Michel DesNeiges' EnviroLaw Blog 

February 11th, 2012 

Tough audience.

That’s the thought that went through my mind a few minutes into my presentation in front of a hundred or so residents of Kent County who gathered in Bass River recently to hear me address their concerns about the shale gas industry in New Brunswick.

I’d been invited by a local citizens’ group to speak about the shale gas controversy and the protection of property rights in the eventuality that the industry forges ahead in New Brunswick. But it was clear a few minutes into my speech that what people really wanted to hear was how to stop the industry from setting up shop altogether.

I should have anticipated as much since twenty minutes earlier a gentleman carrying a popular sign captioned “NO SHALE GAS” approached me as I entered the community hall and said sternly: “We don’t want it, period”.

I wasn’t really surprised by his comment but it did strike a chord. What did surprise me though is what he said next. The gentleman told me in a sardonic tone “... and you can tell that to your friend Bobby Kennedy”.

He was referring to Robert F. Kennedy Jr., one of the world’s most reputable environmentalists and leader of the Waterkeeper Alliance.

The mention of Robert Kennedy Jr. was no doubt in reference to the billing I had received from the organizers of this event who mentioned that I had worked with Kennedy’s Waterkeeper Alliance in Canada and Africa.

But I understood it was really an allusion to Kennedy’s public and somewhat controversial stance on the development of the shale gas industry in the U.S.

In fact, he recently came out in support of such development and actually sits on the board of a natural gas company.

Kennedy was lambasted by many U.S. environmentalists for his position and even received hate mail from some individuals who are completely opposed to hydraulic fracturing. His position is nuanced though. He believes natural gas exploitation can be an important component of a renewed and much greener energy grid in America.

Although I was treated with respect during my visit to Bass River, that cutting comment and the cool reception I received from some people spoke volumes to me. They didn’t need me to explain the basics of the shale gas controversy. I also understood that the rest of my presentation must not have been much more helpful. Indeed, I explained how property owners’ rights are limited when it comes to resource extraction, that lawsuits are expensive, and that usually an individual can bring a civil action only after the damage is done.

But I also had a more encouraging message. It was that citizens can protect themselves before the damage occurs by demanding that government enact strong regulations. And if that fails, public opposition can be effective. Remember uranium mining and the proposed sale of NB Power.

The issue of what must be contained in the government rules regulating the shale gas industry is of utmost importance. Citizens in this province are still waiting for the specifics. I told the audience to demand that their concerns be addressed.

Notably, the regulation must include provisions for: compensation to affected land owners should problems occur; the right to refuse entry on property if certain conditions aren’t met; limits to extracting water from municipal systems and acquifers; mandatory environmental impact assessments of proposed gas wells; and meaningful enforcement if the regulations are violated. There must be disclosure of information related to the chemical substances used in fracking and in regards to the amount of water to be extracted for drilling purposes. The regulation must also limit pollution such as sour gas; there must be limits to truck traffic; there must be effective setbacks of gas pads from schools and homes; and, there must be provisions for safe waste disposal, especially the chemically laced water used in fracking.

Other provisions could include: the creation of a mediation and arbitration board; a requirement that company land agents be licensed; and, funding for land owners to hire legal representation when negotiating with those land agents.

Many New Brunswickers doubt that shale gas development can occur in New Brunswick in a safe manner and they question our government’s ability to respond to the challenge. They may be right. Yet, I believe our ambitions should actually go beyond simply regulating the shale gas industry. We need to see this industry as Kennedy envisions it, as one element of a renewed energy production and distribution network.

Kennedy hails the green energy grid he supports as representing a form of salvation for the U.S. economy because it aims at developing a state of the art infrastructure that will use wind, solar, geothermal and natural gas in a way that resembles the great infrastructure projects of the 1930s and 40s. When America completed its national energy grid in the middle part of the last century, it was the most modern in the world and it helped propel the greatest burst of economic growth ever known. Today, however, it is falling apart and hugely dependent on fossil fuels, with all the negative consequences that that entails in terms of environmental impacts and reliance on foreign oil.

To be sure, the project is not Kennedy’s alone. It is being embraced by political and economic leaders at the highest levels. And significant progress is being made. There are also many obstacles that remain, such as obstruction from “Big Coal” which is fighting tooth and nail to remain the biggest player in the U.S. energy market. But Big Coal is losing ground to emerging sectors such as wind, solar, and natural gas.

As for natural gas, Kennedy explains that it should serve as the main backup energy for solar and wind since these sources produce electricity intermittently and if a national power grid is to work, it cannot be prone to interruptions.

The challenges in Canada are relatively the same as in the U.S. The solutions can also be the same. But to do so, our governments must get serious about innovation and not simply plod forward with outdated approaches.

If such a vision were to emerge from government, I believe New Brunswickers would be much more inclined to listen and support initiatives that include natural gas development in this province.

As for industry’s responsibilities, Kennedy said it best when he addressed a meeting of the U.S. natural gas sector. He said that when he received mail from angry Americans about his position on shale gas development, he visited many of those people in their communities. After seeing things for himself, he agreed they had legitimate concerns. He said the industry has to be honest about this, and it has to do better. Specifically, it has to disclose information related to the risks involved and it has to do more to limit disturbances in communities and to protect water.

That same message must be sent and received in New Brunswick. Without it, citizens who oppose shale gas exploitation will be correct to stick to their strongly held position that the industry in not welcome in our province.