Accepting the Things We Cannot Change: Part 2 Contamination Concerns

John Pearson

This blog, the second of two, will consider the potential for contamination arising from extreme energy projects. The lack of knowledge regarding the extent, and even existence of contamination arising from such projects necessitates it is suggested a wholly different approach to regulation than that proposed for the previously considered consumption impacts.

The issues discussed here are considered at length in a report published today by ReFine in Marine and Petroleum Geology concerning the safety of onshore shale oil and gas extraction.

A major contamination concern regarding the tar sands is the effects of ‘tailings ponds,’ vast man made pools of by-products from extraction and refinement processes. These are in some instances toxic, have caused considerable bird deaths, and are suggested as leaking in significant volumes into the surrounding ecosystem. Apprehensions regarding fracking are focused upon the seismic consequences (induced seismicity) of the practice, and the seepage of the fluid used to cause the fractures exposing the gas sought. In both cases the extent of the adverse effects of the practices is not known. Such an accusation could be levelled, and is conceded in relation to water consumption by tar sands industries. The impact of the water removed is not fully known, however the volume itself is strictly controlled and monitored. Commonalities such as this are few, but the differences between the management of consumption and contamination are numerous.

Consumption can be measured with incredible accuracy by regulators and extractors, but the degree of contamination by contrast is not easily ascertained. Thus imposing targets in relation to them with any certainty as to effectiveness is extremely difficult. In relation to fracking in particular, the fluid mixture utilised to expose and expand fractures varies by operator, and even between wells. Thus measuring the level of contamination from them is fraught with difficulty.

Similarly the volume of seepage from tar sands tailings ponds would vary by pond, as would the concentration and composition thereof. Indeed the impacts of contamination vary wildly in response to innumerable factors making all-encompassing regulation nigh on impossible. To take just the tailings ponds themselves, the size, location, rainfall, and construction of a single pond, as well as their contents, might alter said seepage and any impacts of the material upon the surrounding ecosystem. Similar issues arise owing to the variance in location of wells and fluid used by companies fracking natural gas. Regulating the level of contamination in such instances is therefore liable to being plagued by inefficacy.

The second distinction between consumption and contamination impacts is in the development of the adverse consequences which result. In the case of contamination attribution to a particular extractor is not as easily achieved, and has been conceded in Canada by regulators. As well as the variance in physical factors outlined above, the duration of development to quantifiable and assessable levels is also unpredictable and subject to innumerable influences. Thus pinning down exactly which company caused contamination and when is challenging to say the least. A note should be made that in the USA fracking companies can gain intellectual property rights over there fracking fluid mixtures. As a result attributing contamination to them might be easier, this practice is not however prevalent in the UK.

The uptake into ecosystems of the various components of tailings can take much greater periods of time to take effect or become identifiable when compared to those resulting from water extraction from rivers. Numerous reasons for this can be cited, for example, the migratory nature of large mammals such as caribou prevent harmful substances within a food chain accumulating as rapidly as they otherwise might. The relatively small number of humans eating native animals from the regions affected would also make impacts unlikely to be identified swiftly.

Similarly in the context of fracking (and indeed the tar sand dependent upon the extraction method used) the long term impacts of injecting fluid into the ground, or leaks from some well heads seeping into the water table, are unknown at present and not attributable directly to extraction processes owing to a similar temporal disconnect. Indeed in many cases the original source of contamination will have abated or become less severe before the true extent of damage incurred is realised.

The difficulty in identifying and attributing the impacts of contamination caused by such projects, ensures that measures to regulate the industries involved are based upon precaution. The precautionary principle is a mainstay of environmental protection and enshrines a number of basic elements.

– Any damage reasonably perceived as potentially arising from an action should be mitigated to the greatest degree possible.
– Potential damage be balanced with benefit gained
– The burden of proof in suggesting an action is not harmful or that an action should proceed in spite of the risks lies with the actor.

The principle does not require all risks to be considered, or that a project cease due to any potential damage. Although the burden lies with the actor to prove that the action is harmless or relatively undamaging, if no significant damage can be shown to occur rarely are permits declined. Certainly this has been the case for the tar sands and fracking industries. The burden of proof of risk simply has not been breached. Herein lies a considerable challenge facing the regulation of extreme energy, and where the distinction between consumption and contamination impacts is most stark. The unknown nature of the impacts of contamination, in terms of form and extent severely inhibit regulation in effectively mitigating or eliminating damage.

Contamination impacts, once mitigated to a degree necessitated by the nature of a by-product are of negligible cost to the extractor unless they can be attributed incontrovertibly to them. Thus in the form of tailings regulation at present focuses on the relative safety of their storage once produced and not on imposing any liability for their seepage into the surrounding ecosystem. Only once attributed to a firm or practice may contamination potentially give rise to a basis for legal action against either the licensing authority or extractor. The difficulties of attribution, and the temporal disconnect between extraction and impact common in many such industries, reduce the likelihood of success of litigation. This reality is concerning given that from an ecological perspective such impacts are arguably the greatest concern.

Contamination impacts beyond storage or disposal of by-products cost the industry relatively little unless adverse effects are proven and attributed. Research into improving the reclamation of the tailings ponds is on-going, and is subject to cumulative efforts by extractors; however the licensing and leasing processes do not stipulate requirements in this regard beyond a broad, non-committal suggestion to return the land to an equivalent capacity. Thus the financial incentive to reduce contamination is also far less. Given that this is one of the most potent methods to ensure compliance or action on the part of private commercial actors its lack of utility in this regard heaps greater concern on the ability to effectively regulate such impacts.

The challenge is in accepting that the use of increasingly extreme methods to obtain oil and gas resources is inevitable in some degree, indeed some vociferous opponents have begun to do so. The fracking and tar sands industries will not cease their operations by choice or regulation in the foreseeable future. After this realisation however, those concerned with the impacts of such industries must choose their battles carefully.

Whether regulation could emulate or mimic economic incentives is questionable, but activists, regulators and lawyers alike should focus their attentions upon contamination. The unknown nature of both cause and effect of impacts which stem from contamination make them a far more pressing concern than those which are subject already to both consequential and concerted efforts to be reduced, namely consumption impacts. This is exacerbated by the fact that the extent of impacts as discussed can be assessed in relation to consumption impacts, but not in relation to those arising from contamination.

As such in efforts to restrict the inevitable exploitation of sources of extreme energy, the focus should be on that for which precaution cannot be exercised, and there is negligible existing incentive to reduce. We cannot change the continuation of such projects in the short term and their ever-decreasing consumption of resources, but we should have the courage to change that which we can, contamination, and have the wisdom to know the differences.


***The unabridged version of this piece (both parts) is hosted by the Extreme Energy Project***

John Pearson (@johnrpearson) is an Associate Lecturer at Lancaster University and Part-Time Lecturer and Bangor University in North Wales. He researches in human rights law and environmental law at international, regional and domestic levels. He has written on the use of human rights to protect environmental features of particular cultural significance and this is the focus of his doctoral thesis and research with a particular focus on the tar sands of Alberta, Canada and on regulatory reactions to the use of extreme sources of energy.

You can find out more about John’s research at


2 thoughts on “Accepting the Things We Cannot Change: Part 2 Contamination Concerns

  1. Pingback: Accepting the Things We Cannot Change: Part 2 Contamination Concerns | The LAW

  2. Pingback: Accepting the Things We Cannot Change: Part 2 Contamination Concerns | LAW

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