Fracking lawsuit against Alberta Environment can go ahead, judge rules

An Alberta woman has the right to sue the provincial environment ministry for allegedly failing to properly investigate water contamination she says Encanas 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.

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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 intoher water well.

Ernst claims there was so much methane in her tap water as a result of hydraulic fracturing, or fracking, thatshecould set fireto 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 Queens Bench Chief Justice Neil Wittmann disagreed.

There is a reasonable prospect that Ernsts 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 Ernsts legal costs at triple the regular rate because Ernst was put throughthe 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 Wittmannruled last year Ernst cannotname the Alberta Energy Regulatorformerly the Energy Resources Conservation Boardin 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.