from the what-the-frack? dept
Most companies have a natural tendency to keep details of their activities secret — the fear being that competitors might be able to exploit for commercial advantage the information that they obtain. But it may be in the public interest for some details to be released, even if this might prove inconvenient for the company concerned. That’s the background to a letter sent by ten law professors, including Larry Lessig, to the Alaska Oil & Gas Conservation Commission, pointed out to us by infojustice.org.
The letter (pdf) concerns proposed new regulations for hydraulic fracturing (fracking). As the academics point out, whatever your views on this form of energy extraction, there are important general principles at stake here:
We, the undersigned law professors who teach and write about intellectual property and trade secrets, write in support of the Alaska Oil and Gas Conservation Commission (AOGCC) proposed hydraulic fracturing regulations that would provide for the disclosure of information that might in other contexts be deemed trade secrets that cannot be disclosed to the public, under proposed regulation 20 ACC 25.283(h).
While businesses engaged in hydraulic fracturing may have legitimate trade secrets, the public’s interest in assuring that hydraulic fracturing is managed in a manner that addresses all significant risks may legitimately outweigh commercial concerns. 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.
Put simply, some trade secrets must give way when broader public interests are at issue.
The letter offer three reasons why they support the new regulations calling for disclosure of information that might otherwise be regarded as confidential.
First, it is a basic principle in a democracy that the public shall conduct informed debate and discussion of public matters.
Without the facts, it’s not possible to have a meaningful debate about important issues, which undermines the entire premise of democratic decision making.
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.
Without detailed information about chemicals that are being used it is hard, if not impossible, to deal with any problems they cause. The letter quotes the following disturbing example:
in 2009, Cathy Behr, a nurse in Colorado, fell seriously ill after treating a worker who had been injured in a chemical spill. Her doctors diagnosed chemical poisoning, but the manufacturer of the product she was exposed to would not disclose its full ingredients, because it considered them proprietary. Ms. Behr has partially recovered, but she continues to have respiratory problems.
That certainly seems a pretty extraordinary state of affairs — that someone should be unable to find out what she was exposed to in the course of her work, purely because a company deems it confidential information, and she is thus forced to live with the uncertainty of what the long-term consequences might be.
Third, trade secrecy law should not be used as a means to impede public access to EHS [environmental, health and safety] information.
That’s because trade secrecy law is purely about keeping secrets from competitors: it is not about limiting access for other reasons, notably those of public health and safety. As the letter points out:
Trade secret law does not and should not exempt a firm from participation in the larger legal system, including warning and harm prevention.
In a sense, trade secrecy law only applies insofar it does not conflict with broader principles of law, such as the preservation of public health or the environment. The present case involving fracking usefully highlights that contrast, but it is always present, even in less contentious areas.