Verbatim: Jessica Ernst’s case against Encana and the Alberta Energy Regulator by Alberta Venture Staff, Published December 3, 2015; interview by Email before the 2015 federal election, Alberta Venture Magazine
She’s become one of Alberta’s most polarizing figures. In 2007, Jessica Ernst, who spent decades as an environmental consultant in the oil patch, sued Encana, Alberta Environment and the Energy Resources Conservation Board (now the Alberta Energy Regulator) for $33 million, alleging contamination of her well water from Encana’s nearby operations. (In a video, Ernst lights her water on fire with a match.) None of the allegations have been proven in court.
Since then, she’s become a folk hero to the anti-fracking movement – much to the anger of her detractors, who say her claims are merely fuel for the ire of radical environmentalists. After years of back-and-forth litigation, she’s going to the Supreme Court. The Court will decide whether the Alberta Energy Regulator has legal immunity against claims such as Ernst’s, and the ruling will reverberate throughout the energy industry. Alberta Venture caught up with Ernst to cut through the rhetoric and learn where her case might be headed.
ALBERTA VENTURE: What stage is your case at now?
JESSICA ERNST: My lawsuit against the Alberta Energy Regulator (previously the ERCB, which was previously the Energy Utility Board) is before the Supreme Court of Canada with a hearing date of January 12, 2016. My case against Encana for [allegedly] contaminating my water and the Alberta government for [alleged] negligent investigation proceed regardless. The Court required [provincial attorney generals] to file notice by the end of August. The federal, Quebec, Saskatchewan and B.C. governments did; they must file arguments by December 23.
AV: You allege that the AER violated your Charter rights between 2005 and 2007, when the regulator “restricted your communications.” What exactly does that mean, and how that would constitute a violation of your Charter rights?
JE: After Encana fractured Rosebud’s aquifers and I presented evidence of non-compliances, the regulator judged me a security threat without evidence and ended all contact. This is from their 2005 letter to me: “Criminal threats will not be tolerated … Until the safety and security issues have been satisfactorily addressed and resolved, I have instructed my staff to avoid any further contact with you.” I was horrified. I had asked for help, not uttered threats. The police had not charged or arrested me; I had just found out my life was at risk in my home with explosive industry contaminants venting from my water taps. I wrote a registered letter requesting clarification. The AER refused and returned it unopened.
AV: The AER is arguing that it has legal immunity. If the Supreme Court rules that the AER doesn’t have legal immunity, what would the significance be, as it pertains to your case?
JE: I get to sue the AER, nine years in. [If the Court doesn’t rule in my favour] I’ll not be able to sue the AER. There’ll be legal precedent set that governments and their agencies can trump the Charter.
AV: In 2006, the energy regulator told a reporter they’d found no methane in your water. And didn’t Alberta Environment claim to have found the same thing a few years later?
JE: In 2003, before fracking our aquifers, Encana tested my water and didn’t report methane. The AER never tested my water. I have copies of Alberta Environment test results on my water in 2006 and 2007 showing dangerous concentrations of methane after Encana fracked our aquifers. Alberta Environment left out vital information, including Encana’s data on file with the Alberta Water Well Database, proving the company deliberately, repeatedly fractured directly into six depths of our fresh water aquifers. They did not include the data from Alberta Environment’s testing showing petroleum industry contamination in the hamlet’s drinking water.
AV: No cases of personal injury from fracking operations have been proven in court, and in June, the U.S. Environmental Protection Agency concluded a five-year, multi-million-dollar investigation into hydraulic fracturing by saying, “We did not find evidence that these mechanisms have led to widespread, systemic impacts on drinking water.” If your case is an anomaly, why focus so much effort on attacking hydraulic fracturing in general?
JE: First, it was there had never been a case of groundwater polluted by the oil and gas industry in Alberta . Then never a case of proven groundwater polluted by fracking. Then never a case of drinking water-proven polluted by fracking. Now, it’s changed to “personal injury proven in court.” What a leap in less than a decade!
I am not taking aim at fracking in general. I am suing, seeking accountability and justice, and making it all public. Wouldn’t you like the truth as to what to expect when [fracking] comes to your neighbourhood? I am suing for law violations, water contamination and Charter violations, and it’s costing me everything I have because I refuse to settle out of court and gag the way others harmed are forced to do. But at the end of the day, all the cards will be on the table for everyone to see.
Copied below is the actual Alberta Venture interview and follow up questions (with visuals as Ernst included them); Alberta Venture changed the questions after Ernst answered them:
Jessica Ernst responding to Alberta Venture’s first set of questions in bold:
AV: Can you update us on your case?
My lawsuit against the Alberta Energy Regulator (AER; previously ERCB/EUB) is before the Supreme Court of Canada with a hearing date of January 12, 2016. My case against Encana for contaminating my water and the Alberta government for negligent investigation, proceed regardless.
AV: When will the Supreme Court make its decision?
I don’t know.
AV: Do federal and provincial attorney generals have until December to intervene?
The Court required them to file notice by end of August. The Harper, Quebec, Saskatchewan and BC governments did; they must file arguments by December 23. [The federal and BC AGs dropped out December 17 and the Saskatchewan AG dropped out December 22]
AV: You allege the AER violated your Charter rights between 2005 and 2007 when the regulator “restricted your communications.” Can you explain what that means and how that would constitute a violation of your Charter rights?
After Encana fractured Rosebud’s aquifers and I presented evidence of non-compliances, the regulator judged me a security threat without evidence and ended all contact. This from their 2005 letter to me:
“Criminal threats will not be tolerated…. Until the safety and security issues have been satisfactorily addressed and resolved, I have instructed my staff to avoid any further contact with you.”
I was horrified. I had asked for help, not uttered threats; the police had not charged or arrested me; I had just found out my life was at risk in my home with explosive industry contaminants venting from my water taps. I wrote a registered letter requesting clarification. The AER refused and returned it unopened.
I persisted. Then Chair Neil McCrank directed lawyer Rick McKee to deal with me. McKee bullied me and insisted my water had always been contaminated. I have the historic record on my water well. It says: “Gas Present: No.” McKee however admitted in a taped “interrogation” of me, that the regulator never saw me as a threat, they wanted to silence my expression – a right protected under the Charter – by only allowing me communication and regulation if I stopped expressing my concerns publicly.
Around 2010, the historical records including on my well, were altered in Alberta’s water well database, removing the vital baseline information when gas hadn’t been found.
AV: If the Supreme Court rules that the AER does not have legal immunity, what would the significance of this be as it pertains to your case?
I get to sue the AER, nine years in.
AV: And more broadly, what implications would this have for the energy sector?
It might weaken the AER’s ability to cover-up corporate crimes, and stop other jurisdictions from copying Alberta’s abusive model.
AV: You worked as a consultant for the oil patch for decades – what does your experience in the industry tell you about this ruling’s potential implications?
Corrupt governments and regulators will deregulate to prevent lawsuits like mine and enable the harms and financial devastation for citizens trapped with un-sellable, poisoned properties, already happening here.
AV: In 2006, the AER (then EUB) told a reporter they’d found no methane in your water, and a few years later, Alberta Environment claimed to have found the same thing.
In 2003, before frac’ing our aquifers, Encana tested my water and didn’t report methane.
The AER never tested my water.
I have copies of Alberta Environment test results on my water in 2006 and 2007 showing dangerous concentrations of methane after Encana frac’d our aquifers.
AV: Then in 2014, the Alberta Court of Appeal upheld the dismissal of your claims against the AER. If the Supreme Court rules in your favour, the suit against Encana, Alberta Environment and the AER will continue. But would you still have any legal standing to sue for damage to your fresh water supply?
AV: Or is that issue a done deal after Justice Wittman ruled in November that Alberta owed you a duty of care?
AV: If the Supreme Court doesn’t rule in your favor, what does that mean?
I’ll not be able to sue the AER. There’ll be legal precedent set that governments and their agencies can trump the Charter; Canadians will no longer have protection from their abuses and law violations. This from my Factum:
“Allowing governments the ability to immunize themselves from such claims effectively neuters s. 24(1) and reduces it from the supreme law of the land to meaningless words on a page.”
AV: Should the Supreme Court rule in your favour against the AER, you’ll go back to the lower court in Alberta. What happens from there?
I expect the AER will continue to defame me and delay my case with motions to bankrupt me and kill our Charter. Rights and frac’ing don’t go together.
AV: Lastly, you’ve received a lot of feedback throughout your lawsuit from Albertans as well as people from around the world. What does that feedback tell you about people’s attitudes toward the energy sector, and about the sector’s relationship to landowners such as yourself?
People feel preyed upon because:
Companies lie to the public and our courts;
Regulators deregulate, label residents as “not affected” or “terrorists,” commit fraud to cover-up and enable harms; and
Outside AER counsel explained industry’s attitude after contaminating drinking water: people should “shut up” and accept “forever” replacement water (which can be hazardous waste), so industry can “do it again down the street.”
The relationship industry and regulators have to landowners is toxic, based on lies, intimidation and predation, and blessed by governments.
Follow up questions by Alberta Venture in bold:
AV: I’d be remiss in my duties as a journalist to not ask some follow-up questions from the other side of the argument, and I think I want to give our readers a better understanding of frac’ing as it relates to claims of drinking water contamination.
The Rosebud drinking water contamination is not a claim, it’s proven contamination, by the regulators no less. From FOIP’d records I received and filed in document exchange with Encana (ordered by Justice Wittmann last year), Alberta Environment knew in April 2006 from their testing of 3 Rosebud water wells, that the fingerprints of gases in the water matched the gases in Encana’s shallow frac’d wells there. That’s when the regulator began their intentionally shoddy and bullying cover-up investigations on other water wells here, including mine.
The US EPA published in their 2015 report on fracing, that companies are fracturing directly into drinking water aquifers, including Encana at Pavillion, Wyoming and Rosebud, Alberta, and that Encana’s Rosebud aquifer frac’ing contaminated water wells with natural gas. This peer-reviewed, published paper was used by the EPA with other evidence, to make their statement: http://www.ernstversusencana.ca/fingerprinting-of-gas-contaminating-groundwater-and-soil-in-a-petroliferous-region-alberta-canada
This Alberta data was presented internationally in July 2011, four years ago, yet no regulator or authority in Canada mandated to protect water, released this publicly. I posted it to my website, and filed the published paper in document exchange with Encana last year.
AV: You mentioned that Encana tested your well water before they started frac’ing and found no traces of methane. But Encana says that after they began frac’ing, they offered to test your water for methane on a number of occasions and you declined. Why?
I didn’t decline.
I graciously accepted Encana’s offers. Encana is lying, as usual.
Here is one example of my response to an offer to test by Encana: http://static1.1.sqspcdn.com/static/f/997111/15178950/1321573388790/ErnsttoERCBSept172010reEnCana02-13-27-22-W4Metal-2.pdf?token=l9dUXFr3Fnf8P4gzgimCD1I8eWo%3D
Besides, isn’t it too late for “baseline” testing after a company breaks the law and frac’s the water?
In 2004, Encana broke the law, repeatedly frac’ing our aquifers, and the water in my community became dangerously contaminated with methane, ethane, petroleum distillates, and in some cases propane and other hydrocarbons. In 2005, Rosebud Hamlet’s water tower was destroyed in an explosion investigators say was caused by an “accumulation of gases.” http://www.ernstversusencana.ca/investigators-say-an-accumulation-of-gases-appears-to-have-caused-the-explosion-that-destroyed-the-rosebud-water-tower-and-sent-a-wheatland-county-employee-to-hospital
After the metals testing by Encana in 2003 on my water and Alberta Environment after Encana illegally frac’d our aquifers, showed the chromium in my water increased by a factor of 45, Encana refuses to test for metals. And Encana also refuses to test for the most important and damning red flag indicators of contamination from their operations and chemicals they inject. And they refuse to test for dissolved methane (a $90.00 test), a key indicator used to quantify methane gas increases in groundwater by researchers across the US and by CAPP in Canada.
I have documented evidence, also filed in document exchange, of Encana sending their offers to test in a fraudulent manner to ensure that it is impossible to accept their “offer.”
One example: In 2006, after Encana had secretly frac’d about 200 gas wells (I have copies of Encana’s data on file w the AER to prove that) in Rosebud’s fresh water zones (is after such impacts “baseline?”), Encana sent me an offer to baseline test my water with a deadline to accept that had expired weeks before Encana mailed the offer to me. You can see and read the evidence here: http://www.frackingcanada.ca/encana-xpresspost-to-ernst/
If you scroll to the bottom, you can read Encana’s fraudulent offer. Encana violated Alberta’s baseline testing standard. Where are the regulators?
Encana also consistently refuses to disclose the chemicals they are injecting, making it impossible to appropriately and comprehensively test anyone’s water well. Encana knows this, so do the regulators. Even eight years into my lawsuit with the court rules dictating that Encana must release all chemicals, including trade secrets, and records to me, of what Encana injected into the fresh water zones here, Encana refuses.
Most importantly, I have extensive documented evidence of Encana breaking the law. I am suing the company for illegal acts and the harm those illegal acts caused me. Would you let a criminal enter your property and home, and test your water, with the regulator enabling the harms and law violations, and violating your Charter rights trying to intimidate you to silence? Would you let that same criminal test your water again after Harper’s anti-terrorist squad, likely sent by the criminal, invaded your property, harassed you and also tried to intimidate you into silence? http://www.ernstversusencana.ca/the-intimidation-of-ernst-members-of-harper-governments-anti-terrorist-squad-intimidate-and-harass-ernst-after-her-legal-papers-were-served-on-encana-the-eub-now-aer-and-alberta-environment
AV: Alberta Environment commissioned what was then the Alberta Research Council to investigate groundwater in the Rosebud area, and when the report was released in 2008, it claimed that wells weren’t affected by coalbed methane development and that any water quality issues were due to poor well construction, maintenance issues or naturally occurring methane. How do you respond to this?
[There is] damning documented evidence of fraud by Alberta Environment and the Research Council that I obtained by FOIP, and that was filed in court April 2014, and why I was able to proceed with my case against the government. Alberta Environment secretly edited the reports by the Research Council and changed the author’s conclusion from admitting Encana had contaminated our water, to not.
I provide for you again, some of the secret emails, read the scribd’s, they’re very short: http://www.ernstversusencana.ca/disgust-with-ab-research-council-report-goes-beyond-alberta-published-as-the-stelmach-two-step
In addition to the evidence in the above link, I filed more damning evidence in my document exchange with Encana also obtained by FOIP – a formal briefing note to various Ministers across Canada by the CEO of the Research Council. He reported that the Research Council was going to blame bacteria and affected water well owners for being dirty, a year before Alberta Environment fingerprinted the gases in my water.
The Research Council didn’t investigate our contaminated water wells, Alberta Environment did, and fraudulently at that. If you read Slick Water, it’s all carefully explained, in compelling, easy to understand writing by Andrew Nikiforuk. Alberta Environment retained the Council to review their fraudulent investigation on three water wells in Rosebud. Alberta Environment left out vital information, including Encana’s data on file with the Alberta Water Well Database, proving the company deliberately, repeatedly fractured directly into six depths of our fresh water aquifers. They did not include the data from Alberta Environment’s testing showing petroleum industry contamination in the Hamlet’s drinking water. 40,000 – 50,000 visitors and 100 residents are ingesting and bathing in known carcinogens and neurotoxins and Alberta Environment, the AER and Encana know it. Regulator testing found methane, ethane, kerosene, toluene, phthalates, benzene and more in the Hamlet’s water, but the Research Council was not to review that damning data. And, Alberta Environment and the AER didn’t send the Research Council the Encana data showing that the company frac’d hundreds of gas wells into fresh water zones. Alberta Environment also withheld from the Research Council, the “damning” 2006 analysis of gases in Rosebud Hamlet’s municipal drinking water by Doctors Muehlenbachs and Tilley.
The list goes on.
I have documented evidence of the Research Council violating their Terms of Reference with Alberta Environment, also obtained by FOIP and filed in document exchange with Encana last year.
I have documented evidence, also filed in document exchange with Encana, of the Research Council falsely stating in their report on my case that I did not maintain my well. I couldn’t stop an Alberta Environment investigator with 20 years experience, introducing gopher shit into neighbouring water wells, and I couldn’t stop Alberta Environment from dropping filthy, unsterilized sampling equipment, with bare, unwashed hands, down my well, while pretending to investigate. But, I could and did, maintain my well by shock chlorinating it – I told Alberta Environment investigators that. Why did the Research Council falsify such important evidence in their report?
I could go on for hours with many more examples. I filed about 2,000 documents with Encana last year, in the court ordered document exchange.
AV: I want to ask a more general question about hydraulic fracturing (you said “rights and frac’ing don’t go together”). Even between just Alberta and B.C., there have been more than 175,000 wells stimulated using fracturing, and critics say there have been no cases of personal injury caused by frac’ing proven in court (I know of one case in Texas in April, but it was considered an anomaly).
Interesting that the lie has changed, yet again.
First, it was there had never been a case of groundwater polluted by the oil and gas industry in Alberta,
then, never a case of groundwater polluted by fracing by the oil and gas industry in Alberta and BC,
then, never a case of proven groundwater polluted by fracing,
then, never a case of well water proven polluted by fracing,
then, never a case of tap water proven polluted by fracing,
then, never a case of drinking water proven polluted by fracing,
now, it’s changed to personal injury proven in court.
What a leap in less than a decade!
Meet Bruce Jack, Spirit River, Alberta, May 2006, after his methane and ethane contaminated water well ignited and he and two industry gas-in-water testers were seriously injured and hospitalized, Jack for a month. He was in legal proceedings, settling the personal injuries to him, for years. There is no public record by the regulators on this case, and they won’t release the Research Council reports admitting the contamination was caused by industry, after first not admitting it. Did they finally admit it because the Research Council is afraid of being sued for negligence?
AV: And in June, the U.S. Environmental Protection Agency concluded a five-year, multi-million-dollar investigation into frac’ing by saying, “We did not find evidence that these mechanisms have led to widespread, systemic impacts on drinking water.”
If you read the report Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources – EPA/600/R-15/047 (PDF) (998 pp, 27 MB, about PDF) at: http://cfpub.epa.gov/ncea/hfstudy/recordisplay.cfm?deid=244651
and supplemental information by the EPA, http://www2.epa.gov/sites/production/files/2015-06/documents/final_retro_case_study_fact_sheet_6_03_508_km.pdf
they contradict that statement you quoted that was so widely published in the press.
The EPA even reported on Alberta water wells contaminated by fracing into Rosebud aquifers; they reported on many cases of drinking water contamination caused by frac’ing, including 25 to 36 per cent of water wells contaminated in NE Pennsylvania.
Many states have found contamination cases: http://www.usatoday.com/story/money/business/2014/01/05/some-states-confirm-water-pollution-from-drilling/4328859/
I reported on many cases in my gas migration paper in June 2013: http://www.ernstversusencana.ca/wp-content/uploads/2013/06/Brief-review-of-threats-to-Canadas-groundwater-from-oil-gas-industrys-methane-migration-and-hydraulic-fracturing-v4.pdf
Earlier versions of my paper were sent to New York Governor Cuomo and the frac review there, and the regulator in Quebec asked me for a copy.
It has just been revealed how extensive regulator fraud is in the US to cover-up the many cases of frac contamination of drinking water, including using post-drill data as baseline just like Encana and the regulators do here:
“During the 2011 Atgas blowout investigation in Bradford County, Chesapeake Energy was allowed to dismiss their own pre-drill water test results to avoid liability for contaminating a water supply. This simple act by DEP essentially changed the background water quality data for the area, creating an artificial history of drinking water quality.”
And, now another municipal supply contaminated (Rosebud Alberta, is of course, another): http://publicherald.org/breaking-oil-gas-drilling-impacts-public-drinking-water-supplies-in-potter-county/
“Two public drinking water systems have been impacted and at least seven private water supplies contaminated due to ongoing pollution being caused by a natural gas fracking operation of JKLM Energy in Potter County, Pennsylvania.”
Encana contaminating the Rosebud Hamlet municipal supply wells and about 15 private citizen water wells at Rosebud is far from an anomaly!
And CAPP doesn’t seem to think it’s an anomaly, as they pointed out in their ad in the Calgary Herald over a year ago:
Canadian Association of Petroleum Producers: Coal bed methane operations contaminate water resources by The Calgary Herald, August 28, 2014
Yet CAPP’s Alex Ferguson says many worries about water quality are based on past operations involving coal-bed methane — shallow deposits in closer proximity to groundwater. These did occasionally contaminate water resources, he says. In some of the more infamous instances, affected landowners could light their well water on fire.
Alex Ferguson was appointed Commissioner and CEO of the BC Oil and Gas Commission from 2007-2011
Groundwater has been contaminated after frac’ing in Alberta in the Lochend, north of Calgary; Wetaskiwin; Ponoka; Beiseker; Rockyford; Spirit River; Grand Prairie; Hudson’s Hope and more in BC; and who knows how much gas and frac chemicals are seeping into groundwater where fracing is causing earthquakes in BC and AB.
Have a look for more evidence: https://www.youtube.com/watch?v=clrjqOXEcUU
AV: So why take aim at frac’ing in general?
Frac’ing is being done with “brute force and ignorance.”
Encana frac’d my water supply. Encana frac’d my life, with the regulators enabling the devastation. I’m a Canadian citizen, an oil patch scientist harmed by Encana intentionally and illegally fracturing my community’s drinking water aquifers, in secret, with the abuses and contamination covered-up by the authorities mandated to protect us and our water from such harm.
I am not taking aim at frac’ing in general, I am suing, seeking accountability and justice, and making it all public. Would you want Encana’s “brute force and ignorance” in your drinking water, in your bath, in your home, in secret, and covered up by the regulators? Wouldn’t you like the truth as to what to expect when the frac frenzy comes to your neighbourhood?
I am suing for law violations, water contamination and Charter violations, and it is costing me everything I have because I refuse to settle out of court and gag the way others harmed are forced to do, but at the end of the day, ALL the cards will be on the table for everyone to see.
In the meantime, they don’t stop. Even though my water is now dangerously explosive and I must drive 45 minutes one way to haul a tiny load of alternate water, the regulator continues to grant Encana more and more approvals to frac under my land and around my land, in the drinking water zones, because apparently, there’s no such thing as too much contamination in Alberta.
They frac you, and frac you again and again and again and again.
AV: How do you respond to people who think your case is an anomaly?
Get cable! I laugh because there are thousands of contamination cases!
I laugh harder, because “people” used to insist I was “crazy” and “mentally unstable” and fabricating the contamination. Now suddenly, my case is an anomaly?
Too funny, but, tragic really.
My case is not an anomaly; I am the anomaly because I refuse to gag and settle. There are endless lawsuits that have settled and gagged out of court because the legal system is unjust, and grossly excessively expensive and too cruel for people to handle. There are many other water contamination cases that settle without even getting to the lawsuit stage.
Listen to Glenn Solomon, AER’s outside counsel explain it. He sums it up much better than I ever could. He’s an expert, top in the country lawyer. I also sent you this link yesterday.
The snaps below are quoting Solomon (in white font) from this link.
Why these audio clips were recorded is explained here: http://thetyee.ca/News/2014/12/05/Ann-Craft-Fracking-Nightmare/
Thanks again Jessica.
You are most welcome.
Robbie Jeffrey | Assistant Editor, Alberta Venture
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