Dirty Little Secrets: Fracking Fluids, Dubious Trade Secrets, Confidential Contamination, and The Public Health Information Vacuum
Elliot Fink*
Note

The full text of this Note may be found here.

29 Fordham Intell. Prop. Media &Ent. L.J. 971 (2019).

Note by Elliot Fink

ABSTRACT

[W]

hile the carbon energy industry has frequently claimed that hydraulic fracturing processes and ingredients are proprietary and protected by trade secret laws, their large scale and volume nationwide and the well-documented dangers that they pose to public health have brought fracking under scrutiny. When individuals have been adversely impacted in their own backyards, weak federal and state laws and regulation have generally left these impacted citizens with little to no recourse and part of this problem stems from questionable uses of privacy law, specifically dubious claims of trade secrecy. Focusing specifically on Pennsylvania as a model of insufficient state regulation and Halliburton as an example of a fracking company that has utilized privacy laws and principles at the expense of public health, this Note examines two possible solutions to place future limits on fracking trade secret/confidentiality agreement abuses. One possibility is for all states that permit fracking to follow in Montana’s recent footsteps and adopt a similarly robust state disclosure law that meaningfully requires substantiating trade secret status. Ultimately, however, the Montana regime is not proactive or beneficial enough to meaningfully protect public health; therefore, the best solution is to incorporate the “precautionary principle”—a pre-protection guarantee that the trade secret is safe, as is currently used in Europe—into the definition of trade secrets under federal and state law.

*J.D. Candidate, Fordham University School of Law. I thank Professor Ron Lazebnik for his help with research, encouragement, structure, and anything else that it took to get this Note done. Thank you also to Sean Corrado and every member of the IPLJ team for their guidance, support, and hugely impactful assistance. Most importantly, thank you to my family including my fiancé Lindsay, my mother Ellen, my father Stuart, and my brothers Joel and David for their unflinching love and support.