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Lawyers Accuse Gas Giant of Deficient Records Filing in Fracking Case

Encana disclosure shows 'disdain for an ordinary Albertan,' claims counsel for Jessica Ernst.

By Andrew Nikiforuk 1 Apr 2015 |

Andrew Nikiforuk is an award-winning journalist who has been writing about the energy industry for two decades and is a contributing editor to The Tyee. His forthcoming book on the Jessica Ernst case, Slick Water, will be published by Greystone Books this fall. Find Andrew's previous stories here.

This coverage of Canadian national issues is made possible because of generous financial support from our Tyee Builders.

Lawyers representing Jessica Ernst in her landmark lawsuit challenging the regulation and practice of hydraulic fracturing in Canada have accused Encana Corporation of failing to meet its legal obligations on full disclosure of documents.

Calgary-based Encana is Canada's largest extractor of natural gas and an early pioneer of the hydraulic fracturing of low-quality rock formations in British Columbia, Wyoming, Texas, Alberta and Colorado.

"Encana's disclosure of records is extraordinarily deficient," reads a letter by lawyer Murray Klippenstein, who is representing oil patch consultant and landowner Ernst.

Eight years ago, Ernst sued Encana, Alberta Environment and the Energy Resources Conservation Board (now known as the Alberta Energy Regulator) over the contamination of her water well in Rosebud, Alberta in 2004. She is suing Encana specifically for alleged negligence and nuisance related to the contamination of her groundwater.

The lawsuit alleges that neither Encana nor government regulators properly investigated the contamination. At the time, industry drilled and fracked thousands of wells in the Horseshoe Canyon formation in central Alberta.

In his letter dated March 27, Klippenstein wrote that the company failed to disclose chemicals used in Encana's wells; baseline testing data on water wells; and reports on hydraulic fracturing.

Klippenstein added that documents filed before the court are disorganized, lacking in detail, and improperly titled, with many stripped of important electronic information.  

"Perhaps it is simply extremely low work quality standards... or disdain for an ordinary Albertan who dares to challenge the mighty Encana, or the semi-deliberate placement of an impediment to Ms. Ernst's attempt to bring the matter before the court," Klippenstein wrote. 

Klippenstein has asked the company to redo its disclosure of records in a manner that complies with Alberta court law and the agreed upon protocol regarding the disclosure of electronic material.

An Encana spokesman offered no comment and referred reporters to a website statement which says: "Ms. Ernst's claims are not supported by the facts and her lawsuit is without merit."

Last year, Ernst filed more than 2,000 documents with the court to support her lawsuit.

'Incomplete, disorganized, error-laden': Ernst

"To be frank, Encana's disclosure was embarrassingly pathetic -- it was an incomplete, disorganized, error-laden, repetitive and insulting mess that wastes everyone's time and money, including the court's," wrote Ernst in a press release.

By law, Ernst can't divulge what Encana filed, but she can discuss what she claims the company failed to provide for the courts.

"This is yet another example of the disrespect with which Encana treats regular Albertans, and a further indication of how difficult it is for individuals to stand up to large corporations in court," she wrote.

The lawsuit alleges that Encana fracked repeatedly into shallow coal seams and directly into an aquifer, and thereby contaminated Ernst's well water "with hazardous and flammable levels of dissolved and gaseous methane and ethane."

In a six-page statement of defence, Encana denies all allegations and says that it conducted its operations diligently and safely. The defence claim charges that the methane in Ernst's water well "occurred naturally or by other causes."

Company lawyers contend that Encana did not frack coal seams near Ernst's property, but only "stimulated" them with nitrogen gas. Yet industry, including Encana employees, have used the terms fracking and stimulating interchangeably over the years.

Company public drilling records show the formation was first perforated, putting a hole in the wellbore, and then "fractured."

A 2004 report by Raymond James, a large North American investment dealer, also identifies Encana's operations in the Horseshoe Canyon as fracking: "Dry coalbed methane wells are fractured by pumping nitrogen at high flow rates and under high pressure, usually through coiled tubing. In fact, dry coal bed methane wells are often fractured with conventional nitrogen pumping equipment."

Frack cases settled out of court

Ernst is also suing Alberta Environment, another regulator in the case. The provincial government filed its statement of defence two months ago after Alberta chief justice Wittmann ruled it did not have immunity from civil action.

The government's statement denies any contamination, but adds that if Ernst's well was contaminated, "then any such loss or damages were caused solely or substantially contributed to by the negligence of EnCana, for which the Province is not liable."

Hydraulic fracturing deploys pressurized injections of water, sand, gases or chemicals to crack open both shallow and deep rock formations to liberate small amounts of methane or oil.

The technology or related practices has triggered earthquakes in Ohio, B.C., Alberta, Colorado, Texas and Oklahoma. It has also contaminated hundreds of water wells with methane and other gases in Pennsylvania, Colorado, New Mexico, Louisiana, Texas and Alberta, either through leaky wellbores or existing or man-made pathways.

Throughout North America, many fracking water contamination cases have been settled out of court with "gag orders" or confidentiality agreements that provide a landowner with cash provided they never talk about the contamination.

Ernst said she will not settle, and wants due justice in the courts with all evidence placed on the public record.

One ruling headed to top court

Another aspect of Ernst's case now sits before justices of the Supreme Court of Canada, who will decide whether or not it will be heard.

After Alberta's Court of Appeal ruled that an immunity clause protects the ERCB (now the Alberta Energy Regulator) from civil action or a Charter claim, Ernst's lawyers applied to the nation's highest court to strike that ruling.

The issue at stake could impact millions of Canadians: Can a general "protection from action" clause contained within provincial legislation allow a regulator to trump a citizen's right to seek remedy after his or her rights may have been breached?

According to Ernst's lawsuit, the ERCB falsely branded Ernst as an "ecoterrorist" and banned all communication with the landowner when she criticized the board publicly.

The Supreme Court is expected to make its decision on whether or not to hear the case soon.  [Tyee]

Read more: Energy, Environment

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