Law professors challenge secrecy in fracking

  Elon Law professor David Levine is the coauthor of a law scholars letter to the Alaska Oil & Gas Conservation Commission (AOGCC) that supports the Commission’s groundbreaking proposed hydraulic fracturing (fracking) regulations to require corporations to disclose trade secret information, like chemical ingredients, used in fracking activity in Alaska.  

Signed by ten law professors with expertise in intellectual property and trade secrecy, the letter expresses no position on whether fracking should occur in Alaska, but notes that there is a debate around the environmental, health and safety (EHS) impacts, if any, of fracking.

“To impede debate and discussion of the use of public natural resources in the name of commercial secrecy is to put commercial interests above the prior and more general interest in careful stewardship of the environment,” the letter states. “Put simply, some trade secrets must give way when broader public interests are at issue.” 

The letter develops three arguments in support of the position that trade secrecy claims should not impede access to information critical to consideration of important public concerns:

“First, it is a basic principle in a democracy that the public shall conduct informed debate and discussion of public matters.”

“Second, effective environmental management requires broad disclosure of specific data that describes any discharges into the environment — including chemical identity, volume and locations of each chemical discharged – and data on health and ecological effects.”

“Third, trade secrecy law should not be used as a means to impede public access to EHS information.”

In sum, “access to EHS information creates enormous public benefits while secrecy impedes efficiency by delaying accountability and response and obscuring risks that become more costly with time.”

The complete letter is available here

Authored by , associate professor of law at Elon University School of Law, and , professor of law at St. John’s University School of Law, the letter is also signed by the following law scholars: , University of New Hampshire School of Law; , Elon University School of Law; , University of Wisconsin School of Law; , Harvard Law School; , Lewis & Clark Law School; , Seton Hall Law School; , Suffolk University Law School; and, , University of San Diego School of Law.

The AOGCC will hold a hearing on these issues on Thursday, April 4. 

UPDATE: An April 4 EnergyWire article, titled, “Public interest trumps trade secrets — law professors,” says that in the context of fracking this letter is, “the first significant weigh-in on trade secrecy from a group of experts in the legal field.” Levine is quoted in the article saying, “I’d be much more comfortable knowing that the AOGCC has access to all the information that it needs. In order for regulators to do their job, they need access to not just general information, but specific information.”

The action by law professors is also noted by here.