Fracking gets its day in court

Fracking gets its day in court by Christian Pollard, February 6, 2013, Feb-8-2013 Issue The Halifax Commoner 

A David versus Goliath court case about contaminated aquifers at Jessica Ernst’s Alberta home is under way, essentially putting the controversial practice of hydraulic fracking on trial.

The case will have ramifications for the natural gas industry and environmental law everywhere.

The decisions made in the Calgary courtroom over the coming weeks and months will shape fracking policy in North America and possibly the world.

It could also help push environmental law in a new direction – one in which the environment itself has legal standing.

If you ask environmentalists, they’ll say fracking leads to uncontrollable leaking gas, massive amounts of dangerous chemicals, destroyed water sources and flammable tap water.

If you ask anyone in the natural gas industry, they’ll give you a different story.

The oceans of untapped, clean-burning natural gas are the future of their business and the eventual foundation of our global economy, like oil is now.

It’s a classic environment versus economy situation.

Where gas companies stand to make a huge profit, citizens stand to take a huge loss.
Fracking involves pumping high pressure chemicals into the earth’s crust to push out every last bit of oil and gas. These chemicals, and the gas itself, eventually seep into groundwater and poison aquifers – and eventually entire watersheds.

Without strict regulations, our entire continent’s natural water systems could become poisoned beyond repair.

As of now, there are little to no regulations to prevent this from happening.

The Nova Scotia government is reviewing fracking, so for the time being it’s not allowed. But in most places citizens aren’t so lucky.

Ernst v. Encana is important because it will set a precedent, which will be cited time and again in courtrooms all over the continent. This case will influence fracking policy everywhere.

It could also affect environmental law.

Well known environmental lawyer Christopher Stone wrote an essay in the ’70s called Should Trees Have Standing? – Toward Legal Rights for Natural Objects. His thesis that nature deserves legal rights is moving from academic to real world application.

Last year the New Zealand government granted the Whanganui River, New Zealand’s third largest, the right to defend itself in court.

This is the first time this has happened anywhere.

The historic granting of legal status to a natural entity was spurned by over a century of legal battles with the Whanganui Iwi, the indigenous tribe who depend on the river for survival.

This development, coupled with the groundbreaking precedent to be set by Ernst v. Encana, could change international environmental law forever.

Imagine if the Gulf of Mexico could defend itself in court against British Petroleum for the record-breaking oil spill in 2010? Or if an aquifer Encana poisoned could sue the company directly?

Having a legal responsibility to the ecosystem itself, and not just the people who live there, would change the landscape from one that lets polluters off with minimal fines, to one that would demand more accurate compensation for the damages.

The environment versus economy battle has historically been despairingly lopsided in favour of the economy.

With the example of nature’s legal standing in New Zealand, and fracking essentially on trial in Calgary, all that could change.

Christian Pollard is a fourth-year student interested in environmental sustainability and economics. He has experience drafting and editing op-ed columns for publications around the world, and hopes to cover environmental issues in the future.

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