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Columbia Law Review Sidebar

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Colum. L. Rev. Sidebar



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In the United States, Congress has traditionally relied, in part, upon citizen participation to control industrial activity and its effects on public welfare. It has also required industry to disclose certain information to the public in order to enable this participation. Early on in the movement toward expanded federal regulation of industry, Congress granted broad standing to individuals in generous “private attorney general” provisions in environmental and business-related statutes. It also required agencies to follow strict notice-and-comment rulemaking procedures, which directed agencies to publicize proposed rules and receive citizen comments. Through statutes such as the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Safe Drinking Water Act (SDWA), Congress further mandated that industry publish information about releases of toxic materials and that public water providers disclose violations of water quality standards. These statutes all envisioned that informed citizens would influence industrial activity through open public venues. But a recent revolution in energy development – inspired by a new technique to extract natural gas from shale – called slickwater hydraulic fracturing (fracing) – does not fall squarely within traditional venues for public disclosure and participation. In September 2010, the Environmental Protection Agency (EPA) took one step toward the “publicization” of fracing when it sent a letter to nine natural gas companies, requiring that they disclose to the agency the chemicals used in fracing in order to support a comprehensive EPA study of the potential drinking water quality and public health impacts of fracing. Although this administrative action appears to open a door to public access to information veiled by trade secrets, it is not currently clear that natural gas companies will promptly disclose the requested information – as shown by Halliburton’s refusal to disclose information in response to the letter and a subsequent subpoena issued by EPA – or that the information will be publicly available. Unless Congress or state legislatures partially remove trade secret protections from fracing fluids, communities experiencing the brunt of the energy boom may have inadequate tools to evaluate and address the potential impacts of this development.


© 2011 Hannah J. Wiseman


First published in Columbia Law Review Sidebar.

Faculty Biography