing a well entails pumping large volumes of water and sand into reservoir rock, which then mixes with saline formation water and must be flowed back out of the well before production can begin. A company fracing a well must dispose of the resulting waste. Most companies do so by injecting the waste into subsurface zones which are naturally saline environments, usually in old wells converted to injection wells. A company seeking to convert a well to an injection well for oil and gas waste must apply to the Commission for a permit.»

The Commission can grant an injection permit when, inter alia, the use or installation of the injection well «is in the public interest». In this instance, the Commission granted a permit to a fracking company notably because the «production of hydrocarbons for use by the people of Texas and industry serves the public interest».

This determination is contested before the Court, and the crux of the matter turns on the degree of discretion that the Commission has in interpreting the notion of public interest.

The Court finds that «the phrase “public interest” is anything but clear and unambiguous». As a result, the Court must defer to the Commission's interpretation of the notion of public interest, and the Commission's decision to grant an injection permit stands. A more substantial study of the courts decision by Stephen Dillard, Barclay Nicholson and Kadian Blanson from Fulbright & Jaworski LLP can be found here.

This case is not relevant in the context of both the regulatory regime for natural resources management and the administrative law applicable in Québec. Nevertheless, this case illustrates the risk related to the interpretation of legal notions like public interest when they are tied to authorisation regimes relying on administrative discretion. As argued in a previous post, the notion of public interest found in the new Québec water withdrawal authorisation regime should be further defined to avoid an excessive degree of discretion.

Meanwhile, an article by Robert Howarth et al., «Methane and greenhouse-gas footprint of natural gas from shale formations», has just been published in Climatic Change Letters. Excerpts from the article's summary read as follows:

«[A n]ew study demonstrates that shale gas is not the planet-friendly gas it is thought to be. Natural gas extracted from shale formations has a greater greenhouse gas footprint - in the form of methane emissions - than conventional gas, oil and coal over a 20 year period. This calls into question the logic of its use as a climate-friendly alternative to fossil fuels[...]

[O]verall, during the life cycle of an average shale-gas well, between four to eight percent of the total production of the well is emitted to the atmosphere as methane, via routine venting and equipment leaks, as well as with flow-back return fluids during drill out following the fracturing of the shale formations. Routine production and downstream methane emissions are also large, but comparable to those of conventional gas.»

In light of the Texan case above, one may wonder whether climate change and its potentially catastrophic consequences that are brought about by fossil fuels such as shale gas are in the public interest.

Finally, another excellent article by Louis-Gilles Francoeur in Le Devoir (here - in French) provides a great perspective on the management of energy resources in Québec.

Sunday, April 3, 2011

Québec water case law 19: interpreting section 56 of the Municipal Powers Act


In Tousignant v. Lac-Beauport (Municipalité de) (in French), the appellant, owner of a defective sceptic installation receiving waste water from his residence, was found by the Municipal Court in first instance to contravene to the Regulation respecting waste water disposal systems for isolated dwellings and was ordered to reconstruct the installation in conformity with the regulatory requirements.

Before the Superior Court, the appellant contests the validity of the injunctive orders from the Municipal Court based on lack of competence. In principle, the Superior Court has inherent and exclusive competence in injunctive matters as a court of first instance. Thus, the question is whether the Municipal Court exceeded its jurisdiction when it ordered the appellant to reconstruct the installation.

This debate has been studied recently by doctrine: see Daniel Bouchard & Hélène Gauvin, «L’article 56 de la Loi sur les compétences municipales: une jeune disposition, un vieux débat... latent» in Barreau du Québec, Développements récents en droit municipal 2008 (in French). The relevant provisions are section 29 of the Act respecting municipal courts as well as sections 25.1 and 56 to 61 of the Municipal Powers Act (MPA). In particular, the solution to the issue at hand turns on the interpretation of section 56 MPA: must it be interpreted as giving injunctive powers over immovables to the Municipal Court?

The Superior Court concludes that a restrictive interpretation should be favoured based on 2 principles of interpretation: 1) the expectation of coherence between laws; 2) the presumption of utility or validity of a legal disposition. As a result, section 56 MPA does not grant power to a Municipal Court to order the reconstruction of a sceptic installation, which is a permanent work and an immovable.

Of note is the fact that debate on the constitutionality of section 56 MPA was not addressed directly due to procedural questions.