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Environment

The Brutal Legal Odyssey of Jessica Ernst Comes to an End

The Alberta landowner fought an epic battle against fracking interests.

Andrew Nikiforuk 18 May 2021 | TheTyee.ca

Tyee contributing editor Andrew Nikiforuk has written about fracking and its impacts on landowners since 2004. His account of Jessica Ernst’s fight for justice, Slick Water, was published in 2015. It won the National Society in Science Award from the U.S. National Association of Science Writers in 2016.

After 14 years of battling Alberta regulators and the fracking industry over a water well contaminated with methane and chemicals, Jessica Ernst says she feels incalculable grief and anger.

On April 1, 2021, her tortuous legal crusade — which included a controversial detour to the Supreme Court of Canada — came to an end with no resolution. What one Alberta lawyer dubbed “the legal saga of the decade” is over.

Court of Queen’s Bench Judge J.T. Eamon accepted applications from Encana and the Alberta government to dismiss the case due to inactivity on the file for three years.

“It was inevitable,” says Ernst who was informed three weeks after the dismissal. “The rules are the rules.”

After Toronto lawyers Murray Klippenstein and Cory Wanless quit the case in August 2018 without warning, Ernst was left hanging.

“My lawyers knew I couldn’t find a replacement lawyer in Alberta when they quit,” said Ernst. “They even wrote me that and added that I would fail as a self-represented litigant.”

She not only had no lawyer, but incomplete legal files to work with, Ernst says. Klippenstein told The Tyee in 2019 that he would return them to Ernst, but she maintains his firm only returned some correspondence but not the complete files. And so the lawsuit languished.

Although Ernst tried to find another lawyer, she says that she couldn’t find a suitable candidate for various reasons, including conflict of interest. Most big law firms do business in or with the oil patch.

She also doubted whether she could afford a new retainer fee of at least $50,000 and pay to get another lawyer up to speed on more than a decade of legal wrangling that cost Ernst more than $400,000.

“With my lawyers quitting and not returning my files, I realized that my lawsuit’s clock was being run out,” Ernst said in a Tyee interview.

Klippenstein replied to Ernst’s statements. “It is regrettable that Ms. Ernst has chosen to turn on and attack the public-interest-minded lawyers who provided her high-quality legal services in a formidable uphill battle at a heavily discounted rate for a decade.”

He said, “There is no truth to Ms. Ernst’s recent claim that her ability to continue her case was impeded because of lack of file materials from us as her former lawyers. Ms. Ernst at all times had all the file materials she needed to proceed with her case, either with other lawyers or on her own.”

There was one other worry for Ernst. A judge could order her case moved into an Alternative Dispute Process, a mediation aiming to achieve a binding settlement.

That process, noted Ernst, “could gag me from talking about the case and fracking. I wanted to keep my own voice. I didn’t want to be silenced.” 

“The system dismissed my case,” she added, “but I don’t think I lost in the court of public opinion.”

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Former oil-patch consultant Jessica Ernst lights methane-infused well water from her property on fire. Photo by Jeff McIntosh, the Canadian Press.

Ernst’s lawsuit and its legacy outside the courts — the subject of many pieces in The Tyee and a book by this journalist — has been profound.

The former oil-patch consultant went on gruelling speaking tours organized by community groups in Ireland, England, New York, Nova Scotia, Yukon and Newfoundland to inform citizens about the realities of fracking. Almost every jurisdiction she visited ended up banning fracking or putting a moratorium on the highly disruptive technology.

Her legal case also played an indirect role in driving a $10-million water piping project to communities whose aquifers had been heavily impacted by shallow fracking and other issues in Alberta’s Wheatland County.

The project, funded by taxpayers, has delivered safe water to the Albertan communities of Redland, Rosebud and others where extensive fracking changed both well water quality and supply more than a decade ago.

“I consider that water project a much greater vindication of my lawsuit than anything that could have happened in court,” said Ernst, who lives outside Rosebud hamlet, and was not provided safe water.

Ernst’s protracted battle began in 2001 when Encana, then one of the most powerful corporations in Canada, and several other energy companies drilled and fracked thousands of shallow wells in coal-bed methane and sand formations around central Alberta.

That activity — what industry called “carpet bombing” — was followed by hundreds of complaints about dramatic changes in groundwater quality and quantity throughout the region.

Ernst’s initial objections to fracking near her home in Rosebud raised many eyebrows. For starters, the regulator didn’t like industry critics, and the oil-patch environmental consultant was well known. The scientist even cancelled her work with Encana, then a major client, to prove her displeasure with the company’s conduct.

After her own well water was contaminated with explosive volumes of methane and other chemicals, she eventually decided to sue Encana, the Alberta government and the oil and gas regulator, then known as the Alberta Energy Resources Conservation Board, for gross negligence.

The landmark case attracted global attention for several reasons. It happened just at the beginning of North America’s contentious shale gas boom and fracking revolution. Her $33-million lawsuit also effectively put the technology of hydraulic fracturing on public trial — a development neither the Alberta government nor industry wanted or welcomed.

The high-pressure use of water, sand and chemicals to shatter hydrocarbon-bearing rock formations can cause earthquakes, contaminate groundwater, poison nearby residents and result in significant releases of methane into the atmosphere. Many jurisdictions in North America and Europe have banned the technology. Ireland is now seeking a worldwide ban.

First filed in 2007, Ernst’s lawsuit alleged that Encana drilled and fracked shallow gas wells into coal seams linked directly into the local groundwater supply between 2001 and 2004 near Rosebud and polluted her water well with methane and chemicals. Not even her dogs would drink it.

Instead of upholding the law and investigating the contamination, the regulator then violated Ernst’s rights by banishing the landowner from the board’s investigation and complaint process. The regulators also branded her as a criminal threat in a signed letter.

The lawsuit set off a battle royale in a province whose economy and politics are tied to the oil and gas industry. Since 1999, for example, members of a highly secretive committee choosing judges for Alberta’s provincial courts either had ties to the Tories or the oil patch or both, according to Kevin Taft’s book Oil’s Deep State.   

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Jessica Ernst stands in front of Encana compressors in Rosebud, Alberta. Photo by Tor Lundberg Tuorda.

Many Albertans viewed Ernst’s lawsuit as a threat to the petro system, and tried to bully her into silence. One of her dogs was killed under mysterious circumstances.

Sympathetic landowners, many of whom had lost water wells to fracking, often packed court rooms in Drumheller and Calgary. They viewed Ernst as a heroic symbol of resistance to industry’s abuse of power in rural communities.

Meanwhile a scandal-plagued regulator argued legal statute granted it immunity from lawsuits and that it owed “no duty of care” to landowners.

It also tried to label Ernst as “an eco-terrorist” — a claim the court summarily rejected. The Alberta government, which then had a legal mandate to protect groundwater, fought to eliminate all mention of water contamination in her lawsuit. They lost that argument.

Judges came and went, and time and money flew by with no evidence ever presented in court.

In 2013, Glenn Solomon, a prominent and politically well-connected Calgary lawyer representing the regulator, described the tenor of the dispute in a conversation caught on tape.

“The people who typically are suing are getting a lot of resistance and it’s a knock-em down drag-em out brawl where the oil companies are not resolving it,” he said, referring to how the industry typically resolved damages to groundwater or livestock with money and non-disclosure agreements. “If you drag in the regulators, I can tell you from experience... it’s World War Three.”

He explained that Encana and arms of the provincial government “all have unlimited resources. You know they have office towers full of experts.... So anyone who wants to pick that fight is literally crazy.”

But Ernst, who recognized her odds were not good in Canada’s legal system, felt she had no choice given that groundwater was a public resource and that contamination moved through that water over time. Fracking pollution, she reasoned, could affect generations of rural people and livestock.

As a survivor of sexual abuse, Ernst also believed that it would be immoral to allow her case to be settled out of court with hush money combined with what she described as “disgusting” non-disclosure agreements — an approach used by powerful institutions like the Catholic Church to suppress public knowledge of sexual abuse cases.

From 2014 to 2017, one part of her case reached the Supreme Court on a dramatic issue: could an energy regulator or any other government body actively breach the Charter of Rights and brand a citizen a criminal because its legal statue granted it immunity from lawsuits?

In a rare split decision of five to four, the highest court of the land concluded that the energy regulator couldn’t be sued. The court chose to not even examine the constitutional issues raised by its decision.

One judge, Rosalie Abella, said a regulator found Ernst a “vexatious litigant.” There is no record of any regulator using that term for Ernst. Four of the judges wrote that they saw no basis for that denigrating characterization now entered into the legal record.

Ernst subsequently discovered that the Supreme Court of Canada seemingly has no mechanism to correct false and seriously damaging statements made in its rulings.

Legal scholars, such as Lorne Sossin, then dean at York University’s Osgoode Hall Law School, called the Supreme Court’s decision a terrible precedent that effectively weakened the charter.

The Ernst case “is not about whether the charter was breached, or, if so, whether charter damages are appropriate — rather, this case is about whether a claimant should have a chance to prove her allegations of a charter breach warranting damages as a remedy, and whether a statute can bar her from having such an opportunity,” wrote Sossin.

“By upholding the validity of a statute to bar a charter remedy, the Supreme Court of Canada has allowed a legislature to unilaterally circumscribe constitutional protections and done so for no broader constitutional rationales or benefits.”

Ernst’s opinion was equally blunt. “The judges protected the law-violating regulator and damaged our charter, setting terrible legal precedent which may harm many. It makes me sick.”

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Ernst addressing the Nova Scotia Fracking Resource and Action Coalition in 2011. She also spoke in Ireland, England, New York, Yukon, Newfoundland and elsewhere. Most places she visited ended up banning or pausing fracking. Photo via NOFRAC.

One year later, her lawyer Murray Klippenstein, the head of a law firm in Toronto, abruptly quit the case.

On Aug. 26, 2018, Klippenstein notified Ernst that he was abandoning the case because of changes in the legal climate in Ontario and because of her attitudes about the legal system.

Klippenstein explained his decision to The Tyee in a July 31, 2019 email: “I had increasing concerns about Ms. Ernst’s views about the viability of her own lawsuit, in particular because of Ms. Ernst’s highly and increasingly critical views of the legal system, and of the lawyers that were a part of that system, to the point where I thought it was simply no longer viable for us to represent her going forward.”

Ernst disputes that explanation. “Klippenstein himself warned me in 2007 that the case might take 12 years and asked if I would quit. I said I wouldn’t. He warned me that the system could be unfair to ordinary Canadians and that I might lose everything. He knew from the beginning my reservations about the legal system and my belief that it supports the rich and the powerful.”

In 2018, Klippenstein promised to return Ernst her legal files and restore her website on fracking and the lawsuit, which had been run by the lawyers and hacked. He also promised to send back unspent funds — a sum of $40,000.

The website and unspent funds were eventually returned after a year’s delay. But not all of her legal files have been returned, Ernst says.

In an email to The Tyee, Klippenstein made this statement: “Unfortunately, Ms. Ernst seems to be suggesting that I have somehow improperly been withholding file materials. That is not so. Ms. Ernst was provided with extensive information and materials throughout the case, and after, and has received all the file materials to which she is entitled.”

Ernst says that in August 2019, Klippenstein promised to serve Ernst, the defendants and the court formal notice of his withdrawal in two weeks. The public record shows the lawyer did not serve notice until 18 months later, after Encana filed its application to have the case dismissed.

Ernst’s disillusionment with Canada’s legal system has only grown. “The whole system protects the status quo.”

During her legal ordeal, citizens around the world contributed $75,089.89 to her legal fund.

She said she would not have allowed the fund to seek donations had she known the lawyers were going to quit, adding that she will refund any contributor who can prove their donation. “I feel most terribly about this. Many of these people could hardly afford to give, but did so anyway.”

When Ernst started the lawsuit, she was 50-years-of-age and the proud owner of an environmental service consultancy with scores of big-name clients in the oil patch.

At the end of her lawsuit, her business is dead, and Ernst is now 64 with no prospect of employment in her profession.

She reflected on her ordeal with a sober rage.

“The oil and gas industry can break the law. Their regulator can violate the law and punish those harmed. And it is all supported by a legal industry that enables the abuse while punishing harmed citizens, dragging them through the courts and taking their money. It’s a dirty system, and that’s my summation.”  [Tyee]

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