ECELAW Submission on: “Discussion Paper: Hydraulic Fracturing - Understanding the General
Regulatory Issues”
Submitted by Jamie Simpson, ECELAW
July 25, 2014
East Coast Environmental Law (ECELAW) is a non-profit, charitable-status organization. We
provide public interest environmental law assistance to Atlantic Canadians. ECELAW envisions
a future where innovative and effective environmental laws provide Atlantic Canadians with a
clean, healthy environment that contributes to the quality of life of present and future
inhabitants and visitors.
ECELAW appreciates the thorough overview of regulatory issues related to hydraulic fracturing
conducted by the Panel members and researchers who contributed to this chapter. We
especially acknowledge your findings regarding the lack of baseline environmental information
and the need to promote proactive monitoring to establish these baselines.
Comments on the Chapter:
1. Lack of Environmental Procedural Rights for Nova Scotians
The discussion paper mentions several benefits of a strict regulatory regime, including the
prevention of harm “so that citizens are not forced to pursue remedies through lawsuits, where
their legal rights often only materialize after harms have already occurred, and those harms
may not be reversible” (at page 5).
We wish to draw attention to the fact that these “legal rights” are limited under existing
environmental laws because Nova Scotia does not have an environmental bills of rights (or the
equivalent embedded in other legislation) that would provide procedural rights to citizens.
Thus, pursuing legal remedies after harm has occurred is an even less favourable option given
the lack of formal environmental procedural rights for Nova Scotians.
Under existing environmental legislation and regulations, for example, it is difficult to obtain
information about environmental concerns in Nova Scotia. There is cause for concern that this
will also be the case with respect to the hydraulic fracturing industry.
As well, the public has limited opportunity to participate in environmental decision-making
processes. Without a legally mandated avenue to influence the governance of hydraulic
fracturing, Nova Scotians may well be shut out of the development of regulations on hydraulic
fracturing.
Finally, and perhaps most importantly, there is limited ability for citizens to bring environmental
concerns to the courts. Currently, Nova Scotians have no legal standing to challenge an
environmental decision unless they are considered an ‘aggrieved person’ under the Nova Scotia
Environment Act. This is concerning in the context of hydraulic fracturing because the effects of
the hydraulic fracturing process can be far-reaching and varied in scope.
2. Causation Challenges in Court Cases
When citizens are granted legal standing to bring a tort action in negligence, nuisance, trespass,
or Rylands v Fletcher, the plaintiff bears the onus to prove that a particular industry caused the
harm they experienced. Many actions in environmental torts fail because a plaintiff does not
have enough evidence to establish legal causation. It is difficult to prove the source of
contamination related to hydraulic fracturing because some of the harmful chemicals are
naturally occurring in low concentrations and because there are often multiple wells in a small
area. In the United States, several tort actions related to hydraulic fracturing have failed in the
courts because the plaintiffs were unable to prove causation. We await the outcome of the
first Canadian hydraulic fracturing case, Ernst v EnCana.
3. Need for Adequate Financial Resource Allocation
Finally, we wish to highlight the chapter’s discussion of the importance of political will with
respect to allocating necessary resources. As you note in your chapter, an effective hydraulic
fracturing regulatory regime will require significant resources. Effective oversight of a
regulatory regime requires staff to handle applications and ensure ongoing monitoring, as well
as a sufficient number of inspectors and enforcement officers. All of these components require
additional government expenditures. ECELAW is concerned that government departments will
not have the funds necessary to ensure a strict regulatory regime is effectively monitored and
enforced, without specific and new resource allocation for monitoring, compliance and
enforcement.
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