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Spilling Secrets: Trade Secret Disclosure and Takings in Offshore Drilling Regulation

40 Pages Posted: 11 Apr 2011 Last revised: 5 Jun 2011

Michael A. Greene

WilmerHale

Date Written: March 15, 2011

Abstract

This Article analyzes whether the mandatory public disclosure of deepwater drilling trade secret information relating to health, safety, and the environment violates the Takings Clause. This issue represents a remarkable intersection of intellectual property, constitutional, land use, environmental, and property law. Industry nondisclosure of proprietary drilling information has been a key contributor to increased risks associated with drilling in both the Gulf of Mexico and Alaska. Yet the Supreme Court in its seminal decision in Ruckelshaus v. Monsanto Co. held that trade secrets and confidential business information constitute property protected under the Takings Clause of the U.S. Constitution. First, this Article evaluates mandatory public disclosure under the regulatory takings doctrine in light of the Court’s decision in Monsanto and subsequent case law. Second, because an ocean floor leaseholder’s application for a drilling and exploration permit implicates land use, this Article analyzes mandatory public disclosure of proprietary information under the Nollan and Dolan exactions doctrine. Through regulation carefully tailored to certain constraints, as explicated in this Article, the government may indeed compel public disclosure of trade secrets without violating the Constitution.

Keywords: takings, trade secrets, disclosure, confidential information, oil drilling, deepwater, deepwater horizon

Suggested Citation

Greene, Michael A., Spilling Secrets: Trade Secret Disclosure and Takings in Offshore Drilling Regulation (March 15, 2011). Richmond Journal of Law & Technology, Vol. 17, No. 15, 2011. Available at SSRN: https://ssrn.com/abstract=1805861

Michael A. Greene (Contact Author)

WilmerHale ( email )

60 State Street
Boston, MA 02109
United States

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