Fracking, Trade Secrets, and the First Amendment

So here is a curious provision of Pennsylvania law, buried in the recently-enacted Act 13, a comprehensive revision of Pennsylvania’s oil and gas law (enacted to deal with the rush to exploit the gas reserves in the Marcellus Shale):  58 Pa. C.S. §3222.1(b)(10) and (b)(11), titled “Hydraulic fracturing chemical disclosure requirements,” regarding hydraulic fracturing of unconventional wells performed on or after the date of the Act, which says:

(10) A vendor, service company or operator shall identify the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information to any health professional who requests the information in writing if the health professional executes a confidentiality agreement and provides a written statement of need for the information indicating all of the following:
(i) The information is needed for the purpose of diagnosis or treatment of an individual.
(ii) The individual being diagnosed or treated may have been exposed to a hazardous chemical.
(iii) Knowledge of information will assist in the diagnosis or treatment of an individual.

(11) If a health professional determines that a medical emergency exists and the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information are necessary for emergency treatment, the vendor, service provider or operator shall 20 immediately disclose the information to the health professional upon a verbal acknowledgment by the health professional that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain the information as confidential. The vendor, service provider or operator may request, and the health professional shall provide upon request, a written statement of need and a confidentiality agreement from the health professional as soon as circumstances permit, in conformance with regulations promulgated under this chapter. Under these two sections of Act 13, upon request from a health professional, information regarding any chemicals related to hydraulic fracturing of unconventional wells shall be provided by the vendor.

I’m not sure I can recall seeing anything quite like it.  It appears to compel the gas companies to disclose information to health professionals in certain circumstances — but only upon receipt of an executed “confidentiality agreement” (or, in an emergency, the oral promise that the information will be held confidential and “may not be used for purposes other than the health needs asserted”).  I’d be curious to know whether this was inserted into the bill as a result of healthcare lobbying, or oil and gas lobbying.  My guess is the latter — that the oil and gas folks are hoping this provides them some cover via the implied negative in the bill (that they don’t have to give out the information except in the specified circumstances.

A telephone rings.

Voice 1:  “Hello.  Rapacious Gas Company, Inc. – may I help you?”

Voice 2:  “Yes.  I’m Dr. Jones, from Smallville PA.  I have patients with very curious symptoms resembling blood poisoning of some kind.  I need to know what you’ve been using that may have seeped into the water supply.”

Voice 1:  “Yes, of course, we’re happy to help.  If you sign this confidentiality agreement I can fax to you, we’ll tell you.”

Voice 2:  “I don’t want to sign such an agreement.  What if I need to disclose the information to the Centers for Disease Control?  Or in a published paper about the effects of chemicals X, Y, and Z on blood plasma protein levels?  Or to the newspapers, to alert them to a serious public health emergency?  A confidentiality agreement compromises my professional duties, and I won’t sign.”

Voice 1:  “I’m sorry, sir – but we’re only required to divulge those trade secrets if you keep them confidential.  Good luck, and have a nice day.”

The Commonwealth Court of PA just declared a number of the provisions of Act 13 unconstitutional — though not this one; a First Amendment challenge brought by an Allegheny County doctor was dismissed on the ground that he lacked standing (because he had not yet attempted to get any information on behalf of any patients from one of the gas companies).

It’s a tricky First Amendment claim on the merits, I think.  On its face, the Act doesn’t prohibit anyone from speaking — indeed, it compels disclosure of certain information in certain circumstances.  A challenge would have to be based on that implied negative that — that it is unconstitutional to allow doctors to get access to this information only if they agree to keep it confidential.

But putting aside the First Amendment – what’s appalling about this is that Pennsylvania allows these companies to keep this information confidential (and will protect the information as a trade secret) in the first place.  I have an idea:  how about telling oil and gas companies that PA trade secret law won’t protect this information, and that before they begin operations in the State they have to tell everyone what they’re doing underground?  And that if that compromises their ability to do their business, they can go elsewhere?  What’s wrong with that?

[Thanks to John Schwab for the pointer]



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