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This Fracking Case at Canada's Supreme Court Could Make a Big Difference

For eight long, expensive years, Jessica Ernst has waged war against "risky and experimental" hydraulic fracturing she alleges contaminated her well to the point she could light it on fire.

by Taylor Lambert
Jan 12 2016, 3:11pm

Imagen por Jeff McIntosh. (The Canadian Press)

For eight long, trying, expensive years, Jessica Ernst has waged war. It's a difficult war, slow and undramatic, fought with legal factums and motions and submissions. It's cost her money and her career, and victory is far from certain — yet she presses on.

Today she takes her case to the Supreme Court of Canada, one more battle in a war that could have far-reaching implications for her formidable opponents: Canada's energy industry and the government bodies that oversee it.

Ernst, 56, is an environmental consultant for the industry. She is also a landowner and resident near Rosebud, Alberta, a hamlet 100 kilometers east of Calgary with fewer than 100 people, no gas station, and a renowned theatre that draws 40,000 tourists each year.

Her case claims that "risky and experimental" hydraulic fracturing by Encana Corp., beginning in 2001, released dangerous hydrocarbons into the area's freshwater supplies, including Ernst's own well water, which was so contaminated that she could light it on fire.

Ernst is suing Encana, as well as the Alberta government and Alberta Energy Regulator (AER), for $33 million, alleging a litany of abuses: negligence, violation of numerous laws and regulations, a failure to adequately perform testing, and infringement on her right to expression by the AER.

The latter accusation is the subject that brings Ernst's case to the Supreme Court today. She says the regulator instructed staff to "avoid any further contact" with her, barred her from the complaint process, and withheld "publically [sic] available government services" to punish her for speaking out about the case.

Related: 'It's the New World Record': Earthquakes Linked to Fracking Are Getting Stronger in Alberta

The Supreme Court will consider whether the immunity clause protecting the AER should prevent Ernst from suing the regulator for allegedly violating her constitutional right to expression. An Alberta court upheld that immunity in 2013. Ernst lost her provincial appeal on the matter in 2014, so she is appealing to the Supreme Court. An Alberta court ruled in 2014 she may sue the provincial government.

Encana and AER deny the allegations against them. The Alberta government has yet to file a statement of defence.

The AER argues that the purpose of the immunity clause "is not to immunize the government from scrutiny for unconstitutional laws or acts, but to promote good governance by shielding a statutory tribunal with purely public duties from being called to account to any particular individual in a claim for private remedies."

If the Supreme Court eventually rules in favor of Ernst, it would put AER back into her Alberta lawsuit, as well as jeopardize the idea of absolute immunity for governmental bodies found in various laws across Canada.

The case could also have implications for future environmental disputes, according to Martin Olszynski, an assistant law professor at the University of Calgary with a background in environmental and resource law.

"If the Supreme Court holds that the immunity clauses don't shield the AER and other regulators from one kind of Charter breach, the same will apply to other alleged Charter [of Rights and Freedoms] violations," wrote Olszynski via email.

'It would be a huge symbolic victory to opponents of fracking.'

"This is relevant insofar as there is increased interest in using other Charter provisions (especially section 7 – the right to life, liberty and security of the person) in environmental cases such as these."

The broader case also holds more peril for the controversial practice of hydraulic fracturing, or 'fracking', which involves capturing hydrocarbons trapped in deep-rock formations by forcing fluid into the rock to fracture it. This releases the hydrocarbons, which are then collected. Earthquakes and contamination are two of the documented potential side effects of the practice, which allows access to otherwise-trapped resources.

If there is a finding of liability in Ernst's lawsuit, it "would be a huge symbolic victory to opponents of fracking," according to Olszynski.

In Alberta, the oil and gas industry is so big, so powerful, and so entrenched in the province's politics, economy and culture that many people — whatever their politics — simply accept it as part of the landscape. For better or ill, this is just the way things are.

The AER is emblematic of that orthodox culture. A regulatory body with a corporate structure, it is funded by energy industry levies and headed by Gerald Protti, a long-time industry lobbyist and former VP of Encana. Critics have questioned an apparent conflicting dual mandate of both energy promoter and industry watchdog.

Related: Fracking on University of Texas Land Is Poisoning the Air, Soil, and Water

The former Progressive Conservative provincial government — which held power from 1971 to 2015 — was often known for its close ties with the energy industry and its generally industry-friendly policies. This, combined with the cultural and economic importance of oil and gas in Alberta, and the deep pockets of major players such as Encana, results in considerable difficulty and opposition for anyone voicing legitimate concerns about the industry.

Ernst certainly appears to believe her claims are legitimate. 

Though she declined to be interviewed for this article, citing a busy schedule in the days leading up to the hearing, her previous statements and dedication to the long-running legal battle mark her deep belief in the allegations.

In pursuing legal action, Ernst has reportedly spent more than $300,000 and has resorted to selling off personal items and artwork to continue the fight.

"My business is ruined, my career is ruined," she said in a CBC interview last year. 

In that same interview, Ernst detailed how it took time for her community to rally its support behind her. She said there were instances of harassment and abusive behavior, which she attributes to the financial benefits promised by the energy industry, such as a $350,000 donation by Encana to the Rosebud Theatre.

The war is far from over for Ernst. The Supreme Court will take time to rule, and her lawsuits against Encana and the provincial government are proceeding slowly.

But as much as her fight is about her belief of being personally wronged by industry and government, it also appears to be a stance of principle against what is in her view a broken system.

"Industry's best practices are voluntary, unenforceable, and the regulators are looking the other way," Ernst told the CBC last year. "It is so bad what they're doing. I have no choice but to go forward."

Follow Taylor Lambert on Twitter: @TS_Lambert

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