Fordham Law student Elliot Fink ’20 wrote an op-ed for Environmental Health News on the findings from his recent paper published in the Fordham Intellectual Property, Media and Entertainment Law Journal titled, Dirty Little Secrets: Fracking Fluids, Dubious Trade Secrets, Confidential Contamination, and The Public Health Information Vacuum.
My study examined two viable solutions to repair trade secret law and fix this issue of fracking fluid chemical disclosure. The first is a new law adopted by Montana in 2017 which required the state’s Board of Oil and Gas Conservation (BOGC) to substantiate each trade secret claimed by fracking companies. Even though these companies frequently claim trade secrecy, only a few states, such as Montana, require the industry to explain why their chemicals qualify.
This first solution is interesting, because my investigation suggests that a sampling of chemicals utilized by Halliburton (the world’s largest fracking operator) may not be legitimate trade secrets, while some of them, in particular their CleanSuite™ line of environmentally-friendly chemicals, are not only genuine trade secrets, but also have social benefits and value.
However, my investigation determined that CleanSuite™ has not been used frequently. Another downside of Montana’s approach is that it does not incentivize safer fracking practices. Montana BOGC Administrator Jim Halvorson even warned that due to the new robust trade secret law, fracking companies would simply use more hazardous non-secret chemicals to accomplish their frack operations now.
Therefore, my second solution is amending the U.S. and each state’s definition of trade secret to add a provision that ‘it does not endanger public health.’