Hydraulic Fracturing Fluid Disclosure: Do We Have a Right to Know?

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Kölner Schrift zum Wirtschaftsrecht


This article looks at growing public concern over hydraulic fracturing as a means to extract natural gas from shale deposits deep beneath the earth’s surface, and the laws – or lack thereof – requiring that energy companies who utilize hydraulic fracturing disclose chemicals that are used during the process. The most significant concern that has caught media attention is that if these chemicals (some of them toxic) infiltrate the water table, they could contaminate drinking water. As such, the public is very interested to know exactly the type and amount of chemicals being used. Currently there is no federal law requiring disclosure, so it is left to the states to determine whether, and to what extent, they require disclosure. Even in the very few states that require disclosure, energy companies are asserting that the information is privileged as a trade secret and therefore is protected from disclosure to the public. This assertion appears to be without much merit, as it is hard to imagine that someone could replicate the "secret formula" by merely knowing the ingredients. Such an assertion is akin to claiming that one could recreate Coke’s special recipe simply by reading the back of the can of soda. Nevertheless, the future of public disclosure of the contents of fracturing fluid is uncertain and will be unfolding over the next few years – especially given that the Environmental Protection Agency has thrown its hat into the ring and is now at least planning to study the possible implications of hydraulic fracturing and its impact on drinking water, and the controversial "FRAC Act" is back in Congress this session.

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