Law professors challenge secrecy in fracking

Publication Type: 
Other Writing
Publication Date: 
April 2, 2013

For Immediate Release ­ April 2, 2013 Media Contact: Philip Craft, Elon University School of Law (336) 279-9333 /

Ten law professors with expertise in intellectual property and trade secrecy wrote to the Alaska Oil & Gas Conservation Commission (AOGCC) on April 1 in support of the Commission¹s groundbreaking proposed hydraulic fracturing (fracking) regulations that would require corporations to disclose trade secret information, like chemical ingredients, used in fracking activity in Alaska.

The authors, while taking no position on whether fracking should occur in Alaska, noted that there is a debate around the environmental, health and safety (EHS) impacts, if any, of fracking.

³To 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,² the letter states. ³Put simply, some trade secrets must give way when broader public interests are at issue.²

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:

³First, it is a basic principle in a democracy that the public shall conduct informed debate and discussion of public matters.²

³Second, 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.²

³Third, trade secrecy law should not be used as a means to impede public access to EHS information.²

In sum, ³access 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.²

The complete letter is available here:

Authored by David S. Levine, associate professor of law at Elon University School of Law, and Mary L. Lyndon, professor of law at St. John¹s University School of Law, the letter is also signed by the following law scholars: Thomas Field, University of New Hampshire School of Law; Eric Fink, Elon University School of Law; Shubha Ghosh, University of Wisconsin School of Law; Lawrence Lessig, Harvard Law School; Lydia Pallas Loren, Lewis & Clark Law School; Frank Pasquale, Seton Hall Law School; Michael L. Rustad, Suffolk University Law School; and, Ted Sichelman, University of San Diego School of Law.

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