A Quebec court has struck down a Gaspe municipal bylaw that tried to prevent exploratory oil wells being drilled and fracked uncomfortably close to its drinking water supply. The court ruled that the bylaw was invalid because it prevented Petrolia Inc. from carrying out drilling specifically authorized by the province.
One of the drill sites is only 350 metres from homes served by the municipal water system and within two kilometres of some 400 homes that depend on drinking water wells. One of those homes is only 850 metres away. Petrolia Inc. testified that it would not be fracking these particular wells, because it was not necessary for the local geology, so the issue was focused on municipal concerns about risks from drilling muds.
The municipal anti-drilling, anti-fracking bylaw prohibited introducing anything into the ground, by drilling or other physical process, mechanical, chemical, biological or otherwise, any substance likely to impair the quality of groundwater or surface water used for human or animal consumption, (i.e. drilling and fracking) within the following setbacks, everywhere in Gaspe:
- 10 km from any surface water source of municipal water supply;
- 6 km from any artesian wells or surface water serving more than twenty (20) persons; and
- 2 km from any artesian wells or surface water serving twenty (20) persons or less…
The anti-fracking bylaw did not attempt to identify areas of especial vulnerability to the risks of the drilling, which might have helped to support its validity.
The court held that the provincial law, which authorized the drilling, was intended to provide the exclusive source of regulation of oil drilling, and that the municipality had no right to interfere with how it was done.
[83] In sum , the fact that the laws and regulations adopted by the Parliament and the Government of Quebec do not address the concerns of the Town of Gaspé does not justify regulation by the latter of an industry specifically withdrawn from its authority.
[84] In accordance with the fourth paragraph of Article 124 of the Law on Environmental Quality and Article 3 of the Act on Municipal Powers , Article 8 of Regulation No. 1205-12 of the City is ineffective against drilling authorized under the Mining Act and regulations made ??thereunder, particularly with respect to those of Petrolia and Articles 9 to 14 of the Regulations are ultra vires in relation to those activities. However, if these items 9-14 could be considered as part of the municipal authority , they would also be declared inoperative under the fourth paragraph of Article 124 of the Law on Environmental Quality.
It is not yet clear whether Gaspe will appeal. See Pétrolia inc. c. Gaspé (Ville de), 2014 QCCS 360.