THE FAMOUS WRITER Franz Kafka, the son of a German-speaking Jewish family from Prague, composed an odd legal parable on the eve of World War I. The story concerns a peasant from the country and his attempt to find justice. The man approaches a doorway that might lead him there and asks a bearded doorkeeper “for admittance to the Law.” The stern gatekeeper, a Tartar, says no. Taken aback, the peasant asks, when might he gain entry to the law? The gatekeeper replies that admittance will be possible at some time, but not at the moment. He explains to the peasant that there are more doors down the hall and more keepers but that each is more terrifying than the last. The man thinks for a moment and then decides to wait. The gatekeeper gives him a stool to sit on. The man and the gatekeeper exchange a few indifferent pleasantries. Years pass.
By the end of the story, the peasant has grown old waiting for admission to the law. Finally, near death, he asks one last question. “Everyone strives after the law,” says the man, “so how is it that in these many years no one except me has requested entry?” The gatekeeper, noting the man’s fragility, answers briefly: “Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”
From the time she filed her original statement of claim in December 2007, Jessica Ernst encountered one gatekeeper after another. Some refused to divulge public information in a timely fashion; others simply consumed time and money. The legal gatekeepers proved to be the most officious of all. Five years would disappear before a judge heard a single argument about the case, due to what her lawyers said were normal complications and paper shuffling for a mammoth legal case. While Ernst frantically waited and fretted, she asked herself, “What kind of fucking life is this?”
The delays bore direct testament to the power of Ernst’s lawsuit. Her final seventy-three-page statement of claim pulled no punches: it accused Alberta Environment, the ERCB, and Encana of negligent, careless, and reckless failure to obey the law. In particular, it charged Encana with conducting a risky and experimental shallow CBM drilling program that had fractured an aquifer and released “a large amount of methane and other contaminants into underground freshwater supplies.” The suit also accused the gas giant of willfully breaching nearly half a dozen laws, including Alberta’s Water Act and its Oil and Gas Conservation Act.
On the government side, Ernst’s lawsuit detailed the EUB’s repeated failings as a regulator. It accused the board of failing to take reasonable and adequate steps to protect citizens near oil and gas activities from water contamination. The suit said the board, which had described shallow fracking as “high risk,” not only owed Ernst a clear duty of care to prevent harm to groundwater but also had failed to uphold its own legislative obligations to enforce the law and to protect the public interest: “The EUB breached the above duties by negligently granting licenses to EnCana to drill shallow CBM wells in the Rosebud area despite the existence of significant risks that drilling these CBM wells would contaminate ground-water.” Moreover, the suit claimed, the EUB had violated Ernst’s Charter right to freedom of expression by banning all communication with her and “removing her from the standard regulatory process.”
Finally, the claim detailed Alberta Environment’s “negligent administration of a regulatory regime.” The regulator had not only breached the Water Act and the Environmental Protection and Enhancement Act but had “refused to perform adequate testing on suspected problematic hydrocarbon wells” and had “falsified, manipulated, ignored and withheld data.” The actions of the government regulators and Encana, the claim concluded, “amount to high-handed, malicious and oppressive behaviour” that justified punitive as well as general damages in the neighborhood of $33 million.
Once the claim was filed, the gatekeepers immediately got to work. The first—and the “nastiest,” as Ernst later put it—was Alberta’s Tory government. Having ruled the province for thirty-six years, the hydrocarbon-infused Conservative Party had a reputation for operating the most secretive and least transparent government in Canada. A 2007 audit of freedom of information requests in the country by the Canadian Newspaper Association rated Alberta as one of the nation’s worst offenders. Alberta’s freedom of information process, said the association, worked as a “denial of information” instead.
Ernst discovered the veracity of that damning audit for herself. Months before she hired Klippensteins in 2007, she submitted a freedom of information request to Alberta Environment and the ERCB. That was followed by a request in 2008 to the Alberta Research Council, asking for all the “public” baseline water data mandated for shallow CBM in 2006, as well as notes, references, documents, correspondence, and records on the botched methane contamination investigation. Ernst suspected there might be something useful for her lawsuit in that data, and her instincts proved correct in ways she could never have imagined.
At first, Alberta Environment fought her request tooth and nail. It withheld records and censored legal addresses of both water and gas wells. Ernst complained to the Office of the Information and Privacy Commissioner of Alberta, explaining that she worked in the oil patch and knew that energy well locations weren’t private data. After some prodding from the commissioner, Alberta Environment reluctantly released some uncensored records. The documents showed the government knew in 2006 that the ethane, propane, and butane fingerprints of the gas in some Rosebud water wells matched those from Encana’s shallow gas wells in the area. Ernst was shocked. That meant the government had known about the liabilities of shallow fracking and that the ARC review was a cover-up for both industry and the regulators.
When Ernst applied again through freedom of information for the specific data used by ARC to dismiss groundwater contamination in the province as a naturally occurring event, she faced more stonewalling. Alberta Environment said it didn’t have the records and that Ernst should go to the Alberta Research Council. When approached, though, the gatekeepers at ARC told her to make her request to Alberta Environment, because ARC had given all the records back: “As explained we are unable to provide you with the information.” For months the two agencies played Ernst like a ping-pong ball. When ARC finally agreed to answer her request, the council explained it would cost $4,125 to copy and retrieve the material she wanted, with a $2,000 deposit. It sounded like extortion to Ernst, but she complied just to see what would happen.
The first batch of material ARC mailed to Ernst appeared to be totally unrelated to her request. The next shipment was so heavily redacted that the documents were unreadable. The material was also so badly mixed up that it looked to Ernst as if someone had taken thousands of pages and thrown them in the air before boxing them up. As had Alberta Environment, ARC had blacked out not only water and gas well legal land descriptions (routine public data) but also all information on landowners with contaminated water. ARC had even censored the data on Ernst’s own water well. The council withheld hundreds of documents on the grounds that their disclosure might be harmful to business or economic interests.
Ernst sifted through the six thousand jumbled pages eleven times. She even created her own autopsy room to piece together parts of the missing puzzle. Brief phrases and obscure references hinted that ARC was hiding incriminating information, including evidence that Encana had provided ARC with gas-well data and that the final ARC report had been heavily edited by the government. Ernst penned more complaints to the Office of the Information and Privacy Commissioner. The office reminded ARC that documents on drinking-water contamination were in the public interest and not to be redacted. When the council ignored the commissioner’s advice, Ernst demanded a fee waiver from ARC for “the confusing mish mash of all kinds of stuff.”
Her bold request (“I can be annoyingly persistent,” admits Ernst) prompted a personal reply from John McDougall, president and CEO of the Alberta Research Council, in December 2008. That wasn’t normal protocol. Every public body had a specified individual who managed freedom of information requests, and it wasn’t the CEO. But now McDougall—the man who had, even before the agency analyzed Alberta Environment’s data, predicted that Albertans would not like the council’s findings on methane contamination—was telling Ernst that he was “respectfully” declining her request, since “it has not been reasonably demonstrated that your reasons justify a fee waiver.” When Ernst received the missive, she cursed the air blue.
As other freedom of information requests to Alberta Environment and the ERCB floundered, Ernst felt doors slamming on her. Why was it so hard to obtain what the government openly advertised as public information: the baseline data on water and gas wells that ARC claimed to have used to close the province’s investigations of methane contamination of groundwater? Ernst realized that she needed to find another door to the information, and quickly.
Ernst asked her lawyers if she should request a formal inquiry by the province’s privacy commissioner into ARC’s evasion. Klippenstein said that he doubted she’d get results and counseled her to wait for the document-sharing phase of her lawsuit. Ernst disagreed and forged ahead, spending hundreds of dollars and several weeks preparing the appropriate documents to press for a formal inquiry by the OIPC. She would wait a year and a half for a ruling, and the results would later floor Kippenstein.
In the meantime, Ernst ran up against another group of gatekeepers. Four parties had inserted themselves into Ernst’s freedom of information requests as “directly affected parties.” Without her knowledge, they had been given the opportunity to secretly comment on Ernst’s requests for data. Ernst learned about the invisible censors only when the OIP Commissioner casually dropped mention of the parties in correspondence with her.
The secret parties were two major defendants in her lawsuit—the ERCB and Encana—and two major industry players: the mega-fracking company Schlumberger and PetroBakken, an oil and gas company with many fracking interests. “I was never consulted by the Office of Information and Privacy about having invited secret participants in my inquiry about contamination of a public resource—water,” wrote Ernst to the OIPC. “The bias against Albertans doesn’t get more obvious.” These secret parties “should have nothing to hide if nature truly is guilty” of widespread water contamination during shallow fracking, she added.
To support Ernst’s fight for the release of public data, several landowners sent letters to the Office of the Information and Privacy Commissioner decrying the way the Alberta government had treated her information request. “How much time, money, anguish, abuse (the list goes on and on) does Ms. Ernst have to endure to obtain public data?” wrote Debbie Signer. “I believe that so much dirt has been swept under the rugs in Alberta that we now have rug piles that rival the Rockies!!”
As Alberta’s gatekeepers blocked Ernst’s attempts to secure data, life delivered to Ernst’s doorstep a string of misfortunes. On December 23, 2009, her nephew Derek, the young man who had loved to wander by the Rosebud River and hear the chorus frogs sing, hanged himself with a rope. He left a handwritten note explaining that he could no longer beat his own demons and thanked “Aunt Jess” for always being there for him. Ernst cried for days and grieved for months. To make matters worse, Ernst’s relatives blamed her preoccupation with the lawsuit as a major factor in Derek’s death. In April 2010, Gerda Spencer, Ernst’s mother, died at the age of seventy-eight, never having made amends for not protecting her daughter from the pedophile who preyed on her as a child. Ernst didn’t attend her mother’s funeral; she thought it best that she stay away. Shortly afterward, Mike Watson, Ernst’s oil-patch confidant and mentor, died of a heart attack.
To ease her grief, Ernst plunged herself once again into data. One day she visited the Alberta Government water-well database to look up the historic records on some of the contamination cases in the province. To her dismay, not only were historic records removed, they were altered. Documents that previously said “Gas Present: No” now offered only blank lines with no information. She frantically backed up all her files.
The fracking industry, meanwhile, worked hard to soften growing public resistance. On its company website, Halliburton compared fracking to child’s play: “Sand, water and pressure: the basic components of building a great sand-castle, and the same ones being used today to spur a revolution in the way Americans access and utilize clean-burning energy resources.” Talisman, a Calgary-based company, took the theme further by commissioning a twenty-four-page coloring book for distribution in rural Pennsylvania. The comic depicted the adventures of Terry, a friendly Fracosaurus, who told readers, “I am here to teach you about a clean energy source called Natural Gas.” Terry efficiently liberated methane from smiling underground rocks for a better America; even migrating gases appeared as happy-faced balloons. After the Fracosaurus visited one community, eagles and rainbows blessed the landscape.
Comedian Stephen Colbert pilloried the propaganda as the fracking industry’s equivalent of Joe Camel. Colbert compared fracking to “giving the earth an Alka-Seltzer, if the Alka-Seltzer shattered your internal organs so that oil companies could harvest your juices.” The coloring book, suggested Colbert, left out the real story about Terry the Fracosaurus: depressed by the drilling and fracking of his sacred fossil ancestors, Terry probably blew himself up in the shower after methane contaminated his water well.
Like Colbert, many people weren’t buying industry’s assurances that fracking was safe. Andrew Gould, chief executive of Schlumberger, openly acknowledged in 2010 that there were still many unknowns. “I don’t think that the actual optimum technology set for producing shale gas has yet been defined—at the moment, we are doing it by brute force and ignorance,” Gould told the New York Times.
GasLand, Josh Fox’s documentary on fracking, created an uproar when it was released in 2010. The film showed landowners setting their tap water on fire in Pennsylvania and Wyoming. The fracking industry quickly commissioned its own documentary, called TruthLand. But in a little-read American 2011 report called “Plugging and Abandoning Oil and Gas Wells,” the National Petroleum Council admitted that fracking shale formations had collided with an older problem: abandoned and leaky wells. As fracking placed more wells on the landscape, more gas would leak “into other formations and fresh water,” the report said. Not only had industry not done the proper research on materials for sealing these leaky wellbores, according to the report, it lacked “long-term vision” about the multi-billion-dollar liability.
Ernst’s stresses continued to multiply like fractures in the continent’s shale rocks. Some of her friends, weary of the weight of the lawsuit, asked when it might end. Ernst wondered the same thing herself, but she realized that as soon as she went public with the lawsuit, filing successful freedom of information requests would get harder, if not impossible. Her industry contracts dwindled, and when her last contract in the oil patch formally ended in 2011, her business collapsed. Since engaging the services of the ever-blunt Ernst had become a political liability in the industry, Ernst was now living on her savings.
Murray Klippenstein had warned Ernst that lawsuits proceeded at a snail’s pace in their early years, but she was not prepared for the tenacity of the gatekeepers. Another almost fatal obstacle proved to be her own stubbornness. “I’m a control freak, and that can be completely annoying,” Ernst warned her lawyers at the outset. But as Klippenstein and Wanless made more demands on her time and as her expenses mounted, Ernst wondered if they had her best interests at heart. Tensions finally exploded over the design of a website that would update the public on her lawsuit. Her lawyers wanted to control the site to protect their client. Ernst thought that was an inefficient use of their time and said so. She also worried that she was losing power over her own lawsuit. On March 21, 2011, an exasperated Klippenstein respectfully resigned from the case with the words “I am sorry that we did not meet your expectations.” As the demanding plaintiff read his email, her heart sank.
That weekend, Ernst and Magic went for long walks in the cold. While trudging through the snow, Ernst prayed for clarity on whether she should drop the case. She prayed to God, too, for a sign one way or another. She found that sign classified as “spam” in her inbox: a totally unexpected invitation to speak about the dangers of fracking at the nineteenth session of the United Nations’ Commission on Sustainable Development in May. She recalled a Japanese proverb: “Fall down seven times, stand up eight.”
On March 23, she penned Klippenstein a short note, writing it on a hand-drawn map showing how Encana had perforated and fracked the Rosebud aquifer in seven zones. “Hi Murray. This case is too important to quit. If you really want a website, let’s figure out a way to resolve this and get going forward. We’ve both put too much time, energy, heart and $ into this to give up.” It was signed, “Please, Jess.” Within days the team was back on course. Ernst agreed to share work on the website with her lawyers. The site would later record hundreds of hits a day, with volunteers offering to translate Ernst’s posts into Polish and French.
A month later, Ernst’s lawyers flew to Calgary. In a press conference held at the Kensington Inn, they went public with Ernst’s amended seventy-three-page lawsuit. The case had universal importance, Murray Klippenstein said, because “the hydraulic fracturing issues that Jessica raises in her lawsuit” were coming up more and more all across North America. Sitting between her lawyers, Ernst told a room full of reporters, “I’m doing this case for all Albertans, and for our water. I’m not doing this for me.” Following the press conference, a CBC reporter asked Ernst, “They have all the power, they have all the money, they have all the courts, and you have nothing. How can you do this?” Ernst gave a short answer: “I have one thing they do not. It’s more powerful than anything: heart.”
An Alberta geological engineer who read Ernst’s claim on her website wrote a lengthy letter to wish her good luck. “The very high methane concentrations measured are simply irrefutable evidence of groundwater contamination,” he observed. “[The] Gas company’s only defense is ‘prove it’ which they know is pretty much impossible without baseline sampling and the inherent uncertainty associated with fracture networks (both natural and fracked).” Another industry employee told Ernst her lawsuit was the best thing ever to happen to the province.
Nevertheless, gatekeepers continued to put roadblocks in Ernst’s way. One of the most powerful came in the guise of the federal government under Stephen Harper, who was first elected as prime minister in 2006. Even The Economist magazine described Harper, Canada’s autocratic and highly secretive leader, as a “political predator” with little regard for science, due process, or the media. As the son of an Imperial Oil executive and an admirer of U.S. oil-funded Republicanism, Harper introduced an air of menace into Canadian politics. He championed oil just as he praised God and free market economics. The prime minister also counted Gwyn Morgan, Encana’s former CEO and an outspoken fracking advocate, as one of his government’s key political supporters.
Three characteristics of the Harper government particularly disturbed Ernst. For starters, it openly demonized Aboriginal people and ordinary people concerned about unconventional resource extraction. Under Harper, the federal government axed critical environmental monitoring programs and went on to gut some of the nation’s oldest environmental laws, all to advance hydrocarbon developments. Among other things, the changes allowed the fracking industry to harm fish-bearing waters with impunity. In fact, members of the Harper government praised hydraulic fracturing as an “amazing North American technology.” One minister even suggested that Russia, home to a third of the world’s fracking activities, had secretly funded the North American anti-fracking movement.
Harper’s overtly ideological government had little regard for evidence of any kind, and that too alarmed Ernst. The federal Conservatives not only muzzled scientific studies on climate change but dismantled the nation’s science libraries. They obstructed freedom of information requests as religiously as the Alberta government did. Harper also changed the nation’s approach to basic science by appointing John McDougall as the chief of the National Research Council in 2010. McDougall acted in his new capacity as he had done at ARC: he transformed the ninety-seven-year-old government research agency into a contract research organization focused, as the Globe and Mail put it, “on a clutch of large-scale, business-driven research projects at the expense of basic science.”
Most worrisome of all for Ernst was that Harper had little regard for the nation’s Charter of Rights and Freedoms. His administration openly viewed the Charter as an inconvenient document that limited the power of corporations, along with the reach of the Prime Minister’s Office. Harper not only questioned the authority of the judiciary (he thought politicians should make laws, because judges were notoriously too liberal) but attacked the impartiality of the Supreme Court.
On May 2, 2011, the night Harper’s Tories won a majority government, Ernst feared that her lawsuit was over and would be “destroyed.” She heard the news while preparing her presentation for the United Nations Commission on Sustainable Development. UNANIMA International, a Catholic group with 78,000 members representing seven female religious orders, had arranged the invitation for Ernst to speak there. The group, which promoted the “feminine life principle of healing, caring and nurturing,” thought the UN needed to hear a woman’s firsthand account of what it was like to deal with the hydraulic fracturing industry. One of UNANIMA’s members had Googled “Canada’s Erin Brockovich,” and that’s how the religious group discovered Jessica Ernst.
As the Canadian election results rolled in, Ernst cried in a tiny room at Leo House, a Catholic guesthouse in New York’s Chelsea neighborhood. She practiced her presentation once more and then lay down, but she didn’t sleep—she never sleeps before a presentation. In the morning, she vowed to keep going, no matter what Harper did to her or the case.
In her short talk at the United Nations, Ernst argued that fracking could never be sustainable because “it poisons water and divides communities, and captures our energy regulators and elected officials.” Prior to the event, a Canadian reporter had asked her why she was going to New York—“to give Alberta a black eye?” Ernst got pissed off: “I’m not giving anyone a black eye,” she snapped. “Alberta is giving itself a black eye.”
JUST AFTER ERNST returned to Rosebud, Duke University released an explosive study on private water wells near fracked drilling operations in northeastern Pennsylvania. Researchers found that groundwater wells a mile away from the fracked gas wells contained seventeen times more methane than water wells farther away. Leaky wellbores, industry-made fractures, or the expansion of existing fractures probably accounted for the gas straying into water wells, the researchers concluded. National Geographic illustrated the story with a photo of Jessica Ernst lighting up a five-gallon water jug full of her methane-rich tap water in the safety of her barn.
By now, Ernst was following the protracted legal journeys of other North American groundwater contamination cases. Since the shale gas boom had begun in 2005, dozens of cases had popped up, in Pennsylvania, Texas, Colorado, Arkansas, and Louisiana. In 2011, the San Francisco–based Sedgwick law firm reported that hydraulic fracturing litigation had become a major legal trend. In Texas, multiple lawsuits had arisen from fracking operations in the Barnett Shale alone, “with plaintiffs complaining of flammable water, violations of the Safe Drinking Water Act and discolored, sediment-filled water.” Not all the cases focused on groundwater contamination, either. In Arkansas and Texas, residents sued the operators of compressor stations for “emitting large quantities of noxious gases along with producing loud noise damaging the plaintiff’s hearing.” In Arkansas, citizens also sued major energy companies for causing “an unprecedented increase in earthquakes” with their disposal wells. The quakes left “property damage, real estate devaluation and emotional distress.” The Sedgwick report added that the litigation was “taking on an international character, with a recent case filed in Canada.”
Ernst noticed a worrisome development in the lawsuits, something Texas blogger Sharon Wilson later described as “the cycle of fracking denial.” Regulators began by claiming there was no proof of groundwater contamination. When landowners provided proof of methane or hydrocarbon contamination, industry attempted to bury it by offering landowners cash in return for signing confidentiality agreements. Landowner Grace Mitchell, for example, had sued Encana in 2010 in Johnson County, Texas. After Encana fracked shales near her property, Mitchell could “no longer use the water from her own well for consumption, bathing, or washing clothes because in approximately May 2010, the well water started to feel slick to the touch and give off an oily, gasoline-like odor.” Mitchell settled out of court and went silent. Even court discovery materials in her case were subject to “a protective order.” Gag orders erased history, Ernst realized, and allowed regulators to claim there had been no proof of contamination in the first place. To her way of thinking, the courts were participating in “criminal activity” by allowing the gag orders. She had compassion for families who signed to protect the health of their children but only contempt for the authorities that willfully covered up industry’s dangerous methane liabilities.
In October Ernst returned to New York at UNAMIMA’s invitation. This time the group presented Ernst with the International Woman of Courage Award for “her struggle to overcome the injustices brought about by the predatory search for profits at whatever cost to present and future generations.” During the ceremony, Ernst cried and was too nervous to eat. The Alberta Government never recognized the achievement.
In November 2011, the ERCB abandoned its in-house legal team and hired the high-profile Calgary law firm Jensen Shawa Solomon Duguid Hawkes (JSS) to direct its defense against Ernst’s lawsuit. The “civil litigation boutique” boasted impeccable ties to both the Conservative Party of Canada and the Alberta government. One of the firm’s principals, Robert Hawkes, was the former husband of then Alberta premier Alison Redford, and he remained one of Redford’s trusted political advisers and campaigners. While serving as Alberta’s justice minister in 2010, Redford had personally chosen her ex-husband’s law firm to handle a $10 billion tobacco lawsuit on behalf of the government. (An ethics investigation later cleared Redford on a technicality.) JSS handled business for several energy firms, including a former Encana entity: Cenovus Energy. The firm also represented the Office of the Information and Privacy Commissioner, which Ernst had now been battling for four years. Most critically for Ernst’s lawsuit, JSS did work for the Harper government.
A month after Alison Redford became premier, JSS senior partner Glenn Solomon got the job of defending the ERCB. Solomon, an energy litigation star in Alberta, had known Redford for twenty years. He not only donated regularly to the Conservatives but had served as a director of several federal Conservative Party riding associations. JSS celebrated Solomon’s “political involvement” on its website, alongside many glowing peer reviews of his legal performance. To Ernst, Solomon’s involvement in her case was a “fitting” reminder of the threat her lawsuit posed to a brute-force technology and its advocates.
Solomon took a hardball approach to defending his client. His first legal brief, some seventy-three pages long, contended that the ERCB owed no legal duty of care to protect a citizen’s groundwater—but it did have a public duty to implement legislation for the oil and gas industry. Although the Charter of Rights granted citizens the freedom to thought, belief, and expression, Solomon’s brief argued, it did not “guarantee the right to be listened to.” Furthermore, the Charter “does not guarantee an audience.” As a consequence, the brief said, the regulator had been within its rights to suspend communication with Ernst. Finally, said Solomon, even if the ERCB was negligent, Section 43 of the Energy Resources Conservation Act—the immunity clause—exempted the regulator from any liability. “It is obvious that the claims against the Defendant are without merit,” concluded Solomon.
Klippenstein had expected Solomon’s line of reasoning, but he found the defender’s arguments extreme. “I think most Albertans would not be comfortable with a regulator that says it is basically immune from legal accountability in a democracy no matter how incompetent and negligent they are,” he told a reporter. “That’s a very unusual position for a regulator.” Klippenstein pointed out that a coal-mine regulator owes a duty of care to miners, to ensure that their workplace is safe, and that municipalities owe a duty of care to their residents, to ensure that building codes are enforced. Why should an oil and gas regulator not be held accountable for “negligent failure to comply with established government policy?” he asked.
In contrast to Solomon’s lengthy, convoluted briefs, Encana’s lawyers filed a simple thirty-three-page brief. To Ernst and her lawyer’s astonishment, Encana’s lawyers didn’t propose to dismiss the entire lawsuit or press for summary judgment—the usual course chosen by powerful corporations. (The notoriously litigious company had once tried unsuccessfully to sue a Colorado bluegrass group for a song that asked, “How did they poison my water and hay, by drilling for gas in the ground?”) But now Encana merely wanted to strike 130 paragraphs from Ernst’s claim on the grounds they were frivolous or too detailed.
To guide its defense, Encana hired Maureen Killoran, a managing partner in Osler, Hoskin & Harcourt, one of Canada’s biggest firms. Killoran, the mother of four children, told the Calgary Herald that “when you do energy law, as I do, or corporate litigation, you’re not dealing with life and death situations and people whose lives have been turned upside down, plaintiffs who are weeping. It’s just about money.”
The lawyers representing Alberta Environment initially registered no objection to the lawsuit. But they requested that more than a hundred paragraphs be struck from Ernst’s claim because it read as a “critique of the oil and gas industry.” Their brief argued that any “allegations regarding how the oil and gas industry as a whole operates or how the oil and gas industry may affect other individuals are irrelevant, improper and should be struck.”
On April 16, 2012, ten days prior to Ernst’s first hearing in the Drumheller Court of Queen’s Bench, the province’s OIP Commissioner unexpectedly opened a door for Ernst. In a scathing ruling, Adjudicator Teresa Cunningham ordered the Alberta Research Council (by then renamed Alberta Innovates–Technology Futures) to release six thousand pages of documents it had censored or withheld relating to investigations of the causes of methane contamination in water wells. Cunningham’s sixty-five-page ruling found that ARC had wrongly charged Jessica Ernst $4,125 for a request that should have cost $295 and that the outrageous fees were intended to punish a citizen for requesting public data. Furthermore, it described ARC’s four-year obstruction of information as having “the effect of undermining a central purpose of the FOIP Act: the right of timely access to records in the custody or control of a Public Body.”
Ernst still considers the OIP ruling her most important legal victory. That same month, the Alberta government again ranked last in a transparency study done by the Halifax-based Centre for Law and Democracy. The center noted that, on an international comparison, Alberta’s administration of right-to-information laws placed the province somewhere behind Angola, Colombia, and Niger. (Under Stephen Harper’s leadership, Canada by now placed behind Mongolia on information transparency.)
Ernst’s lawyers were dumbfounded by the contents of the documents ARC had withheld for four years. One damning find was a 2007 “Coalbed Methane Complaint Response Review” that had never been released to the public. The review—from which ARC still withheld two chapters—recommended that citizens unsatisfied with the province’s groundwater review process be able to pursue “civil action.” A batch of government emails also proved that ARC’s summary and the five individual reports on groundwater contamination were anything but “independent.” Just as Ernst suspected, the ARC report had been heavily and secretly edited by the agency that contracted it: Alberta Environment. Two years later, these documents would save Ernst’s lawsuit from oblivion.