Canadian Courts Dismiss Protection for Owners of Polluted Lands & Waters

A horrible decision against Jessica Ernst, Landowner, Rosebud, Alberta, Canada

Article by S. Tom Bond, Retired Chemistry Professor and Resident Farmer, Lewis County, WV

 Alberta, Canada, is a province lying in and east of the Rocky Mountains, north of Montana and up to the 60th parallel. In it lie Edmonton and Calgary, large cities, so that only 19% of the 3.6 million total population live in  rural areas.  It is the home of the fabulously beautiful location, sometimes called Superman Country, where part of the movie Superman was filmed.  It is also the home of vast deposits of hydrocarbons: coal, gas and the famous Athabasca Tar Sands.  Alberta is the largest producer of crude oil, synthetic crude, natural gas and gas products in Canada. Alberta is the world’s second largest exporter of natural gas and the fourth largest producer.

That is the background of our story (and incidentally sheds some light on the Keystone XL pipeline).  The hydrocarbon industry in Alberta is a political power that makes Texas look downright democratic.

The heroine of this story is Jessica Ernst, a substantial landowner near Rosebud, Alberta.  In 2003 EnCana, the second largest gas producer in Canada, used hydraulic fracturing in a coalbed under her land to stimulate production of coalbed methane.   Discernable changes began to take place in the local wells in 2004 and by 2005 Jessica’s well water “began dramatically changing, going bad.  I was getting horrible burns and rashes from taking a shower, and then my dogs refused to drink the water. That’s when I began to pay attention.” At least fifteen water-wells had gone bad in the little community.  Ernst says she heard from “at least fifty other landowners the first year” she went public, and she continues to get calls. Groundwater contamination from fracking “is pretty widespread” in Alberta, “but they’re trying to keep it hidden.”

Jessica Ernst is the wrong person to pick on.  She has a degree in Biology and a Masters in Pathology, and worked twenty five years for the oil and gas industry as an environmental consultant, plus she has a lot of the at old-fashioned virtue “pluck.”  Her company, Ernst Environmental Services, was consulting for EnCana at the time it began its shale gas drilling and hydraulic fracturing operations in Rosebud.

Persistent use of Freedom of Information found Alberta Province environmental officials had discovered hexavalent  chromium in Rosebud’s well  water!  And a gas well casing had lost it’s integrity – in other words, allowed contents of the gas well to escape. 

Hexavalent chromium, also known as chromium-6, you will remember, is what Erin Brockovich found in Hinkley, Californina drinking water.  It is a very powerful poison, which has the capacity to change DNA and cause cancer.  It is toxic in the low parts per billion range.  Pacific Gas and Water paid $333M as a result of the law suit in California. 

Jessica Ernst says chromium-6 “is used in fracking and drilling.”

(Incidentally, Erin Brockovich is also involved with a mile-long plume of chromium-6 contamination of drinking water – apparently caused by fracking and drilling – in Midland, Texas.  A suit against Dow Chemical, Schlumberger, Schlumberger Technology Corp. and Lear Corporation were filed on behalf of 250 western Texas residents in 2011. )

The reaction of EnCana was what everyone by now expects of corporations: denial.  In January of 2011 the Energy Resources Conservation Board of Alberta released a report that recognized the possibility of hydraulic fracturing  contaminating usable aquifers.

A suit was launched about the problems of Ernst and her neighbors in 2007.  The Alberta court dragged its feet. Not only was the gas industry being attacked, but also the Provincial regulatory agency.  The first response was to require the claim to be re-written within 60 days.

On April 27, 2011 lawyers representing Jessica Ernst, filed an “amended” claim alleging EnCana broke multiple provincial laws and regulations and contaminated with natural gas and toxic industry-related chemicals a shallow aquifer used by a rural community.  It also alleges that the Energy Resources Conservation Board has repeatedly, despite numerous reports of suspected water contamination, assured the citizens there is no problem.  Also that it tried to suppress complaints and “has in fact served as a governmental cover-up of environmental contamination caused by the oil and gas industry.”

When the case had dragged on about as long as it could at this stage, the trial judge was promoted, causing further confusion and delay.

The most recent decision is the real horror, though.  The court rejected the Government of Alberta’s attempt to attack portions of the lawsuit, thus allowing the claim against the Government and EnCana to go ahead.  However, the court found the Energy Resources Conservation Board had been granted complete immunity by the Provincial government!  Thus the part of the suit against the ERCB was dismissed!

“Chief Justice Wittmann ruled the ERCB does not owe any legally enforceable duties to protect individual landowners from the harmful effects of fracking, after the ERCB argued in court it had total immunity for “not only negligence, but gross negligence, bad faith and even deliberate acts,” and therefore Albertans simply could not sue the ERCB, no matter how badly they were harmed by the ERCB’s acts. Ms. Ernst was ordered to pay the ERCB’s costs.”

So if the energy regulator won’t protect the citizens and the environment, who will?  Is the ERCB only to facilitate extraction, even by putting itself between what is done by the company and the health and welfare of the citizens?  Only the company has responsibility to the citizens where it operates?  Cm’ on, Canada!  The corporations are as predictable as tapeworms – they take all they can get.  You can do better than THAT for your people!

Tagged as: Alberta, Canada, Canadian courty, health effects, Jessica Ernst EnCarta, toxic chemicals, water pollution