One Woman's Courageous Stand Against Fracking and the World's Most Powerful Industry
The following is an excerpt from the new book Slick Water: Fracking and One Insider’s Stand Against the World’s Most Powerful Industry by Andrew Nikiforuk (Greystone Books, 2015):
Against all odds, on November 7, 2014, Jessica Ernst scored a victory in the courts. Her phone rang, and Ernst found both of her lawyers on the other end of the line.
“It’s Murray here,” Klippenstein said, his voice breaking. “Jessica, we won.”
In a lengthy decision, Chief Justice Neil Wittmann had granted Ernst the right to sue Alberta Environment for negligence. To emphasize his displeasure at how the government had wasted the plaintiff’s and the court’s time, Wittmann had also awarded Ernst triple costs. Such an award was rare, Klippensten told his client, though to Ernst that aspect of the decision seemed a merely Pyrrhic gesture. It amounted to $8,500 out of the more than $300,000 she had spent on the lawsuit so far.
Wittmann’s ruling found that the government couldn’t claim immunity from civil action, because the legislation governing environmental protection in Alberta wasn’t as comprehensive as the ERCb’s Section 43. The legislation did not, for example, apply to actions taken in bad faith. The idea that a government owed a general duty of care only to the public and none to landowners with contaminated groundwater was also mistaken, said Wittmann. “While this is a novel claim, I find there is a reasonable prospect Ernst will succeed in establishing that Alberta owed her a prima facie duty of care.” In a press release, Jessica Ernst called the decision a victory for water and for democracy: “The decision means that landowners can stand up and hold governments and regulators to account if they fail in their duty to properly investigate environmental contamination.”
The win catapulted Ernst’s case into Canada’s legal limelight. An analysis by a University of Calgary law professor said Ernst’s lawsuit was shaping up to be “the legal saga of the decade.” Borden Ladner Gervais, Canada’s largest national full-service law firm, agreed. The firm’s brief on the top ten legal decisions affecting the oil and gas industry in 2014 included the Wittmann decision: “At this stage of the proceedings, the Ernst case has brought into focus the potential for regulator or Provincial liability arising out of oil and gas operations,” explained the brief. “If Ernst proceeds to trial, it will likely provide more guidance on the scope of the duty of care . . . required by the Province and the oil and gas operator to discharge their duties in the context of hydraulic fracturing.”
After the ruling was announced, Ernst received congratulations from citizens around the world. Some called it a “miracle.” In England, community groups celebrated the decision on Facebook: “The wonderful Jessica Ernst—who visited Ireland, Lancashire and Sussex to warn us of the unconventional fossil fuel industry’s obscene designs on our communities—has worked exhaustively at this for many years and is a beacon for us all.” Much to Ernst’s amazement, an editorial in the Edmonton Journal congratulated the scientist and called the decision “a victory for the little guy.” From central Alberta, Shawn and Ronalie Campbell, who had also lost their water to fracking,â€¨ sent Ernst their profound thanks: “You stood up for all of us â€¨and we are deeply grateful. Celebrate and then go after the next big fish!”â€¨
Ernst didn’t celebrate for long. A week after the Wittmann ruling, her lawyers applied to the Supreme Court of Canada to challenge the Alberta Court of Appeal decision that excluded the ERCb from the lawsuit. To Ernst, the ERCb remained the most guilty party in her lawsuit, and an agency with a closet full of incriminating data on hydraulic fracturing. On April 30, 2015, the Supreme Court agreed to hear her case. The decision both stunned and exhilarated Ernst.
“This case is about whether a government regulator can be held accountable for breaching fundamental and constitutional free speech rights of a landowner,” said Cory Wanless to the media. Shortly afterwards, Albertans voted out the corrupt party that had ruled the province for forty-four years.
A major shale gas study in Science magazine confirmed Ernst’s early observations about the destructive nature of gag orders: “Confidentiality requirements dictated by legal investigations, combined with expedited rates of development and the limited funding for research, are major impediments to peer-reviewed research into environmental impacts.” One prominent lawyer estimates that, over the past decade, industry has negotiated hundreds of confidentiality agreements in Alberta alone.
On the issue of groundwater contamination, the oil and gas industry made some unexpected admissions. “Many worries about water quality are based on past operations involving coal-bed methane—shallow deposits in closer proximity to groundwater,” said Alex Ferguson, a spokesman for the Canadian Association of Petroleum Producers, in a 2014 Calgary Herald advertisement. These operations did occasionally pollute water resources, he added. “In some of the more infamous instances, affected landowners could light their well water on fire.”
Nonetheless, Alberta’s regulators still swear there hasn’t been a single case of water contamination related to fracking. The province’s delinquent investigation of groundwater contamination remains the rule, not the exception, across North America. Earthquakes caused by fluid injection increasingly unsettle rural communities. The U.S. Geological Survey now encourages citizens in the central United States to take part in earthquake drills and to learn how to “Drop, Cover and Hold On.” In January 2015, high-volume fracking operations in the Duvernay Formation in northern Alberta made global history by creating the largest fracking quake yet, with a magnitude of 4.4. The quake shook homes like cars on a roller-coaster. No one knows what it did to aquifers or other formations.
Around the world, the oil and gas industry continues to thwart local governance and undermine regulations. In Australia, whistleblower Simone Marsh is still seeking justice. The Queensland Senate recently placed a gag order on the spoken evidence and documents she provided on the fraudulent approval process for fracking coal. After heavy lobbying by frackers, the British government introduced a new amendment to its Infrastructure Act in 2015. By changing the trespass law, the amendments erode the eight-hundred-year-old Magna â€¨Carta, which proclaimed that no man should be stripped ofâ€¨ his rights or possessions. The new act gives industry automatic right of access to “deep-level land” under people’s homes without their permission, and grants industry the right to “maximize” hydrocarbon recovery. It also allows companies to “store and leave” products or waste in citizens’ backyards. Critics have called the law a perfect example of modern-day fascism.
In her home community of Rosebud, Jessica Ernst is no longer shunned. Many residents now support what some call “the scary lawsuit” by donating foodstuffs to Ernst or by quietly appearing at her court hearings. On a global scale, resistance to the spread of hydraulic fracturing has intensified. To date, not one exploratory shale well has been drilled in Ireland. By the end of 2014, as a result of public opposition, the governments of New Brunswick, Nova Scotia, Newfoundland, and the Yukon had imposed restrictions or bans on fracking. New York State outlawed the mining of gas shale basins, to protect public health. It’s noteworthy that Jessica Ernst gave talks in all of these jurisdictions.
After France banned hydraulic fracturing in 2011, it studied the mining of coal beds for gas. Two French government agencies later found that the unconventional resource presented significant risks to groundwater and public health even without hydraulic fracturing: gases could migrate to the surface and cause explosions and suffocate or poison citizens.
In Australia, the coal-fracking industry has created the largest and most diverse protest movement in that nation’s history. “Lock the Gate” urges landowners to deny access to coal-seam gas mining companies and to advocate for a moratorium until rigorous research has been done on the industry’s impacts on water, land, and people’s health. As a 2013 review of coal-seam gas activities in New South Wales noted, “There is a widespread perception that industry and government are, at worst, colluding against the public’s best interests.” John Williams, one of the country’s top scientists, has asked, “Do we want degraded and collapsing landscapes? If the answer is yes, then we appear to be well on the way.”
Gas migration from aging oil and gas infrastructure in the Los Angeles Basin remains a chronic problem, accounting for 8 percent of all methane emissions in the city. California’s Environmental Protection Agency has identified 2,500 wastewater disposal wells that are injecting fracking and other waste into protected aquifers. Douglas Hamilton, who studied the causes of the Fairfax explosion, says authorities at the time willfully ignored the findings that man-made fractures connect to existing ones: “The industry didn’t say anything; nor did the regulator.” It’s not a story that the economic powers were “interested in seeing pursued,” he explains.â€¨
Fracking operations continue to pollute groundwater. At a meeting of the American Chemical Society in August 2014, two Stanford researchers described how industry injected “thousands of gallons of undiluted diesel fuel and millions of gallons of fluids” containing salt water, methanol, and solvents into underground sources of drinking water during a tight gas mining in Pavillion, Wyoming.
â€¨In June 2015 the U.S. Environmental Protection Agency finally released a draft of its long awaited second report on fracking. The agency’s findings, which largely omitted data from Pavillion, Wyoming, completely reversed the conclusion of its fraudulent 2004 report. This time the EPA confirmed, as it did in an earlier 1987 report, that the fracturing of unconventional wells had “led to impacts on drinking water resources including contamination of drinking water wells.”
In just one documented case in northeastern Pennsylvania â€¨the agency found that 25 percent of 36 water wells had been contaminated by methane due to industry activity. The reportâ€¨ also admitted that industry has knowingly fracked into aquifers containing drinking water. It even cited Jessica Ernst’s case: “In one field in Alberta, Canada, there is evidence that fracturing in the same formation as a drinking water resource . . . led to gas migration into water wells,” said the report. Despite having limited data on quality of groundwater prior to fracking and “the inaccessibility of some hydrofracturing activities” due to confidentiality agreements, the report inexplicably concluded that contamination was not “widespread.”
In a recent presentation Usman Ahmed, the vice president of Baker Hughes, a major fracking service company, described the technology as a hit and miss affair. Although the industry had increased the number of stages from 15 to 20 and had extended the length of lateral wells from 2000 to 4500 feet, unconventional wells still experienced decline rates of 80 percent. Furthermore Ahmed admitted that 70 percent of unconventional wells do not reach their production targets; that 60 percent of all fracture stages are ineffective and that 73 percent of all drillers don’t know enough about existing faults and fractures in the subsurface.
Encana’s “resource play” strategy has proven an unqualified failure. As the massive fracking of shale rock drove natural gas prices down from $14 to $2 a gigajoule, the company struggled with high debt loads. In 2013, CEO and president Randy Eresman abruptly resigned, and a U.S. Securities and Exchange Commission filing disclosed that Encana had invested more in shale plays “than can be optimally developed.” As a consequence, the company sold off billions of dollars’ worth of assets and laid off 20 percent of its staff. To avoid financial ruin, the firm switched from fracking rock for dry gas to pulverizing formations for oil and condensates. In 2014, after being charged with violating Michigan’s antitrust laws over rigged real estate deals related to fracking, the company paid $5 million in fines to avoid more charges.
Since the Industrial Revolution, an event fueled by the mining and fracking of coal seams, methane levels have been rising in the atmosphere. As the natural gas industry expanded in the 1970s, methane levels jumped from 830 to 1,500 parts per billion. The dewatering and fracking of the San Juan Basin has made it more permeable by 10 to 100 times; NASA calls it the largest “methane anomaly” on the continent. With the cracking of shale basins in the United States and the mining of coal basins throughout China, methane levels have now reached a sobering 1,800 ppb, the highest level in 650,000 years. To date, not one energy regulator has assessed the impact of fracking on global methane emissions and climate change. There appears to be no duty of care.
Anthony Ingraffea now denounces fracking as an extreme and dangerous technology: “The industry is reaching into the deepest, darkest corner of its almost empty world hydrocarbon warehouse, and using an inelegant, inefficient, wasteful, bludgeoning process to keep itself alive, at the expense of exacerbating climate change.” He places Jessica Ernst’s lawsuit on a special pedestal because it has exposed the industry’s Achilles heel: migrating gases from millions of leaky wells.
From the outset, industry denials have followed a similar pattern, Ingraffea says. “One: We didn’t do it. Two: Prove it. Three: Silence. Maybe we did it, but we’re not going to tell any-â€¨body.” Ernst’s case and her refusal to settle out of court have exposed the deception: “Number one, she caught the industryâ€¨ doing it. Number two, she’s got the evidence to prove it, and number three, she won’t be silent.” For all of this, Ingraffea regards Ernst as a public hero.
The evolution of fracking technology would not have surprised Jacques Ellul. In his final book on the subject, The Technological Bluff, the Christian philosopher argued that the rapid adoption of techniques, from computers to genetic engineering, generates totalitarian discourses: “The more indispensable [these techniques] become, the more power they have, the more important they are, the more money they make, the more difficult they are to uproot. Their propagation becomes . . . an expression of both their self-interest and the strengthening of their situation. They cannot act in any other way. They are forced to reject increasingly what remains of democracy.” The constant proliferation of techniques, argued Ellul, makes a society more complex, more wasteful, and more disorderly. For Ellul, only two forms of resistance mattered: “We must be prepared to reveal the fracture lines and to discover that everything depends on the qualities of individuals.”
To many, hydraulic fracturing is additional evidence that humans have become a radical force in altering the geology of the planet. Scientists call this new epoch the Anthropocene. Fossil fuel emissions have destabilized the climate and changed the carbon cycle. Engineers have commandeered 50 percent of the world’s available fresh water through dams and other diversions. Humans have used cheap energy to industrialize half of the planet’s surface area. Plastics choke the oceans, and crushed aluminum soda cans and concrete make their own geological strata.
Fracking has extended the reach of the Anthropocene to the earth’s crust. Engineers can now crack shallow geologies the size of European countries or blast shale rock two miles below the earth’s surface. To support the process, the industry has injected lakes of water and chemicals underground (250 billion gallons since 2005) and has pumped another 280 billion gallons of salty wastewater to the surface. The massive injections have geo-engineered “aseismic” Oklahoma into a landscape more earthquake-prone than California.
Forty years ago, the oil and gas industry created a fiery hole in Turkmenistan, in the middle of the Karakum Desert. Locals still call it the Door to Hell. The mysterious crater in the Derweze Oil Field, a bucket-list destination for aging tourists, resembles an open furnace whose fiery heat dominates the skyline at night. The spectacular flaming chasm is 226 feet wide and 98 feet deep. The stories about its origins vary, but most agree that a Soviet drilling rig disappeared into a sinkhole on the site around 1971. After the mishap, gases vented from the sinkhole so prolifically that engineers decided to set the whole thing on fire. They expected the flaring to last a few days, but the methane continues to burn like some kind of eternal flame. The evidence suggests that industry accidently drilled into a natural fracture that was carrying methane from the breathing earth.
Some people say that the Soviet drilling rig can still be found on the other side of the Door to Hell. Jessica Ernst thinks that Canada’s legal system and the global fracking industry are there with it. But no matter how hot things may get at the Door to Hell, she says, “I will not stand down.”