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Jessica Ernst v Canada

Jessica Ernst v CanadaOn the evening of March 8th, Canadian scientist Jessica Ernst came to St Annes from Ireland - as part of a hectic two week tour - to present her disturbing story about the extraction of shale gas (called “Fracking Community – Actions and Omissions speak louder than words”). She spoke to a packed audience to local people at the United Reformed Church Hall in St Georges Road.

Her talk included some details of her current legal battle against the oil and gas giant, EnCana, and the Canadian government.

Not a lady to do things by halves, we thought.

We went along to hear her.

"Get there early!" the publicity said, so we did. First there actually. We sat and waited as the organisers were setting up.

We have to say it was a very different meeting style to some of the earlier ones we have been to. This one had professional video and sound kit set up in minutes, well organised ladies putting leaflets on chairs, a big frontal fracking banner and even a bounce-along country and western soundtrack running in the background to welcome those arriving. All very slick, upbeat and professional.

By twenty to seven, the hall was quarter full. This was going to be a packed house.

With only odd exceptions, we've watched these meeting grow in scale, in quality and in professionalism with every meeting since the first one we attended and reported in January 2011 ('Gas Exploration'). You get the sense this group is now much better organised, much better funded, and much more focused than it has been in the past.

This has been a recurring theme through all our reports on this matter. The group has have been extremely effective at raising public awareness. They have brought more and more people into the fold, and are undoubtedly moving public opinion against the principle of hydraulic fracturing - at least in this area.

We see this as a big problem for Government.

Our MP Mark Menzies also held an important meeting here, and to which he brought the industry regulatory bodies ('Shale Gas Panel'). Most of them were attacked by local people (with some justification) for keeping their distance - they showed a preference for working from exception reports written by Cuadrilla or their agents rather than pro-active monitoring and on-site inspections. They even refused to meet Fylde's Task and Finish Group looking into the matter of shale gas exploration.

That 'Mark Menzies meeting' produced a call for a single *[See update at end] regulatory body - a call which he took forward, and which has been met - at least in principle - by Government. Everyone thought a major milestone had been achieved.

Jessica Ernst's experience was to suggest it might be otherwise.

Our Government has clearly set its mind of having shale gas (or more perhaps the tax revenues from it) and the stage is increasingly looking set for a UK re-run of what Jessica has experienced in Canada.

The Fylde public's attitude to shale gas exploration continues to move deeper into distrust. It is fuelled by the self-evident and deepening distrust of the political classes in general, and of those they appoint to regulate that which they don't wish to be held accountable for themselves. Potentially, this heralds  all manner of earthquakes for Fylde - economic, political, and geophysical.

And if Jessica is to be believed (and we don't doubt her in this matter), there are potentially frightening implications further down the road for the very nature of the society in which we want to live.

At ten to seven the room was half full, and by the appointed hour it was full.

Jessica Ernst was introduced with little ceremony and went straight into full-flood presentation. You had to listen hard to keep up - scientist training we suppose. She gave no quarter and launched straight into what was a detailed and in some places, a quite technical story.

The simplistic version of what she said told of her move in 1998 to a beautiful rural location in Canada with its own land and river flowing through it, and a water supply from a well on her property. The well water has now become so poisoned from various fracking processes that she has to drive a pickup truck with a drinking water tank on the back to another district in order to have water.

That story is bad enough, but the worse one was what she - as a competent professional scientist - had experienced in treatment from big commercial companies and the Canadian Government. She has undoubtedly become a 'turbulent priest' and in doing so has exposed herself to the powerful, which has resulted in her receiving some awful treatment.

Her full story is too long to tell here. Those wanting more can see for themselves on her website at Ernst Versus Canada but we are going to try to give a flavour of what she said. It is only a flavour, and our task isn't helped by the somewhat grasshopper style of her presentation which hopped from one aspect to another (and back) quite frequently.

It's a story that shows whenever she has exposed something wrong or inappropriate, the regulations or laws were changed so as to sidestep the problem, and when she became more widely known for her accurate critiques she was branded a terrorist and visited by the Canadian secret service. At one point she was arrested.

Now, we're not saying anyone should draw direct parallels between Canada and here. Firstly, a lot less people around here draw their drinking water from wells, most have water that comes from treatment works via sealed pipes. And secondly, the UK is 'behind' Canada in the hydraulic fracturing process so we're at a much earlier stage.

Also we - at least up to recently - has believed that the UK has much tougher environmental laws than America so the sort of problems we've seen in the US wouldn't happen here. But Canada has (or at least had) pretty strict environmental regulation as well as us, and problems there are being caused by the removal or weakening of that regulatory regime.

We're just beginning to see the prospect of that happening here, and if it does, there will be much anger from local people.

Jessica began with some familiarisation sides of her home area and how the story began. When the fracking started, she said they were told they would only be fracking the deep shales, but they have since started fracking shallow (biogenic shales), and above the water level.

She said in Alberta they are fracking thousands of wells.

When the regulator was found to have broken the law and was found - as she said "spying on Albertans", she said the Government simply changed the name of the regulator to make it look like a new one.

She spoke of the company being granted immunity from emissions and as a result, from June 19th no Albertan will be able to do what she is doing with her lawsuit. Her legal claim against EnCana and the Canadian Government is that they failed to protect residents and they failed to protect their water. She said that the water regulator also keeps changing names and being absorbed by new super-regulatory bodies. From June the regulator will be completely immune from prosecutions.

We saw slides with newspaper reports showing gas burning from the ground in a car park as what appeared to be migrated underground methane burned off.

She spoke of gagging orders being imposed on people whose claims for damages had been settled for cash.

In another passage she showed how the biogenic shallow methane was tracking up the wellbore drillings into water and up to the surface. She said that when this happened they blamed nature and said it was bacteria producing the methane.

But geological surveys did not show any connection to bacteria. She said everywhere that water is contaminated with methane after fracking they're blaming bacteria, blaming nature, yet where pre-fracking data is available, the levels are much less than post fracking.

In one study 12% to 80% of the wells looked at were leaking.

She alleged that EnCana used her community as guinea pigs and secretly, without even giving pregnant women and children the chance to bathe elsewhere they started fracking. In 2001 they perforated 100.5 metres below the surface. In 2004 they perforated and fractured directly into her drinking water aquifers. These wells are all above the basic groundwater protection.

One of her more telling comments was "When you listen to the promises, and later get the data, they are not the same"

She showed a slide illustrating that 24 zones had been perforated and fracked and explained how that frequency of fracking from the one source well had produced incredible accumulated strains in the wellbore casing.

She then explained how her well started to go bad after fracking. She has been trying since 2004 to get the regulator to require EnCana to publish the chemicals used in the fracking, but they will not do so. She says that's because they don't want anyone to be able to sue them.

At this time she was actually working for EnCana as an environmental consultant. Neighbours had received papers to sign from EnCana and came to her to ask what it was about. She took the matter up with managers at EnCana. She suggested the managers should meet with local people and talk with them and tell them what they are doing. The answer was "No Jessica, if we can get them to sign that document we don't have to consult"

She thought it was important so she staged an open house meeting to explain, but a few days later the same forms and the same pressure tactics were being used again on her neighbours. She said EnCana lied to her and they lied to her community. So she resigned from working for EnCana.

In the open house meeting EnCana had promised they would never frack near the drinking supply, and better than that, they would only frack below the impermeable layers to prevent gas from migrating into their water. But she said they fracked the impermeable layers and they fracked the water supply. She said they had looked her community in the eye and lied to them.

As time went on she noticed skin damage and burns on her hands after doing dishes, and knowing the water was so soft she could not understand it, and it was only when she went elsewhere and used 'fresh' water that she realised what was going on.

She showed a slide with a photo of a jug of water. The bottom third was clearish, but the top two thirds looked more like smoke than water. She said it was dissolved methane in the water, and it was so bad that her dogs backed away when it was poured.

When she complained to the regulator about the noise from the drilling site, they changed the noise limits.

After a visit away to do a talk, she returned to a letter from the regulator. It said the regulator had instructed their staff to avoid any further contact with her.

They copied their refusal letter to the Royal Canadian Mounted Police Security Branch.

A subsequent letter she sent was returned unopened and marked "return to sender"

When people came to test her water they were shocked to see how much gas was in it. They looked around her property and noticed she didn't have any cattle and said she was to blame because she didn't run enough water. Three days later the Minister of the Environment blamed her for the contamination because she used too much water - and at that time they didn't even have the lab results.

Showing a slide of a pallet of sacks of chemicals some of which were split open and obviously) leaking to ground in wet weather she said that at that time they had quite good regulation, it was just that no-one went out to enforce it.

Two industry gas testers came to test a neighbours well, and as he switched it on the shed blew up and all three of them ended up in hospital. The testers had been 10m away.

By now she was realising she could trust no-one and starting keeping offsite backup copies of her data and to secretly record conversations with officials as she had been banished from communicating with the regulator and they had notified the RCMP Security Branch suggesting she was a 'terrorist'.

One regulatory official admitted during an interview that they had never considered her a threat, but she had been banished (her word) because she was dangerous to the public, and dangerous to their staff.

When Government did agree to do some testing on her land they switched test labs to one that could test for methane but did not have the capability to 'fingerprint' where the methane had come from. She believed this was to be able to say it was naturally occurring methane.

She now has the view that promises mean nothing, even if they are in writing. "Once they frack you, that's it, and they keep coming back after that"

She then showed a picture of her collecting water in a pickup and tank because her own is no longer safe to use. She said her water is now too dangerous even to have connected to her home (presumably because of the risk of methane accumulation and explosion). She said she had been hauling water for going on five years.

When she served the legal papers on the defendants she was again visited by the RCMP in what she said was an attempt to intimidate her.

A judge was appointed to hear the case. And it was to be held locally in Drumheller Courthouse, Jessica said this was the right place as the case should be heard where the harm takes place and were local people can attend. The defendants demand she pay their full costs. The Judge said that would be considered later. The judge asked for a shorter statement of claim than the one her legal team had submitted. She agreed to do this at considerable cost. Then the regulator demanded that her full claim be removed not only from the case, but from the public record. The judge did not allow this.

She asked where the waste material would go, would they dump it near her land?. The regulator replied that they would not dump it adjacent to her land.

We then saw photographs of tractors and slurry tankers spraying flowback water from fracking on the farmers field a mile away. She said they tell the farmers it's a good fertiliser and pay then £500 to spray the waste on land. Hard up farmers with big landholdings are willing to take the money, but as she said, the land is what grows our food. She said you could see the waste blowing in the wind and you could see children and other coming out of church downwind of the spraying.

They had told her they would work it in to the soil to minimise the risk. A month later it had not been worked into the land and it was still on the surface.

In one instance she said a fracking crew was undertaking a frack and a nearby farmer found that the wellbore had leaked (blowout) and the fracking fluid was pumping up 1.2 km (1,300 yards) away through the ground and shooting up through the surface.

He rang the regulator emergency response number which was not answered. He went to the frack crew who did not know they were losing fluid and he had to make them shut down. The fluids were dripping from trees.

She showed pictures of tankers driving along the road with their rear valve open discharging onto the road. She told us when challenged, the driver has said - don't worry its only water.

She said the regulatory rules were about to change to allow horizontal fracking near to where the water is and asked "What kind of regulation is that?"

Recently the defendants had applied to move her legal case to Calgary - In her view this was because they don't want the lawyers and the judges to see the devastation they had caused, and they didn't want to have the courthouse packed with local people. The water protection agency Alberta Water agreed that it should be moved to Calgary and that tipped the scales.

Although the judge said she thought it should be held where the harm had been done and where local people lived, it was nevertheless, moved to Calgary.

Speaking angrily Jessica said "They will not go to face what they have done"

She was shocked, but told her lawyers that at least they now knew the scale of corruption that would be involved in the case. She said the frack trucks keep coming but the lawyers wouldn't get in a car and drive to Drumheller like their own frack trucks.

The regulator wants her case thrown out because, she said, they can infringe her constitutional rights because they regard her as a terrorist. She said they filed that claim without any evidence to support it, even though she has a tape recording of them saying they did not consider her to be a threat. But it has shocked Alberta to the core that the regulator stated in a legal brief that she was a terrorist.

She said on February 8th, Canada took her judge away.

The promoted the Judge to the Court of Appeal.

She was shocked at the news, but her lawyers said not to worry because the Judge would have to rule. Sure enough that didn't apply, and when the lawyers asked her about the hearings it was refused.

The options available were 1) Start all over again, but that might mean that earlier statements red into court might be inadmissible evidence or 2) that they get another judge and he reads the transcripts of the case so far.

As she said, now it feels like the head of the Judiciary has been fracked.

And with that, she finished

There followed loud and sustained applause from the Fylde audience of the sort that most party politicians expect from their stage managed party conferences, but here it was genuine.

Then the meeting was opened for questions.

First question was from Lancashire County Councillor Tom Sharratt who delights in having more or less his own Political party called the 'Idle Toads' He wanted to know how many presentations the objectors to fracking had made to the County Council compared with the two that had been made by supporters of the scheme. He also wanted to know how many County Councillors were there that evening.

Clearly Jessica could not answer that, but a Green County councillor leapt up to show her presence (and to shout down a Councillor from across the Ribble who was trying to identify herself to the meeting). The spokesperson for RAFF said they had sent invitations to Fylde, Wyre, Blackpool and Lancashire councils but they seemed to have picked an especially busy time to have Jessica speak, because almost all had said they had prior appointments at other meetings that night. She did also say she had emailed them again to offer a private meeting the following morning before Jessica left Fylde.

Another question asked about multiple layers of fracking at different levels. She said they call it 'Laddering' and in Canada they would use many layers, sometimes saying they were only going deep but actually doing it much more shallowly.

Another question was about local people organising together to commission their own Environmental Impact Assessment perhaps by a prominent university. She said if that happened she would be happy to review the report and help where she could.

There were other questions about household insurance which she suggested could see the Company in effect buying out the claim by settling it with the Insurer rather than the claimant.

Another question asked about neurological damage from the chemicals in the water. Jessica spoke of a family that had suffered problems, but said you need a health expert to be able to interpret the results.

One chap said she had spoken of the 'Crown land' and many people would think she meant the Monarch, but he said "that's not what the Crown is, it's the City of London and is above the Monarch, and she is just an employee of 'The Crown'" No one quite knew how to respond to this unusual comment. Jessica said her reference to it had been meant to be taken as the Canadian Government.

We're ALWAYS seduced by such comments as this, especially when they are articulated by intelligent people. And we cannot help but follow them up. Readers who want to be sidetracked can follow this link to find out something more about what this particular speaker was saying.

The next speaker was a lady from Defend Lytham who said this was absolutely huge, and they needed to mobilise a lot more people and make it pertinent to them. Her concern was the water that sat on the moss. She said if that surface water got contaminated it would sit there until it flowed or seeped into the watercourses. She said it could end up on the playing fields at Park View in Lytham, it could end up in the basements of houses in Lytham. She had recently been to a meeting which the Environmental Agency were holding about drainage in the south Fylde, and she told the EA that they needed to get thinking about the fracking which is next to all the standing water, which itself is next to Liggard Brook, because once the pollution is in the water we will all know about it. She advised that the EA had said 'What Fracking?' which, of course more or less brought the house down at the Jessica Ernst meeting. She complained to them at the lack of joined up thinking. She offered to drive them up to look at the fracking site and the standing water but they didn't want to go. She said a lot of people had their heads in the sand like ostriches and she was so glad that Jessica had come, because "without knowing were we are going we wouldn't have believed it. It really could be Armageddon, and we have to start fighting now" she concluded.

For that, she received almost as much applause as Jessica's presentation.

The next speaker - from the Ribble Estuary Against Fracking group - spoke about regulation and said that following pressure from locals the Government was setting up an office for unconventional gas as an overall regulator, but their role has been defined as to "promote and to regulate" and he asked for Jessica's comments on the combining of responsibility for promotion and regulation in the same body.

She said "That's why I'm suing" - because they are not an adequate regulator.

She also expressed concern at comments she had heard in the UK about de-regulation. She said in her experience they will promise you regulation but the regulators will de-regulate and sidestep the regulations they should be enforcing.

We wondered if this question from the REAF man related back to the oral evidence given to the Energy and Climate Change Committee considering the Impact of Shale Gas on Energy Markets on Tuesday 11 December 2012 where at question196, Sir Robert Smith asked: "I suppose that is the problem, that it all interconnects, but on the specifics of shale gas what do you think the role of this body of office for unconventional gas and oil will be? Will it be a poacher or a gamekeeper?"

Professor Anderson replied : "Disturbingly it is both and that is the concern. It is the fox looking after the chickens. It does seem an odd thing to set up something that will promote and regulate. That is not to say you may want to have a separate regulatory agency, there are merits and protocols there because it is another separate agency. People were talking before about the problems of regulation, that there are many people regulating and now you have a new one regulating, there will be some crossovers with others. But to have both wrapped up in the same one, I think very few people would suggest that is wise."

Another speaker from across the Ribble disclosed what she saw as inappropriate consultation when the company had selectively invited small groups of 12 or less to 'community engagement' sessions.

Concluding the question session Jessica said she had originally believed she had no power against the big multinationals and the Government, but she had been sustained in her endeavours by an old saying:

"Many fleas make big dog move"

She said people were joining together and the dog was starting to move.

But, encouragingly, she said the audience in the hall in St Annes was further ahead than Albertans, (we thought that's probably because of the more densely populated urban environment here).

She said in her experience key points for campaigning were not getting angry, and writing short letters to the papers.

People don't like anger or being overloaded with information.

One last speaker said he knew personally that six of the UK's top universities had offered to do an Environmental Impact Assessment to establish baseline data and provide other information, but our Government had declined.

With that, and another bout of well deserved and appreciative applause for her presentation, the Jessica Ernst the meeting came to an end.

So where does that leave us

It was certainly thought provoking. She is an intelligent lady with a scientific and environmental background, and two degrees. The land on which she chose to build her home has been ruined by shale gas extraction and it was self-evident that the regulatory bodies had not provided her with the regulation most would expect to be basic, let alone believe reasonable.

It may be that the Canadian Government and the Regulator have steeled themselves to accept that the benefit of power for the many should outweigh the needs of the few in a relatively sparsely populated area, but if that's the case, we believe they should have been more honest and conducted upfront fair and open negotiations about compensation for those who were affected. Her situation has now become mixed up with personal circumstances and the broader question of shale gas extraction in principle.

That said, on an individual level, we have to say that to find what once was your clean water supply has become full of methane and other pollutants - to the extent where it is no longer safe to have your home connected to that supply - is completely wrong.

She knows that.

And she is on a Crusade to have it put right. We wish her well.

We also know that the geology in Fylde is not the same, the regulators are not the same, the water sources here are generally pipes not wells and so on. So, as we said before, there must be caveats about the differences between the places when making comparisons.

But one thing that does seems common to both is the Government's intention to secure shale gas as a new fuel for the future.

And if, as we have seen in small instances locally - where, for example, one of the regulatory agencies (planning) failed to make Cuadrilla adhere to the planning conditions they themselves had imposed, we could be watching the early stages of regulations that are being 'blind eyed' or weakened to ease the path of exploration.

And if, as the REAF man said, we do find that the regulator of the industry is also to be the promoter of the industry, then we probably do need to be a lot more worried than we would want to be.

Canada has (had?) the same sort of quality of environmental regulations as here, and certainly theirs are more stringent than the US.

But if the UK were to behave as Canada, and our regulations are side-stepped in the UK to the advantage of the company and the detriment of residents, then at least we have been warned what to look out for.

Jessica did a good job on that.

We expect to keep watching and reporting.

Dated:    16 March 2013


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