Sunday, May 22, 2011

Water case law in Québec 20: Municipal liability further to floods


Since the beginning of May, the flow of an emissary of Lake Champlain, the Richelieu River, is near or at record level, and a large area South of Montréal is flooded (see articles here and here from Le Devoir - in French - and some pics here).

In this context, the recent judgement from the Superior Court in Équipements ÉMU ltée v. Québec (Ville de) (in French), is interesting. In this case, the plaintiff owner of two buildings located on the territory of the defendant municipality seeks compensation for damages resulting from floods that occurred in 2003, 2004 and 2005. The buildings damaged by the floods were built in 1987 and 1996.

The plaintiff argues that the defendant’s rainwater drainage system is inadequate and outmoded. The plaintiff also alleges that the defendant failed to take into account a series of professional recommendations made in 1973 by consultant engineers, in 1990 by the Ministry of the Environment, and in 1993 by other consultant engineers. These recommendations were to the effect that urban development should be curtailed or prohibited in the flood plain where the buildings are located, that the drainage system should be adapted to deal with the runoff modifications resulting from increased urbanisation, and that the river running through the flooded area should be maintained according to certain standards.

The defendant essentially counters that the damages result from a series of forces majeures – see section 1470 of the Civil Code of Québec (CCQ).

The plaintiff’s recourse is based on extra-contractual liability and relies on the presumption established by 1465 CCQ. According to this presumption, the defendant’s fault does not have to be proven by the plaintiff. Under section 1465 CCQ, a person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.

The Court finds that the damages were caused by floods resulting from backflow in the municipal drainage system, which includes the sewers and the river itself. The Court also finds that the municipality is custodian of the drainage system. Hence the presumption of section 1465 CCQ applies. Given that the municipality does not establish its absence of fault, and that the exemption of force majeure is refused by the Court, the municipality is held liable. Damages are not dealt with in this judgement.

The text of the judgement is long and the evidence is not summarised. A number of points are worth highlighting:

- This is a test case for the floods that occurred in the relevant area in 2003, 2004 and 2005;

- The floods that occurred in 2003 and 2004 were caused by accumulations of debris and sedimentation. The municipality failed to clear the river adequately;

- The floods that occurred in 2005 were the result of 100 year recurrence rain events. The rules of the art establish that the river, as part of the municipal drainage system, should be maintained in a condition where it is able to discharge 100 year recurrence rain events;

- The capacity of the sewers is not significantly discussed, but they appear to have been designed in accordance with the applicable rules of the art. Their discharge capacity is at or under 15 year recurrence rain events (see §§ 181 and 344);

- The judgement provides a very interesting review of recent case law illustrating the principles applicable to municipal liability for flooding. In particular, a case is referred to where the Court acknowledges the increase in extreme climatic events, the end of climatic stationarity and the irrelevance of statistical occurrence tables;

- Given the ratio of the Court’s conclusions, the initial emphasis on the municipality’s decision not to follow the various recommendations to curtail or prohibit development in the floodplain appears somewhat immaterial. Nevertheless, this type of municipal decisions on land planning and use might possibly have an impact on municipal liability when the consequences of the decisions are entirely foreeable: see part 5 of François Fontaine, «L'arrêt Ciment St Laurent: les principes sont-ils coulés dans le béton?» (here- in French).

Of note is the fact that authorisation for appeal was refused by the Court of Appeal.

Tuesday, May 10, 2011

Hydraulic fracturing from shale gas exploitation pollutes drinking water


Propublica reports on a peer-reviewed article by Stephen Osborn et al., «Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing», which was recently published in the Proceedings of the National Academy of Sciences. Excerpts from the abstract read as follows:

«In aquifers overlying the Marcellus and Utica shale formations of northeastern Pennsylvania and upstate New York, we document systematic evidence for methane contamination of drinking water associated with shale gas extraction. (...) We conclude that greater stewardship, data, and— possibly—regulation are needed to ensure the sustainable future of shale-gas extraction and to improve public confidence in its use.»

The article mentions hypotheses about the mechanisms causing drinking water contamination from fracking: 1) gas migration; 2) leaky gas-well casings; and, 3) increased connectivity of the rock formation due to extensive fracturing. Only options 2) and 3) appear probable to the authors, with leaky gas-well a likely possibility.

Hopefully, this type of evidence will be considered in the strategic environmental study to be conducted on shale gas exploitation in Québec.