If you follow the crystalline waters of the Fording River up the Elk Valley, past Josephine Falls, you’ll discover a small pocket of genetically pure westslope cutthroat trout prized by fly fishers from around the world.

The species is known for sparse, dark freckles that run along the contours of an arched back and the signature orange-pink slits that gouge both sides of its throat. Small teeth line the entirety of its mouth, even under the tongue.

“Cutties,” as they’re affectionately referred to in the bustling fly fishing shops in Fernie, are thought to be one of the first fish species to populate British Columbia after the last ice age. Now found in only in a small fragment of its historic habitat, the species is widely understood to be an indicator of ecosystem health. Pacific populations are currently listed by the federal government as a species of special concern.

The meandering oxbows of the Upper Fording have created the unique conditions for this particular population of westslope cutthroat trout to remain genetically distinct, not having bred or ‘hybridized’ with other nearby populations. Yet these very same gentle waters now threaten to bring an end to this particular lineage of westslope cutthroat trout, first noted in the journals of Lewis and Clark and christened with the scientific name Oncorhynchus clarkii lewisi.

The Upper Fording River, where high levels of selenium have been measured, is closed to fly fishing. The river is the namesake of Teck Resource’s Fording River coal mine. Photo: Jayce Hawkins / The Narwhal

A westslope cutthroat trout caught by Ryland Nelson in the Elk River and is likely not genetically pure. According to Canada’s Department of Fisheries and Oceans, Indigenous species of these trout are critically important to protect as they “may be required for attempts to re-establish extirpated subpopulations, and the future preservation of the species as a whole.” Photo: Jayce Hawkins / The Narwhal

Selenium pollution, leaching from manmade mountains of waste rock, has inundated the waterways of the Elk Valley, depositing itself in the docile currents of the Fording and Elk Rivers.

“We’ve got westslope cutthroat trout and bull trout throughout the lower reaches of the Elk River,” says Lars Sander-Green, an analyst with the local conservation group Wildsight. “The fish are basically concentrating that selenium both in their tissues but, more importantly, in their eggs and in their ovaries that will cause birth defects and reproductive failures.”

Standing beside a snowy bend in the Upper Fording River, Sander-Green explains how selenium builds throughout the food chain. First, it settles in slow moving waters where it is converted into organic compounds by bacteria. It is then taken up by algae which are eaten by bugs which, in turn, are eaten by fish.

“The main concerns people have with selenium are mostly about the fish,” says the unassuming, soft-spoken analyst with a degree in physics and a penchant for data sets.

As the contaminant accumulates in trout it can lead to ghastly facial and spinal deformities, an absence of the plates that overlay and protect the fish’s fleshy gills and — where deformities make survival impossible — death.

In 2014 an expert report prepared for Environment Canada warned that selenium pollution from mining in the Elk Valley was negatively impacting fish. The report warned that increases in selenium pollution would inevitably lead to “a total population collapse of sensitive species like the westslope cutthroat trout.”

In these 1980 photos, Dr. Lemly, an expert asked to prepare a report on selenium pollution in the Elk Valley for Environment Canada, details spinal deformities of mosquitofish (left) and a red-horse minnow (right) as a result of selenium poisoning in North Carolina from a coal-fired power plant. Photo: A. D. Lemly / Environment Canada

A westslope cutthroat trout with a missing gill plate, a telltale deformity caused by selenium poisoning. This trout was caught in 2014 in Coal Creek, a tributary of the Elk River. Photo: Environment Canada

Waste rock deposits cover a massive section of land at the Fording River coal mine. Photo: Jayce Hawkins / The Narwhal

A waste rock dump spans kilometres at a Teck Resource’s mine. Waste rock piles, exposed to the element and growing every day, are what release selenium into the local environment. Rain and melted snow will carry the contaminant into nearby creeks and rivers. Photo: Jayce Hawkins / The Narwhal

Selenium is often found in coal rich deposits like those underlying much of the Elk Valley, where Teck Resources owns and operates five sprawling metallurgical coal mines. To get at those blackened seams, Teck employs a technique known as cross-valley fill, a bucolic euphemism for mountaintop removal mining.

The mines, easily visible in satellite imagery, are staggering in their scope. Mountains are cut down and blasted into terraced slopes that are slowly separated into piles: marketable coal and spoil. Anything not deemed to be of commercial value is trucked by heavy hauler out to piles that eventually grow into jagged black pyramids — manufactured shapes that do a poor job of mimicking the former mountainsides.

Teck Resources is the world’s second-largest exporter of coal for use in steelmaking, with much of the resource making its way by train to the Westshore Terminals beside the familiar docks of the Tsawwassen ferry. Teck’s Elk Valley mines are some of the largest in Canada — and are poised to expand, despite rising concerns about their growing impact on fish and drinking water.

Westshore Terminals is the largest export facility for coal on the west coast of North America. Westshore ships 19 million tonnes of metallurgical coal each year for Teck. Photo: Carol Linnitt / The Narwhal

“With this kind of coal mining, open pit or mountaintop removal, there’s a lot of rock between the mountain and the coal,” says Sander-Green, hands tucked into his pockets and shoulders slightly gathered about his neck in an effort to fend off the unseasonable October cold.

“You blast that and truck it over to the next valley, they fill in the mountain valley with this waste rock…and with coal, often there’s some selenium in the rocks…The water trickles down and slowly leaches selenium out of those rocks. It ends up flowing down into these bigger rivers like the Elk and Fording Rivers all the way down into Lake Koocanusa [a reservoir created by Montana’s Libby Dam].”

Teck’s five metallurgical coal mines are all upstream of the transboundary Koocanusa Reservoir. Graphic: Carol Linnitt / The Narwhal

The confluence of the Elk and Fording Rivers. Photo: Jayce Hawkins / The Narwhal

The expansive waste rock piles filling in low-lying areas of the Elk Valley are exposed to air and water — the elements necessary to move selenium — all year round. The result is a monumental selenium spill in slow motion.

Selenium is a naturally occurring element and is essential to human health in very small doses but can become toxic at higher levels. It is harmful to aquatic life and other egg-laying creatures, even at low levels. 

In order to safeguard aquatic life, B.C.’s water quality guidelines recommend selenium levels not exceed two parts per billion. Those same guidelines limit selenium in drinking water to 10 parts per billion. In the U.S., the Environmental Protection Agency’s guidelines set safe limits for aquatic life at 5 parts per billion.

Measurements taken throughout the Elk Valley have found selenium levels at 50 or 70 parts per billion. In many cases, levels are higher than 100 parts per billion. (A 2013 study found selenium levels in rivers upstream of the mines at 1 part per billion).

Yet the B.C. government continues to sanction the expansion of Teck’s mining operations, despite a failed water treatment experiment by the company and a distressing new problem: the contamination of drinking water.

Private wells on local farms and a municipal well in the district of Sparwood, home to many of the miners working at Teck’s operations, have been taken offline after showing selenium levels higher than 10 parts per billion, well in excess of what is considered safe for human consumption.

Doug Hill, regional director of mining operations with the B.C. Ministry of Environment, says exceeding B.C.’s water quality guidelines for selenium is not enough of a reason to slow down mining activities.

We’re already over our numbers that we want to see,” Hill says in an interview, before issuing a quick reminder: “Our water quality guidelines, they’re not law in and of themselves. They are used as benchmarks to assess the impacts of mining projects on water quality.”

Asked if he anticipates more contaminated sources of drinking water, Hill hesitates.

“I couldn’t say that we’re at a point now with our groundwater monitoring that we could accurately predict that.”

Bill Hanlon, a local horse breeder and conservationist, manages a property just outside of Sparwood that is a popular destination for hunters seeking proximity to game in the Elk Valley, which is class one bighorn sheep winter range. The private well on that property is contaminated.

Hanlon wants to see a better balance between environmental and economic interests in the Elk Valley and argues, despite the problems with selenium, he believes Teck works hard to be a good neighbour and has helped created protected areas to offset the impacts of mining. Photo: Jayce Hawkins / The Narwhal

Bill Hanlon, a local guide and conservationist, is worried too much selenium in the Elk Valley ecosystem may take the river to a “tipping point.” Photo: Jayce Hawkins / The Narwhal

“This property here has some of the highest selenium measurements. They test it regularly,” Hanlon says. The property is on the opposite side of the river from the coal mines, prompting Hanlon to ask, “…why is the selenium going this far out in the gravel bed river system?”

Hill says Teck conducted a 2017 groundwater study, currently under review, that will be used by the company to create a “conceptual model” for how groundwater flows and moves throughout the valley.

“It’s complicated,” Hill explains. “The geology there isn’t simple to understand. The selenium is going to behave differently in groundwater than in surface water.”

Hanlon, who is also the chair of the British Columbia Backcountry Hunters and Anglers, says he’s worried by proposals for three new coal mines by three new companies in the Elk Valley. “If we lose this river, if it tips…there’s a lot of livelihood based on this area and on the river itself.”

Fernie airbnb manager and fly fisher, Ryland Nelson. “The clear-cut logging that we see on the hillsides, that’s a lot more in people’s face but this selenium issue is, you know, it’s silent and it is much, much bigger of an issue to the health of this watershed,” Nelson told The Narwhal. Photo: Carol Linnitt / The Narwhal

“It’s not just the coal mines, it’s cumulative effects and I fear we’re getting near a tipping point in terms of a balance of a healthy environment and a healthy economy. We don’t seem to know when to quit.”

University of Montana biologist Erin Sexton began studying selenium in the Elk Valley nearly two decades ago when the wildlife-rich Flathead Valley, next to the Elk Valley, was being eyed by coal companies. Mining and oil and gas development are now permanently banned in the Flathead Valley.

“We came up to the Elk River in B.C. from Montana in the early 2000s to collect data,” Sexton recalls during an interview. “We were surprised by what we found.”

Sexton said she and her colleagues expected the Elk Valley river system to be impacted by mining, but they did not anticipate the extent of the damage they encountered.

“The issue with selenium is that it’s what we call biphasic, meaning that it goes from good-for-you to toxic in a really tiny window,” she says.

Of particular alarm for Sexton was the near absence of macroinvertebrates, the little bugs — mayflies, stoneflies, caddisflies — that feed the local fish populations.

“We’re losing certain species of those very important macroinvertebrates. Ones that are more sensitive to pollution are disappearing and we know they should be here because we found them in the Flathead which is very close,” Sexton says. “Rather than this rich diversity…we found just a few species in the Elk River.”

To the alarm of Montana officials, Lake Koocanusa, fed by the Elk River, is showing signs of increased selenium pollution.

Sexton says selenium contamination is acute directly downstream of the mines. “Whereas further down in the reservoir and in the system, [the effects] are more chronic and will take place in a longer timeframe.” She adds that the overall effects of selenium poisoning can be hard to identify, despite seeing deformities in fish in the Elk.

“It’s kind of a hard problem to detect because the ultimate impact of selenium toxicity is a failure to reproduce so if you’re not seeing those fish in the system, then how do you know that they’re being impacted by selenium?”

In an effort to determine the extent of selenium contamination, one day in October Sexton and colleagues from B.C. and Montana conservation groups hop into a flotilla of canoes, using GPS coordinates to locate the spot in the Koocanusa reservoir where Teck has done water sampling.

Erin Sexton leads a group out on to the Koocanusa Reservoir to conducting independent water testing. Photo: Jayce Hawkins / The Narwhal

Once the canoes are in position, Sexton takes numerous water samples, using standardized methods developed by the U.S. Environmental Protection Agency.

“Basically, we’ll send it back to the lab with a duplicate and then see what we get back,” she says.

Teck and the B.C. government conduct regular water testing, but the raw data is not made available to the public. Some areas, like this particular spot on Lake Koocanusa, aren’t tested year round.

The reservoir can freeze and experience a drop in water levels, creating dangerous cavernous conditions under the ice. It’s a barrier to winter water testing, an important time to test for selenium because low water levels can mean a higher concentration of pollutants, says Sexton, who is among a growing chorus of Montana voices expressing concerns about selenium pollution from Teck’s mines crossing the B.C.-Montana border.

Last July, two U.S. representative on the International Joint Commission, a Canada-U.S. body that oversees a treaty to protect transboundary waters from pollution, went public with criticism that their Canadian counterparts were suppressing science on the health impacts of selenium and relying on out-of-date data rather than on more current studies for an upcoming commission report. The commissioners warned that Teck may not even have the technology necessary to stem the tide of selenium moving from the Elk Valley mines into U.S. waters.

Michael Jamison, senior program manager with the National Parks Conservation Association in Montana, worries that contamination flows directly south, where he lives with his family. What’s happening downstream is bad enough, says Jamison, “but then when you look upstream at what’s happening in B.C. — polluted air, contaminated fish, and wildlife — I don’t know how they handle it…it’s so acute on the northern side of the border.”

Jamison is perplexed by the unabated pace of mining in the Elk Valley, despite pollution levels well above B.C.’s guidelines. In the U.S., companies would never be granted new permits if they were found to be in violation of permit levels, he says. There are also other important differences between industrial operations in B.C. and those south of the border, Jamison notes.

“We have an Endangered Species Act in the U.S. that doesn’t really have a counterpoint in B.C. We have enforceable requirements around wastewater discharge and remaining within the parameters of your permit. Those presumably exist here…it seems like in the U.S. we have rules written in ink, maybe up here they’re written in pencil with an eraser handy…’we’ll adjust the permit.’”

Even if Teck’s Elk Valley operations halted immediately, Jamison says the problems they have created will persist for hundreds of years, likely long after the company ceases to exist.

“These piles of waste, they’re going to be leaching selenium into that system for 700, 1,000 years. Teck’s not going to be around in 1,000 years.”

Some of the many waste rock piles that line coal mining operations all throughout the Elk Valley. Photo: Jayce Hawkins / The Narwhal

Hill confirms that Teck’s Elk Valley operations are monitored under a valley-wide permit that has short-, medium- and long-terms selenium targets established under the Elk Valley Water Quality Plan. He agrees that selenium pollution from Teck’s mining operations is a long-term problem.

“These legacy waste rock piles there are going to be leaching sulphates and selenium for years to come, regardless of what happens to the mines right now,” Hill says. “It’s going to take long-term sustained action before we see really remarkable changes to water quality.”

The water quality plan established in 2014 focuses only on attempting to stabilize selenium levels in the water until 2023, Hill explains. B.C. does not anticipate that Teck will begin the work of lowering selenium levels in the watershed until the 2030s.

But just how that will happen isn’t clear. Teck introduced a $600 million water treatment plant in 2014 that proved problematic from the start. The plant caused a fish kill in 2014, six months after coming online. In 2017, the plant was taken offline after it was revealed that the treatment process was releasing a more bioavailable form of selenium into the environment, meaning it was taken up more readily by biotic life.

Teck said in a statement that the struggling water treatment facility at its Line Creek operations has been recommissioned and is now back in operation. A second water treatment facility is currently under construction, Teck spokesperson Chris Stannell wrote in an e-mail to The Narwhal.

Teck expects to invest between $850 and $900 million in water treatment facilities over the next five years and is experimenting with ‘saturated rock fill’ methods in an attempt to reduce the amount of selenium entering the environment via waste rock piles, Stannell says.

Teck Resources, which posted profits of $6.1 billion in 2017, was the single largest donor to the BC Liberal party. The practice of corporate political donations has since been phased out in B.C.

Hill acknowledges there have been significant “setbacks” in Teck’s water treatment plans.  

“There’s a lot of different parts and piece to this project and whilst there might be setbacks in one particular area — albeit a really important area, which is the treatment technology — I think we need to continue to plug on and move forward to make this plan work.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

There’s no telling if the 220 square-kilometres of unlined tailings ponds in the Alberta oilsands are leaking contaminated waste into nearby water sources, according to the government of Canada.

That claim was made in an official response to NAFTA’s Commission for Environmental Cooperation despite strong scientific evidence suggesting a clear linkage between the oilsands’ 1.3 trillion litres of fluid tailings and the contamination of local waterways.

The response comes after a June 2017 submission by two environmental organizations and a Dene man alleging the federal government was failing to enforce a section of the Fisheries Act that prohibits the release of a “deleterious substance” into fish-frequented waters.

The NAFTA commission has 120 working days to determine whether the case has merit in light of Canada’s latest claims.

While Ottawa acknowledged in its response that nearby waters had a higher-than-average rate of contamination, it maintained that proving its source is “scientifically and technically challenging as methods for their analysis have not been available.”

ICYMI: What You Need to Know About NAFTA’s Investigation into Oilsands Tailings Leaks

Creating a sense doubt about the facts is a “flimsy” defence, Dale Marshall, national program manager with Environmental Defence, one of the environmental organizations bringing the case, told DeSmog Canada.

“The evidence is pretty strong that these are coming from tailings.”

Multiple Studies Conducted by Federal Scientists Detect Tailings Leakage

Many studies have indeed been done to assess the impacts of tailings waste on nearby waters.

An internal memo delivered to then-natural resources minister Joe Oliver and obtained in 2013 by investigative reporter Mike De Souza shows that federal scientists had discovered a clear presence of tailings toxins in local water sources.

The memo described that “the studies have, for the first time, detected potentially harmful, mining-related organic acid contaminants in the groundwater outside a long-established out-of-pit tailings pond.”

These findings weren’t the first.

A 2008 study commissioned by Environmental Defence pegged the number of tailings leakage at 11 million litres a day, potentially reaching 72 million litres per day by 2012.

Then, in 2010, a journal article co-authored by limnologist David Schindler pointed to “tailings pond leakage or discharge as sources” of toxic pollutants in the Athabasca River. That was confirmed in 2014, again by federal scientists, with an entry in the journal Environmental Science and Technology that identified a “chemical fingerprint” distinct from natural rates.

“They found also not only are those tailings ponds leaking, but it looks like it is flowing pretty much from those tailings ponds, through the ground and into the Athabasca River,” oilsands advisory committee member and environmental scientist Bill Donahue told the CBC in an interview.

ICYMI: No Sure Plans, Funding for $51 Billion Cleanup and Rehabilitation of Oilsands Tailings Ponds

Marshall added oilsands companies documents have also indicated that tailings ponds leak and estimate the leakage expected to occur over time.

This has resulted in growing concerns in nearby Indigenous communities, including Fort Chipewyan where anomalous cancer rates have plagued the small community. But a lack of meaningful research has meant the community has been left without answers or recourse.

“The fact of the matter is that there are increasing levels of contaminants,” Melody Lepine, member of Mikisew Cree First Nation and co-chair of the Oil Sands Advisory Group, told DeSmog Canada. “They’re very dangerous.

“My community downstream has significant concerns about their health, the health of the ecosystem, impacts to birds and wildlife,” she added.

“It’s troubling to know after 50 years there’s still not enough data and research and management of tailings ponds.”

‘Precautionary Principle’ Means Government Must Act in Absence of Definite Proof

Environment and Climate Change Canada is committed to applying the “precautionary principle.”

As described by the federal department, that means that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

Those concerned about tailings leakage say the issue appears to be a perfect example of when that principle ought to be applied.

“Let’s just say the evidence is not as strong as it is,” Marshall said. “Even then — and I would call the contamination of Alberta’s rivers and increased cancer rates in downstream Indigenous communities serious environmental issues — the government’s stated principle is it’s not going to let uncertainty prevent them for acting to address those serious concerns.”

But the federal government has not taken that approach.

In 2013, Environment and Climate Change Canada decided there wasn’t enough evidence to prove violations of the “pollution prevention provisions” of the Fisheries Act and eliminated the on-site inspections of seven tailings ponds.

While inspectors still respond to specific complaints, they no longer proactively monitor the area for violations of the law.

In its recent response to NAFTA the government explained that “officers were not able to establish that a person deposited or permitted the deposit of a deleterious substance” due to an unavailability of scientific tools.

Canada Tells #NAFTA Leaky #Oilsands Tailings Ponds a ‘Challenge’ to Prove, Despite Existing Federal Study https://t.co/Qc1ewGdAGp #ableg #cdnpoli #cdnsci @envirodefence @NRDC

— DeSmog Canada (@DeSmogCanada) November 17, 2017

Federal Government Ultimately Responsible for Violation of Federal Laws

Canada told the NAFTA environment committee the government is managing the tailings ponds in “a manner consistent with its domestic laws” and that it was justified in reallocating investigators to other issues deemed to have “a greater impact on the environment.

The federal submission claimed, “Canada’s enforcement actions are effective.”

The federal Liberal government pledged in its 2015 election platform to “treat our freshwater as a precious resource that deserves protection and careful stewardship.”

Lepine, who was raised in Fort Chipewyan, one of the communities most affected by oilsands developments, said she is disappointed the position of government on the tailings issue hasn’t changed — despite a change in leadership at both the provincial and federal levels.

ICYMI: Alberta Approves Suncor Tailings Plan Despite Reliance on ‘Unproven Technology’

“I was optimistic we had these changes in government,” Lepine said. “But really, nothing has changed since both of them have taken office. I’m not convinced they take this issue very seriously.”

Behind the scenes, a jurisdictional tug-of-war is at play, Lepine said. “They’re pointing fingers at each other.”

Yet enforcement of the Fisheries Act is ultimately the responsibility of the federal government.

If the province isn’t regulating in a way that prevents violations of federal laws, then it’s the responsibility of Ottawa to intervene, Marshall said.

“Yes, there are agreements made between the federal government and provinces. But that doesn’t mean the federal government can just wash its hand of it,” he said.

“[The federal government] is still the last stop between environmental degradation and the violation of federal laws.”

Environmental Tribunal Has 120 Days to Decide Next Steps

NAFTA’s Commission for Environmental Cooperation has 120 working days to review Canada’s submission and the merits of the original case.

Following that, the commission has 60 working days to schedule a vote between the environment ministers of Canada, the U.S. and Mexico.

If two-thirds of the countries vote to advance the case, a “factual record” of the issue will be prepared. A factual record has no binding legal consequences and would simply serve as a “name and shame” document on the public record.

Lepine said in the past Canada has taken action in response to international scrutiny.

On Wednesday, the International Union for Conservation of Nature declared the Wood Buffalo National Park — located just north of the oilsands — as one of the most threatened World Heritage Sites in North America.

“We wouldn’t have to do all these things if we thought Canada and Alberta were taking our concerns seriously,” Lepine said. “I’m hopefully that through this international forum they get that extra push. But we’ll see.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Back in 2007, when Alberta landowner Jessica Ernst filed her lawsuit over water contamination from the hydraulic fracturing of shallow coal seams near her property, most Canadians had never even heard of “fracking.”

Ten years later, nearly everyone has at least heard of the controversial process of accessing oil and gas deposits.

To some, it’s an economic saviour. To others, it’s a threat to fresh water and yet another step toward climate change catastrophe. But many others don’t know what to think, especially when some provinces embrace fracking while others put a freeze on the practice.

To help you sort it out, we’ve put together this primer on what fracking really is, where it’s happening in Canada and what’s known (and not known) about the risks to the environment and human health.

What Is Fracking?

Fracking is a technique to blast a mixture of water, chemicals and sand into a well to break apart the rock formations and release previously inaccessible oil and natural gas deposits. Most fracking today is done in conjunction with horizontal drilling.

The ascent of fracking put an end to speculation that oil and gas reserves in North America were mostly tapped out (remember Peak Oil?) and led to a fracking boom in parts of the U.S. and Canada from about 2006 to 2013.

Fracking uses large amounts of fresh water — in B.C., the average frack uses between 5 million and 100 million litres of water. This can easily require more than 2,000 truck trips to deliver water, which becomes contaminated after the fracking process and must be disposed of somehow — either in tailings ponds or by being injected deep underground.

As documented in a recent five-year EPA study, leaks and spills of frack fluid have created long-term water concerns (more on that in a moment).

Fracking in Canada

In Canada, more than 200,000 wells have been horizontally fracked for shale gas or oil, primarily in the western provinces. It is now estimated that 80 per cent of new oil and gas wells in Canada are fracked. Such “unconventional” reserves exist elsewhere in Canada, but for now, a mix of geology, geography and public opposition has kept them mostly untapped.

The past few years have seen a slowdown in fracking due in large part to the drastic drop in oil prices in 2014. Yet, it wasn’t the death knell that some expected; the industry determined that by increasing efficiencies (cutting costs and getting better at picking locations to frack), fracking could still be economically feasible at $45-$50 a barrel. Some critics allege, however, that the industry is heavily indebted and is barely staying afloat.

The industry is cautiously optimistic that things are picking back up. There are currently 100 active drilling rigs in Alberta, 23 in B.C. and a small amount in Manitoba and Saskatchewan, although numbers fluctuate regularly.

The industry estimates that each rig creates about 135 jobs — 20 involved directly with fracking and 115 indirectly such as equipment suppliers and truck drivers. Critics of fracking say that the benefits to local communities are often overblown and don’t offset risks to human health and the environment.

Where is Fracking Happening in Canada?

The shale gas phenomenon in Canada has been concentrated in Alberta and northeastern B.C.

Particularly in Alberta, it’s not all about drilling new wells, as companies are increasingly fracking older wells to access what they couldn’t previously in areas such as the Duvernay formation. In 2015-2016, the Alberta government collected $493 million in revenues from natural gas activities, the majority of which involved fracking of unconventional wells. After a review of royalty rates, the provincial government decided last year to keep rates low, thus continuing to incentivize fracking.

Despite its distance from B.C.’s major population centres, the fracking zone (Montney, Horn River and Liard basins) in northeastern B.C. has been a hotbed of controversy. There have been battles over the issuing of illegal water licences, the cumulative impacts of rampant industrial development, the controversial Site C dam that has been touted as a source of power for fracking operations, and the approval of LNG plants, terminals and pipelines. If Premier Christy Clark’s dream to export liquefied natural gas in vast quantities is ever realized, the amount of fracking in B.C. could double or triple.

As opposed to the shale gas further west, fracking in both Saskatchewan and Manitoba is for shale oil, also referred to as tight oil. The Bakken oil field, which made North Dakota a global energy giant, extends into southeast Saskatchewan and a bit into southwest Manitoba. As new formations continue to be found, fracking has spread to the southwest of Saskatchewan in the Viking and Lower Shaunavon formations. As of 2015, Saskatchewan had 7,500 horizontally fracked wells.

The approach to fracking there has been likened to the “Wild West.” Unlike in British Columbia and Alberta, for example, there is no requirement in Saskatchewan or Manitoba to disclose the contents of the chemicals in the fracking fluids. There isn’t much active public opposition to fracking in either province, although last summer’s Husky Oil spill in the North Saskatchewan River has led to calls for better oversight.

Where is Fracking Banned?  

There are no outright fracking bans in Canada; instead there is a mix of explicit and de facto moratoriums due to either public outcry or lack of economic feasibility due to geology.

(Fracking is banned in New York, Vermont and Maryland as well as in a number of U.S. counties and cities; Bulgaria and France have also banned the practice, it is largely banned in Germany, and Scotland is in the midst of a public consultation over whether to turn a moratorium into an outright ban.)

After long, heated campaigns, New Brunswick and Nova Scotia announced fracking moratoriums within months of each other in 2014.

In New Brunswick, the October 2013 clash between the Elsipogtog First Nation and the RCMP — resulting in six police cars torched and 40 people arrested —became a national story and galvanized the opposition. In order to lift the moratorium in New Brunswick, five conditions would need to be met, and a recent report indicates that the conditions are not close to being met.

In Nova Scotia, regulations that had been scheduled to come out in 2015 have yet to be released, so everything fracking-wise is on hold (although not for too long if Kevin O’Leary has his way).

In Newfoundland and Labrador, a fracking “pause” was set in 2013 and a government-commissioned report last year recommended specific conditions and research be required before any exploratory permits for tight oil be issued. The report also noted that fracking isn’t economically viable in that province at any price below $85 U.S. per barrel.

PEI and Ontario governments have thus far rejected calls to ban fracking, citing a lack of applications for fracking permits. Environmental groups had hopes that a draft of the new PEI Water Act released in March would include a moratorium or even a ban, but it doesn’t have either. The Ontario government has pledged to conduct a review of the practice, but that has yet to happen.

Quebec’s fracking moratorium may be the most precarious. In 2014, a de facto moratorium set two years earlier was extended indefinitely. But the passage of Bill 106 in December 2016 appears to open things up for oil and gas exploration, including fracking, although most of the regulations are yet to be announced. In addition, the Quebec government last summer announced it would allow fracking on Anticosti Island, contending that it was due to a pre-moratorium commitment.

Meantime, in the Northwest Territories, where there is a large deposit of shale oil located very far from any pipeline or road, a motion calling for a moratorium was voted down by the legislature in 2015.  However, in 2014 Husky Energy withdrew its application to frack wells in the Sahtu region, so no fracking seems imminent.

Fracking was a hot topic in the Yukon during last fall’s election. The victorious Liberal Party ran on a pledge to institute a fracking moratorium which is currently in place. Environmental groups are concerned that government approvals for conventional oil and gas exploration will lead to unconventional as the majority of oil and gas reserves in the Yukon are in shale beds (that require fracking) although the government has recently confirmed no fracking will be allowed if and when oil and gas operations go ahead.

Despite calls for a national moratorium on fracking by some groups (including: Unifor, The Council of Canadians, the Canadian Association of Physicians for the Environment, numerous First Nations), prospects for it seem dim.

Is Fracking Safe?

In 2014, Environment Canada commissioned a report on fracking and the primary finding was that more research and information on potential environmental impacts are needed.

Similarly, the American Public Health Association updated its stance last year to emphasize that there is empirical evidence showing fracking causing harm to nature and people and “we have no idea what the long-term effects might be.”

With concerns over drinking water, fracking-triggered earthquakes and impacts on the landscape, a majority of Canadians oppose fracking. An Insights West poll in March 2016 found that opposition rose from 47 per cent to 61 per cent over a 30-month period.

David Gowland, manager of Alberta operations for the Canadian Association of Petroleum Producers, says the industry doesn’t want to discount such fears, but needs to do a better job of informing the public about the “best practices” companies are deploying to mitigate risks. He says that regulations in B.C. and Alberta for well-bore construction, water management and pipeline construction serve as a model for other countries. Critics, however, call for tighter regulations across the fracking zone, including better baseline testing of groundwater.

Concerns About Water Contamination

Fears of water contamination have driven the opposition to fracking in Atlantic Canada and elsewhere. The concern is the mix of chemicals used in fracking — last month, researchers in Alberta found that, even when diluted considerably, fracking fluids can harm fish.

These days the biggest risks aren’t from the actual drilling, because drilling generally happens at least 1.5 km underground. Rather, the concerns are primarily over leaks of fracking fluids in cement well casings; the discharge and disposal of fracking wastewater, which has been found to contain cancer-causing chemicals and is often injected into other wells; and spills during collection, processing and transport.

These concerns were confirmed in a recent U.S. EPA report, which found examples of drinking water contamination at various stages of the fracking process, despite a recent study that found the EPA report vastly undercounted the number of fracking-related spills.

The EPA noted that “data gaps and uncertainties” limited a full assessment of the risks due in part to insufficient baseline monitoring as well as nondisclosure clauses as part of financial settlements between companies and landowners who report water problems.

Fracking-Related Earthquakes

The latest research indicates that fracking can trigger small-to-moderate earthquakes. The vast majority of quakes over 3.0 magnitude in the Western Canadian Sedimentary Basin are caused by fracking or the injection of fracking wastewater into wells. A 4.8 magnitude quake in January 2016 in the Fox Creek area of Alberta is the largest one in Canada to date.

The industry contends that because the quakes occur so far underground, they present minimal damage risk. On the other hand, there is indication that the more than 1,000 earthquakes that have shaken B.C.’s fracking zone since 2006 have changed the region’s seismicity. There are calls for more research to assess the risk of these quakes to pipelines, dams and other infrastructure as well as how they affect the flow of groundwater and migration of gases into the atmosphere.

Greenhouse Gas Emissions From Fracking

While the oil and gas industry likes to tout natural gas as a cornerstone of the transition to a lower-carbon economy, fracking emits a lot of methane, via “fugitive emissions” from the fracking itself — the venting and flaring of natural gas, and pipeline leaks as it’s shipped.

In addition to it not being a good thing to have in your water, methane is many times more potent in the short term (86 times more over a 20-year period) as a planet-warming greenhouse gas than CO2, though it doesn’t last as long. This is why critics believe that any expansion of fracking (e.g. via approval of LNG terminals and plants) is incompatible with provincial and federal government climate targets.

The federal government has committed to reducing methane emissions from the oil and gas sector by 40 to 45 per cent below 2012 levels by 2025.

What’s Next

The future of fracking in Canada is tied in part, as it always has, to the price of oil and gas.

A big unknown is whether U.S. President Trump’s embrace of the “shale oil and gas revolution” will lead to a glut in supply that could lower prices and make fracking less financially viable in Canada. Already, the scale of fracking in the Marcellus shale in Pennsylvania is pushing western Canadian shale gas out of Ontario and Quebec; as such, the industry is looking toward markets in India and other parts of Asia.

Another wildcard is the possibility of a “border adjustment tax” imposed by the U.S. on imports, although that seems increasingly unlikely to happen, at least for the oil and gas sector.

Politics will also be a factor. Fracking moratoriums made by executive orders, such as in New Brunswick, are more fragile than those that are legislated, and the very nature of moratoriums makes them much more precarious than a ban.

As the science begins to catch up with the technology deployed for more than a decade, gaps in data and knowledge about the health impacts of the technology will increasingly be filled.

For instance, indigenous energy researcher Caleb Behn, subject of the documentary Fractured Land, is involved with an academic study that researches long-term impacts of fracking on indigenous health — specifically reproductive health and cancer potential — in northeastern B.C., an issue he says that has been “inadequately” studied.

Another long-term issue is who pays for post-fracking cleanup. While cement seals tend to degrade in all wells, fracked wells are particularly prone to leaks. Because repairing a leaky well is very expensive, some companies find it cheaper to keep paying lease fees for inactive wells instead of paying to reclaim them. The number of abandoned (“orphaned”) oil wells is on the rise, raising concerns that as fracking companies go out of business, taxpayers will end up footing a sizable bill.

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This article originally appeared on The Tyee.

The Supreme Court of Canada has ruled Jessica Ernst can’t sue the powerful and controversial Alberta Energy Regulator (AER) over alleged violations of her Charter rights.

The split ruling Friday — five justices rejected her claim, with four supporting it — is a setback for the protection of groundwater and the rights of landowners dealing with provincial energy regulators, often funded or captured by industry interests, say many critics and lawyers.

The majority, led by Justice Thomas Cromwell, upheld an immunity clause passed by the legislature that protects the Alberta Energy Regulator from any Charter claims or lawsuits.

In 2007, Ernst, an oil patch environmental consultant, sued the Alberta government, Encana and the regulator for negligence over the contamination of local aquifers near her Rosebud home allegedly caused by the hydraulic fracturing of shallow gas wells in 2004.

Alberta Regulator 'Sought to Punish' Ernst for Her Public Criticisms

After Alberta courts ruled that Ernst could sue the government but not the regulator because of an immunity clause (Encana never contested the lawsuit), Ernst took that part of her case to the Supreme Court of Canada.

Her lawyers, along with the BC Civil Liberties Union and David Asper Centre for Constitutional Rights, argued in January 2016 that no regulatory body had the right to block citizens from seeking remedies for violations of their fundamental Charter rights and that no citizen should be unfairly silenced by Canada’s energy boards.

Alberta’s Energy Regulator accused Ernst of “criminal threats” in a 2005 letter and refused to communicate when she persistently asked embarrassing questions about the effectiveness of its enforcement actions on noise pollution and water contamination related to the fracking of shallow coal seams near her home.

According to Ernst’s original statement of claim, an AER lawyer admitted during a taped interview with her in 2007 that the board never considered Ernst a criminal threat but felt “humiliated” by her public criticisms of its abusive conduct. That exchange was witnessed by Liberal MLA David Swann.

The five justices in the Supreme Court majority concluded that immunity clauses are in the interests of “good governance.”

“Opening the Board to damages claims could deplete the Board’s resources, distract it from its statutory duties, potentially have a chilling effect on its decision making, compromise its impartiality, and open up new and undesirable modes of collateral attack on its decisions,” they wrote.

But four dissenting judges, including Chief Justice Beverly McLachlin, took the opposite view.

“We see no compelling policy rationale to immunize state actors in all cases, including where, as here, the impugned conduct is said to have been ‘punitive’ in nature,” they wrote. “To be precise, what Ms. Ernst alleges is that the Board, far from exercising an adjudicative function, effectively sought to punish her by barring access to those functions so long as she continued to criticize the Board in public.”

Ernst: 'All Canadians Have Lost in This Decision'

The Supreme Court decision is the latest chapter in a costly 10-year legal fight that has focused attention on regulation of the disruptive and chaotic technology of hydraulic fracturing.

“All Canadians have lost in this decision,” Ernst told The Tyee. “Whenever any Canadian is harmed by pipelines or fracking and they present evidence of harm to a regulator and then that regulator ignores or denies that evidence, citizens can no longer sue for justice.”

“I believe that split decision will generate a lot of debates among lawyers and judges across the country,” added Ernst. “I think some good will come from this terrible decision on a level we can’t yet imagine. I will keep going until I run out of money or die or whatever comes first.”

Cory Wanless, one of Ernst’s lawyers, said the split decision makes it difficult to fathom what the Supreme Court really means. Four judges supported the immunity clause; one raised separate constitutional issues in rejecting Ernst’s case; and four argued in favour of her right to sue the AER. “The whole issue will have to be resolved another day,” Wanless said.

In press release on Friday, the Alberta Energy Regulator hailed the Supreme Court decision as an important one for regulators across the country. It added that, “The Court did not find there was a breach of Ms. Ernst’s Charter rights, and made no findings of negligence on the part of the AER or its predecessor the Energy Resources Conservation Board.”

But the Supreme Court decision was not related to either of those points. It instead ruled that an immunity clause protected the regulator from Charter claims, but that “judicial review is an alternative, and more effective, remedy for Charter breaches by the Board.”

In fact, no court in Alberta or Canada has yet allowed or asked to hear the full evidence on Ernst’s Charter breaches, including extensive interview transcripts that document the regulator’s behaviour.

The AER press release also noted that court’s decision recognized “that permitting the claim would hinder the AER’s ability to carry out its statutory duties effectively and in the public interest.”

Yet new legislation in 2013 removed “public interest” from AER’s mandate. It is now a corporation largely funded by industry.

Jessica Ernst Loses Landmark Supreme Court Case Against #Alberta #Fracking Regulator in 5-4 Ruling https://t.co/GUyB6qX42I #ableg #cdnpoli

— DeSmog Canada (@DeSmogCanada) January 15, 2017

Lawyers Concerned Decision Fails to Defend Charter Rights

Ray Anand, a senior constitutional and human rights lawyer in Toronto, said he found the decision baffling. “I didn’t anticipate that none of the nine judges would decide the constitutional issue: whether a legislature can prohibit a constitutional damages claim against an agency of the government.”

In the meantime, Ernst’s lawsuit against the Alberta government and Encana can now proceed through Alberta courts.

After a decade of legal wrangling, Ernst has spent more than $350,000 on a straightforward contamination case and not one piece of evidence has been heard in court.

Other lawyers expressed alarm with the Supreme Court decision.

“With great respect to the Court, we’re disappointed by this decision, which denies Ms. Ernst the ability to use the Charter to defend her right to free expression in this case,” said Laura Track, counsel with the BC Civil Liberties Association, an intervenor in the case.

“The Charter guarantees everyone the right to an appropriate and just remedy if their constitutional rights are violated, but a majority of the Court has now said that, in some circumstances, legislatures may shield certain government administrative decision makers from Charter scrutiny. This decision has worrisome implications for people across the country seeking to hold government-appointed decision makers accountable for egregious unconstitutional actions.”

The decision is a missed opportunity to allow Ernst to seek redress for what she alleges were serious violations of her Charter rights, echoed Lynda Collins of the University of Ottawa’s Centre for Environmental Law and Global Sustainability.

“The behaviour described in her statement of claim represents a serious incursion on her democratic rights, and a disturbing departure from the Board’s environmental protection mandate,” Collins said. “I agree with the dissent that she should have been given the opportunity to make the case for Charter damages.”

Alberta Energy Regulator 'Immunized' from Legal Scrutiny

Shaun Fluker, an associate professor of law at the University of Calgary who has dealt with the AER in court, said the majority Supreme Court decision “simply piles on to the existing list of barriers constructed in the law to immunize the AER from proper legal scrutiny.”

Those existing barriers include the AER’s ability to refuse to hear landowners and other interested members of the public on energy development concerns and the expectation that landowners must fund their legal challenges before one of the nation’s most powerful regulators. “The [Supreme Court] adds to the list by effectively immunizing AER actions from Charter scrutiny,” Fluker said. “This is perhaps a bit of an overstatement, but not by much.”

The dissenting justices noted that the difficult case raised novel and important issues for the entire nation.

“The issues raised by Ms. Ernst’s claim are of significant public importance. The allegations against the Board are serious. She says that the Board abused its powers to punish a citizen and to curtail her freedom of expression, thereby breaching her Charter right. Whether Ms. Ernst may advance a claim for Charter damages against the Board in the face of a statutory immunity clause which may bar such claims will have consequences which extend far beyond the facts of this case.”

The majority justices argued that Ernst should have pressed the AER for a judicial review.

But no such remedy exists, said lawyers familiar with the AER and Alberta law.

In fact a judicial review can only be triggered when the quasi-judicial energy regulator actually makes a regulatory decision, notes Fluker. But in Ernst’s case the board did not exercise any adjudicating function or hold a public hearing.

“There is no policy decision to review here,” said Fluker. Getting a judicial review, he added, would be “next to impossible in Alberta” and would also require the permission of the Court of Appeal.

Avnish Nanda, an Alberta litigation lawyer, tweeted that “Ernst is a good example of why #SCC needs regional balance. Majority + Abella don’t understand Alberta law.”

A 2014 Harvard Law School report on fracking in the U.S. set out a key issue raised by Ernst’s case.

As complaints of water contamination in areas being fracked by industry were rising, regulatory statutes and procedures were “often insufficient to respond adequately to landowner concerns,” the report found.

In addition, hydraulic fracturing has caused thousands of earthquakes in the Western Canadian sedimentary basin, with little or no monitoring of the impact on groundwater and gas migration.

Alberta, home to more than 400,000 oil and gas well sites, still does not have a formal protocol for investigating groundwater contamination as a result of petroleum drilling and fracking.

The AER, which many landowners regard as arbitrary and biased toward unfettered development, is chaired by Gerard Protti, a former energy lobbyist and Encana vice-president.

Image: Jessica Ernst. Photo: Colin Smith

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This article originally appeared on The Tyee.

Another U.S. study has found that hydraulic fracking, which triggers small- to medium-sized earthquakes, can change the chemistry and quality of groundwater.

The report comes at the same time the U.S. Environmental Protection Agency has released the final version of its five-year-long study on fracking, which confirms that all stages of the brute force technology “can impact and have impacted drinking water resources” and that impacts vary “in frequency and severity” depending on location, the scale of operations, and technologies used.

The findings put to rest claims by the oil and gas industry and its regulators that hydraulic fracturing is entirely safe and proven.

In 2010, for example, Rex Tillerson, CEO of ExxonMobil and now President-elect Donald Trump’s nominee for secretary of state, told a Congressional hearing, “There have been over a million wells hydraulically fractured in the history of the industry, and there is not one, not one, reported case of a freshwater aquifer having ever been contaminated from hydraulic fracturing. Not one.”

But the latest research and EPA report confirm what rural residents have complained about for years: that fracking can mobilize chemicals into groundwater through a variety of pathways, including the release of toxic fluids and leaks from well sites.

The research by geochemists at Columbia University’s Lamont-Doherty Earth Observatory analyzed more than a thousand groundwater samples collected by industry and universities in northeastern Pennsylvania.

It found that both topography and distance from wells played a large factor in the chemical changes observed.

Groundwater in valley bottoms near fracked gas wells contained higher levels of chemicals such as chloride, calcium sulfates, and iron.

In lowland wells more than a kilometre from well sites, the researchers also found much higher levels of methane, sodium and manganese compared to equally distant wells on higher ground.

Groundwater in upland areas near drilling operations did not contain as many dissolved chemicals.

Large increases in the chemical composition of lowland groundwater near unconventional gas wells “may be caused by enhanced mixing of shallow and deep groundwater in valley, possibly triggered by the Unconventional Gas Development (UGD) process,” the researchers reported.

Changes in levels of certain chemicals such as iron and dissolved iron, if persistent, had the potential to mobilize other elements of concern such as arsenic, they added.

The Pennsylvania findings support the conclusions of several other scientific studies.

Last May, a Texas study found, for example, that horizontal oil wells fractured by the injection of high volumes of water, sand and chemicals can contaminate nearby water wells with a variety of heavy metals and toxic chemicals. Moreover, these contaminants can fluctuate over time.

The more industry drilled and fracked in a community, the more contaminants researchers found in the groundwater, including possible carcinogens.

New EPA Study Highlights #Fracking’s Risk to Groundwater, Notes Troubling Lack of Data https://t.co/lwOXKQPw7X #bcpoli #cdnpoli #BCLNG

— DeSmog Canada (@DeSmogCanada) December 20, 2016

Hydraulic fracturing, which also industrializes and fragments rural landscapes, has caused controversy, protests and lawsuits throughout North America due to the contamination of groundwater.

Although industry and regulators have downplayed, denied or hidden the scale of the problem, researchers warned more than three decades ago that cracking rock with highly pressurized streams of fluids could disturb, change and contaminate groundwater.

Between 1983 and 1985, for example, geologist Samuel Harrison documentedseveral cases in which fracking altered groundwater chemistry by creating “avenues for rapid vertical migration of contaminants upward into fresh water zone.” He recommended that no fracking be allowed in lowland valley areas.

In 1987 the EPA even reported its first documented case of groundwater contamination due to fracking in West Virginia.

According to the EPA, some 6,800 public drinking water sources serving more than eight million people were located within a mile of a fracking site between 2000 and 2013.

The evolution of the EPA report on the disruptive technology tells its own remarkable story.

In 2004, the agency reported there were no problems with fracking in a study widely regarded as flawed and heavily influenced by industry.

In 2010, the agency began to study the issue again, but weeks before releasing its draft report on water impacts in 2015, the wording of its executive summary was changed.

An investigation found EPA officials inserted text into the summary saying the researchers had not found evidence fracking has “widespread systemic impacts” on drinking water — contrary to scientific evidence.

After heavy criticism from the scientific community and the EPA’s own scientific advisory board about the omission of documented evidence, the agency revised its initial 2015 findings.

Statements from EPA press releases show the dramatic changes.

In 2015, the report read: “Assessment shows hydraulic fracturing activities have not led to widespread, systemic impacts to drinking water resources and identifies important vulnerabilities to drinking water resources.”

But the revision in 2016 produced a very different conclusion: “EPA’s report concludes that hydraulic fracturing activities can impact drinking water resources under some circumstances and identifies factors that influence these impacts.”

The final EPA report also underscored the lack of data available to regulators and governments.

Due to severe data and information gaps, the agency said it could not gauge the extent and scale of water impacts.

“Specifically, local water quality data needed to compare pre- and post-hydraulic fracturing conditions are not usually collected or readily available,” the report said. “The limited amount of data collected before, during, and after activities in the hydraulic fracturing water cycle reduces the ability to determine whether these activities affected drinking water resources.”

No Canadian jurisdiction has set up long-term monitoring wells to track the movement of contaminants from oil and gas drilling into groundwater. 

Image: Fracking wastewater pit near Fort St. John, B.C. Photo: Joe Foy for the Wilderness Committee

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A Pennsylvania jury handed down a $4.24 million verdict in a lawsuit centering on water contamination from negligent shale gas drilling in Dimock, PA, a tiny town that made international headlines for its flammable and toxic drinking water.

The defendant in the lawsuit, Cabot Oil and Gas Corp., had strenuously denied that it had caused any harm to the plaintiffs or their drinking water. In 2012, the company reached a settlement with roughly 40 other residents along Carter Road in Dimock, but the terms of that settlement were never made public and included a “non-disparagement” clause that prevents those who settled from speaking out about their experiences with Cabot.

The verdict, which was reported by the Associated Press, comes as long-awaited vindication for the Hubert and Ely families, who refused to settle in part because they wanted their voices heard, they said at a press conference when the trial began in Scranton on February 22.

The lawsuit stretched on for nearly seven years, and the plaintiffs were at one point forced to represent themselves in court after being unable to find legal counsel following the settlement of the vast majority of the plaintiffs.

The Huberts and the Elys still live on Carter Road, hauling their water by truck – a chore that became far more cumberson in the winter when hoses often froze and water tanks must be heated, Scott Ely, a former Cabot subcontractor turned whistleblower, had testified.

The jury directed Cabot to pay Nolen Scott Ely and Monica Marta-Ely each $1.3 million, and an additional $150,000 for their three children, and to pay Ray and Victoria Hubert each $720,000, plus an additional $50,000 for their child.

Because the lawsuit's scope had been narrowed dramatically before trial, the plaintiffs were not permitted to pursue Cabot for any harms done to their health, but only for the damage to property and the personal nuisance that the water contamination had caused.

The case has been closely watched by the oil and gas industry, which has often reached secret settlements in claims of drilling and fracking contamination – creating uncertainty about the frequency and extent of accidents and misconduct.

State and federal environmental regulators have cited non-disclosure agreements as a major hurdle preventing a full assessment of the risks related to the shale oil and gas drilling rush.

The jury's verdict on water contamination in Dimock may have broad implications for the broader debate about the environmental risks of the shale drilling rush nationwide. Although the case did not center on claims that the fracking process (as opposed to drilling, well casing failures, spills or other problems) had directly caused the Ely and Hubert's water contamination, most of the gas wells that the plaintiffs focused their attention on were aimed at the Marcellus shale gas formation.

“This is a huge victory for the people of Dimock, but it’s also a sharp rebuke to the Obama administration for failing to fully investigate threats posed by fracking and dangerous drilling to water supplies in Pennsylvania and across the country,” said Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute. “Because of the EPA’s disturbing history of delay and denial, it took a federal jury to set the record straight about the natural gas industry’s toxic threat to our water.”

In many ways, the case was also a triumph for local grassroots organizers who have worked on the ground to help families in Dimock and across the state since the shale drilling rush arrived. Neighbors, environmental organizers, and locals-turned-activists in the region have spent countless hours helping to haul water for those who, like the Elys and Huberts, lost clean drinking water. 

Without the resources of large environmental groups or law firms at their disposal, the Carter Road families had turned to crowd-funding to help raise some of the costs associated with keeping a legal case going for years. Energy Justice Network, a Philadelphia-based nonprofit, fiscally sponsored the legal fund for the case and have been working with the family since 2009.

“This is a huge victory for Dimock families who have fighting for clean water for over six years,” said Alex Lotorto, Shale Gas Program Coordinator for Energy Justice Network.

The lawsuit pitted solo practitioner Leslie Lewis and attorney Elisabeth Radow against a team of litigators and attorneys from Norton Rose Fulbright, a London-based law firm which in 2014 was the seventh highest-grossing law firm in the world.

Representatives for Cabot denied that the Ely and Hubert families had proven their case sufficiently despite the jury's verdict and continued to assert that the company had acted prudently in its operations on Carter Road. “Cabot is surprised at the jury's verdict given the lack of evidence provided by plaintiffs in support of their nuisance claim,” the company said in a statement provided to DeSmog. “Cabot will be filing motions with the Court to set the verdict aside based upon lack of evidence as well as conduct of plaintiff's counsel calculated to deprive Cabot of a fair trial.”

Of course, the role of a jury is to determine what claims are true and what claims are false, a fact that plaintiff's attorneys had reminded the 8-member panel during closing arguments.

"The truth is to be found in the totality of the evidence," Ms. Lewis had said, according to local press reports. "It’s very important that when a company like Cabot harms Pennsylvania families … that the courts are a sanctuary for people to seek justice."

This piece has been updated to include responses from the parties and interested observers and additional details. Further updates will be added as additional information becomes available.

Photo Credit: The Ely family outside the U.S. District Court in Scranton, PA on the day that trial began. © 2016 Laura Evangelisto

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Imperial Metals is experiencing troubled times.

After the catastrophic breach of a toxic tailings pond at its Mount Polley mine on August 4th, British Columbians across the province have called into question the safety of the company’s other mega mine projects.

The Red Chris mine, located in B.C.’s northwestern corner is now under intense scrutiny by protestors from the Tahltan Nation who are blocking access to the company’s site, saying they won’t leave until independent reviewers address mine safety concerns.

On August 8th, the Klabona Keepers, headed by a group of mostly women elders, set up two camps, blocking each of the two access roads to the mine. Trucks are parked across the roads and makeshift wooden barricades have been erected to keep company vehicles from entering.

Located on Toddagin Mountain, near the Tahltan village of Iskut, the Red Chris mine is scheduled to begin operations later this year.

Like Mount Polley, Red Chris is an open pit copper and gold mine. And, like Mount Polley, the Red Chris mine is expected to produce millions of tons of toxic tailings over its projected 28-year life span.

The company has set aside a pristine mountain lake called Black Lake as a tailings holding pond. Black Lake is located above lakes and creeks which drain into the salmon bearing Iskut and Stikine Rivers – the lifelines of the Tahltan people.

For the elders, the current blockade is not only a show of solidarity with those affected by the Mount Polley disaster, but an act of self-defense.

One of two roadblocks blocking access to the Red Chris Mine. Photo by Albrecht Berg.

During initial consultations between Imperial Metals and the Tahltan, the company allayed environmental concerns by pointing to their safe track record at Mount Polley. The Red Chris mine would share the same design, the company said.

Now, in the wake of the Mount Polley spill, locals fear the Red Chris mine poses a similar danger to the environment, fish and wildlife.

Following the Mount Polley spill Imperial Metals’ President Brian Kynoch said, “If you asked me two weeks ago if that could happen, I would have said it couldn’t happen.”

During a visit to the Red Chris blockade, one of the elders at the camp, who, like her peers, prefers to be identified simply as Klabona Keeper, told me: “When you live off the land, when the land is your kitchen, the consequences of the kind of thing that happened at Mount Polley, are unimaginable.”

Elders sit around the fire at one of two blockades. Photo by Albrecht Berg.

The main demand of the protestors is a reliable guarantee that the kind of catastrophe seen at Mount Polley will never happen at Red Chris.

“We want an independent review of the tailings pond system by a third party independent of both the government and Imperial Metals,” the elder said.

The current standoff has brought into focus a whole range of issues around the Red Chris project. Mistrust is growing around the promised benefits of the Red Chris project.

Author and anthropologist Wade Davis, who has called the area home for the last 40 years, said the Red Chris project is a massive threat to the local landscape.

Standing in front of his home on the shores of stunning Ealue Lake, which is part of the watershed threatened by the mine, he explained that Todaggin Mountain is home to the world’s largest population of enigmatic stone sheep.

Anthropologist Wade Davis at his home on Ealue Lake. Photo by Albrecht Berg.

“This project, a hundred years hence, will be seen as one of the greatest acts of folly in history of Canadian public policy,” Davis said.

Concerns over the future of the mine have also brought new emphasis to working conditions at the mine which one Tahltan employee described as problematic.

“They can fire us without prior notice, while we have to hand a two-week notice in order to quit,” he said.

Complaints of racism against Tahltan workers have also surfaced. According to Imperial metals, 18 per cent of workers at the site are Tahltan.

“Why not 50 per cent?” one of the elders at the blockade responded when questioned on the issue.

“After all, this is Tahltan country,” she said.

Many of the locals view the Red Chris project as a showcase for how the extractive sector functions in the province.

A Red Chris Mine sign with blockaders in the background. Photo by Albrecht Berg.

B.C. subsidized the construction of a 300 kilometre-long power line to Iskut for the mine, using $750 million taxpayers dollars.

The official rationale for the North West Transmission Line was to break the reliance of 300 Iskut residents on diesel-generated power. Yet critics see the project as nothing more than a gift to Imperial Metals.

Provincial support for the Red Chris project is also seen in a new light, after significant campaign contributions for the B.C. Liberals from Imperial Metals came to light. Murray Edwards, the largest stakeholder of Imperial Metals and Calgary Flames owner, hosted a private fundraising dinner for Christy Clark’s campaign in Calgary ahead of B.C.’s May election. 

Since the events at Mount Polley, Imperial Metals and the B.C. government have engaged in significant damage control, with Minister of Mines Bill Bennett likened the spill to an avalanche.

Edwards pledged $100 million to the Mount Polley cleanup to keep a reeling Imperial Metals from going bankrupt.

Company President Brian Kynoch and Minister Bennett paid a joint visit to the Red Chris blockade on Wednesday. Both promised to halt construction until concerns were met.

But so far, the elders remain skeptical. Until they see written commitments to safety standards set by the Tahltan, they are determined to stay.

The mood at the camp is cheerful, yet forceful. Campfire conversation drifts from hunting stories and cookie recipes to political tactic.

One elder joked, “We can always go Mohawk style.” The others chuckled, but agreed they prefer to avoid unnecessary escalation.

The Tahltan have a long history of blockading.

In 2005, during a standoff between Fortune Minerals and Tahltan elders over a proposed open pit coalmine, 15 Klabona Keepers were arrested for defying an injunction to clear the very same access road now blocked by many of the same veteran blockaders.

While the battle over Fortune’s coalmine continues, the Klabona Keepers succeeded in stopping Royal Dutch Shell from going ahead with plans to extract coalbed methane in the same region. Shell withdrew from the region in 2012.

When asked how long they were willing to keep up the current blockade, all the elders answered simply, “For as long as it takes.”

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There were audible scoffs from the crowd Tuesday as Cariboo MLAs told residents in Likely, B.C. that the drinking water ban has been lifted for areas near the Mount Polley mine where a tailings pond breached Monday, August 4th sending billions of litres of mining wastewater and solid materials into Hazeltine Creek and Quesnel Lake.

The drinking ban remains in effect for Mount Polley, Hazeltine Creek and an area 100 metres immediately surrounding the visible sediment plume at the mouth of the Hazeltine Creek where debris and sludge from the spill poured into Quesnel Lake, the primary source of drinking water for local residents.

At a small community press conference on the edge of the Quesnel River in Likely, B.C. Donna Barnett, MLA for the Cariboo-Chilcotin and parliamentary secretary for forests, lands and natural resource operations for rural developments, said, “this is a good news story.”

Residents have been dealing with uncertainty since last week, she said. “Well, finally we can give you some certainty.”

The announcement follows the release of a Ministry of Environment water test that found water from Polley Lake to be near “historical levels” taken prior to the tailings breach.

A press release on the Interior Health website states “Interior Health has no reason to believe that this water was ever exposed to unsafe levels of contaminants from the mine breach.”

Coralee Oakes, minister of community, sport and cultural development for the Cariboo region, told a small crowd that had gathered, “The results have come back from…our chief medical office for this region who is independent of government [and] has come forward…to announce that we will be removing the drinking water, recreation and fishing ban.”

A small crowd gathered on the banks of the Quesnel River in Likely, B.C. August 12 to hear the water ban for the area was mostly rescinded. Photo by Carol Linnitt.

Yet locals have expressed significant concern over water quality issues, even after the drinking water ban was partially lifted Sunday.

A journalist in the crowd, Christopher Donville from Bloomberg, remarked that it is generally accepted that tailings are better off in a tailings pond, and yet billions of gallons of tailings have spilled into the local environment seemingly without any negative effects. He looked to Minister Oakes for comment, but his remark was met with a chorus of other voices.

“Isn’t that wonderful?” Skeed Borkowski, the owner of a local fly fishing lodge, sarcastically remarked.

“What about testing the water column?” another woman chimed in.

Local resident and former Mount Polley mine employee Doug Watt asked for more information on the suspended solids causing a murky cloud in Quesnel Lake near his home.

Minister Oakes defended the water study results to the crowd, saying the experts who provided the information are “independent” and “reviewed all the data at a professional standard.”

Oakes said the Cariboo Regional District will continue to provide drinking water to residents and will keep the temporary shower facilities in operation.

When asked if the test results will change their interaction with the water, couple Doug and Marlene Watt, were split.

Doug, a former metallurgist and shift supervisor at Mount Polley mine, said he will drink the water after it’s been filtered. His wife said she “isn’t ready yet” to drink the water.

“Again we apologize to folks who were looking for information and couldn’t find it,” Oakes said.

In the early evening representatives from the Ministry of Environment came by to drop off information packets to locals at their homes and businesses. Avtar Sundher, head of government and compliance with the environmental management section of the Ministry of Environment pointed out the regions still under a drinking water ban on a map.

“All these hash areas are still affected,” he said, pointing to Polley Lake and Hazeltine Creek.

A map provided by the Ministry of Environment shows the areas still under a water use ban, including the 100-metre area in yellow and red surrounding the debris field at the mouth of Hazeltine Creek.

The information package states “the tailings liquid released from the impoundment moved very quickly through the system and was diluted greatly by the water in the lake, the Quesnel River and ultimately the Fraser River.”

“Generally, bio-accumulation of contaminants in fish occurs over a longer exposure than a few days,” the bulletin stated.

“We understand what a spectacular area it is that we live in and we understand how important it is that people come and visit and that tourism operators have every opportunity to showcase the pristine beauty that we have. And that young families know that this is a great, safe place to come and raise your families,” Oakes said to the crowd.

“Now it’s our job to make sure we get the story out that the Cariboo, that Likely, is open for business.”

This article is published as a part of a joint-venture between the Vancouver Observer and DeSmog Canada.

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Residents in Likely, B.C. are concerned about drinking water affected by Mount Polley mining waste even after a water use ban was lifted for areas downstream of Quesnel Lake. The ban was put into effect on August 5, 2014, one day after the tailings pond at Mount Polley mine breached, sending billions of litres of mining waste into Hazeltine Creek, which feeds Quesnel Lake and Quesnel River.

The water advisory, released by the Cariboo Regional District, previously recommended not drinking water in the Quesnel Lake, Cariboo Creek, Hazeltine Creek and Polley Lake areas and extended down the entire Quesnel and Cariboo River systems to the Fraser River.

On Saturday the ban was lifted for areas south of 6236 Cedar Creek Road in Likely along the Quesnel River which flows north to Quesnel.

“They lifted the water ban, but I don’t know a lot of people who are going to drink that water,” Kyle Giesbrecht said. “I’m not drinking it.”

Giesbrecht, who works for PD Security, has been manning overnight shifts guarding the water supply provided to Likely residents by the Cariboo Regional District.

According to PD Security head of operations, Rick Honey, the water provided to Likely is guarded 24/7 and will be for an unspecified amount of time.

“The idea is that they don’t want anyone messing with the tanks,” Honey said.

“A lot of people are really upset about what’s going on. Most of them are retired,” Giesbrecht said.

“Most people moved out here for their little piece of heaven and now they’re worried that heaven will be gone. They’re worried about the water.”

Kyle Giesbrect says he won't drink the local water. Photo by Carol Linnitt.

“They’ve lifted the ban on the water here, for the river, because…it’s classified as drinkable. But they’re not sure how long it’s going to last or if it will last.”

Even thought they call it drinkable…I still don’t. I don’t trust it. Eventually those chemicals will come down,” he said. “It’s just a matter of time.”

“Unless they’re testing every single day, that’s what we don’t know.”

Residents are free to take as much water as they need and temporary showers have been installed for use by residents.

Gerald MacBurney, a former tailings foreman with Imperial Metals, the company operating the mine, said he isn’t as concerned with the water that escaped the tailings pond as he is with the sediment lining the pond’s floor.

“That’s where all the nasty stuff is,” he said. “I don’t know how many hundreds of tons of scrap went into the lake because it’s hidden, but it’s the whole hillside that is going to drain in there.’

Gerald MacBurney, a former tailings foreman for Imperial Metals at the Mount Polley mine, says there's more to be worried about than just the tailings water. Photo by Carol Linnitt.

“It’s going to let out the toxins,” he said. “It’s crazy.”

Paddy Smith, a fisheries biologist with Cariboo Envirotech, said contaminants like mercury can affect a waterbody in unpredictable ways for years.

Fish is still highly contaminated with mercury in Jack of Clubs lake where mercury pollution from a gold smelter near Wells, B.C. occurred over half-a-century ago.

“There’s mercury here,” he said of the recent tailings pond breach. “They’ve got to monitor the fish populations, and the bottom feeders because – where does it go? – it goes to the bottom.”

The Quesnel River in Likely, B.C. is a local source of drinking water. Photo by Carol Linnitt.

“But [the spill] will be old news by the time any of those things occur here,” he said. “Those long-term issues sort of get forgotten.”

Another local, Denise Carlson, said she’s grateful her property is on well water.

“I personally wouldn’t drink [local water] but Health Canada says it’s okay. I know there are people on [Quesnel] lake who say they’re not going to drink it. They [the CRD] is continuing to bring in water but those people out of the ban, they’re also not using it to my knowledge.”

“Nobody knows enough about what’s in that water.”

“Out of sight, out of mind,” Carlson said, echoing concerns the long-term impacts will be overlooked.

Wild fields near Denise Carlson's home in Likely, B.C. Photo by Carol Linnitt.

“And the thing is the government and the mine are going to work towards that mentality – to make everybody forget,” she said.

Other local business owners declined to comment on the issue. One individual who did not want to be named said having an opinion on the contentious issue could hurt sales.

This article is published as part of a joint-venture between DeSmog Canada and the Vancouver Observer.

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Officials with the Cariboo Regional District declared a local state of emergency Wednesday after millions of cubic metres of contaminated tailings water from the Mount Polley mine flooded Hazeltine Creek early Tuesday morning, spilling into Quesnel Lake. Water drinking and water use bans have been issued for Quesnel Lake, Polley Lake, Hazeltine Creek, Cariboo Creek, and the Quesnel and Cariboo River systems, up to the Fraser River, according to the B.C. Ministry of Energy and Mines.

The breach, caused by the collapse of a berm supporting a lake of mining waste that spanned four square kilometres, released an estimated 10 million cubic metres of water and slurry that contains toxic processing wastes including arsenic and mercury into salmon spawning and drinking waters.

The tailings pond at Mount Polley mine, operated by Imperial Metals, was used to dispose of 84,000 kilograms of arsenic, 10,000 kg of cadmium, 38,000kg of lead and 562 kg of mercury in 2013, according to company data released to Environment Canada.

Imperial Metals mines both gold and copper on Mount Polley.

A video released by the Cariboo Regional Discrict shows the scope and extent of the Mount Polley Mine tailings breach.

“I apologize for what happened,” Imperial Metals president Brian Kynoch told a press conference yesterday. “If you asked me two weeks ago if this could have happened, I would have said it couldn’t.”

Kynoch said the company can only speculate on the cause of the tailings pond failure and said an investigation is needed.

He said the quality of the tailings is “close to drinking water quality,” adding “there’s almost everything in it but at low levels…No mercury, very low arsenic and very low other metals.”

A screen shot from Google Maps shows the approximate location of the breach, near Likely, B.C.

The provincial Ministry of Environment in B.C. said it issued repeated warning to Imperial Metals about the Mount Polley tailings pond, according to the CBC. Ministry spokesperson Kim Franklin to the CBC her office had issued five warnings in May alone, the most recent concerning wastewater height in the pond.

Franklin also said the company requested permits to discharge increasing amounts of wastewater from the mine, which led to an independent overview in 2009.

Brian Olding, an environmental consultant who carried out the assessment, said the company allowed pond levels to get too high. “It means the water is rising so you have to build the walls of the tailings lagoon higher as you go,” Olding told the CBC.

In his report Olding said the company would need to eliminate 1.4 million cubic metres of water on an annual basis to maintain stable levels in its tailings facility.

Gerald MacBurney, a former foreman at the mine, said he warned management at Mount Polley about concerns he had with the tailings enclosure. He said Imperial Metals added five times the amount of water to the tailings pond than was originally planned for after the company decided to expand its operations.

Bill Bennett, B.C. minister of energy and mines, said the spill is a “serious incident that should not have happened.”

Bennett, who is in the area, said the company has been fairly compliant and safe throughout the years.

“From the air it’s a true disaster. It looks like a combination of a serious avalanche, [mixed with] millions and millions of litres of water having gone down a fairly steep grade. It’s changed the creek bottom from about six feet wide to about 150 metres wide, so that gives you some idea of the force of all of this water when it went down.”

“It’s unprecedented in Canada for this to happen,” he said.

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This article originally appeared on MikeDeSouza.com.

A new study from the University of Manitoba will soon challenge industry and government claims downplaying environmental health impacts of oilsands development, said the chief of a First Nations community Friday.

“When that report comes out, it’s going to blow the socks off industry and government,” Chief Allan Adam of the Athabasca Chipewyan First Nation told native and non-native supporters gathered at a campsite for an outdoor weekend retreat near major oilsands projects. “We went ahead and did our own independent studies and we found some very stunning results.”

First Nations communities have alleged that toxic pollution from oilsands operators is contaminating their air, water and food. Representatives from industry and the federal and provincial governments have pointed to research suggesting the toxins aren’t yet at unsafe levels.

Environment Canada has sometimes declined requests from journalists asking for interviews with federal scientists doing this research.

But the anticipated study described by Chief Adam would follow a provincial government report, released in March by Alberta’s chief medical officer, James Talbot. The provincial report confirmed warnings about high rates of a rare form of cancer from a local physician, Dr. John O’Connor, who had been criticized for publicly drawing attention to the cases in the community of Fort Chipewyan.

The provincial government confirmed levels of bile duct, cervical and lung cancer in the community, between 1992 and 2011, that were several times higher than expected. But the report also found that the overall number of cancer cases was 81, and therefore not significantly higher than the expected total of 79 cases.

Bile duct cancer can be linked to a number of factors such as family history or exposure to some toxins.

Talbot said in March that there wasn’t “strong evidence for an association between any of these cancers and environmental exposure.”

Talbot also confirmed at the time that there were never any comprehensive studies in the potentially affected communities.

O’Connor said that nurses and doctors in the community may see things differently.

“The proof is up there if anyone chooses to look,” O’Connor said in an interview after participating in a panel discussion with Adam and George Poitras, the CEO and a former chief of the Mikisew Cree indigenous First Nation.

Several hundred people from Canada and the United States travelled to northern Alberta for the outdoor weekend retreat – described as a “Healing Walk” around oilsands operations for First Nations communities affected by the industrial development.

This is the fifth and final edition of the walk, a 20 km trek scheduled on Saturday. The event’s website said organizers would shift their focus in subsequent years away from open-pit oilsands mining to raising awareness about impacts of other forms of oilsands extraction that use steam injected deep underground.

Chief Adam said in an interview that the University of Manitoba study would likely be released within a month with findings that would raise questions about the credibility of the Alberta Health report on cancer in Fort Chipewyan.

The provincial report prompted newspaper articles in the Globe and Mail and the National Post, among other media reports, that defended the oilsands industry – an economic engine in Canada that historically relied on generous government incentives and subsidies, but which also generates jobs and billions of dollars in tax revenues – suggesting that the Alberta government review proved that O’Connor’s warnings were “falling apart.”

O’Connor warnings drew official complaints from government officials, provoking a professional review that would eventually clear him.

“I didn’t expect the reaction that I got. I didn’t expect to be attacked so viciously, when I chose to do my job,” he said.

“My way of reconciling it and dealing with it, is if they (media personalities) think I’m doing wrong, I know I’m right, because if they agreed with me, I’d want to take a long hot shower and really examine what I’m doing.”

O’Connor said this is why he has no regrets. But he wonders whether government officials feel the same way.

“I have a clear conscience,” he said. “I wouldn’t hesitate to do it again and will do it again if a similar situation arises. I would hate to be in their position. They have to sleep at night and they have to answer their grandchildren: Why did you do this? And all you’ve got to do is look in the communities and you know there’s no doubt about what’s going on.”

Image Credit: Chief Allan Adam by Kris Krug via Flickr.

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