Jessica Ernst, the biologist who on Friday lost a split decision in the Supreme Court of Canada over suing the Alberta Energy Regulator, is no ordinary person.
And she hasn't really lost, because the SCC did not argue on the merits of her case, but rather rejected the procedure that led her case to their door. They opined, five judges to four, she should have gone through lower courts, and not headed straight to the highest court in the land.
The harmful effects of fracking process, and the wealthy industry that shamelessly and aggressively employs it, were not judged. So despite a temporary reprieve arising out of the the Court's decision, they are inching closer to the critical challenge they deserve.
And here's why the industry deserves that challenge.
On Dec. 12, 2016, the US Environmental Protection Agency released its mammoth, 1,000-page study highlighting the harm fracking causes to drinking water.
The report came one year after an earlier draft had generated consternation among scientists and environmentalists with the statement that “hydraulic fracturing activities have not led to widespread, systemic impacts to drinking water resources." The sentence, it is now known, was inserted into the EPA press release at the very last minute.
The current version now admits that dangerous water contamination can happen, and has happened, in many different ways. The fossil fuel industry, which praised the EPA’s earlier draft, was quickly outraged by the final EPA report:
"It is beyond absurd for the administration to reverse course on its way out the door," wrote American Petroleum Industry spokesperson Erik Milito.
But the final version was praised by independent scientists, who had pointed out that the controversial conclusion that fracking didn’t harm drinking water was dead wrong. If you’re still skeptical, however, about the idea that the fossil fuel industry and regulators play do-si-do about the harms of fracking, or if you’re puzzled as to why this seismic shift in the EPA document took place, then it’s time for you read Andrew Nikiforuk’s 2015 book, Slick Water.
It’ll make you sadder but wiser, and you’ll understand how governments and Big Oil and Gas have in the past sung out of the same hymn book.
An Alberta rancher with poisoned waters
Slick Water is the blow-by-blow story of Jessica Ernst – a very determined woman and biologist who, for two decades, gladly helped remediate abandoned oil and gas industry sites. But when her tiny community of Rosebud, Alta. was fracked and its quality of life and drinking water irrevocably harmed, Ernst felt compelled to take on the all-powerful fracking industry in Alberta, and the provincial government that still unquestioningly supports it (Premier Rachel Notley notwithstanding).
Since the book was written, Ernst gained leave to have her case heard by the Supreme Court of Canada, where she sought justice for herself and for the tens of thousands of ordinary citizens – farmers, ranchers, First Nations, rural citizens and small town residents – who have been harmed by fracking operations not only in Alberta, but all over the world.
Author Nikiforuk reveals that one determined person can, against almost insuperable odds, take on one of the most opulent industries in the world – and win. It will make you cheer, but only after it has angered you and stirred up almost unbearable suspense regarding the eventual outcome.
Most important for your understanding of why the fossil fuel age has to come to an end, you’ll also learn a lot of very unappetizing things about the massive environmental damage to water, air and land caused by unconventional oil and gas extraction, and especially fracking (officially known as hydraulic fracturing).
An industry out of control
Nikiforuk’s meticulously researched book draws on court documents, scientific research, media reports, expert analysis, eye witness testimony, and industry insider information to paint a picture of an industry that is brutal in its methods, and fully aware of the inconsistencies, unintended consequences and misdeeds that are part of its everyday operations. At times, they are besotted with a combination of hubris and entitlement enhanced by the fulsome co-operation they receive from various government regulatory bodies.
You will also see an industry that is very, very wealthy, and has a network of well-placed friends in the regulatory domain.
The oil and gas industry shares methodologies and attitudes with its corporate cousins in the pharmaceutical industry, chemical industry, tobacco industry, the agrichemical industry, factory farming industry, and any and all sectors dominated by global corporate interests. All of them tend to see themselves as above the laws that apply to regular citizens (in fact, they often help re-make those laws to suit their own particular ends).
All corporations justify their pursuit of endless profit to the exclusion of all other considerations by pointing to the corporate charter that governs their conduct – which states that their only purpose is to increase the earnings of their shareholders.
Nikiforuk’s book, Slick Water, is filled with riveting stories – of sickened landowners and their animals, of corrosive and sometimes lethal eruptions from subterranean fracking, of old well sites the leak and simmer with noxious fumes and poisons, of incessant and invasive noise from drilling and compressors that shatters peaceful rural lives. Most disturbing of all, perhaps, are the stories of endless legal manipulation of injured and/or bankrupted citizens, directed at buying them off and most important, muzzling them with gag orders.
The following excerpt will show you why reading this book will dispel forever any illusion you may hold of a benign and honourable business of fossil fuel extraction.
What follows is the transcript of the essential parts of a revealing candid conversation that took place in 2013 between a lawyer representing the Alberta government and a worker from the fossil fuel industry seeking information from him on behalf of his mother.
A bit of background
The lawyer was Glenn Solomon, senior partner in the law firm Jensen Shawa Solomon Duguid Hawkes LLP, hired in 2011 to defend the government-run Energy Resources Conservation Board (ERCB) against claims that it was not fulfilling its mandate to protect the rights of the citizens of Alberta. The ERCB is the predecessor of the AER – the Alberta Energy Regulator – which Jessica Ernst is suing.
Glenn Solomon’s law firm has strong ties to the federal Conservative Party and the Alberta government. One of its principals, Robert Hawkes, was in fact the former husband of Alberta Premier Alison Redford; he continued to work for Redford’s government after the two were no longer a couple.
The questioner is Brent O’Neil, an oil patch driller. O’Neil had come to ask Solomon for advice on behalf of his mother, owner of an 80-acre farm near Ponoka, Alta. After a serene life on her land, she had suffered grievous health and environmental problems and damage to her property when fracking took place nearby – problems directly tied to the fracking operations. Behind the scenes, government regulators had readily aborted action to address these problems at the request of the fracking company, Quicksilver Resources, because the company had promised Brent O’Neil’s mother that they would do so themselves.
Quicksilver then – typically for the industry – backed out of their promise.
O’Neil came to ask Glenn Solomon whether his mother had any other recourse besides simply complaining to the provincial authorities about the problem. He wanted to know if his mother could take the industry, or the government, to court. He openly recorded the conversation, intending to share it later on with his mother.
The transcript you were never supposed to read
Solomon: “Take a step back. I told you on the phone, I act for ERCB when they’re sued on these types of things. There is only one such case in Alberta that I’m aware of where they’re using outside counsel, which is me at the moment. And that’s an oil spill out in the Rosebud-area, which is become more of a political grandstanding issue than a legal dispute.” [This, indeed, was Jessica Ernst’s case.]
O’Neil: “Over an oil spill?”
Solomon: “This was a fracking case.”
Solomon: “It was alleged contamination of a water well. Doesn’t appear to be any personal injuries. And…”
O’Neil: “Just groundwater contamination?”
Solomon: “Groundwater contamination. Encana is the oil company. They’ve said, ‘we deny that we’ve done anything but will give you a lifetime supply of potable water anyway, because we just don’t care and we don’t want to fight with you.’ You know, it’s Encana, and they have all the money in the world. And Alberta Environment and ERCB have been sued in that one as well. I can tell you it’s a case that is seven years old. I haven’t yet filed a Statement of Defence because it’s been tied up in preliminary applications… because that’s what happens when you start suing Alberta Environment and ERCB.” [Emphasis added]
Solomon: “We keep on telling the plaintiff’s lawyers, look, if you get rid of us [the dispute with the regulators], Encana is going to resolve this with you, because they always do. That’s what they do. Encana has said, “look, you know, we are happy to pay for this, without admitting or denying liability… You know, it’s… this is a rounding error on our balance sheet, for God sakes. Would you stop being a nuisance?’ ”
O’Neil: “But the PR and the bad publicity would come from it for everybody, is that even worth it?”
Solomon: “Encana, ERCB, and Alberta Environment just don’t care about that either. They just don’t care about bad publicity because… what tends to happen is that the people who go yapping to the media are typically seen as nut cases.”
O’Neil: “On your experience with fracking and stuff, where… what’s the success rate? …What’s the Canadian climate for that kind of stuff? Is it worth a fight?”
Solomon: “I’m not aware of any cases that have gone to trial where fracking damage has been successfully proved. But again, most of these cases resolve. ‘Okay, we damaged your water well. We’ll just set you up with potable water through a tank system forever, because, you know, we just spent $1 million drilling this well that we made a hundred million on. And it’s costing us an extra 300,000. We’re okay.’ ”
Solomon: [voicing how oil companies address people they’ve harmed] “'You know, we don’t need to litigate with you, we don’t even need to know that it was our fault. We’re just happy to pay you. And by the way, by doing that you shut up, the regulators stay off our back, we get to do it again down the street.’ And so that’s the oil company approach on these [things]. The people who typically are suing are getting a lot of resistance, and it’s a knock-‘em-down, drag-‘em-out brawl, where the oil companies are not resolving it. If you drag in the regulators, I can tell you from experience… it’s World War III. And Encana, Alberta Environment, the ERCB, as it turns out, all have effectively unlimited resources. You know they have office towers full of experts. They have bank accounts full of cash. The cost of having even an army of lawyers is something that they wouldn’t even notice, and they don’t have to answer for it. So anyone who wants to pick that fight literally is crazy.”
A messy business that’s helping to heat up the planet
If you believe that unconventional methane sources extracted by hydraulic fracturing – the process that the term fracking refers to – is a well-regulated, tidy process, done with due regard for human and animal and plant health, and carried out in deliberate, measured steps, you will be shocked by what you read in Andrew Nikiforuk’s saga. And if you really thought that this is how it was, you’ll have your worst nightmare confirmed. You’ll also understand why there is a groundswell of resistance to this process – which, if you haven’t heard, is increasingly recognized to be a larger source of greenhouse gas production than oil or even coal.
In other words, the use of fracked methane gas (formerly called “natural gas”), which is then cooled and squeezed to create LNG – liquefied natural gas – is not at all the helpful “bridge” fuel it is still touted to be by industry spokespeople and their political boosters like B.C. Premier Christy Clark.
If Jessica Ernst had won her case before the Supreme Court of Canada, fracking companies would be running scared, because their protector and advocate, the Alberta Energy Regulator – and all similar government agencies -- would no longer be able to cover up for them. The legal landscape around fossil fuel extraction would have instantly been changed forever, and ultimately, the physical landscape in which we live would have been changed also.
But this brave and stubborn woman is not giving up, and the Supreme Court decision does not shut the door to other legal actions against both regulators and industry. In fact, the fact that it was a narrowly split decision opens the door for further actions which address the technical glitch that allow industry a brief reprieve.
One day, the EPA, by changing its report and admitting that groundwater is harmed by fracking, will be very glad that it was ahead of that particular curve.
Read Slick Water.
Note from the author: I have met Andrew Nikiforuk, but he had no influence whatsoever on my writing this piece. I have written this because Slick Water is a damned good book, and tells a story all Canadians need to hear.